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Judicial Watch • JW v DOD Motion 04 25 17 00360

JW v DOD Motion 04 25 17 00360

JW v DOD Motion 04 25 17 00360

Page 1: JW v DOD Motion 04 25 17 00360


Number of Pages:5

Date Created:April 25, 2017

Date Uploaded to the Library:June 12, 2017

Tags:00360, Shiner, clarification, Bin Laden, Opinion, Judgment, Memorandum, notice, Columbia, Dod, defendants, motion, order, president, Obama, plaintiff, FOIA, states

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Civil Action No. 1:16-cv-00360 (RBW)
Plaintiff, counsel and pursuant Rule 59(e) the Federal Rules Civil Procedure,
respectfully moves for reconsideration the Court March 28, 2017 Memorandum Opinion
(ECF No. 24) and Order (ECF No. 23) granting Defendants motion for summary judgment and
denying Plaintiff cross-motion for summary judgment. The undersigned has conferred with
opposing counsel pursuant Local Rule 7(m), and based that communication, Plaintiff
understands that Defendants oppose this motion.
The Court finding that the five memoranda requested Plaintiff under the Freedom
Information Act FOIA are exempt from disclosure was based misapprehension the
declarations Defendants submitted support their summary judgment motion. This
misapprehension was significant that Defendants found necessary issue correction after
the Court ruling. See Notice Clarification (ECF No. 25), filed April 2017. Had this
correction been made before the Court ruling, and had Defendants provided complete and
accurate information about the memoranda their declarations, likely that the Court would
have reached different outcome. result, reconsideration, additional information, and rebriefing are necessary correct this error.
Factual Background. its Memorandum Opinion, the Court found that the defendants have met their burden
because the five memoranda were solicited and reviewed former President Obama and his
national security team charged with assessing whether the raid bin Laden compound should conducted. See Opinion 10. reaching this conclusion, the Court rejected Plaintiff
reading Defendants declarations, which was that the memoranda were prepared after the fact
and merely memorialized the justifications for the raid. Id. 11, n.4. Defendants subsequent
clarification confirms that Plaintiff reading was correct: clarify, the Shiner Declaration did not speak the timing the
memoranda question. Rather, the Shiner Declaration only confirmed
that legal advice specific topics was requested and provided
President Obama and his closest advisors prior final decision about
whether conduct the operation, and that advice was memorialized the
five memoranda issue.
See Notice Clarification (internal citations omitted) (emphasis added). Defendants
clarification plainly implies that the memoranda were not solicited and reviewed prior the
President decision, but were prepared after the fact, Plaintiff had argued.
Standard for Relief Under Rule 59(e).
Rule 59(e) motions are discretionary and may granted where the Court finds
intervening change controlling law, the availability new evidence, the need correct
clear error prevent manifest injustice. Firestone Firestone, F.3d 1205, 1208 (D.C. Cir.
1996) (quoting National Trust Department State, 834 Supp. 453, 455 (D.D.C. 1993)).
The Court not required consider new legal arguments mere restatements old facts and
arguments. Dist. Columbia Doe, 611 F.3d 888, 896 (D.C. Cir. 2010); State New York
United States, 880 Supp. 37, (D.D.C. 1995). However, the Court can and should correct
errors preserve the integrity the final judgment. Turkmani Republic Bolivia, 273
Supp.2d 45, (D.D.C. 2002); see also Alston District Columbia, 770 Supp.2d 289, 296
(D.D.C. 2011); Harvey District Columbia, 949 Supp. 878, 879 (D.D.C. 1996).
Re-briefing and Reconsideration Warranted.
Defendant clarification constitutes newly discovered evidence and evinces clear error fact that needs corrected prevent manifest injustice and preserve the integrity the
final judgment. Plaintiff had argued that Defendants use the word memorialize describe
the memoranda indicated that the memoranda were prepared after the fact, but the Court rejected
these arguments:
The plaintiff further contends that the defendants use the word memorialize describe the memoranda suggests that the documents were prepared after the
briefing, adding further opacity the claim privilege. Pl. Reply This
argument unpersuasive the defendants have clearly demonstrated that the
five requested memoranda were solicited and reviewed prior the President
decision launch the raid bin Laden compound. See Defs. Motion., Ex., (Shiner Decl.) 7-9.
Opinion 11, n.4. Defendants clarification plainly implies that the memoranda were not
solicited and reviewed prior the President decision launch the raid. this were not the
case, then Defendants would not have felt the need issue clarification after the Court issued
its ruling. The Court ruling therefore requires reconsideration.
The role played record the administrative process crucial determining
whether the record properly subject claim exemption under FOIA. See, e.g., Coastal
States Gas Corp. Department Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (addressing the
deliberative process privilege under FOIA Exemption 5). Defendants vague and ambiguous
declarations caused this Court misapprehend the true factual circumstances surrounding the
creation and use the memoranda. Defendants subsequent clarification confirms this fact, but
also meticulously avoids identifying the specific date(s) the memoranda were created, who
reviewed used them, how they were used, how they may differ from any information
advice provided prior the raid, among host other factual questions raised Defendants
new revelation. More information and thorough explanation the facts and circumstances
surrounding the memoranda are required before the Court can make proper determination
whether FOIA requires the memoranda released whether they are properly subject one more claims exemption. Once Defendants have provided Plaintiff and the Court with this
full and complete, unambiguous information, the parties should afforded the opportunity
re-brief Defendants claims exemption.
For the foregoing reasons, Plaintiff respectfully requests that the Court reconsider its
March 28, 2017 Memorandum Opinion and Order, require Defendants provide full and
complete, unambiguous information about the creation and use the memoranda and all other
pertinent facts about the memoranda, and allow the parties re-brief the withholding the
memoranda once Defendants provide this additional information.
Dated: April 25, 2017
Respectfully submitted,
/s/ Lauren Burke
D.C. Bar No. 1028811
/s/ Paul Orfanedes
D.C. Bar No. 429716
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Attorney for Plaintiff