David J. Rudometkin v. United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2025 Decided June 10, 2025
No. 23-5180
DAVID J. R UDOMETKIN ,
APPELLANT
v.
UNITED S TATES OF A MERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02687)
Charles E.T. Roberts, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the briefs was Anthony J. Dick, appointed by the court.
David J. Rudometkin, pro se, was on the briefs for
appellant.
Douglas C. Dreier, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Matthew M.
Graves, U.S. Attorney, and Brian P. Hudak and Jane M. Lyons,
Assistant U.S. Attorneys.

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Before: P AN and G ARCIA , Circuit Judges, and EDWARDS ,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: In 2018, a military judge,
Lieutenant Colonel Richard Henry, found Appellant David
Rudometkin guilty of several offenses and sentenced him to
seventeen years of confinement. United States v. Rudometkin
(“Rudometkin I”), 82 M.J. 396, 397 (C.A.A.F. 2022). Another
military judge, Colonel Douglas Watkins, denied
Rudometkin’s post-trial motion for a mistrial, which was based
on the U.S. Army’s subsequent suspension of Henry as a
military judge for inappropriate conduct. Id. at 397-99. Soon
after, the Secretary of Defense (“Secretary”) appointed
Watkins as the Chief Trial Judge of the Military Commissions
Trial Judiciary.
When challenging his conviction, Rudometkin submitted
Freedom of Information Act (“FOIA”) requests to the Army
and the U.S. Department of Defense (“Department”), seeking
the Army’s investigatory and disciplinary records of Henry and
the Department’s records regarding the nomination, selection,
and appointment of Watkins as the Chief Trial Judge. The
Government either did not meaningfully respond to the
requests or rejected them pursuant to exemptions under FOIA.
FOIA mandates the disclosure of documents held by a federal
agency unless the documents fall within one of nine
enumerated exemptions. See 5 U.S.C. § 552(a)-(b). Exemption
5 under FOIA “incorporates the privileges available to
Government agencies in civil litigation. That list includes the
deliberative process privilege, attorney-client privilege, and
attorney work-product privilege.” U.S. Fish & Wildlife Serv. v.
Sierra Club, Inc., 592 U.S. 261, 267 (2021).

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In 2020, Rudometkin filed a pro se complaint in the
District Court, challenging the Government’s withholding of
records. Notably, Rudometkin’s original FOIA complaint
related to his FOIA request for the Army’s investigatory and
disciplinary records of Henry; however, he subsequently
amended the complaint, and the amended complaint only
referenced his FOIA request for the Department’s records
concerning Watkins’s selection as Chief Trial Judge. During
the next year, the Government produced a set of responsive
records, with some information redacted pursuant to FOIA
exemptions.
After granting in part and denying in part the
Government’s original motion for summary judgment as to the
adequacy of its search for records and claimed withholdings,
the District Court eventually granted the Government’s
renewed motion for summary judgment and denied
Rudometkin’s cross-motion for summary judgment.
Rudometkin v. United States (“Rudometkin II”), No. 20-cv-
2687, 2023 WL 4762574, at *1 (D.D.C. July 26, 2023). The
trial court concluded that the Government had adequately
proven the adequacy of its search for responsive records, that
the Government had appropriately withheld the remaining
records pursuant to Exemption 5’s deliberative-process
privilege, and that the Government had released all reasonably
segregable, non-exempt information. Id. at *1-3. The court
rejected Rudometkin’s claim that a government misconduct
exception existed for withholdings under Exemption 5’s
deliberative-process privilege. See id. at *2.
Throughout the litigation in the District Court,
Rudometkin attempted to amend his complaint to incorporate
the original complaint’s claim regarding the Army’s
investigatory and disciplinary records of Henry. Nonetheless,
the District Court denied Rudometkin’s motions to amend the

