United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2012 Decided July 13, 2012

No. 10-5354

CARLOS MARINO,

APPELLANT

v.

DRUG ENFORCEMENT ADMINISTRATION, AS A COMPONENT OF 

THE DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cv-01255)

P. Sebastian Ruiz, Student Counsel, argued the cause as 

amicus curiae in support of appellant. With him on the briefs 

were Steven H. Goldblatt, appointed by the court, Doug Keller

and Nilam A. Sanghvi, Supervisory Attorneys, and Zach Perez, 

Student Counsel.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause 

for appellee. With her on the brief were Ronald C. Machen Jr., 

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH, 

Circuit Judges.
2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: The district court entered summary 

judgment against Carlos Marino on his claim brought under the 

Freedom of Information Act. Before us is Marino’s appeal of the 

district court’s denial of his motion to reconsider that decision. 

For the reasons set forth below, we reverse and remand for the 

district court to take up again Marino’s motion.

I

Carlos Marino is currently incarcerated for a 1997 

conviction for drug conspiracy. In 2004, he submitted a request

to the Drug Enforcement Administration (DEA) under the 

Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking all 

documents indexed under number 3049901 of the DEA’s 

Narcotics and Dangerous Drug Information System (NADDIS) 

that were “already public information or [were] required to be 

made public” in two criminal trials from 1997 and 1998. Letter 

from Carlos Marino to FOIA Operations Unit, Drug 

Enforcement Admin. (May 4, 2004). Marino alleges in these 

proceedings that NADDIS No. 3049901 belongs to Jose Everth 

Lopez, a co-conspirator who testified against him at trial. 

Marino suspects the prosecution engaged in various forms of 

misconduct during trial, especially in its dealings with Lopez.

The DEA denied Marino’s FOIA request, issuing a Glomar

response

1

 1 A Glomar response is “an exception to the general rule that 

agencies must acknowledge the existence of information responsive to 

a FOIA request and provide specific, non-conclusory justifications for 

withholding that information.” Roth v. U.S. Dep’t of Justice, 642 F.3d 

1161, 1178 (D.C. Cir. 2011). Agencies may invoke a Glomar response

“only when confirming or denying the existence of records would itself 

“neither confirm[ing] nor den[ying] the existence of 
3

any requested records.” Letter from Katherine E. Myrick, Chief, 

Operations Unit of FOI/Records Mgmt. Section, Drug 

Enforcement Admin., to Carlos Marino (Aug. 13, 2004). 

Invoking FOIA exemption 7(C), which allows an agency to 

withhold “information compiled for law enforcement purposes” 

if disclosure “could reasonably be expected to constitute an 

unwarranted invasion of personal privacy,” 5 U.S.C. 

§ 552(b)(7)(C), the DEA stated that “to confirm the existence of 

law enforcement records or information about another person is 

considered an unwarranted invasion of personal privacy.” Letter 

from Katherine E. Myrick to Carlos Marino, supra.

After an unsuccessful administrative appeal, Marino filed a 

complaint in the district court that rested on two theories. First, 

he maintained that most of the information he sought had 

already been disclosed publicly and must therefore be released 

under FOIA’s “public domain” exception. Second, he claimed 

that the public interest in revealing the government misconduct 

he alleged outweighed the personal privacy interests the DEA 

had interposed. The DEA moved for summary judgment, relying 

again on exemption 7(C). Despite asking for and receiving three 

extensions of time to respond, Marino’s counsel never did. Two

months after the final extended deadline, the district court

 

‘cause harm cognizable under an FOIA exception.’” Id. (quoting Wolf 

v. Cent. Intelligence Agency, 473 F.3d 370, 374 (D.C. Cir. 2007)); see 

also Moore v. Bush, 601 F. Supp. 2d 6, 14 n.6 (D.D.C. 2009) (“The 

‘Glomar’ response is named after the ship involved in Phillipi v. Cent. 

Intelligence Agency, 546 F.2d 1009, 1011 (D.C. Cir. 1976). In that 

case, the FOIA requester sought information regarding a ship named 

the ‘Hughes Glomar Explorer,’ and the CIA refused to confirm or deny 

whether it had any relationship with the vessel because to do so would 

compromise national security or would divulge intelligence sources 

and methods.”). 
4

concluded that Marino had effectively conceded the arguments 

in the DEA motion and granted summary judgment against him.

