Brennan Center for Justice at v. United States Department of Ju

Filing 1

NOTICE OF CIVIL APPEAL, with district court docket, on behalf of Appellant United States Agency for International Development, United States Department of Health and Human Services and United States Department of Justice, FILED. [437438] [11-4599]

Case 1:09-cv-08756-VM Document 30

Filed 10/28/11 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x
BRENNAN CENTER FOR JUSTICE AT NEW
YORK UNIVERSITY SCHOOL OF LAW,
09 Civ. 8756 (VM)
Plaintiff,

v.
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES, and U.S. AGENCY
FOR INTERNATIONAL DEVELOPMENT,
Defendants.

---------------------------------------------------------------x
Notice is hereby given that defendants United States Department of Justice, United States
Department of Health and Human Services, and U.S. Agency for International Development hereby
appeal to the United States Court of Appeals for the Second Circuit from the Decision and Order
entered on the docket on August 30,2011.
Dated: New York, New York
October 28, 2011

Respectfully submitted,
PREET BHARARA
United States Attorney for the
Southern District of New York
Attorney for Defendants

BY:~
NJAMINfiTORRANCE

Assistant United States Attorney
86 Chambers Street
New York, New York 10007
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
TO:

Clerk of Court
United States Court of Appeals for the Second Circuit
United States Courthouse
500 Pearl Street
New York, New York 10007
Dorothy Heyl, Esq.
Milbank Tweed Hadley & McCloy LLP
Attorney for Plaintiff
1 Chase Manhattan Plaza
New York, New York 10005

Case: 1:09-cv-08756-VM

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APPEAL, ECF, RELATED

U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:09−cv−08756−VM
Brennan Center For Justice At New York University School Of
Law v. United States Department of Justice et al
Assigned to: Judge Victor Marrero
Related Case: 1:05−cv−08209−VM
Cause: 05:552 Freedom of Information Act
Plaintiff
Brennan Center For Justice At New
York University School Of Law

Date Filed: 10/15/2009
Jury Demand: None
Nature of Suit: 895 Freedom of
Information Act
Jurisdiction: U.S. Government Defendant

represented by Dorothy Heyl
Milbank, Tweed, Hadley &McCloy LLP
(NYC)
1 Chase Manhattan Plaza
New York, NY 10005
(212)530−5000
Fax: (212)530−5219
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Elizabeth Mary Virga
Milbank, Tweed, Hadley &McCloy LLP
(NYC)
1 Chase Manhattan Plaza
New York, NY 10005
(212)−530−5000
Fax: (212)−822−5646
Email: [e-mail]
ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Justice

represented by Benjamin H. Torrance
U.S. Attorney's Office, SDNY (Chambers
Street)
86 Chambers Street
New York, NY 10007
212−637−2703
Fax: 212−637−2702
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
United States Department of Health
and Human Services

represented by Benjamin H. Torrance
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
U.S. Agency For International
Development

represented by Benjamin H. Torrance
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Case: 1:09-cv-08756-VM
Date Filed

#

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Docket Text

10/15/2009

1 COMPLAINT against United States Department of Justice, United States
Department of Health and Human Services, U.S. Agency For International
Development. (Filing Fee $ 350.00, Receipt Number 702875)Document filed by
Brennan Center For Justice At New York University School Of Law.
(Attachments: # 1 exhibits)(ama) (Entered: 10/16/2009)

10/15/2009

SUMMONS ISSUED as to United States Department of Justice, United States
Department of Health and Human Services, U.S. Agency For International
Development. (ama) (Entered: 10/16/2009)

10/15/2009

CASE REFERRED TO Judge Victor Marrero as possibly Related to
1:05−cv−8209. (ama) (Entered: 10/16/2009)

10/15/2009

Case Designated ECF. (ama) (Entered: 10/16/2009)

10/20/2009

2 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCKET ENTRY NO.
6 ) − SUMMONS RETURNED EXECUTED Summons and Complaint, served.
United States Department of Justice served on 10/16/2009, answer due 11/5/2009.
Service was accepted by KAREN BROWN. Service was made by MAIL.
Document filed by Brennan Center For Justice At New York University School Of
Law. (Heyl, Dorothy) Modified on 10/23/2009 (kkc). (Entered: 10/20/2009)

