IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff, Civil Action No.
01-1530 (EGS)
v.
NATIONAL ENERGY POLICY
DEVELOPMENT GROUP, et al.,
Defendants.
_________________________________________
SIERRA CLUB,
Plaintiff, Civil Action No.
02-0631 (EGS)
v.
VICE PRESIDENT RICHARD
CHENEY, in his official capacity, et al.,
Defendants.
__________________________________________
PLAINTIFF JUDICIAL WATCH’S OPPOSITION TO
DEFENDANTS’
MOTION FOR A STAY PENDING APPEAL
Plaintiff
Judicial Watch, Inc. (“Judicial Watch), by counsel, respectfully submits this
Opposition to Defendants’ Motion for a Stay Pending Appeal. As grounds therefor, Judicial Watch states
as follows:
MEMORANDUM
OF LAW
I. Introduction.
Judicial
Watch filed its Complaint in this matter on July 16, 2001. Over one year later,
and after numerous attempts by the Defendants to delay this case, discovery
finally proceeded when Judicial Watch and Plaintiff Sierra Club submitted
document requests and interrogatories to Defendants pursuant to this Court’s
Order of August 2, 2002. In its August
2nd Order, the Court specifically stated
that:
Defendants shall fully comply with these
requests, or file detailed and precise objections to particular requests with
this Court. Should they object to any of these requests, Defendants shall not
make general invocations of privilege with respect to categories of documents
or questions, but must identify and explain their invocations of privilege with
particularity . . .
See August 2, 2002 Order at 2.
Despite
this clear and unambiguous order, Defendants National Energy Policy Development
Group (“NEPDG”), Richard B. Cheney, Andrew Lundquist, Joshua Bolten and Larry
Lindsey (collectively the “Executive Defendants”) allowed the thirty (30) days
allotted to them to respond to Plaintiffs’ discovery requests to elapse before filing
a frivolous motion for a protective order and for reconsideration, which this
Court denied at the motions hearing held on October 17, 2002. The Executive Defendants are now seeking to
delay discovery further by seeking a stay of these proceedings while they
pursue an interlocutory appeal of this Court’s October 17, 2002 Order. In their motion, the Executive
Defendants make the astounding assertion that it is they, not
Plaintiffs and the public, that will suffer “irreparable injury” if their
frivolous motion for a stay is not granted.
On the contrary, it is the Plaintiffs in this case and, most
importantly, the American public, who continue to be injured by the Executive
Defendants’ refusal to respond to Plaintiffs’ legitimate and court-authorized
discovery requests regarding the operation of the NEPDG.
In any
event, the Executive Defendants have no one to blame but themselves for any
harm they might suffer. The Executive
Defendants have now had over a year since this case filed, and nearly three (3)
months since Plaintiffs submitted their discovery requests, to determine what if any of the documents
obviously at issue in this litigation were subject to any legitimate claim of
privilege. At the October 17, 2002
hearing, however, the Executive Defendants were forced to admit that they had
barely begun the process of reviewing these documents. Consequently, the Executive Defendants
motion for a stay should be denied, and the Executive Defendants should be
ordered to produce any responsive documents and submit appropriate privilege
logs on or before November 5, 2002 as ordered by the Court’s October 17, 2002
Order and as they should have done much earlier.
II. Discussion.
A. The Court’s October 17, 2002
Order Denying the Executive Defendants’ Motion for a Protective Order and for
Reconsideration Should Not Be Stayed Pending Appellate Review.
The
Executive Defendants rely primarily on Cuomo v. United States Nuclear
Regulatory Comm’n, 772 F.2d 972 (D.C. Cir. 1985) in support of their motion
for a stay of the Court’s October 17, 2002 Order pending appellate review. In Cuomo, the U.S. Court of Appeals
for the District of Columbia Circuit (“D.C. Circuit”) held that the factors to
be considered a motion for a stay are as follows:
(1) the likelihood that the party seeking the
stay will prevail on the merits of the appeal; (2) the likelihood that the
moving party will be irreparably harmed absent a stay; (3) the prospect that
others will be harmed if the court grants the stay; and (4) the public interest
in granting the stay.
Cuomo, 772 F.2d at 974 (citing Washington Metro
Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir.