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complaint and motion for reconsideration of its denial to
amend.
On appeal, Rudometkin challenges the District Court’s
grant of summary judgment in favor of the Government –
specifically, the District Court’s upholding of the
Government’s withholdings under Exemption 5’s deliberative-
process privilege. Rudometkin also contests the District
Court’s denial of his motions to amend his complaint to
incorporate his original complaint.
For the reasons explained below, we reverse and remand
in part and affirm in part. First, on the record before us, the
Government did not establish that it properly withheld records
under Exemption 5’s deliberative-process privilege. While it is
manifest that the disclosure of records regarding the
discussions and deliberations surrounding Watkins’s selection
as Chief Trial Judge would foreseeably harm an interest
protected by Exemption 5, the Government has not yet shown
that it has released all reasonably segregable information
within exempt records that could be disclosed without causing
foreseeable harm to an interest protected by Exemption 5. See
Leopold v. U.S. Dep’t of Just., 94 F.4th 33, 37 (D.C. Cir. 2024);
5 U.S.C. § 552(a)(8)(A)(ii), (b). Therefore, we reverse and
remand on the segregability issue. Second, Rudometkin’s
FOIA claim regarding his original request for the Army’s
investigatory and disciplinary records of Henry is now live in
a separate action. See Rudometkin v. Wormuth, No. 22-cv-
01968 (D.D.C. Mar. 21, 2025). Accordingly, we affirm the
District Court’s denial of Rudometkin’s October 2022 motion
to amend his complaint to incorporate the original FOIA claim.

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I. B ACKGROUND
A. Legal Background
As noted above, FOIA charges federal agencies with
disclosing agency records, upon request, unless one of nine
statutory exemptions applies. See Kowal v. U.S. Dep’t of Just.,
107 F.4th 1018, 1026-27 (D.C. Cir. 2024). As relevant here,
Exemption 5 safeguards ‘‘inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency.’’ 5
U.S.C. § 552(b)(5). This exemption includes the deliberative-
process privilege, which “shields documents ‘reflecting
advisory opinions, recommendations, and deliberations’ that
agencies use to make decisions.” Emuwa v. U.S. Dep’t of
Homeland Sec., 113 F.4th 1009, 1013 (D.C. Cir. 2024) (citation
omitted). Importantly, the goal of the deliberative-process
privilege is to “ensure[] that ‘debate and candid consideration
of alternatives within an agency’ are not subject to public
inspection.” Id. (citations omitted).
In 2016, Congress enacted the FOIA Improvement Act to
“impose[] additional, crosscutting obligations on each agency
considering withholding information under any FOIA
exemption.” Hum. Rts. Def. Ctr. v. U.S. Park Police, 126 F.4th
708, 713-14 (D.C. Cir. 2025). First, an agency must still
disclose information protected by an exemption unless it
“reasonably foresees that disclosure would harm an interest
protected by an exemption” or if “disclosure is prohibited by
law.” 5 U.S.C. § 552(a)(8)(A)(i). Second, an agency must “take
reasonable steps to release any segregable, non-exempt
information.” Hum. Rts. Def. Ctr., 126 F.4th at 717 (citation
omitted). Specifically, agencies “must ‘consider whether
partial disclosure of information is possible whenever the
agency determines that a full disclosure of a requested record

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is not possible’’’ and ‘‘take reasonable steps necessary to
segregate and release nonexempt information.’’ Leopold, 94
F.4th at 37 (quoting 5 U.S.C. § 552(a)(8)(A)(ii)(I)-(II)).
B. Factual and Procedural Background
In 2018, Military Judge Lieutenant Colonel Richard Henry,
who was presiding over a general court-martial proceeding,
found David Rudometkin guilty of rape, aggravated sexual
assault, assault consummated by a battery, and conduct
unbecoming of an officer (for committing adultery), and
sentenced him to seventeen years of confinement and
dismissal. Rudometkin I, 82 M.J. at 397. Following the court
martial, the U.S. Army suspended Henry from his role as a
military judge due to his inappropriate relationship with the
wife of another officer who was a trial defense counsel at Fort
Benning, Georgia. See id. The officer whose wife had a
relationship with Henry did not represent Rudometkin in his
court martial proceedings. See id. Nonetheless, Rudometkin
moved for a mistrial, claiming that Henry was not impartial
because Henry’s “misconduct was similar to the adulterous
misconduct for which [Henry] found [Rudometkin] guilty.” Id.
Military Judge Colonel Douglas Watkins presided over the
post-trial proceedings and ultimately denied Rudometkin’s
motion, determining that Henry’s failure to recuse himself did
not create a risk of injustice or undermine the public’s
confidence in the judicial process. See id. at 397-99.
While the U.S. Army Court of Criminal Appeals initially
reversed that decision and set aside Rudometkin’s convictions,
the U.S. Court of Appeals for the Armed Forces later reversed
that ruling and remanded the case for further review because it
concluded that Watkins did not clearly abuse his discretion in
denying the mistrial motion. See id. at 399, 402.

