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Case TitleOsen LLC v. United States Central Command
DistrictSouthern District of New York
CityFoley Square
Case Number1:2017cv04457
Date Filed2017-06-13
Date Closed2019-03-25
JudgeJudge Katherine Polk Failla
PlaintiffOsen LLC
Case DescriptionOsen LLC, a law firm representing hundreds of service members and family members who were killed or wounded by Iranian-backed terrorists, submitted FOIA requests to U.S. Central Command for a list of attacks against coalition forces in Iraq that identify Explosively Formed Penetrators. The agency provided six documents that responded to parts of its requests, but not all of them. After several inquiries concerning the requests were unsatisfactory, Osen finally filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Central Command
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Opinion/Order [51]
FOIA Project Annotation: A federal court in New York has ruled that U.S Central Command properly withheld personally identifying information contained in records pertaining to attacks on American servicemembers in Iraq from 2004 to 2011 requested by Osen LLC, a law firm representing U.S. servicemembers killed or injured in Iraq under Exemption 6 (invasion of privacy) but that the agency has not shown that its remaining claims made under Exemption 1 (national security) are still valid because much of the information had been publicly acknowledged in separate disclosures by U.S. Army Central. Osen submitted its FOIA requests to obtain information relevant to its suits against Iran for damages to its clients. The agency disclosed 7,749 pages and Osen challenged redactions on approximately 900 pages. Judge Katherine Failla's ruling focused on photographs of damage caused to vehicles as the result of explosively formed penetrators, a type of improvised explosive device. The records contained five categories of information that had been withheld. Four categories, including EFP size, had been withheld under Exemption 1 while the fifth category had been withheld under Exemption 6. Failla agreed with Osen that information about EFP size was no longer classified because the same information had been publicly disclosed. She noted that 'in the absence of further explanation for why these redactions are substantively different than the material already disclosed, the Court determines that CENTCOM has officially disclosed the material on EFP size." She observed that "the EFP size revealed in the majority of pages through official FOIA disclosures is 'as specific' as the prior disclosures. CENTCOM does not attempt to explain why the information that has been withheld poses risks that the disclosed material did not, nor does it offer an explanation for why prior disclosures in this area were mistakes." Failla also agreed with Osen that even if CENTCOM had not disclosed the photos, ARCENT had. She pointed out that "while CENTCOM and ARCENT contain separate FOIA staffs, neither is an independent agency. Both are DoD components. Considering that 'disclosure, not secrecy, is the dominant objective of the Act,' the Court does not consider it appropriate to limit a waiver of Exemption 1 to subcomponents of the same agency. . . The Court holds that a waiver of an exemption by ARCENT applies to other components of DoD, including CENTCOM." Osen argued that there was a public interest in disclosure of personally identifying information about the terrorists involved in the attacks. Failla rejected that claim, noting that "these individuals may indeed be responsible for serious crimes or attacks against U.S. forces, but their involvement remains unproven and is ultimately irrelevant to the determination of this Court. Therefore, the Court refrains from characterizing them in the manner described by Plaintiff. . .[T]he absence of any information demonstrating that any withheld names belong to 'terrorists' weakens Plaintiff's claims to disclosure."
Issues: Exemption 1 - Harm to national security, Exemption 6 - Invasion of privacy
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-06-131COMPLAINT against United States Central Command. (Filing Fee $ 400.00, Receipt Number 0208-13779643)Document filed by Osen LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Radine, Michael) (Entered: 06/13/2017)
2017-06-132REQUEST FOR ISSUANCE OF SUMMONS as to United States Central Command, re: 1 Complaint,. Document filed by Osen LLC. (Radine, Michael) (Entered: 06/13/2017)
2017-06-133RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Osen LLC.(Radine, Michael) (Entered: 06/13/2017)
2017-06-134CIVIL COVER SHEET filed. (Radine, Michael) (Entered: 06/13/2017)
2017-06-14CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Katherine Polk Failla. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pc) (Entered: 06/14/2017)