Soon after, Marino’s attorney filed a motion for 

reconsideration. He asked that the court not charge Marino with 

his mistake, which he attributed to losing the draft response in 

his office and the difficulty of communicating with an 

imprisoned client. The motion remained pending for over two 

years before Marino — this time proceeding pro se — filed a 

motion for relief from judgment pursuant to Rule 60(b) of the 

Federal Rules of Civil Procedure. Marino offered a number of 

reasons he thought the court should revisit its decision. As 

relevant to this appeal, he blamed the failure to file a response 

on his “grossly negligent” attorney. The district court denied the 

motion for reconsideration and the Rule 60(b) motion in the 

same decision, concluding that granting either of them would be 

futile because Marino lacked a sufficient defense to the DEA’s 

summary judgment motion. Marino v. Drug Enforcement 

Admin., 729 F. Supp. 2d 237 (D.D.C. 2010). Marino filed a 

timely notice of appeal, and we appointed amicus curiae to argue 

on his behalf. Through amicus, Marino challenges the district 

court decision only to the extent it addresses his argument under 

Rule 60(b)(6). We have jurisdiction to consider this appeal 

under 28 U.S.C. § 1291. 

II

Federal Rules of Civil Procedure Rule 60(b)(6) grants a 

district court discretion to “relieve a party . . . from a final

judgment” for “any other reason that justifies relief.” This catchall provision has been interpreted to apply when a party 

demonstrates “extraordinary circumstances,” see Pioneer Inv. 

Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 393 (1993)

(internal quotation marks omitted), which can include gross 
5

attorney negligence, see Jackson v. Wash. Monthly Co., 569 F.2d 

119, 122 (D.C. Cir. 1978). A party seeking relief must also meet 

a threshold timeliness requirement, FED.R.CIV. P. 60(c)(1), and 

show that it has “a meritorious claim or defense to the motion 

upon which the district court dismissed the complaint,” Murray 

v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995) 

(quoting Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d 1310, 

1314 (D.C. Cir. 1986)) (internal quotation mark omitted). 

Although we review a district court’s denial of a Rule 60(b) 

motion for abuse of discretion, Computer Prof’ls for Soc. 

Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 

1996), we must consider underlying legal issues de novo, see

Davis v. Dep’t of Justice, 460 F.3d 92, 97 (D.C. Cir. 2006). If 

the district court’s decision to deny relief under Rule 60(b) was

“rooted in an error of law,” we must remand for the court to 

consider anew whether to exercise its discretion under the 

correct legal standard. See Computer Prof’ls for Soc. 

Responsibility, 72 F.3d at 903 (quoting Twelve John Does v. 

District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)).

The district court denied Marino’s motion based solely on 

its determination that he failed to assert a meritorious defense to 

the arguments the DEA raised at summary judgment. Marino, 

729 F. Supp. 2d at 245. The limited scope of the district court 

decision defines both the narrow issue before us and the modest 

relief sought. We have no occasion to judge whether Marino 

meets Rule 60(b)(6)’s other prerequisites for relief, or if he has

whether the district court would nonetheless be within its 

discretion to deny the motion. We conclude only that Marino has 

raised a meritorious defense, which entitles him to have the 

district court look again at his motion, but not necessarily to 

grant it.
6

To clear the “meritorious defense” hurdle, Marino need only

provide “reason to believe that vacating the judgment will not be 

an empty exercise or a futile gesture.” Murray, 52 F.3d at 355. 

This is not a high bar. A meritorious defense is not measured by

“[l]ikelihood of success,” but by whether it “contain[s] ‘even a 

hint of a suggestion’ which, proven at trial, would constitute a 

complete defense.” Keegel v. Key West & Caribbean Trading 

Co., 627 F.2d 372, 374 (D.C. Cir. 1980) (quoting Moldwood 

Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir. 1969)). Because a 

genuine dispute over material facts defeats a motion for 

summary judgment, see FED. R. CIV. P. 56(a); Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986), Marino can show a

“meritorious defense” with only a hint of a suggestion that key 

facts in the record aren’t yet entirely clear.