1977)). The fourth factor set forth in Cuomo
is particularly relevant in this case because, as the Supreme Court has held,
“[c]ourts of equity may, and frequently do, go much farther both to give and
withhold relief in furtherance of the public interest than they are accustomed
to go when only private interests are involved.” National
Ass’n of Farmworkers Organizations v. Marshall, 628 F.2d 604, 616 (D.C.
Cir. 1980) (citing Virginian Ry. Co. v. System Federation, 300 U.S. 515,
552 (1937).
As the
Executive Defendants correctly point out, none of there four factors are not
absolute prerequisites. Rather they are
considerations for the Court to balance in deciding whether or not to grant a
stay. “To justify the granting of a stay,
a movant need not always establish a high probability of success on the merits.
Probability of success is inversely proportional to the degree of irreparable
injury evidenced.” Cuomo, 772 F.2d at 974 (emphasis added). Weighing
these four factors as directed by the D.C. Circuit, the Executive Defendants
motion should be denied.
1. The Executive Defendants are
Unlikely to Prevail on the Merits of the
Appeal.
As the
Executive Defendants are surely aware, the likelihood of their succeeding on
the merits of their appeal are very slim, if not nonexistent. The Court’s October 17, 2002 Order is a
discovery order, and appellate review of such orders is usually appropriate
only at the conclusion of litigation at the district court level. See Reise v. Board of Regents of the
Univ. Of Wis. Sys., 957 F.2d 293, 295 (7th Cir. 1992.) (“The travail and
expense of discovery and trial cannot be reversed at the end of the case, yet
this has never been thought sufficient to allow pretrial appeals . . . Indeed
even orders to produce information over strong objections based on privilege
are not appealable, despite the claim that once the cat is out of the bag the
privilege is gone.”) Because discovery
orders like the one at issue here are rarely, if ever, reviewed by appellate
courts prior to conclusion of a case, the Executive Defendants’ likelihood of
success on the merits of their appeal are especially low.
2. The Executive Defendants Will
Not be Irreparably Harmed if the Court Denies Their Request for a Stay.
The
Executive Defendants claim that they will be harmed if they are forced to
respond to Plaintiffs’ discovery requests.
Judicial Watch respectfully submits that any possible harm the Executive
Defendants might suffer would be the result of their own willful and repeated,
if not contemptuous failure to comply with this Court’s orders. The Executive Defendants request that, if
their motion to stay is denied, they be granted a minimum of two (2) weeks in
which to fully prepare their responses. See Executive Defendants’ Motion
at 9. Obviously, the Executive
Defendants still have not even begun to review documents responsive to
Plaintiffs’ discovery requests to determine which ones may be released and
which, if any, may be subject to a legitimate claim of privilege. Even if the Executive Defendants have begun
such a review, then it is clear that the review began only after they were
chastised by this Court at the October 17, 2002 hearing. Any harm to the Executive Defendants in this
matter is of their own making. Judicial
Watch, the Sierra Club, and the public in general should not be forced to
endure any more delay in this matter due to the Executive Defendants’
intransigence.
3. Plaintiffs Will be Harmed if
the Court Grants the Executive Defendants Request for a Stay.
Incredibly,
the Executive Defendants claim that “the most Plaintiffs will suffer is the
possible delay occasioned by an appeal.”
See Executive Defendants’ Motion at 8. Obviously, this assertion
completely ignores the fact that Judicial Watch, the Sierra Club and the public
in general have already waited well over a year to obtain documents responsive
to its original Federal Advisory Committee Act (“FACA”) request, and nearly
three (3) months to receive any substantive response to Plaintiffs’ discovery
requests. As the Court is aware,
Judicial Watch is non-partisan educational foundation that exists, in part, to
educate the public about the conduct of public officials. It achieves this important goal through
requests for information like the ones at issue here. Therefore it is Judicial Watch and the American people, not the
Executive Defendants, that is harmed each day that they are denied access to
the information at issue. This harm is
exacerbated by the fact the Executive Defendants continue to withhold
information based on claims that this Court has repeatedly rejected. See Order dated October 17,
2002; Memorandum Opinion, dated July 11, 2002.
4. The Public Interest is Not
Served by Granting the Executive Defendants’ Request for a Stay.