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Beginning in late 2018, Rudometkin submitted FOIA
requests to the Army, seeking records regarding the Army’s
investigation of Henry, including disciplinary records. In the
meantime, the Secretary of Defense had designated Watkins as
the Chief Trial Judge. This designation occurred after the
Department’s Office of General Counsel (“OGC”) had
solicited views from the Judge Advocates General (“JAGs”),
obtained recommendations, and submitted a consensus
nomination to the Secretary. In 2019, Rudometkin submitted a
FOIA request to the Department, seeking records concerning
the nomination, selection, and appointment of Watkins as the
Chief Trial Judge of the Military Commissions Trial Judiciary.
Following the Government’s rejection of some requests
and failure to substantively respond to other requests,
Rudometkin brought the present FOIA action in the District
Court in 2020. His original complaint sought disclosure of the
Army’s records related to the investigation and discipline of
Henry. Rudometkin subsequently filed an amended complaint,
which sought disclosure of the Department’s records
concerning the nomination, selection, and appointment of
Watkins as the Chief Trial Judge. The amended complaint
omitted any reference to Henry’s records.
In 2021, the Government provided Rudometkin with 83
pages of responsive records for his FOIA request regarding
Watkins, with some portions redacted pursuant to FOIA
Exemptions 5 and 6. The Government later moved for
summary judgment regarding its search for responsive records
and withholdings. In support, the Government provided a
Vaughn index, see Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.
Cir. 1973), and declaration in which Mark Herrington, an
associate deputy general counsel in the OGC, explained the
Government’s claimed exemptions.

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Herrington’s declaration divided the documents into two
categories: (1) “the substance of the actual nominations and
accompanying advice and recommendations,” and drafts of
those documents; and (2) “emails and internal [Department of
Defense] memorandum provided by the General Counsel and
other OGC attorneys advising the Secretary regarding the
designation of COL Watkins …, and drafts of those
documents.” First Herrington Decl. ¶¶ 8-9. For the first
category, Herrington averred that disclosure of the
“information would cause harm to the Secretary’s decision-
making process, as it would hamper the unfettered and candid
advice of those making recommendations to the Secretary if
that advice is no longer kept confidential.” Id. ¶ 8. Similarly,
for the second category, Herrington claimed that “[p]ublic
disclosure of the attorney-client communications would
seriously disrupt open communication between the Secretary
and his attorneys, as well as deprive government decision-
makers of the full and candid advice of their counsel,” and
would “hamper the day-to-day workings of the Department, as
senior attorneys would no longer feel free to convey their
recommendations in formal written correspondence.” Id. ¶ 9.
Throughout 2022, Rudometkin attempted to amend his
complaint. Specifically, in April 2022, Rudometkin moved to
amend because he neglected to incorporate by reference his
original FOIA complaint regarding the Army’s investigatory
and disciplinary records of Henry into the first amended
complaint. In June 2022, he again moved to amend the
complaint to incorporate the original complaint and add a
request for records for Henry’s Army Grade Determination
Board. Likewise, Rudometkin moved to amend his complaint
in August 2022.
In September 2022, the District Court granted in part and
denied in part, without prejudice, the Government’s motion for

