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Judicial Watch • JW v DOD REPLY 05 16 17 00360

JW v DOD REPLY 05 16 17 00360

JW v DOD REPLY 05 16 17 00360

Page 1: JW v DOD REPLY 05 16 17 00360


Number of Pages:4

Date Created:May 17, 2017

Date Uploaded to the Library:June 12, 2017

Tags:memoranda, Firestone, 00360, Shiner, clarification, Bin Laden, Declaration, facts, Reply, Judgment, privilege, Dod, process, defendants, motion, filed, plaintiff, FOIA

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Case 1:16-cv-00360-RBW Document Filed 05/16/17 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 1:16-cv-00360 (RBW)
One week after this Court issued summary judgment Defendants favor, Defendants
filed Notice Clarification clarification notice regarding the factual statements made its
supporting declaration Shiner Declaration
See ECF No. 25. extraordinary for party issue clarification, after court has ruled, admitting that the court misapprehended the
party factual assertions. their opposition, Defendants concede that the Court decision
was based misimpression about the timing the memoranda.
See Defendants
Opposition Plaintiff Motion Alter Amend Judgment Opp.
ECF No. 27.
Despite creating this extraordinary circumstance warranting the Court reconsideration
judgment, Defendants assert that Plaintiff request specious and should given short
However, Defendants seven page opposition, filled with legal argument
(old and new) and resembling more brief than response Plaintiff simple, 2-page
motion, only emphasizes the need for re-briefing and full reconsideration. stated
Plaintiff Motion, more information and thorough explanation the facts and circumstances
surrounding the memoranda are required before the Court can make proper determination
Case 1:16-cv-00360-RBW Document Filed 05/16/17 Page
whether FOIA requires the memoranda released whether they are properly subject one more claims exemption.
See Plaintiff Motion Alter Amend Judgment Pl. Mot.
ECF No. 26.
Contrary Defendants assertion, whether the court judgment has been affected
Defendants clarification not for the Plaintiff prove, but for the court determine.
Defendants, Plaintiff does not argue substantive legal issues its motion.1 The appropriate
forum for such arguments through re-briefing, with all the facts clarified, requested
Neither Plaintiff nor the Court can properly assess Defendants claims exemption
until all the facts and circumstances surrounding the memoranda are fully disclosed.
However, despite ample opportunity so, Defendants continue avoid providing relevant
Defendants further dismiss the extraordinary circumstances presented here harmless
asserting that the Court made alternative determination that the memoranda were also
properly withheld full pursuant Attorney-Client and Deliberative Process privileges.
However, because the Court determined, based its misimpression the Shiner
Declaration that the Presidential Communications Privilege applied, did not undertake full
analysis the Deliberative Process Privilege.
ECF No. 24.
See Memorandum Opinion Mem. Op. 13.
Additionally, the Attorney-Client Privilege analysis was based the Court
erroneous misimpression the Shiner Declaration admitted Defendants.
See Opp.
Whether that error was harmless, Defendants speculate (Opp. 7), cannot Defendants spend pages re-arguing the presidential communications privilege well asserting new
arguments that include the clarified fact regarding the timing the memoranda. See Opp. 4-5. This clearly
not permitted. See Dist. Columbia Doe, 611 F.3d 888, 896 (D.C. Cir. 2010); State New York United
States, 880 F.Supp. 37, (D.D.C. 1995) Defendants clarification notice does not actually clarify anything. provides details about the timing
the memoranda, but only states the Shiner Declaration did not speak the timing the memoranda question.
See Clarification Notice, ECF No. 25.
Case 1:16-cv-00360-RBW Document Filed 05/16/17 Page
determined until Defendants provide full and complete, accurate information about the facts and
circumstances surrounding the preparation the memoranda, including, Plaintiff asserted
its motion, the specific date(s) the memoranda were created, who reviewed used them, how
they were used, and how they may differ from any information advice provided prior the
raid, among other questions raised Defendants revelation. See Pl. Mot.
Defendants characterization Plaintiff request for further information ancillary
details that have relevance the assertion the Presidential Communications Privilege
(Opp. aat disingenuous their initial disregard the obligation provide this court
with full, clear, and thorough explanation the facts and circumstances surrounding the
memoranda before can make proper determination whether FOIA requires the memoranda released whether they are properly subject one more claims exemption.
stated above, the Court misapprehension facts was significant, Defendants raised the flag
Whether the ancillary details Defendants are working hard avoid are just
significant and relevant can only determined providing them Plaintiff and the Court for
proper assessment. Rule 59(e) motion should granted correct clear error, law fact, and prevent manifest injustice.
Firestone Firestone, F.3d 1205, 1208 (D.C. Cir. 1996) (identifying
intervening change controlling law, the availability new evidence, the need correct
clear error prevent manifest injustice grounds for granting motion. Citing National Trust
Department State, 834 F.Supp. 453, 455 (D.D.C. 1993)) was, fact, Defendants, not
Plaintiff, who pointed out clear error fact its clarification notice admitting that the Court
had misimpression facts presented Shriner vague declaration.
Failure grant
Case 1:16-cv-00360-RBW Document Filed 05/16/17 Page
Plaintiff request for reconsideration would constitute manifest injustice.
See Firestone,
F.3d 1208.
Dated: May 16, 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
Attorneys for Plaintiff