                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Jason Leopold,                            )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                    Civil No. 14-cv-00168 (APM)
                                          )
Department of Justice,                    )
                                          )
      Defendant.                          )
_________________________________________ )

  MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE AND
             MODIFYING ORDER DATED APRIL 25, 2016

       Before the court is Plaintiff’s Motion to Vacate Order and to Set a Schedule for Further

Briefing (“Plaintiff’s Motion”). ECF No. 42 [hereinafter Pl.’s Mot.]. Plaintiff’s Motion asks the

court to vacate its Order dated April 25, 2016 (“Order”), ECF No. 41 [hereinafter Order], which

granted Defendant Department of Justice’s Motion for Reconsideration, ECF No. 30. The court

granted Defendant’s Motion for Reconsideration because the Court of Appeals in American Civil

Liberties Union (ACLU) v. DOJ, --- Fed. Appx. ---, No. 15-5217, 2016 WL 1657953 (D.C. Cir.

Apr. 21, 2016), affirmed Defendant’s redactions to the very same White Paper that is at issue in

this case. Id. at *3. This court previously had ordered that some of the White Paper’s redactions

be disclosed to Plaintiff. See Mem. Op. and Order, ECF No. 27, at 23-24.

       As a threshold matter, Plaintiff correctly points out that the court erroneously granted

Defendant’s Motion for Reconsideration, because the court lacked jurisdiction to do so in light of

Defendant’s filing of a notice of appeal. See United States v. DeFries, 129 F.3d 1293, 1302 (D.C.

Cir. 1997) (“The filing of a notice of appeal, including an interlocutory appeal, ‘confers jurisdiction

on the court of appeals and divests the district court of control over those aspects of the case
involved in the appeal.’”) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58,

(1982) (per curiam)). Instead, what the court should have done was issue an indicative ruling that

it would grant the Motion for Reconsideration upon remand. See Fed. R. Civ. P. 62.1(a). The

court, therefore, modifies its Order so as not to “grant[ ]” Defendant’s Motion for Reconsideration,

Order at 1, but to indicate that the court would grant that Motion upon remand.

       Plaintiff also asks the court to vacate its Order so that Plaintiff has an opportunity to brief

whether the ACLU decision warrants reconsideration of the court’s original decision. Pl.’s Mot.

1-2. The court declines to permit such briefing. Federal Rule of Civil Procedure 54(b)’s “as justice

requires” standard permits revision of a court’s initial decision when, among other things, “a

controlling or significant change in the law or facts [has occurred] since the submission of the issue

to the Court.” Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (quoting

Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). Whether or not the unpublished decision

in ACLU is “controlling”—Plaintiff says it is not—is of no moment. It is a “significant change in

the law” in that it resolves the very issue that was litigated here: Did Defendant properly withhold

portions of the White Paper under FOIA Exemption 1? The Court of Appeals unequivocally

answered that question “yes” after “[h]aving carefully and thoroughly reviewed the CIA’s

classified affidavit,” which described “in considerable detail, the records and the agency’s reasons

for withholding them.” ACLU, 2016 WL 1657953, at *3. This court simply is not free to hold

differently. Additional briefing, therefore, would not be a wise use of the parties’ or the court’s

resources.




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       For the foregoing reasons, Plaintiff’s Motion to Vacate Order is denied and the court’s

Order dated April 25, 2016, is modified as described above.




                                                   Amit P. Mehta
Date: May 9, 2016                                  United States District Judge




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