10/20/2009

3 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCKET ENTRY NO.
7 ) − SUMMONS RETURNED EXECUTED Summons and Complaint, served.
U.S. Agency For International Development served on 10/15/2009, answer due
11/4/2009. Service was accepted by KAREN BROWN. Service was made by
MAIL. Document filed by Brennan Center For Justice At New York University
School Of Law. (Heyl, Dorothy) Modified on 10/23/2009 (kkc). (Entered:
10/20/2009)

10/20/2009

4 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCKET ENTRY NO.
8 ) − SUMMONS RETURNED EXECUTED Summons and Complaint, served.
United States Department of Health and Human Services served on 10/15/2009,
answer due 11/4/2009. Service was accepted by KAREN BROWN. Service was
made by MAIL. Document filed by Brennan Center For Justice At New York
University School Of Law. (Heyl, Dorothy) Modified on 10/23/2009 (kkc).
(Entered: 10/20/2009)

10/21/2009

CASE ACCEPTED AS RELATED. Create association to 1:05−cv−08209−VM.
Notice of Assignment to follow. (ldi) (Entered: 10/22/2009)

10/21/2009

5 NOTICE OF CASE ASSIGNMENT to Judge Victor Marrero. Judge Unassigned is
no longer assigned to the case. (ldi) (Entered: 10/22/2009)

10/21/2009

Magistrate Judge Debra Freeman is so designated. (ldi) (Entered: 10/22/2009)

10/22/2009

6 CERTIFICATE OF SERVICE of Summons and Complaint served on Department
of Justice on 10/15/2009. Service was accepted by Karen Brown. Service was
made by MAIL. Document filed by Brennan Center For Justice At New York
University School Of Law. (Heyl, Dorothy) (Entered: 10/22/2009)

10/22/2009

7 CERTIFICATE OF SERVICE of Summons and Complaint served on U.S. Agency
for International Development on 10/15/09. Service was accepted by Karen Brown.
Service was made by MAIL. Document filed by Brennan Center For Justice At
New York University School Of Law. (Heyl, Dorothy) (Entered: 10/22/2009)

10/22/2009

8 CERTIFICATE OF SERVICE of Summons and Complaint served on United
States Department of Health and Human Services on 10/15/09. Service was
accepted by Karen Brown. Service was made by MAIL. Document filed by
Brennan Center For Justice At New York University School Of Law. (Heyl,
Dorothy) (Entered: 10/22/2009)

11/16/2009

9 ENDORSED LETTER addressed to Judge Victor Marrero from Benjamin H.
Torrance dated 11/16/2009 re: Counsel request an extension of time to answer or
move with respect to the complaint until 12/1/2009. ENDORSEMENT: Request
GRANTED. The time for defendant(s) to answer or otherwise move with respect to

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the complaint in this action is extended to 12/1/09. So Ordered. (Signed by Judge
Victor Marrero on 11/16/2009) (jfe) (Entered: 11/16/2009)
12/01/2009

10 ANSWER to Complaint. Document filed by United States Department of Justice,
United States Department of Health and Human Services, U.S. Agency For
International Development.(Torrance, Benjamin) (Entered: 12/01/2009)

12/14/2009

11 NOTICE OF INITIAL CONFERENCE ( Initial Conference set for 1/8/2010 at
09:45 AM in Courtroom 20B, 500 Pearl Street, New York, NY 10007 before Judge
Victor Marrero.) (Signed by Judge Victor Marrero on 12/11/2009) (jmi) (Entered:
12/14/2009)

01/08/2010

Minute Entry for proceedings held before Judge Victor Marrero: Initial Pretrial
Conference held on 1/8/2010. Gov't to produce Vargh Index by 1/15/2010. Plaintiff
to review and advise whether issues remain. Court to schedule conference and in
camera review, if necessary. (tro) (Entered: 01/13/2010)