Central to Marino’s case is his allegation that the 

information he seeks has already been publicly disclosed. And 

the facts about that, he asserts, are in dispute. Under FOIA’s

“public domain” exception, an agency may not rely on an 

“otherwise valid [FOIA] exemption to justify withholding 

information that is already in the ‘public domain.’” Students 

Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 

2001); see also Niagara Mohawk Power Corp. v. U.S. Dep’t of 

Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (explaining the 

exception’s rationale that once information has become public, 

any damage the agency fears from disclosure has already been 

done). Marino attached to his complaint over 500 pages of 

exhibits and claimed that there is evidence among them to show 

that the information he seeks has already been publicly 

disclosed. The district court rejected that argument in its order 

denying the Rule 60(b) motion, concluding that Marino “fail[ed] 

to meet his burden of identifying the specific information he 

seeks that exists in the public domain” because his complaint 

consisted chiefly of “lists of witnesses and evidence introduced 
7

at a third party’s criminal trial” without specifying which 

witnesses or evidence “related to the investigative records of E. 

Lopez.” Marino, 729 F. Supp. 2d at 244-45. 

Yet in the context of a Glomar response, the public domain 

exception is triggered when “the prior disclosure establishes the 

existence (or not) of records responsive to the FOIA request,” 

regardless whether the contents of the records have been 

disclosed. Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 379 

(D.C. Cir. 2007). Marino’s complaint alleged not only that some

of the contents of Lopez’s file had been released, but more 

particularly that the DEA had revealed publicly the link between 

Lopez and NADDIS No. 3049901. The exhibits attached to his 

complaint, which Marino used as support for his Rule 60(b) 

motion, support this theory as well. Amicus has identified one

set of public documents included among these exhibits and 

another set referred to in them that amicus claims show that

link.2

 2 We do not fault the district court’s failure to address these 

documents, which were buried amid the rubble of over 500 pages of 

documents Marino attached to his complaint. It did not have the benefit 

of amicus’s careful digging and helpful briefing. Marino’s pro se Rule 

60(b) motion is not a model of clarity and refers to his complaint and 

extensive attachments in their entirety without highlighting specific 

documents. It also focuses primarily on the broader issue whether 

Marino is entitled to any of the documents within the NADDIS file 

instead of on the preliminary question whether he is entitled to 

acknowledgement that the file exists. Nevertheless, the complaint 

raises sufficient allegations relating to the propriety of the DEA’s 

Glomar response and existence of documents supporting Marino’s 

theory of the case to put to rest any concern that Marino raises a new 

argument on appeal. See, e.g., Compl. ¶¶ 49 (alleging that Lopez is 

linked to NADDIS No. 3049901), 54-56 (alleging that records from 

the drug conspiracy investigation and trials reference NADDIS No. 

3049901).
8

The first set of documents includes copies of three DEA 

reports that link NADDIS No. 3049901 to Lopez. The reports 

appear to be stamped as government exhibits in a case with the 

same docket number as the trial of one of Marino’s coconspirators, Pastor Parafan-Homen, that took place in the 

Eastern District of New York in 1998. Although these 

unauthenticated documents cannot prove that the identity of the 

person to whom NADDIS No. 3049901 was assigned is already 

in the public domain, they at least establish a dispute over this 

material fact. Showing a meritorious defense under Rule 

60(b)(6) requires nothing more. 

The second set of documents is only mentioned in a motion 

Marino filed in his habeas case that he included among the 

exhibits attached to his complaint in this one. The motion refers 

to a government motion and a DEA report allegedly filed in the 

same habeas case that both report Lopez as the subject of 

NADDIS No. 3049901. If such documents exist as described 

and are part of a public court record, they would be enough for 

the requisite “hint of a suggestion” that Marino could prove at 

trial the specific information he seeks has already been 

disclosed. See Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 

1279-80 (D.C. Cir. 1992) (holding that the public domain 

exception applies to specific materials previously revealed in 

open court). Although Marino would presumably need to 

produce the actual documents at trial, at this juncture we require 

much less.

