UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 10, 2006
AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS,
DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER OF FINAL JUDGMENT FOR IMMEDIATE APPEAL
Plaintiffs, in a letter dated January 4, 2005, asked me to clarify my Order Denying Motion for Relief from Judgment dated December 19, 2005. Particularly, they request I clarify my intentions as to the entering of a final judgment and making the claims immediately appealable under Rule 54(b) of the Federal Rules of Civil Procedure.
My Opinion and Order, dated September 29, 2005, granted in part and denied in part Plaintiffs' and Defendants' motions for partial summary judgment. Am. Civil Liberties Union v. Dep't of Def., 389 F. Supp. 2d 547 (S.D.N.Y. 2005). Defendant CIA moved for partial reconsideration of my September 29, 2005 Opinion and Order, to the extent that I ordered it to respond to Item 1 of Plaintiffs' priority list of requested documents (the "August 16, 2004 List"). In my Order dated November 2, 2005, I denied its motion for reconsideration, holding that I had not overlooked any material aspect of its initial argument supporting its Glomar response. Am. Civil Liberties Union v. Dep't of Def., 396 F. Supp. 2d 459 (S.D.N.Y. 2005). Subsequently, Plaintiffs moved for relief from my September 29, 2005 Opinion and Order, arguing that newly discovered evidenced relevant to Defendant CIA's Glomar Response to Items 29 and 61 of the August 16, 2004 List warranted reconsideration. In my Order dated December 19, 2005, I denied Plaintiffs' motion, holding that the newly discovered evidence would not effect a change in my original ruling and was merely cumulative to evidence already presented by Plaintiffs. Am. Civil Liberties Union v. Dep't of Def., No. 04-4151 (S.D.N.Y. Dec. 19, 2005).
Defendants appealed my Opinion and Order dated September 29, 2005 to the extent that it granted summary judgment to Plaintiffs with respect to the Darby photographs. Plaintiffs appealed my Opinion and Order dated September 29, 2005 to the extent that it granted summary judgment to Defendant CIA with respect to Items 29 and 61.
As I noted in my Order dated December 19, 2005, "[t]he issues of this case . . . merit review by the Court of Appeals." Id. at 5. I ruled that "[b]ecause of the public interest involved in this matter, and in light of this Order, both plaintiffs and defendant shall have the right to appeal from all, or any part, of my Opinion and Order dated September 29, 2005, my Order dated November 2, 2005, and [my] Order [dated December 19, 2005], notwithstanding any agreement made between them to the contrary." Id. Both denials of a disclosure request and injunctions ordering disclosure are appropriate for appeal. See United States v. Weber Aircraft Corp., 465 U.S. 792 (1984) (holding, on appeal from reversal of denial of disclosure request, that statements were exempt from disclosure); Ferguson v. FBI, 957 F.2d 1059, 1063, 1064 (2d Cir. 1992) (noting that (1) "partial disclosure orders in FOIA cases are appealable," and (2) under doctrine of pendent jurisdiction, it is within Court of Appeals's "discretion to take appellate jurisdiction over non-appealable issues in certain circumstances"); John Doe Corp. v. John Doe Agency, 850 F. 2d 105, 107 (2d Cir. 1988) (holding that district court order denying disclosure of documents ultimately sought "was a final order and [was] appealable").
That rule was intended to reflect that I had given a final judgment as to all claims adjudicated through the summary judgment motions. As I have repeated in my Opinion and Order dated September 19, 2005, my Order dated November 2, 2005, and my Order dated December 19, 2005, "time is of the essence in a FOIA case," there thus being "no just reason for delay" in the appeal of these issues. See Fed. R. Civ. P. 54(b).
ALVIN K. HELLERSTEIN United States District Judge
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