02/05/2010

12 ENDORSED LETTER addressed to Judge Victor Marrero from Dorothy Heyl
dated 2/5/10 re: The government is continuing to withhold whole documents on the
basis of privilege, rather than discrete portions. ENDORSEMENT: The
Government is directed to respond by 2/11/10 to the matter set forth above by
plaintiff. (Signed by Judge Victor Marrero on 2/5/10) (cd) (Entered: 02/08/2010)

02/11/2010

13 ENDORSED LETTER addressed to Judge Victor Marrero from Benjamin H.
Torrance dated 2/9/2010 re: Requesting an extension of time to respond to
plaintiffs letter of February 5, 2010. ENDORSEMENT: Request GRANTED. The
time for the Government to respond to the plaintiffs letter dated 2/5/2010 is
extended to 2/22/2010. (Signed by Judge Victor Marrero on 2/9/2010) (jpo)
(Entered: 02/11/2010)

03/23/2010

Minute Entry for proceedings held before Judge Victor Marrero: Telephone
Conference held on 3/23/2010. Government to confer and inform the Court about
possibility of in camera review. (mro) (Entered: 03/31/2010)

04/09/2010

14 ENDORSED LETTER addressed to Judge Victor Marrero from Benjamin H.
Torrance dated 3/30/2010 re: Counsel for the government defendants in this action
consent to the Court's in camera review of the documents at issue in this matter.
ENDORSEMENT: The Government is directed to submit to the Court by
4/14/2010 for in camera review the documents at issue in this action. (Signed by
Judge Victor Marrero on 4/9/2010) (tro) (Entered: 04/09/2010)

04/14/2010

Minute Entry for proceedings held before Judge Victor Marrero: Telephone
Conference held on 4/14/2010. Court to schedule in camera review of documents
with the Government. Government to review documents in light of discussion at
conference. (tro) (Entered: 04/21/2010)

04/22/2010

Minute Entry for proceedings held before Judge Victor Marrero: Status Conference
held on 4/22/2010. Ex parte in camera review of Vaughn index documents with
government. (mro) (Entered: 04/27/2010)

05/13/2010

15 SEALED DOCUMENT placed in vault.(nm) (Entered: 05/13/2010)

07/01/2010

16 ORDER. The Clerk of Court is directed to file the attached documents on the
public docket of this case; and it is further ORDERED that plaintiff Brennan
Center for Justice at New York University School of Law is directed to inform the
Court by July 15, 2010, of its intentions with respect to any further litigation of this
matter. (Signed by Judge Victor Marrero on 7/1/10) (rjm) (Additional
attachment(s) added on 7/1/2010: # 1 Part 2, # 2 Part 3) (rjm). (Entered:
07/01/2010)

12/22/2010

17 ORDER. It is hereby ORDERED that plaintiff Brennan Center for Justice is
directed to respond to this Order by December 27, 2010, by letter not to exceed
three pages, showing cause why this action should not be dismissed. In the event
no timely response to this Order is made the case will be dismissed without further
notice. (Signed by Judge Victor Marrero on 12/21/10) (rjm) (Entered: 12/22/2010)

12/29/2010

18 ENDORSED LETTER addressed to Judge Victor Marrero from Dorothy Heyl
dated 7/15/10 re: As directed in the Court's order of July 1, 2010 (the "Order"), we

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are writing on behalf of plaintiff Brennan Center for Justice at New York
University of Law ("Brennan Center") to inform the Court of the Brennan Center's
intentions with respect to further litigation of this matter. ENDORSEMENT: The
Clerk of Court is directed to enter into the public record of this action the letter
above submitted to the Court by plaintiff. So ordered. (Signed by Judge Victor
Marrero on 12/23/10) (rjm) (Entered: 12/29/2010)
12/29/2010

19 ENDORSED LETTER addressed to Judge Victor Marrero from Dorothy Heyl
dated 12/23/10 re: This letter responds to the order issued on 12/22/10, concerning
the requirement that we submit a letter by 7/15/10, stating out intentions with
respect to this lawsuit. ENDORSEMENT: So Ordered. The parties are directed to
submit a proposed briefing schedule for the motion described above. (Signed by
Judge Victor Marrero on 12/23/10) (rjm) (Entered: 12/29/2010)

