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Case TitleCHARLES v. OFFICE OF THE ARMED FORCES MEDICAL EXAMINER et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2009cv00199
Date Filed2009-02-03
Date Closed2013-10-03
JudgeJudge Ketanji Brown Jackson
PlaintiffROGER G. CHARLES
DefendantOFFICE OF THE ARMED FORCES MEDICAL EXAMINER
DefendantARMED FORCES INSTITUTE OF PATHOLOGY
DefendantUNITED STATES DEPARTMENT OF DEFENSE
AppealD.C. Circuit 13-5359
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [26]
Opinion/Order [49]
FOIA Project Annotation: Judge Richard Roberts has ruled that the Office of the Armed Forces Medical Examiner must disclose to journalist Roger Charles redacted versions of autopsies of troops wearing body armor who were killed in Iraq or Afghanistan because they are not protected under Exemption 6 (invasion of privacy). Roberts also found that preliminary autopsy reports were protected under Exemption 5 (deliberative process privilege), although the Medical Examiner had not yet shown that facts could not be segregated from the privileged information. Roberts first pointed out that "the defendants' evidence shows that the preliminary autopsy reports are drafts of the final autopsy reports. . .Because this assessment is entitled to deference and the agency has provided evidence to show that preliminary reports are protected by the deliberative process privilege, the agency properly invoked Exemption 5 to protect the preliminary reports." The Medical Examiner argued that factual findings in preliminary assessments could differ from those in the final autopsy, allowing a comparison that would reveal the Medical Examiner's deliberations. But Roberts observed that "the defendants do not provide evidence supporting this contention. Moreover, the defendants fail to provide a sufficiently detailed description of the information withheld, and a detailed justification correlating the claim that a comparison of the preliminary and final autopsy reports would disclose the agency's decisionmaking process with a description of the reports and the factual material they contain." Roberts rejected the Medical Examiner's claim, based on the Supreme Court's decision in National Archives v. Favish, 541 U.S. 157 (2004), that autopsy reports with personal information redacted would cause an invasion of privacy for family members, who were required under DOD policy to be notified when such information was disclosed. He noted that "the defendants have not demonstrated that Favish should be applied. . .[W]ithout demonstrating that family members will encounter the disclosed information, and be able to discern that a redacted report relates to their family member, the defendants present no more than a mere possibility of an invasion of personal privacy and that is insufficient to find that Exemption 6 applies. Although he indicated that Charles' alleged public interest in learning about the effectiveness of body armor was irrelevant, Roberts nevertheless recognized a broader public interest in disclosure. He observed that "the information will advance the public's right to be informed about what their government is doing with respect to body armor issued to service members."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy
Opinion/Order [63]
FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that the Office of the Armed Forces Medical Examiner has shown that no factual information can be segregated from preliminary autopsy reports for soldiers killed in combat and that the preliminary autopsy reports can be withheld in their entirety under Exemption 5 (deliberative process privilege). In previous rulings, Judge Emmet Sullivan had ordered final autopsy reports disclosed. Resolving the final dispute in a case brought by journalist Roger Charles, who was researching the effectiveness of body armor, Brown remarked initially that Sullivan had ruled previously that, while the preliminary autopsy reports qualified as drafts under Exemption 5, the AFMES had not yet adequately justified its claim that factual information could not be segregated and disclosed. Relying on Russell v. Dept of Air Force, 682 F.2d 1045 (D.C. Cir. 1982), in which the D.C. Circuit found that a draft history of the Air Force's