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First Amendment Coalition v. U.S. Department of Justice

United States District Court, Ninth Circuit

June 3, 2013

FIRST AMENDMENT COALITION, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

ORDER SETTING A FURTHER SCHEDULE

CLAUDIA WILKEN, District Judge.

In this case, Plaintiff First Amendment Coalition (FAC) challenges Defendant United States Department of Justice (DOJ)'s denial of its Freedom of Information Act (FOIA) request for a copy of a purported DOJ legal memorandum providing a legal analysis and justification for the United States government's targeted killing of Anwar al-Aulaqi. In denying of Plaintiff's FOIA request, DOJ issued a so-called "Glomar response" in which it refused to confirm or deny the existence of any such memorandum.

The parties have fully briefed cross-motions for summary judgment addressing whether DOJ properly issued a Glomar response to FAC's FOIA request and whether it had waived its ability to issue such a response. In its briefing, DOJ argued among other things that the United States government had never officially taken responsibility for the killing of al-Aulaqi and that, in order to confirm or deny the existence of documents responsive to FAC's request, the government would have to confirm or deny that it had killed al-Aulaqi.

On May 17, 2013, Plaintiff First Amendment Coalition (FAC) filed a motion for leave to submit additional evidence "to the Court to assist its consideration of whether the Government has waived its ability to assert a Glomar response to FAC's Freedom of Information Act request." Docket No. 58. FAC and Defendant United States Department of Justice (DOJ) also filed a stipulation agreeing that FAC may file the additional evidence. Docket No. 57.

Subsequently, on May 22, 2013, DOJ withdrew its motion for summary judgment. Docket No. 59. In its notice of withdrawal, DOJ stated that, on that day, "at the direction of the President, the Attorney General officially confirmed that the United States Government targeted Anwar al-Aulaqi and conducted an operation that resulted in his death, " and thus no longer sought to keep that fact classified. Id. at 1-2. DOJ suggests that it be permitted thirty days to issue a modified response to FAC's FOIA request and that, within fourteen days thereafter, the parties submit a joint status report addressing whether a dispute remains and, if one does, proposing a briefing schedule. Id. at 2. As of the date of this Order, FAC has not opposed DOJ's proposed schedule.

In light of DOJ's abandonment of its Glomar response, it appears that additional evidence on the issue of waiver of that response need not be submitted at this time. Accordingly, the Court DENIES FAC's motion for leave to submit additional evidence and DECLINES the parties' stipulation to submit that evidence (Docket Nos. 57 and 58).[1]

In addition, the Court sets the following schedule. DOJ shall provide a modified response to Plaintiff's FOIA request by Friday, June 21, 2013. Within two weeks thereafter, the parties shall meet and confer to determine whether there are any remaining disputes regarding the modified response that will require judicial resolution. By Friday, July 5, 2013, the parties shall file a joint status report notifying the Court whether such a dispute remains and, if required, proposing a schedule for further briefing.

IT IS SO ORDERED.


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