01/05/2011

20 STIPULATION AND ORDER REGARDING MOTIONS FOR SUMMARY
JUDGMENT Defendants' Cross Motion due by 3/4/2011. Plaintiff's Motion due by
1/28/2011. Defendants' Response due by 3/4/2011. Plaintiff's Reply due by
3/18/2011. (Signed by Judge Victor Marrero on 1/5/11) (cd) (Entered: 01/05/2011)

01/28/2011

21 MOTION for Summary Judgment and Rule 56.1 Statement. Document filed by
Brennan Center For Justice At New York University School Of Law. Responses
due by 3/4/2011 (Attachments: # 1 Plaintiff's Memorandum of Law in Support of
its Motion for Summary Judgment, # 2 Affidavit Declaration of Elizabeth M. Virga
in Support of Plaintiff's Motion for Summary Judgment, # 3 Exhibit Exhibits 1−18
to the Declaration of Elizabeth M. Virga, # 4 Exhibit Exhibits 19−46 to the
Declaration of Elizabeth M. Virga)(Virga, Elizabeth) (Entered: 01/28/2011)

03/02/2011

22 ENDORSED LETTER addressed to Judge Victor Marrero from Benjamin H.
Torrance dated 3/1/2011 re: Requesting an extension to March 11 (and that
plaintiff's reply papers, now due March 18, be correspondingly extended to March
25). ENDORSEMENT: Request GRANTED. The briefing schedule with regard to
the motions for summary judgment herein is extended as set forth herein: motion
papers submitted by Government on 3/11/2011; response by plaintiff 3/25/2011.
(Signed by Judge Victor Marrero on 3/1/2011) (jpo) (Entered: 03/02/2011)

03/11/2011

23 CROSS MOTION for Summary Judgment. Document filed by U.S. Agency For
International Development, United States Department of Health and Human
Services, United States Department of Justice. Responses due by
3/25/2011(Torrance, Benjamin) (Entered: 03/11/2011)

03/11/2011

24 DECLARATION of Paul P. Colborn in Support re: 23 CROSS MOTION for
Summary Judgment.. Document filed by U.S. Agency For International
Development, United States Department of Health and Human Services, United
States Department of Justice. (Torrance, Benjamin) (Entered: 03/11/2011)

03/11/2011

25 MEMORANDUM OF LAW in Support re: 23 CROSS MOTION for Summary
Judgment. and in opposition to 21 plaintiff's motion for summary judgment.
Document filed by U.S. Agency For International Development, United States
Department of Health and Human Services, United States Department of Justice.
(Torrance, Benjamin) (Entered: 03/11/2011)

03/22/2011

26 ENDORSED LETTER addressed to Judge Victor Marrero from Elizabeth M.
Virga dated 3/22/2011, re: We represent the Plaintiff Brennan Center for Justice at
New York University School of Law (the "Plaintiff') in the above−referenced
action. We write to request an extension of time to file our Reply Brief in Further
Support of Plaintiffs Motion for Summary Judgment, now due on March 25. Due
10 unanticipated travel requirements, I respectfully request an extension to April 1.
This is the Plaintiff's first request for such an extension. Counsel for Defendants
has consented to this request. ENDORSEMENT: Request GRANTED. The
briefing schedule with regard to the motion for summary judgment herein is
extended as set forth herein: reply 4−1−11. SO ORDERED. (Reply due by
4/1/2011) (Signed by Judge Victor Marrero on 3/22/2011) (lnl) (Entered:
03/22/2011)

04/01/2011

27 REPLY MEMORANDUM OF LAW in Support re: 21 MOTION for Summary
Judgment and Rule 56.1 Statement. and in Opposition to the Government's Cross
Motion for Summary Judgment. Document filed by Brennan Center For Justice At

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New York University School Of Law. (Virga, Elizabeth) (Entered: 04/01/2011)
08/30/2011