role in using Agent Orange during the Vietnam War was protected by Exemption 5, Jackson noted that "the AFMES's preliminary autopsy reports are drafts that are transformed into final autopsy reports regarding deceased service members such as the ones that have already been ordered disclosed." She agreed with the agency that "preliminary autopsy reports reflect the incomplete findings of single AFMES forensic pathologists at the outset of a staged autopsy review process" and noted that "the linchpin of the D.C. Circuit's decision in Russell was the fact that it was possible to compare the draft and final versions of the manuscript at issue." She explained that "the Court has already concluded that the final autopsy reports in the instant case are not exempt from disclosure; therefore, if the preliminary autopsy reports are produced, a realistic opportunity for comparison of the draft to the final exists. And Defendants' submissions clearly demonstrate that there is, in fact, a comparison to be made because the preliminary and final autopsy reports can differ significantly." Charles argued the agency had not shown why facts could not be disclosed. But Jackson pointed out that "a simple comparison would reveal the agency's 'editorial judgment' and to require Defendants to say more´┐Ż"e.g., to make them flesh out with specificity precisely how a comparison between the two records would evidence the agency's deliberations´┐Ż"risks revealing the very discretionary determinations that FOIA Exemption 5 entitles the agency to protect."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2009-02-031COMPLAINT against OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE ( Filing fee $ 350, receipt number 4616018029) filed by ROGER G. CHARLES. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Additional attachment(s) added on 3/11/2009: # 2 Civil Cover Sheet) (td, ). (Entered: 02/04/2009)
2009-02-03SUMMONS (5) Issued as to OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General. (jf, ) (Entered: 02/04/2009)
2009-02-032NOTICE of Appearance by Jonas R. McDavit on behalf of ROGER G. CHARLES (jf, ) (Entered: 02/04/2009)
2009-02-033NOTICE of Appearance by Andrew M. Genser on behalf of ROGER G. CHARLES (jf, ) (Entered: 02/04/2009)
2009-02-034NOTICE of Appearance by Michael J. Gulliford on behalf of ROGER G. CHARLES (jf, ) (Entered: 02/04/2009)
2009-03-045NOTICE of Appearance by Tamra Tyree Moore on behalf of OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Certificates of Familiarity)(Moore, Tamra) (Entered: 03/04/2009)
2009-03-056ANSWER to 1 Complaint, by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE. Related document: 1 Complaint, filed by ROGER G. CHARLES.(Moore, Tamra) (Entered: 03/05/2009)
2009-03-057STANDING ORDER signed by Judge Ricardo M. Urbina on March 5, 2009. Read this Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(jwd ) (Entered: 03/05/2009)
2009-03-06MINUTE ORDER. Whereas the defendant has filed a responsive pleading, it is hereby ORDERED that the parties submit a joint status report on or before March 23, 2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 03/06/09. (EN) (Entered: 03/06/2009)
2009-03-238STATUS REPORT [JOINT STATUS REPORT] by ROGER G. CHARLES. (Attachments: # 1 Exhibit A)(McDavit, Jonas) (Entered: 03/23/2009)
2009-04-039NOTICE of Appearance by Michelle Renee Bennett on behalf of OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Certificate of Familiarity)(Bennett, Michelle) (Entered: 04/03/2009)
2009-06-2210STATUS REPORT [Joint Status Report] by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 06/22/2009)
2009-07-1311STATUS REPORT THIRD JOINT STATUS REPORT by ROGER G. CHARLES. (McDavit, Jonas) (Entered: 07/13/2009)
2009-07-21MINUTE ORDER. Upon consideration of the parties' third joint status report it is hereby ORDERED that the parties submit a fourth joint status report on or before August 21, 2009. If the parties have not resolved all issues in this case by that time, they shall propose an appropriate briefing schedule. SO ORDERED. Signed by Judge Ricardo M. Urbina on 07/21/2009. (EN) (Entered: 07/21/2009)
2009-07-21Set/Reset Deadlines: Fourth Joint Status Report due on or before 8/21/2009 (tg, ) (Entered: 07/21/2009)
