RICHARD A. BORN, 

Plaintiff, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

)" 

) 

) 

v. )" 

) 

Civil Action No. 94-1756 (RCL) 

FRANKLIN HUDDLE, JR., et u.L 

Defendants. 

) 

) 

) 

) 

) 

UNDER SEAL 

MEMORANDUM AND OlIDER 

FILED 

FEB - 6 2009 

NANCY MAYER WHITTINGTON. CLERK .. U.S.DISTR1CTCOURT 

On June 29, 2007, the Court of Appeals affirmed this Court's ruling that the plaintiffs 

claim.s 'against "Defendant U"-now known as Arthur Brown-should be dismissed because 

. "nothing about [that] person would be admissible in evidence at trial." In re Sealed Case, 494 

F.3d 139, 147 (D.C. Cir. 2007). Following remand to this Court, the government revealed, 

wough a filing on January 31, 2008~ by attorney Paul Freebome1

) that 'I])efendant II". could 

actually be refelTed to as Arthur Brown and that he could have been referred to by his name since 

2002 because his covert status had been lifted and rolled back at that time. 

The. plaintiff subsequently filed a motion for relief from judgment and for sanctions; the 

plaintiff asked the Court to reinstate Brown as a defendant and to sanction andlor hold contempt 

proceedings against the govenunent attorneys responsible for failing to t!llert this Court and the 

Court of Appeals of the change in Brown's cover status in 2002. 

This Court reinstated BroWn as a defendant hol~ that a Central Intelligence Agency 

lpaul Freebome was new to the case following remand. 

1 
attorney involved in the litigation committed fraud on the court by misleading the Court of 

Appeals as to the change in Brown's cover status and by failing to notify this Court of the change 

in his cover status upon remand. (See Jan. 14,2009, Mem. Op. at 12.) The Court declined to 

impose sanctions or initiate contempt proceedings, however, instead opting to direct the 

govemment to disclose the name of the attorney who committed fraud on the court to this 

Court's grievance committee for investigation. (ld. at 12-13.) 

One of the documents that the Court considered in making this ruling was the declaration: 

of John Rizzo, Acting General Counsel of the Central Intelligence Agency. Rizzo's declaration 

stated that he conducted an inquiry into the circumstances of the lifting back of Brown's cover 

status and why this Court and the Court of Appeals were not informed. (RizZo declo ~ 4:) Rizzo 

stated that the Office of General Counsel of the CIA, which was involved in this litigation, was 

not put on notice of the change in Brown's cover status until 2005. (Rizzo decl. 15.) He stated 

that in January 2005 an attorney within the Litigation Division of the OOC was made aware of 

the change in Brown's cover status but did not inform this Court, the Court of Appeals, or his 

supervisors. (Rizzo decl. , 5.) That name has now been disclosed to the Court: Jeffrey W. 

Yeates. 

The· government also attached a declaration of Robert J. Eatinge~, an Associate General 

Counsel of the OGe of the CIA who was generally familiar with the case and the CIA's strategy 

while the case was pending before this Court and the Court of Appeals. (See Eatinger dec!. ~ 

lThis declaration was Bxhibit 1 to the government's opposition to the motion for 

sanctions and/or contempt proceedings. 

3This declaration was Exhibit 4 to the government's opposition to the IIlotion for 

sanctions. ' 

2 
., 

1-4.) Eatinger stated that he does not recall being informed of the change in Brown"s cover 

status prior to January 2008, (Eatinger decL ~ 4.) 

Finally, the government attaohed a declaration of A. John Radsan4, who served as an 

Assistant General COl.Ulsel in the OGC of the CIA from April 2002 to July 2004. (Radsan decl. , 

I.) Radsan states in his declaration that he was generally familiar with this case during his time 

at the OGe of the CIA. (Radsan dec!. ,3.) However, he states that he does not recall being 

inforIiled of the change in Brown~ s cover status until March 2008. (Radsan decl. ~ 4.) The 

government has not disclosed if it interviewed defendant Brown prior to filing its 'opposition, but 

it did not attach a declaration from defendant Brown, 

On the basis of the documents before it, therefore, when the Court issued its January 14, 

2009 ruling, it believed that the CIA had lifted and rolled back Brown's cover in 2002 but that it 

did not communicate this information to the OGe of the CIA until 2005. The Court believed 

that the fact that it was not informed of the change in Brown's cover status prior to its 2004 

ruling dismissing the case was an unacceptable miscommunication but not the result of 

intentional misconduct. Although the Court held that one government attorney intentionally 

misled the Circuit in 2005 and failed to report the change in Brown's cover upon remand, it 

believed, on the basis of Rizzo's declaration, that this was an isolated incident. Therefore, the 

Court felt that referring the attorney involved to the grievance committee was appropriate but that 

the case was ready to proceed, now with Arthur Brown reinstated as a defendant. 

However, on January 27,2009, the Court was surprised yet again by a filing; this filing 

4TIris declaration was attached as Exhibit 6 to the government's opposition to the motion 

for sanctions. 

