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Odah v. United States

April 6, 2009

FAWZI KHALED A.F. AL ODAH, ET AL., PETITIONERS,
v.
UNITED STATES, RESPONDENTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

ORDER DENYING RESPONDENTS' MOTION FOR RECONSIDERATION OF THE COURT'S FEBRUARY 12, 2009 ORDER (April 6, 2009)

[T]here are standards which a Government counsel should meet to uphold the dignity of the Government... their conduct [must] reflect that they are officers of the court as well as advocates for a cause...

-Taylor v. United States, 413 F.2d 1095, 1096 (D.C. Cir. 1969).

The instant Motion for Reconsideration has its origins in three previous Orders issued by the Court that required Respondents to file an Opposition to a motion filed by Petitioners titled Motion for Production of Complete Declassified Factual Returns. Respondents' counsel violated all three Orders by failing to file an Opposition. The third of the Court's Orders specifically warned Respondents that the Court would consider sanctions for further non-compliance. Not only did Respondents' counsel fail to file an Opposition as ordered by the Court, he never moved for an extension or even supplied an explanation for his conduct.

The Court held a closed-session Status Hearing on February 11, 2009, during which the Court explained to Respondents' counsel and his supervisor (whom the Court requested to be in attendance) that its Orders were not aspirational, and that counsel's compliance was not optional. The Court expects its Orders to be followed and, where additional time is needed for compliance, that counsel will appropriately move for extensions. The Court further explained that the course of conduct chosen by counsel--simply ignoring the Orders of the Court as if they were not issued--would not be tolerated.

Taking the foregoing into consideration, on February 12, 2009, the Court issued an Order requiring Respondents to assign new counsel to this case. The Court explained that "Respondents' counsel ha[d] repeatedly flouted the deadlines set by [the] Court and failed to comply with its Scheduling Order," and that "[t]he Court ha[d] lost confidence in Respondents' current counsel[] and... [did] not view his representations as credible." Order at 7-8 (Feb. 12, 2009). The Court also emphasized that the credibility of counsel's representations in this matter (which involves the detention of four individuals at Guantanamo Bay) was particularly important because Petitioners' counsel is not in a position to independently verify many of Respondents' representations concerning, among other things, the production of discovery. Id. at 8.

The message imparted to counsel and his supervisor seems to have been only partially received. On March 9, 2009, Respondents (through counsel's supervisor) filed the instant Motion for Reconsideration seeking to allow Respondents' counsel--the attorney in whom the Court has lost all confidence--to continue with his participation in this case. Because Respondents' Motion is based on a shockingly revisionist version of the events that transpired, and because it leaves the impression that the Court's message to counsel's supervisor at the February 11, 2009 Status Hearing may not have been fully understood, the Court provides a detailed description of what actually transpired and a further explanation as to why it was appropriate to exclude Respondents' counsel from further participation in this case.

BACKGROUND

On January 7, 2009, the Court entered a Scheduling Order covering "all motions, filings, or other disclosures" based in part on a Joint Status Report and proposed schedule submitted by the parties. See Scheduling Order at 1 (Jan. 7, 2009), Docket No. [433]. As part of the Scheduling Order, the Court adopted the parties' proposal for Petitioners to file a Motion for Production of Complete Declassified Factual Returns or Adequate Substitutes on or before January 9, 2009. Id. The Court also required Petitioners to identify the portions of each return that they specifically were moving to have declassified, and under a heading "High Priority Items," identify the items they considered most important to their ability to present a defense. Id. The parties' Joint Status Report failed to propose a date for Respondents' Opposition, so the Court selected January 23, 2009, without the benefit of knowing how extensive Petitioners' declassification requests might be. The Scheduling Order required Respondents, by that date, to file an Opposition that "include[d] the declassified return[s] and relevant attachments as an exhibit, and [] provide[d] a justification for each item that was identified in Petitioners' Motion that Respondents have determined not to declassify." Id. at 2.