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summary judgment, and denied Rudometkin’s June 2022
motion to amend the complaint. As to the summary judgment
motion, the court denied it with respect to the adequacy of the
search because the Government failed to proffer any supporting
evidence on its search for responsive records. In addition, the
court denied the motion as to particular Exemption 5
deliberative-process privilege withholdings – specifically,
documents concerning internal recommendations to the Office
of Military Commissions regarding numbers and selection
criteria, and Watkins’s personal information (Documents 2 and
9 on the Vaughn index). It also denied the motion as to all
claimed withholdings under Exemption 5’s attorney-client
privilege.
On the other hand, the District Court granted the motion as
to other Exemption 5 deliberative-process privilege
withholdings – namely, recommendations for Chief Trial
Judge from the departing Chief Trial Judge and Navy and Air
Force JAGs (Documents 4, 10, 20, 22, and 29 on the Vaughn
index). In the court’s view, the Government adequately
justified those withholdings. With respect to Rudometkin’s
June 2022 motion to amend the complaint, the court held that
he failed to exhaust administrative remedies for his request for
Henry’s records from the Army Review Boards Agency. In a
separate order issued the same day, the District Court denied
Rudometkin’s August 2022 motion to amend as baseless.
A month later, Rudometkin moved for reconsideration of
the District Court’s denial of his motion to amend, arguing that
the court failed to address his April 2022 motion. With the
motion for reconsideration, Rudometkin enclosed the April
2022 motion to amend, which the court then mistakenly
docketed as a new October 2022 motion. Nonetheless, the
District Court subsequently denied the motion for

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reconsideration and the alleged new motion to amend,
explaining that it stood by its prior findings.
Around the same time, the Government renewed its motion
for summary judgment. By this time, it had released a group of
documents to Rudometkin (Documents 2, 9, and 30 on the
Vaughn index). With the motion, the Government submitted a
supplemental declaration from Herrington, which summarized
its search for records, explained its reasoning for Exemption
5’s deliberative-process privilege withholdings, and withdrew
its assertions of attorney-client privilege withholdings.
Specifically, Herrington described the remaining documents as
the record of recommendations from the JAG of each military
branch. He averred that “i[f] their recommendations were made
public and conflicted with the ultimate decision, those officers
could suffer negative impacts on their ability to lead and their
careers.” Second Herrington Decl. ¶ 11. Herrington also
attested that he “reviewed the documents line by line and
confirm[ed] that the non-exempt portions were segregated
from the exempt portions and the non-exempt portions were
produced.” Id. ¶ 12.
Shortly thereafter, Rudometkin cross-moved for summary
judgment to challenge the propriety of the Government’s
claimed withholdings. His primary claim was that the alleged
evidence of government misconduct in Watkins’s selection and
nomination pierced any claimed privilege.
Ultimately, the District Court granted the Government’s
motion for summary judgment and denied Rudometkin’s cross-
motion for summary judgment. Rudometkin II, 2023 WL
4762574, at *1. The court first held that the Government had
sufficiently demonstrated the adequacy of the search. Id.
Second, the court found that the Government properly withheld
the remaining records under Exemption 5’s deliberative-

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process privilege. Id. at *1-2. Specifically, the court observed
that the remaining records consisted of direct recommendations
from subordinates to OGC or the Secretary, predecisional draft
copies of those documents, and duplicate pages. Id. at *1. It
further reasoned that the Government had adequately explained
how disclosure of such information would foreseeably cause
harm; principally, disclosure of the solicited recommendations
regarding the Chief Trial Judge would chill candid discussions
about future candidates. Id. at *2. In addition, the court rejected
Rudometkin’s claim that his allegation of government
misconduct was relevant for purposes of the Exemption 5
analysis. Id. Third, the court concluded that the Government
had shown that all reasonably segregable, non-exempt
information had been disclosed to Rudometkin. Id. at *3.
In 2024, we denied Rudometkin’s motion for summary
reversal and granted in part and denied in part the
Government’s motion for summary affirmance. In pertinent
part, due to forfeiture, we granted summary affirmance as to
the District Court’s September 2022 order denying
Rudometkin’s June 2022 motion to amend his complaint and
September 2022 minute order denying Rudometkin’s August
2022 motion to amend his complaint. However, we denied
summary affirmance as to the District Court’s order granting
the Government’s renewed motion for summary judgment, and
December 2022 minute order denying Rudometkin’s October
2022 motion to amend his complaint.
Rudometkin now appeals the District Court’s grant of the
Government’s renewed motion for summary judgment and the
District Court’s denial of his motion to amend the complaint to
incorporate his original complaint. This court appointed an