2009-08-2112STATUS REPORT Joint Status Report by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 08/21/2009)
2009-08-24MINUTE ORDER. Upon consideration of the joint status report filed on August 21, 2009, it is hereby ORDERED that the defendants' motion for summary judgment is due on or before October 7, 2009, the plaintiff's opposition is due on or before November 9, 2009, and the defendants' reply is due on or before November 24, 2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 08/24/2009. (EN) (Entered: 08/24/2009)
2009-08-24Set/Reset Deadlines: Defendants' Summary Judgment motion is due on or before 10/7/2009. Plaintiff's Opposition to Motion for Summary Judgment is due on or before 11/9/2009. Defendant's Reply to Motion for Summary Judgment is due on or before 11/24/2009. (tg, ) (Entered: 08/24/2009)
2009-10-0213Unopposed MOTION for Extension of Time to File Opening Summary Judgment Brief by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 10/02/2009)
2009-10-06MINUTE ORDER granting 13 motion for extension of time. Upon consideration of the defendants' unopposed motion for an extension of time to file its opening summary judgment brief, it is hereby ORDERED that the motion is GRANTED. It is FURTHER ORDERED that the defendants shall file their opening summary judgment brief (and produce redacted versions of final autopsy reports to the plaintiff) on or before October 16, 2009; the plaintiff shall file his opposition summary judgment brief on or before November 18, 2009; and the defendants shall file their reply summary judgment brief on or before December 3, 2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 10/06/2009. (EN) (Entered: 10/06/2009)
2009-10-06Set/Reset Deadlines: Defendants' Opening Summary Judgment Brief is due on or before 10/16/2009. Plaintiffs' Opposition is due on or before 11/18/2009. Defendants' Reply is due on or before 12/3/2009. (tg, ) (Entered: 10/06/2009)
2009-10-1614Second MOTION for Extension of Time to File Opening Summary Judgment Brief by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 10/16/2009)
2009-10-2015Memorandum in opposition to re 14 Second MOTION for Extension of Time to File Opening Summary Judgment Brief filed by ROGER G. CHARLES. (Attachments: # 1 Exhibit Exhibit 1)(McDavit, Jonas) (Entered: 10/20/2009)
2009-10-2316MOTION for Summary Judgment by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Captain Craig T. Mallak, # 4 Exhibit to Declaration of Captain Mallak, # 5 Declaration General George W. Casey, Jr., # 6 Text of Proposed Order)(Bennett, Michelle) (Entered: 10/23/2009)
2009-11-02MINUTE ORDER granting in part 14 motion for extension of time. Upon consideration of the defendants' motion for a second extension of time to file their opening summary judgment brief, and the plaintiffs' opposition thereto,it is hereby ORDERED that the motion is GRANTED IN PART. The defendants shall file their opening summary judgment brief (and produce any records to Plaintiff) on or before October 23, 2009; the plaintiff shall file his opposition summary judgment brief on or before December 2, 2009; and the defendants shall file their reply summary judgment brief on or before December 14, 2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 11/02/2009. (EN) (Entered: 11/02/2009)
2009-11-02Set/Reset Deadlines: Defendants' opening summary judgment brief is due on or before 10/23/2009. Plaintiffs' opposition summary judgment bried is due on or before 12/2/2009. Defendants' Reply summary judgment brief is due on or before 12/14/2009. (tg, ) (Entered: 11/02/2009)
2009-11-2017Unopposed MOTION for Leave to File a Supplemental Declaration in Support of Defendants' Motion for Summary Judgment by OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Supplemental Declaration of Craig T. Mallak, # 2 Text of Proposed Order)(Bennett, Michelle) (Entered: 11/20/2009)
2009-11-24MINUTE ORDER granting 17 unopposed motion for leave to file. Upon consideration of the defendants' unopposed motion for leave to file a supplemental declaration in support of their motion for summary judgment, it is hereby ORDERED that the motion is GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 11/24/2009. (EN) (Entered: 11/24/2009)