3 
was from Arthur Brown. Brown' s declaration stated that the "Rizzo Declaration makes two 

assertions that, based on my personal knowledge are inaccurate," (Brown dec!. ~ 1.) First, 

Brown states that Rizzo's declaration that the OGe within the CIA was not informed of the 

change in Brovm's cover status until 2005 is incorrect. Brown states that, "I recall notifying in 

peIson~ two attorneys in the Office of General Counsel ("OGC") Litigation Division, A. John 

Radson [sic] and Robert J. Eatinger, about the change in my cover status in 2002, within a few 

months of the agency's action" [to roll back his status}. (Brown decl. ,2.)5 Second, Brown 

states that he has no recollection of reviewing the draft motion for summary affirmance 

submitted to the Court of Appeals with an East Asia Division Office of General Counsel legal 

advisor.6 (Brown decl. ~ 4.) 

If what Brovm says is true, the OGe attorneys intentionally misled this Court even prior 

to its original 2004 ruling that dismissed the case. His declaration, if true, indicates that the OGC 

of the CIA was aware of the chllDge in Bro\VD.~ s cover status while the motion to dismiss the case 

was pending in this Court. 

SBrown also did not notify this Court or the Court of Appeals about the change in his 

cover status from the time it was rolled back in 2002. Once again, the first that the Court leamed \ 

of it was in a filing by Paul Freebome on January 31,2008, almost six years after Brown's cover 

bad been lifted and rolled back. Brown states in his declaration that he told CIA Office of 

General Counsel attomeys Radsan and Eatinger of the change in his status in 2002 and, he 

believed they would communicate this infomlation to the Department of Justice. (Brown decl , 

2.) 

(iThe motion for summary affirmance that was ultimately submitted to the Court of 

Appeals did not reveal that Brown's cover status had been lifted. Rizzo's declaration states that 

in or shortly before January 2005~ "lvlr. Brown and the OGe legal adviser in EA [East Asia] 

Division reviewed the draft motion and identified those portions that-unbeknownst to the U,S. 

Attorney's Office-were inaccurate because they mistakenly believed that Mr. Brown was still 

under cover .... " (Rizzo dec!. ~ 26.) 

4 
;. i 

Ifmultiple attomeys of the OGt within the CIA were aware of the change in Brown's 

I 

cover statusb and filled to report it to tlle Courtb it would be a material misrepresentation to both 

this Court and the Court of Appeals. The CIA was well-aware that the assertion oftbe state 

secrets privilege as to Brown was a key strategy in getting the case dismissed. The Department 

of Justice submitted an ex parte, classified declaration ofelA Director Tenet on February 5, 

2000, in support of its motion to dismiss. In the declaration, Tenet stated that to· allow the case to 

go fOl'W'ard would cause "damage to United States national seourity" because it would "identify 

one or more covert CIA employees. Of obvious concern would be the disclosure of Arthur 

Brown, who remains a covert employee assigned overseas .. I ." (Ex Parte Declaration of 

George J. Tenet, February 5, 2000 at ~ 22.) 

Of course, Arthur Brown was covert in 2000 when Tenet made the declaration. However, 

he was not covert as of2002 and therefore Tenet's declaration was no longer accurate.' And of 

course, the belief that Brown's identitx was covert was central to both this Court's and the Court 

I 

of Appeals' reasoning in dismissing defendant Brown. This Co'llrt, for example, relying on the 

Tenet declaration, stated in its July 28,2004 memorandum opinion that one of the reasons that 

the case had to be dismissed was beoause "Defendant IT's identity as a covert CIA officer is 

protected." (Mem. Op. at 10.) The Court of Appeals a.ffi.r.med this Court's ruling as to Brown 

because "nothing about [that] person would be admissible in evidence at trial." In re Sealed 

Case, 494 F.3d 139, 147 (D.C. Cu. 2007). The Circuit's reasoning as to defendant Huddle,S 

'Because Bro'WJl's covert iden't;ity was "rolled back," he could also state that he was an 

employee of the CIA. during the time Born alleges his Fourth Amendment rights were violated. 

I . 

srhe Circuit stated that, although the case appeared to involve sensitive state secrets, 

Hom should be given an opportunity pursue his lawsuit without using privileged information. I 

5 
however, indicates that it likely would ihave reversed this Court's ruling as to defendant Brown 

I 

had it knO\Vll that Brown's identity and his status as an employee of the CIA during the relevant 

time period was no longer covert. 

The already acknowledged misconduct by the government, in addition to the recent 

declaration by Brown, raise very serious implications. As a result, the Court feels that referral to 

the grievance committee may not be the appropriate course of conduct for events that raise such 

serious and wide-ranging implications. 

II. CONCLUSION AND ORDER 

Because of the recent revelations in this case, the Court will entertain a motion to 

reconsider and vacate its ruling denying the plaintiff's motion for sanctions and/or con tempe 

proceedings. Until the Court rules on the motion to reconsider sanctions and/or contempt 

proceedings) it is hereby ORDERED that any referrals of misconduct on the part of govermnent 

attorneys to the grievance committee will be stayed. 

SO ORDERED. 

Chief Judge Royce C. Lamberth. . Date 

See In re Sealed Case, 494 F.3d 139, 141 (D.C. Cir. 2007). 

IIIf the plaintiff wishes to file a motion, he should also state, that if he believes contempt 

proceedings are appropriate, whether he believes the proceeding should be civil or criminal in 

nature. See international Union v .. Bogwell, 512 U.S. 821, 827-28 (1994) (stating that "a 

contempt sanction is considered civil if it is remedial, and for the benefit of the complainant. But 

ifit is for criminal contempt the sentence is punitive) to vindicate the authority of the court."). 

6