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amicus curiae (“Amicus”) to present arguments on
Rudometkin’s behalf.1
II. ANALYSIS
A. Standard of Review
“We review de novo a district court’s grant of summary
judgment in favor of an agency which claims to have complied
with FOIA.” Hum. Rts. Def. Ctr., 126 F.4th at 715 (internal
quotation marks and citation omitted). In addition, we review
for abuse of discretion the District Court’s denial of a motion
for leave to amend a complaint, “except for denials based on
futility, which we review de novo.” Ramos v. Garland, 77 F.4th
932, 940 (D.C. Cir. 2023).
B. The Government’s Motion for Summary Judgment
We first address the District Court’s grant of summary
judgment in favor of the Government. Rudometkin argues that
the District Court improperly upheld the Government’s
withholdings under Exemption 5’s deliberative-process
privilege. We agree in part.
To warrant summary judgment, the Government must first
demonstrate that the agency adequately searched for
responsive records and “that the withheld documents are
protected by Exemption 5[’s deliberative-process privilege]
because they are predecisional and deliberative.” Waterman v.
Internal Revenue Serv., 61 F.4th 152, 158 (D.C. Cir. 2023). In
1 The court expresses its gratitude to Charles E.T. Roberts, who
presented oral argument on behalf of Appellant, and to his colleague
Anthony J. Dick, who appeared with him on the briefs, for their fine
service to the court.

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other words, to fall within the deliberative-process privilege, a
record must be ‘‘generated before the agency’s final decision
on the matter,’’ and ‘‘prepared to help the agency formulate its
position.’’ Cabezas v. FBI, 109 F.4th 596, 604 (D.C. Cir. 2024)
(citation omitted). Then, to withhold records covered by
Exemption 5, the Government must further show that (1) it
“reasonably foresees that disclosure would harm an interest
protected by [that] exemption”; and (2) that it has “release[ed]
any reasonably segregable information within the [exempt]
record[s] that could be disclosed without causing reasonably
foreseeable harm to an interest” protected by that exemption.
Leopold, 94 F.4th at 37 (internal quotation marks and citations
omitted); see also 5 U.S.C. § 552(a)(8)(A). Importantly, the
Government may “justify withholding or redacting records
category-of-document by category-of-document rather than
document-by-document.” Am. Immigr. Laws. Ass’n v. Exec.
Off. for Immigr. Rev., 830 F.3d 667, 675 (D.C. Cir. 2016)
(cleaned up) (citations omitted). And we “may rely on non-
conclusory agency affidavits demonstrating the basis for
withholding if they are not contradicted by contrary evidence
in the record or by evidence of the agency’s bad faith.” Reps.
Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 361 (D.C.
Cir. 2021).
At the outset, we note that, in their briefs to this court,
Rudometkin and Amicus have not challenged the adequacy of
the Government’s search for responsive records. As such,
Rudometkin has forfeited that challenge. See Cabezas, 109
F.4th at 602, 606 (stating that a party forfeits an argument by
failing to raise it in its opening brief). Second, Rudometkin has
not meaningfully challenged the Government’s claim that the
records at issue are covered by Exemption 5’s deliberative-
process privilege (i.e., that the documents are predecisional and
deliberative). He has thus forfeited such a challenge due to his
failure to offer any non-cursory argument on the issue in his