2009-11-2418MOTION for Extension of Time to File Response/Reply, Unopposed MOTION for Extension of Time to Amend Summary Judgment Briefing Schedule by ROGER G. CHARLES (McDavit, Jonas) (Entered: 11/24/2009)
2009-11-2419Supplemental Declaration of Craig T. Mallak re 16 MOTION for Summary Judgment by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (jf, ) (Entered: 11/25/2009)
2009-11-25MINUTE ORDER granting 18 motion for extension of time. Upon consideration of the plaintiff's unopposed motion for an extension of the summary judgment briefing schedule, it is hereby ORDERED that the motion is GRANTED and that the plaintiff's opposition and cross-motion for summary judgment is due on or before December 23, 2009, and the defendants' reply and opposition is due on or before January 15, 2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 11/25/2009. (EN) Modified on 11/25/2009 to reflect that this is a minute entry (EN). (Entered: 11/25/2009)
2009-11-25Set/Reset Deadlines: Plaintiff's Opposition to Summary Judgment and Cross-motion are due by 12/23/2009 Defendants' Reply to the Opposition to Summary Judgment and the Opposition to the Cross Motion are due by 1/15/2010. (tg, ) (Entered: 11/25/2009)
2009-12-2320Memorandum in opposition to re 16 MOTION for Summary Judgment and Memorandum in support of Plaintiff's CROSS-MOTION for Summary Judgment filed by ROGER G. CHARLES. (Attachments: # 1 Declaration Declaration of Roger G. Charles, # 2 Text of Proposed Order Proposed Order, # 3 Statement of Facts Statement of Undisputed Material Facts, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12)(McDavit, Jonas) (Entered: 12/23/2009)
2009-12-2821Cross MOTION for Summary Judgment by ROGER G. CHARLES (McDavit, Jonas) (Entered: 12/28/2009)
2010-01-1522Memorandum in opposition to re 21 Cross MOTION for Summary Judgment and Reply in Support of 16 Defendants' Motion for Summary Judgment filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Second Declaration of Craig T. Mallak, # 2 Concise Statement of Genuine Issues, # 3 Text of Proposed Order)(Bennett, Michelle) (Entered: 01/15/2010)
2010-01-1523REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (See Docket Entry 22 to view document. Counsel is reminded to file the reply as a separate docket entry in future). (znmw, ) (Entered: 01/19/2010)
2010-01-2224REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment filed by ROGER G. CHARLES. (McDavit, Jonas) (Entered: 01/22/2010)
2010-08-1325ORDER denying 16 the defendants' motion for summary judgment; granting 21 in part and denying in part the plaintiff's cross-motion for summary judgment. Signed by Judge Ricardo M. Urbina on 08/13/2010. (EN, ) (Entered: 08/13/2010)
2010-08-1326MEMORANDUM AND OPINION denying 16 the defendants' motion for summary judgment; granting 21 in part and denying in part the plaintiff's motion for summary judgment. Signed by Judge Ricardo M. Urbina on 08/13/2010. (EN, ) (Entered: 08/13/2010)
2010-09-1327STATUS REPORT [Joint Status Report] by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 09/13/2010)
2010-10-05MINUTE ORDER. Upon consideration of the representations made in the joint status report filed on September 13, 2010, it is hereby ORDERED that the following deadlines apply: the defendants shall file a motion for summary judgment on or before October 15, 2010; the plaintiff shall file his opposition/cross-motion for summary judgment on or before November 12, 2010; the defendant shall file it's reply/opposition on or before December 3, 2010; and the plaintiff shall file his reply on or before December 17, 2010. SO ORDERED. Signed by Judge Ricardo M. Urbina on 10/05/10. (EN, ) (Entered: 10/05/2010)
2010-10-05Set/Reset Deadlines: Defendants' Summary Judgment motion due by 10/15/2010. Plaintiff's Opposition to Motion for Summary Judgment and filing of Cross-Motion due by 11/12/2010. Defendants' Reply to Opposition to Motion for Summary Judgment and Opposition to Cross-Motion due by 12/3/2010. Plaintiff's Reply to Opposition to Cross-Motion due 12/17/2010. (tg, ) (Entered: 10/06/2010)
2010-10-1528Second MOTION for Summary Judgment by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of John P. Peterson, # 4 Declaration of Craig T. Mallak, # 5 Supplemental Declaration of Craig T. Mallak, # 6 Second Declaration of Craig T. Mallak, # 7 Declaration of George W. Casey, Jr., # 8 Text of Proposed Order)(Bennett, Michelle) (Entered: 10/15/2010)