2017-06-14Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pc) (Entered: 06/14/2017)
2017-06-14Case Designated ECF. (pc) (Entered: 06/14/2017)
2017-06-145ELECTRONIC SUMMONS ISSUED as to United States Central Command. (pc) (Entered: 06/14/2017)
2017-06-146NOTICE OF APPEARANCE by William Adam Friedman on behalf of Osen LLC. (Friedman, William) (Entered: 06/14/2017)
2017-06-147NOTICE OF CHANGE OF ADDRESS by William Adam Friedman on behalf of Osen LLC. New Address: Osen LLC, 2 University Plaza, Suite 402, Hackensack, NJ, USA 07601, 201-265-6400. (Friedman, William) (Entered: 06/14/2017)
2017-06-148NOTICE OF CHANGE OF ADDRESS by Michael Jacob Radine on behalf of Osen LLC. New Address: Osen LLC, 2 University Plaza, Suite 402, Hackensack, NJ, USA 07601, 201-265-6400. (Radine, Michael) (Entered: 06/14/2017)
2017-06-169NOTICE OF INITIAL PRETRIAL CONFERENCE: Initial Conference set for 9/20/2017 at 03:00 PM in Courtroom 618, U.S. Courthouse, 40 Centre Street, New York, NY 10007 before Judge Katherine Polk Failla, and as further set forth in this Order. (Signed by Judge Katherine Polk Failla on 6/16/2017) (rjm) (Entered: 06/16/2017)
2017-06-2310NOTICE OF APPEARANCE by Andrew Edward Krause on behalf of United States Central Command. (Krause, Andrew) (Entered: 06/23/2017)
2017-06-2311AFFIDAVIT OF SERVICE of Individual Rules and June 16, 2017 Order (ECF No. 9) served on United States Central Command on June 23, 2017. Document filed by Osen LLC. (Friedman, William) (Entered: 06/23/2017)
2017-07-2112ANSWER to 1 Complaint,. Document filed by United States Central Command.(Krause, Andrew) (Entered: 07/21/2017)
2017-09-1213LETTER MOTION for Extension of Time to File pre-conference letter and proposed case management plan addressed to Judge Katherine Polk Failla from Andrew E. Krause dated September 12, 2017., LETTER MOTION to Adjourn Conference scheduled for September 20, 2017 addressed to Judge Katherine Polk Failla from Andrew E. Krause dated September 12, 2017. Document filed by United States Central Command.(Krause, Andrew) (Entered: 09/12/2017)
2017-09-1214ORDER granting 13 Letter Motion for Extension of Time to File; granting 13 Letter Motion to Adjourn Conference. Application GRANTED. The initial pretrial conference previously scheduled for September 20, 2017, at 3:00 p.m., is ADJOURNED until October 13, 2017, at 2:00 p.m. The parties' deadline to submit a joint letter ahead of the initial pretrial conference is ADJOURNED until October 5, 2017. And consistent with Defendants' above request, the parties may submit a joint letter that sets forth a case management schedule (instead of filing a joint letter and a Civil Case Management Plain and Scheduling Order). (Initial Conference set for 10/13/2017 at 02:00 PM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 9/12/2017) (ras) (Entered: 09/12/2017)
2017-09-1915LETTER addressed to Judge Katherine Polk Failla from Michael J. Radine dated September 19, 2017 re: Request for Adjournment. Document filed by Osen LLC.(Radine, Michael) (Entered: 09/19/2017)
2017-09-2016MEMO ENDORSED on re: 15 Letter filed by Osen LLC. ENDORSEMENT: Application GRANTED. However, the Court will not be able to reschedule the conference for any of the dates the parties have offered. The parties are ORDERED to provide the Court with additional potential dates on or before September 22, 2017. So Ordered (Signed by Judge Katherine Polk Failla on 9/19/2017) (js) (Entered: 09/20/2017)
2017-09-2017LETTER addressed to Judge Katherine Polk Failla from Michael J. Radine dated September 20, 2017 re: proposed dates for pretrial conference. Document filed by Osen LLC.(Radine, Michael) (Entered: 09/20/2017)
2017-09-2018MEMO ENDORSEMENT on re: 17 Letter filed by Osen LLC. ENDORSEMENT: The initial pretrial conference is rescheduled for November 9, 2017, at 4:30 p.m. (Initial Conference set for 11/9/2017 at 04:30 PM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 9/20/2017) (ras) (Entered: 09/20/2017)
2017-10-0219LETTER MOTION for Extension of Time to File joint pre-conference letter addressed to Judge Katherine Polk Failla from Andrew E. Krause dated October 2, 2017. Document filed by United States Central Command.(Krause, Andrew) (Entered: 10/02/2017)
2017-10-0220ORDER: granting 19 Letter Motion for Extension of Time to File Proposed Civil Case Management Plan and Scheduling Order. Rule 3.B of this Court's Individual Rules of Practice in Civil Cases provides, in relevant part: "[T]he parties are required to submit via e-mail a joint letter and Proposed Civil Case Management Plan and Scheduling Order in PDF format by Thursday of the week prior to the initial pretrial conference." Thus, the parties' deadline to submit a joint letter and a proposed Civil Case Management Plan and Scheduling Order is November 2, 2017. (Signed by Judge Katherine Polk Failla on 10/2/2017) (ap) (Entered: 10/02/2017)