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briefs before this court. See Khine v. U.S. Dep’t of Homeland
Sec., 943 F.3d 959, 967 (D.C. Cir. 2019) (“[I]t is not enough
merely to mention a possible argument in the most skeletal
way.” (cleaned up) (citation omitted)).
On the basis of the record before us, we find that the
Government has met the foreseeable harm standard, but it has
not yet satisfied FOIA’s segregability requirement. We
therefore reverse and remand on the segregability issue.
1. No Government Misconduct Exception Exists for
FOIA Exemption 5.
Rudometkin contends that a “government misconduct”
exception exists for claims of privilege under Exemption 5. In
his view, well-substantiated allegations of government
misconduct render Exemption 5’s deliberative-process
privilege void. Our precedent, however, does not support
Rudometkin’s argument.
First, we have made clear that there is no controlling
precedent recognizing a government misconduct exception to
Exemption 5. See Protect Democracy Project, Inc. v. Nat’l Sec.
Agency, 10 F.4th 879, 888-89 (D.C. Cir. 2021). Second, we
have explained that contrary to Exemption 7 – which excludes
disclosure of information that would constitute an unwarranted
invasion of privacy and involves balancing various interests
such as the interest in exposing government misconduct – “[n]o
such balancing or consideration of public interest is called for
under Exemption 5.” Id. at 889. “The deliberative process
privilege is a qualified privilege and can be overcome by a
sufficient showing of need.” In re Sealed Case, 121 F.3d 729,
737 (D.C. Cir. 1997). However, “[t]his characteristic of the
deliberative process privilege is not an issue in FOIA cases
because the courts have held that the particular purpose for

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which a FOIA plaintiff seeks information is not relevant in
determining whether FOIA requires disclosure.” Id. at 737 n.5.
Accordingly, we reject Rudometkin’s claim that
allegations of government misconduct can overcome
Exemption 5’s deliberative-process privilege.
2. Foreseeable Harm Is “Manifest” from the Nature of
the Documents.
Rudometkin also asserts that the Government’s
declarations failed to establish foreseeable harm from the
disclosure of its records. Specifically, he argues, inter alia, that
the Government’s claims of foreseeable harm are generic,
conclusory, and speculative. We disagree because we conclude
that foreseeable harm is manifest in the documents at issue.
“[T]o withhold records covered by Exemption 5 through
the deliberative-process privilege, an agency must show that
releasing the specific records sought would chill future internal
discussions.” Emuwa, 113 F.4th at 1013 (internal quotation
marks and citation omitted). However, ‘‘perfunctory
statement[s] that disclosure of all the withheld information—
regardless of category or substance—would jeopardize the free
exchange of information between senior leaders within and
outside of the agency will not suffice.” Reps. Comm., 3 F.4th
at 370 (cleaned up) (citations omitted). Rather, an agency must
concretely demonstrate “why disclosure of the particular type
of material at issue will, in the specific context of the agency
action at issue, actually impede those same agency
deliberations going forward.” Id. At bottom, the agency must
articulate the “link between the specified harm and specific
information contained in the material withheld.” Id. at 371
(citation omitted). However, even when an agency’s
declaration falls short of this standard, we will uphold the

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agency’s withholding of documents in rare situations when
“the record establishes the unique sensitivity” of those
documents, such that “the foreseeability of harm [is] manifest”
from the “very context and purpose” of the documents. Reps.
Comm., 3 F.4th at 372; see also Emuwa, 113 F.4th at 1015.
In this case, the records relate to discussions and
deliberations concerning a particularly sensitive personnel
decision – the selection of a Chief Trial Judge by the Secretary
of Defense with input from subordinates – which “make[s] the
foreseeability of harm [from disclosure] manifest.” Reps.
Comm., 3 F.4th at 372. Specifically, the release of
recommendations, drafts, and other documents that would
reveal internal discussions about the candidates, why the
candidates were or were not selected, and the criteria for their
selection, plainly would impair candid discussions of
candidates and the selection process going forward, given that
the successful candidate will have power and authority to affect
the interests of the people involved in the selection process.
“[T]he sensitivity of the context in which these
[communications] arose as well as their subject matter, and the
need for confidentiality in discussions of” the selection of a
high-ranking position in the military “provide the
particularized context for a finding of foreseeable harm.” Id.
Although the Government’s declarations may take on the
flavor of the boilerplate and generic assertions of foreseeable
harm that we have rejected (i.e., bare assertions of chill to
future internal discussions), see id. at 370-72, the manifest
nature of the harm in this case from the disclosure of the
contested documents confirms that the Government’s claims
are not exaggerated.
Furthermore, the Government adequately justified its
withholdings on a category-by-category basis rather than
document-by-document. As explained above, the first