2010-11-1229ENTERED IN ERROR.....Memorandum in opposition to re 28 Second MOTION for Summary Judgment and Plaintiff's Second Cross-Motion for Summary Judgment filed by ROGER G. CHARLES. (Gulliford, Michael) Modified on 11/15/2010 (znmw, ). (Entered: 11/12/2010)
2010-11-1230Memorandum in opposition to re 28 Second MOTION for Summary Judgment and Plaintiff's Second Cross-Motion for Summary Judgment filed by ROGER G. CHARLES. (Attachments: # 1 Statement of Facts Response to Defs. Statement of Undisputed Facts, # 2 Text of Proposed Order Proposed Order for Summary Judgment Motion)(Gulliford, Michael) (Entered: 11/12/2010)
2010-11-1231Cross MOTION for Summary Judgment Second Cross Motion for Summary Judgment by ROGER G. CHARLES (Attachments: # 1 Memorandum in Support Plaintiff's Opposition to Defendants' Second Motion for Summary Judgment and Plaintiff's Second Cross-Motion for Summary Judgment, # 2 Statement of Facts In Support of Cross-Motion for Summary Judgment, # 3 Text of Proposed Order for Summary Judgment Motion)(Gulliford, Michael) (Entered: 11/12/2010)
2010-11-15NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 29 Memorandum in Opposition was entered in error and counsel refiled said pleading with additional attachments as Docket Entry 30 Memorandum in Opposition. (znmw, ) (Entered: 11/15/2010)
2010-12-0332Memorandum in opposition to re 31 Cross MOTION for Summary Judgment Second Cross Motion for Summary Judgment filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Statement of Genuine Issues, # 2 Text of Proposed Order)(Bennett, Michelle) (Entered: 12/03/2010)
2010-12-0333REPLY to opposition to motion re 28 Second MOTION for Summary Judgment filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 12/03/2010)
2010-12-2034REPLY to opposition to motion re 31 Cross MOTION for Summary Judgment Second Cross Motion for Summary Judgment filed by ROGER G. CHARLES. (Gulliford, Michael) (Entered: 12/20/2010)
2011-01-2035NOTICE OF SUPPLEMENTAL AUTHORITY by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Prison Legal News decision)(Bennett, Michelle) (Entered: 01/20/2011)
2011-01-2836RESPONSE re 35 NOTICE OF SUPPLEMENTAL AUTHORITY filed by ROGER G. CHARLES. (Gulliford, Michael) (Entered: 01/28/2011)
2011-09-01MINUTE ORDER denying without prejudice 28 motion for summary judgment. On October 15, 2010 and November 12, 2010, respectively, the parties submitted cross-motions for summary judgment. On March 7, 2011, the Supreme Court decided Milner v. Department of the Navy, 131 S. Ct 1259 (2011). It is this 1st day of September 2011, hereby ORDERED that the parties' pending cross-motions for summary judgment are denied as moot without prejudice in light of the United States Supreme Court's intervening decision in Milner v. Department of the Navy, 131 S. Ct 1259 (2011); and it is FURTHER ORDERED that the parties shall file renewed dispositive motions to account for Milner's substantive changes to the law that controls this matter. These motions may raise any applicable FOIA exemptions. See Washington Post Co. v. U.S. Dep't of Health & Human Servs., 795 F.2d 205 (D.C. Cir. 1986) (allowing invocation of new FOIA exemptions after a Supreme Court decision created an interim development in applicable legal doctrine); Daskalea v. Wash. Humane Socy, 710 F. Supp. 2d 32 (D.D.C. 2010) (allowing parties to refile their briefings if the claim survived an intervening change in controlling law); and it is ORDERED that the dispositive motions shall be filed on or before October 10, 2011; opposition and/or cross-motion for summary judgment shall be filed on or before October 24, 2011; replies shall be filed on or before October 31, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 9-1-11. (TA) (Entered: 09/01/2011)