On January 23, 2009, Respondents filed an Opposition to Petitioners' Motion and a Motion for Clarification. The Court struck the Opposition as non-responsive because Respondents failed to include the declassified returns as exhibits and failed to provide a justification for each item that was identified in Petitioners' Motion that Respondents determined not to declassify. See Min. Order dated Jan. 26, 2009. The Court also denied without prejudice Respondents' Motion for Clarification because the motion was an improperly denominated request for an extension of time that failed to include the "demonstrable extraordinary circumstances" required to obtain such extensions, as set forth in the Court's Scheduling Order. Id. The Court nevertheless authorized Respondents to file their Opposition and exhibits, as identified in the Court's Scheduling Order, no later than January 28, 2009.

Respondents filed a Motion for an Extension on January 28, 2009, apologizing to the Court for "failing to grasp the import of the Court's January 7, 2009 Scheduling Order as it pertained to a declassified version of the factual return." Resp'ts' [451] Mot. at 1-2. Respondents further explained that extraordinary circumstances warranted an extension until February 6, 2009, because it was "impossible" for Respondents to produce the declassified returns by October 28, 2009. On January 30, 2009, the Court granted Respondents' request for an extension and adopted February 6, 2009 -- the date Respondents proposed -- as the date for Respondents' compliance. See Order at 5 (Jan. 30, 2009). The Court repeated that "Respondents [were required to] file their Opposition to Petitioners' Motion for More Complete Declassified Factual Returns no later than February 6, 2009" and warned counsel that their non-compliance "may result in sanctions, including possible exclusion of allegations or documents going forward." Id.

Incredibly, Respondents' counsel failed to file an Opposition to Petitioners' Motion. Rather, on February 6, 2009, Respondents filed partially declassified factual returns and several declarations explaining why they did not declassify certain types of information. Respondents submitted several additional but untimely declarations on February 10, 2009. Because Respondents' counsel failed to file an Opposition, the Court had no document in its possession that linked the items that Respondents decided not to declassify with Respondents' justifications for not declassifying them. In other words, Respondents apparently believed that the Court would assume the burden of reviewing the approximately 1,300 pages of documents that constituted the declassified factual returns and apply the justifications in the declarations as it found necessary. Equally as troubling, the absence of an Opposition meant that Respondents failed to provide the Court with any legal briefing to justify their redactions from the declassified factual returns.

The Court held a closed-session Status Hearing on February 11, 2009. The Court began the hearing by explaining that Respondents' counsel had violated three Court Orders, and advised counsel's supervisor that counsel had lost all credibility with the Court. The Court further advised counsel's supervisor that Respondents should appoint different counsel. At the end of the hearing, however, counsel's supervisor sought to justify the non-compliance of Respondent's counsel by offering the flippant justification that Respondents were very busy with other Guantanamo Bay cases, and that counsel did not have time to file the Opposition or (apparently) an appropriate motion for an extension. The Court explained that counsel's workload was not an acceptable excuse for violating the Orders of this Court and would not be tolerated. The Court's exchange with counsel's supervisor at the end of the hearing convinced the Court that it should order Respondents to appoint new counsel to this case (rather than suggest the same) because counsel's supervisor did not seem to grasp the import of what had transpired.*fn1

The Court considered other sanctions but believed removal of counsel was most appropriate. In its January 30, 2009 Order, for example, the Court warned Respondents' counsel that further non-compliance could result in sanctions such as exclusion of evidence in future merits proceedings. See Order at 5 (Jan. 30, 2009). The Court decided against issuing this type of sanction, however, given the D.C. Circuit's well-established guidance that lower courts should first consider sanctions against an attorney prior to sanctions against his client. See Shea v. Donohoe Constr. Co., Inc., 795 F.2d 1071, 1076-77 (D.C. Cir. 1986) ("[w]hen the client's only fault is his poor choice of counsel... the District Court should first attempt to sanction the attorney at fault," which may include "replacing the errant attorney"); Jackson v. Washington Monthly Co., 569 F.2d 119, 123-24 (D.C. Cir. 1977) ("the ...


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