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Herrington declaration separated the universe of records into
two categories: (1) “the substance of the actual nominations
and accompanying advice and recommendations,” and drafts
of those documents; and (2) “emails and internal [Department
of Defense] memorandum provided by the General Counsel
and other OGC attorneys advising the Secretary regarding the
designation of COL Watkins …, and drafts of those
documents.” First Herrington Decl. ¶¶ 8-9. In addition, the
second Herrington declaration grouped the remaining records
into a single category: records of recommendations from the
JAG of each military service. In both declarations, Herrington
outlined the rationale for each category of Exemption 5
withholdings. Overall, these categories sufficiently indicate
“the substance of the information contained” and “allow the
court to assess the [Government’s] representations of how
release of the documents would result in” harm. Bevis v. U.S.
Dep’t of State, 801 F.2d 1386, 1390 (D.C. Cir. 1986).
Moreover, “the documents within each category are
sufficiently similar … and the categories are sufficiently well-
defined and distinct” so as to permit this court to determine
whether the Government properly invoked Exemption 5. Am.
Immigr. Laws., 830 F.3d at 675.
Although the Government’s Vaughn index’s descriptions
of certain documents were too vague (i.e., Documents 5, 6, 21,
and 23), the detailed document descriptions in the second
Herrington declaration demonstrate that the documents contain
the sort of information that is exempt and fall within the
categories identified by the Government.
We therefore conclude that the Government has
sufficiently justified its Exemption 5 withholdings and has
satisfied FOIA’s foreseeable harm requirement.

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3. The Government’s and the District Court’s
Segregability Analyses Are Incomplete.
Finally, Rudometkin claims that the Government failed to
show that it cannot release any reasonably segregable
information from within exempt portions of the records without
causing foreseeable harm. We agree. The Government’s and
the District Court’s segregability analyses are insufficient
under our precedent.
After the Government shows that a record includes exempt
information, “it is ‘entitled to a presumption that it complied
with the obligation to disclose reasonably segregable
material.’’’ Flyers Rts. Educ. Fund, Inc. v. Fed. Aviation
Admin., 71 F.4th 1051, 1057-58 (D.C. Cir. 2023) (cleaned up)
(citation omitted). To rebut this presumption, the FOIA
requester must introduce “evidence that would warrant a belief
by a reasonable person that the agency failed to comply with
its obligation.” Id. at 1058 (internal quotation marks and
citation omitted). However, despite this presumption, a district
court must nonetheless “mak[e] an express finding on
segregability.” Machado Amadis v. U.S. Dep’t of State, 971
F.3d 364, 371 (D.C. Cir. 2020) (citation omitted). In addition,
“[e]ven if an exemption covers an entire agency record, the
agency still must release any reasonably segregable
information within the record that could be disclosed without
causing reasonably foreseeable harm to an interest that the
exemption protects.” Leopold, 94 F.4th at 37.
The court’s decision in Leopold controls the results here.
There, we vacated a district court’s grant of summary judgment
in favor of an agency, where the agency failed to consider
whether exempt portions of a record could be disclosed without
causing foreseeable harm to the interests protected by FOIA
Exemption 8. Id. at 37-39. The same judgment applies here.