2011-09-01MINUTE ORDER denying without prejudice 31 motion for summary judgment. On October 15, 2010 and November 12, 2010, respectively, the parties submitted cross-motions for summary judgment. On March 7, 2011, the United States Supreme Court decided Milner v. Department of the Navy, 131 S. Ct 1259 (2011). It is this 1st day of September 2011, hereby ORDERED that the parties' pending cross-motions for summary judgment are denied as moot without prejudice in light of the Supreme Court's intervening decision in Milner v. Department of the Navy, 131 S. Ct 1259 (2011); and it is FURTHER ORDERED that the parties shall file renewed dispositive motions to account for Milner's substantive changes to the law that controls this matter. These motions may raise any applicable FOIA exemptions. See Washington Post Co. v. U.S. Dep't of Health & Human Servs., 795 F.2d 205 (D.C. Cir. 1986) (allowing invocation of new FOIA exemptions after a Supreme Court decision created an interim development in applicable legal doctrine); Daskalea v. Wash. Humane Soc'y, 710 F. Supp. 2d 32 (D.D.C. 2010) (allowing parties to refile their briefings if the claim survived an intervening change in controlling law); and it is ORDERED that the dispositive motions shall be filed on or before October 10, 2011; opposition and/or cross-motion for summary judgment shall be filed on or before October 24, 2011; replies shall be filed on or before October 31, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 9-1-11. (TA) (Entered: 09/01/2011)
2011-09-02Set/Reset Deadlines: Dispositive Motions due by 10/10/2011; Oppositions to Dispositive Motions due by 10/24/2011, and Cross Motion for Summary Judgment due by 10/24/2011; Replies to oppositions to Dispositive Motions due by 10/31/2011; Response to Cross Motion due by 10/31/2011. (tg, ) (Entered: 09/02/2011)
2011-09-2237Unopposed MOTION for Extension of Time to File Opening Summary Judgment Brief by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 09/22/2011)
2011-10-1038MINUTE ORDER granting 37 defendants' motion for extension of time to file its summary judgment brief. It is hereby ORDERED that the defendants shall file their motion for summary judgment on or before October 18, 2011; that the plaintiff shall file his opposition/cross-motion for summary judgment on or before November 1, 2011; that the defendants shall file their opposition/reply on or before November 8, 2011; and that the plaintiff shall file his reply on or before November 15, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 10/10/11. (TA) (Entered: 10/10/2011)
2011-10-10Set/Reset Deadlines: Defendants' summary judgment motion due by 10/18/2011; plaintiff's opposition to motion for summary judgment and filing of cross-motion due by 11/1/2011; defendants' reply to opposition to motion for summary judgment and filing of opposition to cross-motion due by 11/8/2011; plaintiff's reply to opposition to cross-motion. (tg, ) (Entered: 10/11/2011)
2011-10-1739Unopposed MOTION for Extension of Time to File Opening Summary Judgment Brief by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 10/17/2011)
2011-10-1940MINUTE ORDER granting 39 the defendants' motion for a second extension of time. Upon consideration of the defendants' consent motion for a second extension of time to file their summary judgment brief, it is hereby ORDERED that the motion is GRANTED and that the defendants shall file their motion for summary judgment on or before October 25, 2011; that the plaintiff shall file his opposition/cross-motion for summary judgment on or before November 8, 2011; that the defendants shall file their opposition/reply on or before November 15, 2011; and that the plaintiff shall file his reply on or before November 22, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 10/19/11. (TA) (Entered: 10/19/2011)
2011-10-20Set/Reset Deadlines: Summary Judgment motions due by 10/25/2011; Opposition to Summary Judgment Motion and Cross Motions due by 11/8/2011, Reply to Opposition to Motion for Summary Judgment and Opposition to Cross Motion due by 11/15/2011; Reply to Opposition to Cross Motion due by 11/22/11. (mpt) (Entered: 10/20/2011)
2011-10-21Set/Reset Deadlines: Defendants' Summary Judgment motion due by 10/25/2011; plaintiff's opposition to motion for summary judgment and cross-motion due by 11/8/2011; defendants' reply to opposition to motion for summary judgment and opposition to cross-motion due by 11/15/2011; plaintiff's reply to opposition to cross motions due by 11/22/2011. (tg, ) (Entered: 10/21/2011)