3

 3 The DEA objects that Marino should not be allowed to use a 

document his own attorney prepared as evidence of a meritorious 

defense. Yet although assertions by counsel are not evidence, see, e.g., 

Wood ex rel. United States v. Am. Inst. in Taiwan, 286 F.3d 526, 535 

(D.C. Cir. 2002); Brown v. Immigration & Naturalization Serv., 775 

F.2d 383, 388 (D.C. Cir. 1985), Marino relies on his motion — from a 

separate case — only for the limited purpose of suggesting the 
9

The DEA argues that these documents would not give 

Marino a meritorious defense even if he could show they 

connected Lopez to NADDIS No. 3049901. Under the DEA’s 

theory, from which counsel seemed to back away at oral 

argument, see Oral Arg. Recording at 21:45-22:24, its Glomar

response would still be valid because a U.S. Attorney released 

the documents, not the DEA. But the cases the DEA cites in 

which we have allowed Glomarresponses to stand despite prior 

public disclosure implicated a concern not present here: forcing 

one agency to adopt another’s official disclosure of information 

common to both. Cf. Frugone v. Cent. Intelligence Agency, 169 

F.3d 772, 774-75 (D.C. Cir. 1999) (protecting the CIA’s right to 

make a Glomar response despite official disclosure of the same 

information by the Office of Personnel Management). This 

rationale explains why an agency does not waive its right to 

invoke an otherwise valid FOIA exemption when “someone 

other than the agency from which the information is being 

sought” discloses it. Id. at 774. Even so, a federal prosecutor’s 

decision to release information at trial is enough to trigger the 

public domain exception where the FOIA request is directed to 

another component within the Department of Justice. See Davis, 

968 F.2d at 1279-82 (holding that the FBI — likewise part of 

DOJ — could not withhold the specific portions of recordings 

that the plaintiff showed were played in federal court).

The DEA also objects that Marino’s theory of the case is no 

defense because public information showing the existence of an 

investigatory file in Lopez’s name does not vitiate its right under 

FOIA exemption 7(C) to withhold the contents of that file. But 

this concern is misplaced. The DEA did not rely upon 7(C) to

withhold some or all of the contents of the file but to avoid

 

existence of other, government-produced documents that provide the 

real support for his claim.
10

confirming its existence. The only information the DEA has 

claimed a legal basis to withhold is whether NADDIS No. 

3049901 exists and belongs to Lopez, and Marino has raised a 

plausible suggestion that this information has already been 

disclosed. Even if later in litigation the DEA showed legitimate 

grounds to withhold every document in NADDIS file No. 

3049901, Marino has raised a meritorious defense that the 

DEA’s justification for refusing even to confirm the file’s 

existence has been undermined by prior public disclosure. 

Finally, we reject the argument that the case is moot 

because Marino has already received all the relief to which he is 

entitled. The DEA contends that Marino’s claim seeks no more 

than confirmation of the existence of a file — information he 

has already by virtue of the alleged disclosure. Yet the DEA

once again conflates the ultimate merits of Marino’s FOIA 

claim, which is not before us, with the limited question that is: 

whether the DEA’s Glomarresponse was appropriate. If Marino 

were to prevail on the Glomarissue, the DEA would be required 

to confirm that responsive records exist, then either release them 

or establish that they are exempt from disclosure. Cf. Wolf, 473 

F.3d at 380 (“To determine whether the contents — as 

distinguished from the existence — of the officially 

acknowledged records may be protected from disclosure . . . we 

remand the case to the district court where the [agency] must 

either disclose any officially acknowledged records or 

establish . . . that their contents are exempt from 

disclosure . . . .”). This potential for relief defeats the DEA’s 

mootness claim.

Because we conclude that the public domain exception 

provides Marino with a meritorious defense to the DEA’s 

summary judgment motion, we need not address whether the

alleged “public purpose” for the information he seeks is
11

sufficient to outweigh exemption 7(C)’s personal privacy 

concerns. We likewise say nothing about the overall merits of 

Marino’s Rule 60(b)(6) motion, which the district court will 

reconsider on remand in light of our decision.

III

For the foregoing reasons, the judgment of the district court 

with respect to Marino’s Rule 60(b)(6) motion is reversed and 

remanded for proceedings consistent with this opinion.

So ordered.