28 DECISION AND ORDER: granting 21 Plaintiff's Motion for Summary Judgment;
denying 23 Defendants' Cross Motion for Summary Judgment. It is hereby ordered
that the Government is directed to produce to the Brennan Center versions of
Document Nos. 3, 13, and 15 listed in the Government's Vaughn Index dated
January 15, 2010, that disclose fully any and all material referring, explicitly or
implicitly, in whole or in part, to the "organization restrictions" or
"organization−wide restrictions"; and it is ordered that the Brennan Center is
directed to inform the Court within fourteen days of its receipt of the
above−referenced documents as to its contemplation with regard to further
prosecution of this action. (Signed by Judge Victor Marrero on 8/29/2011) (lmb)
Modified on 8/30/2011 (lmb). (Entered: 08/30/2011)

10/24/2011

29 ENDORSED LETTER addressed to Judge Victor Marrero from Dorothy Heyl
dated 9/14/11 re: Counsel for the plaintiff writes to advise the Court that they have
not received any of the documents that the Government was ordered to produce.
ENDORSEMENT: The Clerk of Court is directed to enter into the public record of
this action the letter above submitted to the Court by plaintiff. So ordered. (Signed
by Judge Victor Marrero on 10/24/2011) (mro) (Entered: 10/24/2011)

10/28/2011

30 NOTICE OF APPEAL from 28 Order on Motion for Summary Judgment.
Document filed by U.S. Agency For International Development, United States
Department of Health and Human Services, United States Department of Justice.
(tp) (Entered: 10/28/2011)

10/28/2011

Appeal Remark as to 30 Notice of Appeal filed by United States Department of
Health and Human Services, United States Department of Justice, U.S. Agency For
International Development. NO FEE. USA. (tp) (Entered: 10/28/2011)

10/28/2011

Transmission of Notice of Appeal to the District Judge re: 30 Notice of Appeal.
(tp) (Entered: 10/28/2011)

10/28/2011

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court
of Appeals re: 30 Notice of Appeal. (tp) (Entered: 10/28/2011)

10/28/2011

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on
Appeal Electronic Files for 20 Stipulation and Order, Set Deadlines/Hearings, 13
Endorsed Letter, Set Deadlines/Hearings, 5 Notice of Case
Assignment/Reassignment, 22 Endorsed Letter, Set Deadlines/Hearings, 10
Answer to Complaint filed by United States Department of Health and Human
Services, United States Department of Justice, U.S. Agency For International
Development, 30 Notice of Appeal filed by United States Department of Health
and Human Services, United States Department of Justice, U.S. Agency For
International Development, 3 Summons Returned Executed, filed by Brennan
Center For Justice At New York University School Of Law, 14 Endorsed Letter, 23
CROSS MOTION for Summary Judgment. filed by United States Department of
Health and Human Services, United States Department of Justice, U.S. Agency For
International Development, 26 Endorsed Letter, Set Deadlines, 29 Endorsed Letter,
9 Endorsed Letter, Set Deadlines, 18 Endorsed Letter, 25 Memorandum of Law in
Support of Motion, filed by United States Department of Health and Human
Services, United States Department of Justice, U.S. Agency For International
Development, 4 Summons Returned Executed, filed by Brennan Center For Justice
At New York University School Of Law, 16 Order, 19 Endorsed Letter, 24
Declaration in Support of Motion, filed by United States Department of Health and
Human Services, United States Department of Justice, U.S. Agency For
International Development, 21 MOTION for Summary Judgment and Rule 56.1
Statement. filed by Brennan Center For Justice At New York University School Of
Law, 27 Reply Memorandum of Law in Support of Motion, filed by Brennan
Center For Justice At New York University School Of Law, 11 Order, Set
Hearings, 1 Complaint, filed by Brennan Center For Justice At New York
University School Of Law, 7 Certificate of Service Other, filed by Brennan Center
For Justice At New York University School Of Law, 17 Order, 28 Order on Motion
for Summary Judgment, 2 Summons Returned Executed, filed by Brennan Center
For Justice At New York University School Of Law, 8 Certificate of Service Other,
filed by Brennan Center For Justice At New York University School Of Law, 6

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Certificate of Service Other, filed by Brennan Center For Justice At New York
University School Of Law, 12 Endorsed Letter, were transmitted to the U.S. Court
of Appeals. (tp) (Entered: 10/28/2011)