2011-10-2541Third MOTION for Summary Judgment by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of George W. Casey, Jr., # 4 Declaration of John P. Peterson, # 5 Declaration of Craig T. Mallak, # 6 Supplemental Declaration of Craig T. Mallak, # 7 Second Declaration of Craig T. Mallak, # 8 Third Declaration of Craig T. Mallak, # 9 Text of Proposed Order)(Bennett, Michelle) (Entered: 10/25/2011)
2011-11-0842MOTION to Withdraw as Attorney [Jonas R. McDavit] by ROGER G. CHARLES (Gulliford, Michael) (Entered: 11/08/2011)
2011-11-0843Memorandum in opposition to re 41 Third MOTION for Summary Judgment [MEMORANDUM IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' THIRD MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S THIRD CROSS-MOTION FOR SUMMARY JUDGMENT] filed by ROGER G. CHARLES. (Attachments: # 1 Statement of Facts [Plaintiffs Response to Defendants Statement of Material Facts Not In Dispute], # 2 Text of Proposed Order)(Gulliford, Michael) (Entered: 11/08/2011)
2011-11-0844Third MOTION for Summary Judgment by ROGER G. CHARLES (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Gulliford, Michael) (Entered: 11/08/2011)
2011-11-1545Memorandum in opposition to re 44 Third MOTION for Summary Judgment filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Statement of Genuine Issues, # 2 Text of Proposed Order)(Bennett, Michelle) (Entered: 11/15/2011)
2011-11-1546REPLY to opposition to motion re 41 Third MOTION for Summary Judgment filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 11/15/2011)
2011-11-2247REPLY to opposition to motion re 44 Third MOTION for Summary Judgment Plaintiff's Reply to Defendants' Opposition to Plaintiff's Third Cross-Motion for Summary Judgment filed by ROGER G. CHARLES. (Attachments: # 1 Exhibit 1)(Gulliford, Michael) (Entered: 11/22/2011)
2011-12-1948NOTICE (Joint Notice) by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Bennett, Michelle) (Entered: 12/19/2011)
2012-04-20Case randomly reassigned to Judge Richard W. Roberts. Judge Ricardo M. Urbina no longer assigned to the case. (gt, ) (Entered: 04/20/2012)
2012-08-13MINUTE ORDER: It is hereby ORDERED that plaintiff Charles's motion 42 for leave to withdraw Attorney McDavit as counsel be, and hereby is, GRANTED as unopposed. Signed by Judge Richard W. Roberts on 8/13/12. (lcrwr2) (Entered: 08/13/2012)
2013-03-2749MEMORANDUM OPINION AND ORDER granting in part and denying in part the defendants' third motion 41 for summary judgment and granting in part and denying in part the plaintiff's motion 44 for summary judgment. Signed by Judge Richard W. Roberts on 3/27/13. (lcrwr2) (Entered: 03/27/2013)
2013-04-02Set/Reset Deadlines: Defendant's Supplemental Memoranda due by 4/29/2013. (hs) (Entered: 04/02/2013)
2013-04-05Case directly reassigned to Judge Ketanji Brown Jackson. Judge Richard W. Roberts no longer assigned to the case. (gt, ) (Entered: 04/05/2013)
2013-04-1950MOTION to Stay Pending Appeal, and for an Extension of Time to Submit Supplemental Materials in Support of Exemption 5 Withholdings by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle). Added MOTION for Extension of Time to on 4/22/2013 (jf, ). (Entered: 04/19/2013)
2013-04-2451Memorandum in opposition to re 50 MOTION to Stay Pending Appeal, and for an Extension of Time to Submit Supplemental Materials in Support of Exemption 5 Withholdings MOTION for Extension of Time to filed by ROGER G. CHARLES. (Gulliford, Michael) (Entered: 04/24/2013)
2013-04-2552ORDER staying Order of March 27, 2013 until May 6, 2013. Telephone Conference set for 5/2/2013 02:30 PM in Chambers before Judge Ketanji Brown Jackson (See order for details). Signed by Judge Ketanji Brown Jackson on 04/25/2013. (lckbj1) (Entered: 04/25/2013)
2013-04-2653REPLY to opposition to motion re 50 MOTION to Stay Pending Appeal, and for an Extension of Time to Submit Supplemental Materials in Support of Exemption 5 Withholdings MOTION for Extension of Time to filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 04/26/2013)
2013-05-0254ORDER extending stay of Order of March 27, 2013 49 Memorandum & Opinion, until May 13, 2013 . Joint proposed order due by 5/7/2013 at 5:00 p.m. (See order for details.) Signed by Judge Ketanji Brown Jackson on 5/2/2013. (lckbj1) (Entered: 05/02/2013)
2013-05-02Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Telephone Conference held in Chambers on 5/2/2013. (Court Reporter Theresa Sorenson) (gdf) (Entered: 05/30/2013)