The public
interest would not be served in any way if this Court were to grant the
Executive Defendants’ motion. Ultimately,
it is the American people who have been harmed, and continue to be harmed, by
the Executive Defendants’ repeated efforts to stonewall the release of
information regarding the activities of the NEPDG. Regardless of the outcome of this motion, the Executive
Defendants have already succeeded in delaying the release of such information
and their responses to Plaintiffs’ legitimate and court-authorized discovery
until November 5, 2002, which is, in effect, after the conclusion of the 2002
elections. Of course, Judicial Watch
seeks access to the information at issue as soon as possible, regardless of the
timing of any elections, but granting a stay at this already late date would
only further delay the public’s right of access to this important information.
In
addition, the public interest is not well served by allowing the Executive
Defendants to repeatedly flaunt this Court’s prior rulings, a tactic for which
the Court has already admonished them. See
Order dated October 17, 2002; Memorandum Opinion, dated July 11, 2002. The public interest is best served by
demanding compliance with this Court’s orders, and the Executive Defendants’ motion
is nothing more than yet another tactical attempt to stonewall and delay, and
thereby avoid compliance with this Court’s orders.
III. Conclusion.
For all
the forgoing reasons, Judicial Watch respectfully requests that Defendants’
Motion for a Stay Pending Appeal be denied.
Respectfully submitted,
_________________________
Larry Klayman, Esq.
DC Bar No. 334581
Paul J. Orfanedes, Esq.
DC Bar No. 429716
JUDICIAL WATCH, INC.
501 School Street, S.W.
Suite 725
Washington, DC 20024
(202) 646-5172
Attorneys for Judicial
Watch, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC., )
)
Plaintiff, ) Civil Action No.
) 01-1530 (EGS)
v. )
)
NATIONAL ENERGY POLICY )
DEVELOPMENT GROUP, et al., )
)
Defendants. )
_________________________________________ )
SIERRA CLUB, )
)
Plaintiff, ) Civil Action No.
) 02-0631 (EGS)
v. )
)
VICE PRESIDENT RICHARD )
CHENEY, in his official capacity, et al., )
)
Defendants. )
__________________________________________)
[PROPOSED] ORDER
Upon
consideration of Plaintiff Judicial Watch’s Opposition to Defendants’ Motion
for a Stay Pending Appeal, and the entire record herein, it is hereby:
ORDERED
that:
1. Defendants’ Motion is Denied.
SO ORDERED: ___________________________
Hon. Emmet G. Sullivan
United States District
Judge
Date:
Copies to:
Larry Klayman, Esq.
Paul J. Orfanedes, Esq.
JUDICIAL WATCH, INC.
501 School Street, SW
Suite 725
Washington, DC 20024
Thomas Millet, Esq.
David O. Buchholz, Esq.
Jennifer Paisner, Esq.
Daniel Bensing, Esq.
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Roger Adelman, Esq.
Law Offices of Roger Adelman
1100 Connecticut Ave., NW
Suite 730
Washington, DC 20036
Howard M. Crystal, Esq.
Meyer & Glitzenstein
1601 Connecticut Ave., NW
Suite 700
Washington, DC 20009
David Bookbinder, Esq.
Sierra Club
408 C Street, NE
Washington, DC 20002
Patrick Gallagher, Esq.
Alex Levinson, Esq.
Sanjay Narayan, Esq.
Sierra Club
85 Second Street
San Francisco, CA 94104
CERTIFICATE OF SERVICE
I hereby certify that on
October 24, 2001 a true and correct copy of the foregoing PLAINTIFF JUDICIAL
WATCH’S OPPOSITION TO DEFENDANTS’ MOTION FOR A STAY PENDING APPEAL was served
via ECF Notification and first class mail, postage prepaid, on the following:
Thomas Millet, Esq.
David O. Buchholz, Esq.
Jennifer Paisner, Esq.
Daniel Bensing, Esq.
U.S. Department of
Justice
Civil Division, Federal
Programs Branch
P.O. Box 883
Washington, DC 20044
Roger Adelman, Esq.
Law Offices of Roger
Adelman
1100 Connecticut Ave., NW
Suite 730
Washington, DC 20036
Howard M. Crystal, Esq.
Meyer & Glitzenstein
1601 Connecticut Ave., NW
Suite 700
Washington, DC 20009
David Bookbinder, Esq.
Sierra Club
408 C Street, NE
Washington, DC 20002
Patrick Gallagher, Esq.
Alex Levinson, Esq.
Sanjay Narayan, Esq.
Sierra Club
85 Second Street
San Francisco, CA 94104
_________________________
Paul J. Orfanedes