2017-11-0221JOINT LETTER addressed to Judge Katherine Polk Failla from Michael J. Radine and Andrew E. Krause dated November 2, 2017 re: Joint Pretrial Case Management Letter. Document filed by Osen LLC. (Attachments: # 1 Exhibit A)(Radine, Michael) (Entered: 11/02/2017)
2017-11-09Minute Entry for proceedings held before Judge Katherine Polk Failla: Initial Pretrial Conference held on 11/9/2017. (Court Reporter Kelly Surina) (Lopez, Jose) (Entered: 11/13/2017)
2017-11-0922MEMO ENDORSED on re: 21 Letter filed by Osen LLC. ENDORSEMENT: The Court is in receipt of the Parties' joint letter and endorses the proposed schedule contained therein. It is hereby ORDERED that:(i) Defendant complete its next production of responsive documents on or before November 22, 2017; (ii) Defendant produce an additional set of responsive documents on or before December 22, 2017; (iii) the Parties meet and confer to identify any remaining issues in dispute on or before January10, 2018; and (iv) the Parties submit a status report to the Court identifying any remaining issues on or before January 17, 2018, which report shall include a proposed schedule for any further discovery and any motions or other briefing, as necessary. ( Responses due by 12/22/2017, Status Report due by 1/17/2018.) (Signed by Judge Katherine Polk Failla on 11/9/2017) (js) (Entered: 11/13/2017)
2017-12-1223TRANSCRIPT of Proceedings re: conference held on 11/9/2017 before Judge Katherine Polk Failla. Court Reporter/Transcriber: Kelly Surina, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/2/2018. Redacted Transcript Deadline set for 1/12/2018. Release of Transcript Restriction set for 3/12/2018.(McGuirk, Kelly) (Entered: 12/12/2017)
2017-12-1224NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/9/17 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 12/12/2017)
2018-01-1725STATUS REPORT. Submitted pursuant to the Court's November 9, 2017 Order. Document filed by Osen LLC.(Radine, Michael) (Entered: 01/17/2018)
2018-01-1826MEMO ENDORSEMENT on re: 25 Status Report filed by Osen LLC. ENDORSEMENT: Application GRANTED. The Court has reviewed the parties' proposed production and briefing schedules. The Court hereby APPROVES each of the proposed deadlines. SO ORDERED. Cross Motions due by 5/11/2018., Motions due by 4/13/2018., Responses due by 5/25/2018, Replies due by 6/8/2018. (Signed by Judge Katherine Polk Failla on 1/18/2018) (rj) Modified on 4/10/2018 (rj). (Entered: 01/19/2018)
2018-03-2927LETTER MOTION for Extension of Time to File defendant's summary judgment brief, and corresponding extensions of the subsequent briefing deadlines addressed to Judge Katherine Polk Failla from Andrew E. Krause dated March 29, 2018. Document filed by United States Central Command.(Krause, Andrew) (Entered: 03/29/2018)
2018-03-2928ORDER granting 27 Letter Motion for Extension of Time to File defendant's summary judgment brief, and corresponding extensions of the subsequent briefing deadlines. Application GRANTED. No further extensions will be granted. (Signed by Judge Katherine Polk Failla on 3/29/2018) (kgo) (Entered: 03/29/2018)
2018-03-29Set/Reset Deadlines: Cross Motions due by 5/29/2018. Motions due by 4/24/2018. Responses due by 6/12/2018 Replies due by 6/26/2018. (kgo) (Entered: 03/29/2018)
2018-04-2429MOTION for Summary Judgment . Document filed by United States Central Command. Responses due by 5/29/2018(Krause, Andrew) (Entered: 04/24/2018)
2018-04-2430MEMORANDUM OF LAW in Support re: 29 MOTION for Summary Judgment . . Document filed by United States Central Command. (Krause, Andrew) (Entered: 04/24/2018)
2018-04-2431DECLARATION of Major General Terry Ferrell in Support re: 29 MOTION for Summary Judgment .. Document filed by United States Central Command. (Attachments: # 1 Exhibit 1 (Delegation of classification authority), # 2 Exhibit 2 (Vaughn index))(Krause, Andrew) (Entered: 04/24/2018)
2018-05-2932CROSS MOTION for Summary Judgment . Document filed by Osen LLC. Responses due by 6/12/2018(Friedman, William) (Entered: 05/29/2018)
2018-05-2933MEMORANDUM OF LAW in Opposition re: 29 MOTION for Summary Judgment ., 32 CROSS MOTION for Summary Judgment . and in Support of Cross-Motion . Document filed by Osen LLC. (Friedman, William) (Entered: 05/29/2018)
2018-05-2934DECLARATION of Russell L. McIntyre in Support re: 29 MOTION for Summary Judgment ., 32 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1)(Friedman, William) (Entered: 05/30/2018)
2018-05-3035DECLARATION of William A. Friedman in Support re: 32 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit)(Friedman, William) (Entered: 05/30/2018)
