Judicial Watch, Inc. v. United States Department of Defense

245 F. Supp. 3d 19, 2017 WL 1166322, 2017 U.S. Dist. LEXIS 45301
CourtDistrict Court, District of Columbia
DecidedMarch 28, 2017
DocketCivil Action No. 16-360 (RBW)
StatusPublished
Cited by16 cases

This text of 245 F. Supp. 3d 19 (Judicial Watch, Inc. v. United States Department of Defense) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Judicial Watch, Inc. v. United States Department of Defense, 245 F. Supp. 3d 19, 2017 WL 1166322, 2017 U.S. Dist. LEXIS 45301 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Judicial Watch, Inc., filed this civil case, alleging that the defendants, the United States Department of Defense (the “DOD”) and the Central Intelligence Agency (the “CIA”), violated the Freedom of Information Act (the “FOIA”), 5 U.S.C. § 552 (2012), “by failing to search for and produce all records responsive to [its] request or demonstrate that the requested records are lawfully exempt from production.” Complaint (“Compl”) ¶¶ 11,16. Currently before the Court are the Defendants’ Motion for Summary Judgment (“Defs.’ Mot”), ECF No. 13, and the Plaintiffs Cross-Motion for Summary Judgment (“PL’s Mot.”), ECF No. 16. After carefully considering the parties’ submissions, the Court concludes for the following reasons that it must grant the defendants’ motion for summary judgment and deny the plaintiffs cross-motion for summary judgment.1

[25]*25I. BACKGROUND2

On May 1, 2011, former “President Obama announced to the American people and to the world that the United States has conducted an operation that killed Osama bin Laden, the leader of al Qaeda, and a terrorist who’s responsible for the murder of thousands of innocent men, women, and children.” Defs.’ Mot., Exhibit (“Ex.”) A (Declaration of Antoinette B. Shiner Information Review Officer for the Litigation Information Review Office CIA (“Shiner Decl.”)) ¶ 6 (internal quotation marks omitted). Four and a half years later, the plaintiff submitted identical FOIA requests to the CIA and the DOD, seeking

[a]ny and all documents, records, and/or communications concerning, regarding, or related to memoranda drafted by Stephen W. Preston, former [CIA] General Counsel; Mary B. DeRosa, former National Security Council Legal Adviser; Jeh C. Johnson, former Pentagon General Counsel; and then-Rear Admiral James W. Crawford III, former Joint Chiefs of Staff Legal Adviser, regarding options, authority, rationale, details, analysis, legal factors, policy concerns, opinions, and conclusions for the search, raid, capture, and/or killing of Osama bin Laden in 2011, Relevant documents, records, and/or communications include, but are not limited to:
a.A memorandum written by former Pentagon General Counsel Jeh C. Johnson concerning any violation of Pakistani sovereignty in seeking, capturing, and/or killing Osama bin Laden in 2011;
b. A memorandum written by former [CIA] General Counsel Stephen W. Preston regarding when the administration must alert congressional leaders about the raid, capture, and/or killing of Osama bin Laden in 2011;
c. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa concerning a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture and/or killing of Osama bin Laden in 2011;
d. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa regarding plans for detaining Osama bin Laden in the event of his capture;
e. A memorandum written by former Joint Chiefs of Staff Legal Adviser then-Rear Admiral James W. Crawford III regarding options and/or plans for Osama bin Laden’s burial.

Compl. ¶ 6.

On February 24, 2016, the plaintiff brought this action alleging that, as of that date, the defendants had not “(i) produce[d] the requested records or demonstrate[d] that the requested records are lawfully exempt from production; (ii) no-[26]*26tif[ied] [it] of the scope of any responsive records [the defendants intended] to produce or withhold and the reasons for any withholdings; or (iii) inform[ed] [it] that it may appeal any adequately specific, adverse determination.” Id. ¶ 9, Early in this litigation, “[the p]laintiff agreed to limit its FOIA requests] to the five alleged memo-randa specifically identified in the FOIA requests] and in sub-paragraphs 6(a)-(e) of the Complaint,” Defs.’ Facts ¶ 2; Pl.’s Facts ¶ 1.2, and the “[defendants agreed to produce releasable portions of the mem-oranda by or before June 13, 2016,” Pl.’s Facts ¶ II.1. “By [a] letter dated June 13, 2016, [the defendants informed [the p]laintiff that they had located and finished processing [the] five responsive memoran-da^ but] were withholding the five memo-randa in their entirety pursuant to FOIA Exemptions 1, 3, and 5 .... ” Defs.’ Facts ¶ 3.

The defendants now move for summary judgment, asserting that they are entitled to judgment as a matter of law because the five requested memoranda are privileged and protected from disclosure under several FOIA Exemptions. See Defs.’ Mem. at 3. In addition to opposing the defendants’ motion for summary judgment, the plaintiff also cross moves for summary judgment, arguing that the defendants have not satisfied their burden of proving that the FOIA exemptions invoked are applicable to the .withheld responsive documents and that the “[defendants should be ordered to release all reasonably segregable, non-classified portions of the memoranda.” PL’s Opp’n at 2.

II. STANDARD OF REVIEW

The Court must grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895. (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party’s favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nóh-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Thus, “[c]ondusory allegations unsupported by factual data will not create a triable issue , of fact,” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (alteration in original) (quoting Exxon Corp. v, FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)), If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof,” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L,Ed.2d 265 (1986). “[I]n ruling on cross-motions for. summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment us a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006) (citation omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
245 F. Supp. 3d 19, 2017 WL 1166322, 2017 U.S. Dist. LEXIS 45301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judicial-watch-inc-v-united-states-department-of-defense-dcd-2017.