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In this case, Herrington attested in his declarations that he
had conducted a line-by-line review of the documents, and
determined that there was no further reasonably segregable
information and that the non-exempt portions of the record
were segregated from the exempt portions. Absent from
Herrington’s declarations, however, is a statement that the
Government reviewed the exempt portions of the documents to
assess “whether any information could be segregated and
released without causing a foreseeable harm to the agency.”
Emuwa, 113 F.4th at 1017 (citation omitted) (applying
Leopold). Instead, the Government considered segregability as
to only “non-exempt portions” and “exempt portions of the
records,” without addressing foreseeable harm. Second
Herrington Decl. ¶ 12; see also First Herrington Decl. ¶ 13. But
Leopold requires independent consideration of whether any
portion of a document, although exempt, could be segregated
and released without causing foreseeable harm.
Moreover, the District Court’s findings on segregability
suffer from a similar flaw. Specifically, the court concluded
that the Government disclosed “all reasonably segregable non-
exempt information.” Rudometkin II, 2023 WL 4762574, at *3.
Yet, by not addressing whether the Government demonstrated
that exempt information could not be segregated and disclosed
without causing foreseeable harm, the District Court’s decision
fails the test prescribed by Leopold.
The Government claims that Rudometkin forfeited any
segregability argument by failing to contest segregability
before the District Court. The Government is mistaken. We
have made it clear that the District Court “has the obligation to
consider the segregability issue sua sponte, regardless of
whether it has been raised by the parties” and have “many times
remanded in cases where the district court had failed to rule on
segregability.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d

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771, 776 (D.C. Cir. 2002). “The segregability requirement . . .
extends to both steps of FOIA’s sequential inquiry: Even if an
exemption covers an entire agency record, the agency still must
release any reasonably segregable information within the
record that could be disclosed without causing reasonably
foreseeable harm to an interest that the exemption protects.”
Leopold, 94 F.4th at 37. Therefore, if the record from the
District Court does not confirm that exempt information could
not be segregated and disclosed without causing foreseeable
harm, then the record is not adequate to support the
Government’s claim of compliance with FOIA’s segregability
requirement.
Accordingly, we reverse the District Court’s grant of
summary judgment to the Government and remand the case for
further proceedings on the segregability question.
C. Rudometkin’s Motion for Leave to Amend the Complaint
Finally, we turn to the District Court’s denial of
Rudometkin’s October 2022 motion to amend his complaint.
Rudometkin argues that the District Court abused its discretion
by refusing to grant his April 2022 and October 2022 motions
to amend his complaint and by failing to provide a rationale for
denying him leave to reincorporate his original complaint. In
his view, the District Court – when denying his motion for
reconsideration of his motion to amend – confused his original
FOIA claim for the Army’s investigatory and disciplinary
records of Henry with his subsequent request for Henry’s grade
determination board records; therefore, the District Court’s
ruling did not address the original FOIA claim.
However, after oral argument, Amicus and the Government
advised this court that Rudometkin is now litigating his FOIA
claim related to the Army’s investigatory and disciplinary

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records of Henry in Rudometkin v. Wormuth, and that the
district court in that action has denied the Government’s
motion to dismiss that claim. No. 22-cv-01968 (D.D.C. Mar.
21, 2025). Consequently, they request that this court affirm the
District Court’s denial of the leave to amend on the alternative
ground that the claim Rudometkin sought to reincorporate is
now live in a separate action in the U.S. District Court for the
District of Columbia.
We agree. Indeed, we have made clear that “a plaintiff has
no right to maintain two separate actions involving the same
subject matter at the same time in the same court and against
the same defendant.” Baird v. Gotbaum, 792 F.3d 166, 171
(D.C. Cir. 2015) (citation omitted). Reversing the District
Court’s judgment and remanding the case to permit
Rudometkin to reincorporate his original FOIA complaint in
this action would create such an issue. As such, we affirm the
District Court’s judgment on this ground. See id. (“[A]s an
appellate court, we can ‘affirm the District Court on any valid
ground, and need not follow the same mode of analysis.’”
(citation omitted)).
III. CONCLUSION
For the reasons set forth above, we reverse the District
Court’s grant of the Government’s renewed motion for
summary judgment and remand for further proceedings as to
the segregability issue. And we affirm the District Court’s
judgment as to Rudometkin’s October 2022 motion for leave
to amend the complaint.
So ordered.

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