2013-05-0755NOTICE of Filing of Joint Proposed Order by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE re 54 Order, Set Deadlines (Bennett, Michelle) (Entered: 05/07/2013)
2013-05-0856Unopposed MOTION for Prompt Ruling on Motion for a Stay Pending Appeal re 50 MOTION to Stay Pending Appeal, and for an Extension of Time to Submit Supplemental Materials in Support of Exemption 5 Withholdings MOTION for Extension of Time to by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Bennett, Michelle) (Entered: 05/08/2013)
2013-05-09MINUTE ORDER granting 50 Motion for Extension of Time. Pursuant to an agreement reached by the parties, it is ORDERED that Defendants shall file their supplemental declaration(s) and/or Vaughn index, and supplemental memorandum on the Exemption 5 issue by May 24, 2013; Plaintiff shall file his response by June 7, 2013; and Defendants shall file a reply by June 14, 2013. Signed by Judge Ketanji Brown Jackson on 5/9/2013. (lckbj1) (Entered: 05/09/2013)
2013-05-0957MEMORANDUM OPINION AND ORDER granting 50 Motion to Stay. The Court's Order of March 27, 2013, shall be STAYED as it relates to Defendants' production of the Exemption 6 documents. This stay is subject to the following conditions: First, Defendants shall petition the Court of Appeals for expedited consideration of the appeal within ten days of filing a notice of appeal. In the event necessary, Plaintiff shall also seek expedited consideration of any appeal within ten days of filing a notice of appeal. Second, Defendants shall produce all documents not subject to any appeal within thirty days of entry of final judgment. Third, Defendants shall continue to take all necessary steps to obtain an appeal determination as soon as possible, and shall notify the Court as soon as a decision regarding whether to file an appeal has been made. (See Order for details.) Signed by Judge Ketanji Brown Jackson on 5/9/2013. (lckbj1) (Entered: 05/09/2013)
2013-05-09MINUTE ORDER denying as MOOT 56 Motion for Prompt Ruling on Motion to Stay Pending Appeal and for an Extension of Time to Submit Supplemental Materials. Signed by Judge Ketanji Brown Jackson on 5/9/2013. (lckbj1) (Entered: 05/09/2013)
2013-05-10Set/Reset Deadlines: Response due by 6/7/2013; Reply due by 6/14/2013. (gdf) (Entered: 05/10/2013)
2013-05-1458Unopposed MOTION to Clarify the Court's May 9, 2013 Stay Order by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE (Bennett, Michelle) (Entered: 05/14/2013)
2013-05-14MINUTE ORDER: The Court GRANTS 58 Defendants' Unopposed Motion for Clarification of its Stay Order of May 9, 2013, and ORDERS that the stay shall remain in effect pending final judgment and any appeal taken therefrom (subject to the other limitations and conditions enumerated in the Stay Order of May 9, 2013). Signed by Judge Ketanji Brown Jackson on 5/14/2013. (lckbj1) (Entered: 05/14/2013)
2013-05-2459SUPPLEMENTAL MEMORANDUM to re 49 Memorandum & Opinion, (Defs.' Opening Supplemental Brief in Supp. of Withholding Preliminary Autopsy Reports in their Entirety Pursuant to FOIA Exemption 5) filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit A - Declaration of Ladd A. Tremaine, # 2 Exhibit B - Chart Comparing Redacted Preliminary and Final Autopsy Reports)(Bennett, Michelle) (Entered: 05/24/2013)
2013-06-0760RESPONSE re 59 PLAINTIFF'S OPPOSITION TO DEFENDANTS OPENING SUPPLEMENTAL BRIEF IN SUPPORT OF WITHHOLDING PRELIMINARY AUTOPSY REPORTS IN THEIR ENTIRETY PURSUANT TO FOIA EXEMPTION 5 49 filed by ROGER G. CHARLES. (Gulliford, Michael) Modified on 6/10/2013 (jf, ). (Entered: 06/07/2013)
2013-06-1461REPLY re 60 Supplemental Memorandum, filed by ARMED FORCES INSTITUTE OF PATHOLOGY, OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE. (Bennett, Michelle) (Entered: 06/14/2013)
2013-10-0262ORDER granting Defendants' renewed motion for summary judgment with respect to the FOIA Exemption 5 issue. See Order and accompanying Memorandum Opinion for details. Signed by Judge Ketanji Brown Jackson on 10/2/2013. (lckbj1) (Entered: 10/02/2013)
2013-10-0263MEMORANDUM AND OPINION. Signed by Judge Ketanji Brown Jackson on 10/2/2013. (lckbj1) (Entered: 10/02/2013)
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