2018-05-3036FILING ERROR - DEFICIENT DOCKET ENTRY - CROSS MOTION for Summary Judgment . Document filed by Osen LLC. Responses due by 6/12/2018 (Attachments: # 1 Local Rule 56.1 Statement)(Friedman, William) Modified on 5/30/2018 (db). (Entered: 05/30/2018)
2018-05-30***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney William Adam Friedman to RE-FILE Document 36 CROSS MOTION for Summary Judgment . ERROR(S): Rule 56.1 is filed separately, receiving it's own document #. Rule 56.1 Statement is found under the Event Type - Other Answers. First refile Motion, then file and link any supporting documents. (db) (Entered: 05/30/2018)
2018-05-3037CROSS MOTION for Summary Judgment . Document filed by Osen LLC. Responses due by 6/12/2018(Friedman, William) (Entered: 05/30/2018)
2018-05-3038MEMORANDUM OF LAW in Support re: 37 CROSS MOTION for Summary Judgment . and in Opposition to Defendant's Motion for Summary Judgment . Document filed by Osen LLC. (Friedman, William) (Entered: 05/30/2018)
2018-05-3039RULE 56.1 STATEMENT. Document filed by Osen LLC. (Friedman, William) (Entered: 05/30/2018)
2018-05-3040DECLARATION of Russell L. McIntyre in Support re: 37 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1)(Friedman, William) (Entered: 05/30/2018)
2018-05-3041DECLARATION of William A. Friedman in Support re: 37 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4A, # 5 Exhibit 4B, # 6 Exhibit 5A, # 7 Exhibit 5B, # 8 Exhibit 5C, # 9 Exhibit 5D, # 10 Exhibit 6A, # 11 Exhibit 6B, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10, # 16 Exhibit 11A, # 17 Exhibit 11B, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26)(Friedman, William) (Entered: 05/30/2018)
2018-06-1242REPLY MEMORANDUM OF LAW in Support re: 29 MOTION for Summary Judgment . and in opposition to Plaintiff's cross-motion for summary judgment [Dkt. No. 37] . Document filed by United States Central Command. (Krause, Andrew) (Entered: 06/12/2018)
2018-06-1243DECLARATION of Major General Terry Ferrell in Support re: 29 MOTION for Summary Judgment .. Document filed by United States Central Command. (Attachments: # 1 Exhibit 1 (Revised Vaughn index), # 2 Exhibit 2)(Krause, Andrew) (Entered: 06/12/2018)
2018-06-2644REPLY MEMORANDUM OF LAW in Support re: 37 CROSS MOTION for Summary Judgment . . Document filed by Osen LLC. (Friedman, William) (Entered: 06/26/2018)
2018-06-2645DECLARATION of Russell L. McIntyre in Support re: 37 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Friedman, William) (Entered: 06/26/2018)
2018-06-2646DECLARATION of William A. Friedman in Support re: 37 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Friedman, William) (Entered: 06/26/2018)
2018-06-2647LETTER addressed to Judge Katherine Polk Failla from Michael J. Radine dated June 26, 2018 re: Requesting Oral Argument on Summary Judgment Motions. Document filed by Osen LLC.(Radine, Michael) (Entered: 06/26/2018)
2018-06-2648MEMO ENDORSEMENT on re: 47 Letter filed by Osen LLC. ENDORSEMENT: The Court will schedule oral argument if it determines that argument would be helpful. SO ORDERED. (Signed by Judge Katherine Polk Failla on 6/26/2018) (rro) (Entered: 06/27/2018)
2018-06-2749LETTER addressed to Judge Katherine Polk Failla from Michael J. Radine dated June 27, 2018 re: Courtesy copies of Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment. Document filed by Osen LLC.(Radine, Michael) (Entered: 06/27/2018)
2018-12-2750STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/18) (yv) (Entered: 01/02/2019)
2019-03-2251OPINION AND ORDER re: 37 CROSS MOTION for Summary Judgment filed by Osen LLC, 29 MOTION for Summary Judgment filed by United States Central Command, 32 CROSS MOTION for Summary Judgment . filed by Osen LLC. For the reasons stated in this Opinion, the Government's motion for summary judgment is GRANTED in part and DENIED in part, and Plaintiff's cross-motion for summary judgment is DENIED in part and GRANTED in part. CENTCOM is directed to produce the redacted photographs of EFP strikes and the material on EFP size. Plaintiff's remaining requests are denied. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 3/22/2019) (rro) Transmission to Orders and Judgments Clerk for processing. Modified on 3/25/2019 (rro). (Entered: 03/22/2019)
2019-03-2552CLERK'S JUDGMENT re: 51 Memorandum & Opinion. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated March 22, 2019, the Government's motion for summary judgment is granted in part and denied in part, and Plaintiff's cross-motion for summary judgment is granted in part and denied in part; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 03/25/2019) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 03/25/2019)
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