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Judicial Watch • 12-893 Opposition

12-893 Opposition

12-893 Opposition

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Number of Pages:31

Date Created:September 28, 2015

Date Uploaded to the Library:October 02, 2015

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Case 1:12-cv-00893-JDB Document Filed 09/28/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE, al.
Defendants.
____________________________________)
Civil Action No. 12-00893 (JDB)
PLAINTIFF OPPOSITION DEFENDANTS MOTION STAY
Plaintiff Judicial Watch, Inc. Judicial Watch counsel, respectfully submits this
opposition Defendants Motion Stay Pending Resolution Its Motion for Designation
Coordinating Judge coordination motion grounds therefor, Judicial Watch states
follows:
STATEMENT POINTS AND AUTHORITIES
Defendant U.S. Department State seeks stay and further delay least
portion its response the nearly year old Freedom Information Act FOIA request
issue this litigation. The proposed stay would appear encompass any issues regarding the
emails former Secretary State Hillary Rodham Clinton and certain emails and records
least four Secretary Clinton top aides Huma Abedin, Cheryl Mills, Philippe Reines, and
Jacob Sullivan. September 30, 2011, Plaintiff served two FOIA requests for records related
Anwar al-Awlaki, a/k/a Anwar Aulaqi, deceased September 30, 2011. One request was
The motion stay styled behalf both Defendants, although the relief requested appears
behalf Defendant Department State only. Whether the request stay proceedings made behalf one
both Defendants, the request should treated opposed Plaintiff its entirety.
Case 1:12-cv-00893-JDB Document Filed 09/28/15 Page
served Defendant State Department and the second request for the same records was
submitted Defendant Federal Bureau Investigation FBI See Exhibit
This lawsuit much farther along than most other FOIA lawsuits Defendant seeks stay its coordination
motion. stay would only halt the progress made the parties these long over-due
responses Plaintiff FOIA requests.
The Court ordered Defendant State Department begin releasing its first
production non-exempt responsive records September 28, 2012 and continue release
additional productions any non-exempt responsive records every month, beginning January
31, 2013, until the review and processing all potentially responsive records complete. See
Aug. 30, 2012 Order (ECF No. 15).
Two years later, December 18, 2014, Defendants represented that production all non-exempt records responsive Plaintiff requests were complete, except for certain
records referred Defendant State Department non-party agencies for processing and review.
See Dec. 18, 2014 Joint Status Rpt. pp. 1-2 (ECF No. 27). Defendant State Department did
not inform Plaintiff the Court that time about the 30,490 federal records returned
Secretary Clinton. August 10, 2015, the Department Defense, the last the non-party
agencies that was referred records for review Defendant State Department, completed its
review and produced the final non-exempt responsive records Plaintiff. Sep. 14, 2015 Joint
Status Rpt. (ECF No. 32).
Plaintiff Complaint challenges responses the FOIA requests served each the Defendants
September 30, 2011. Defendant motion concerns only the request submitted Defendant State Department, and
not Defendant Federal Bureau Investigation FBI Accordingly, the unlikely event the Court might
consider stay, would only partial stay that portion the litigation concerning the request Defendant
State Department.
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Case 1:12-cv-00893-JDB Document Filed 09/28/15 Page
Additionally, Defendants produced draft Vaughn indexes Plaintiff June 19,
2015. Defendant State Department produced supplemental draft Vaughn index August 10,
2015 include all responsive records recommended for withholding the Department
Defense. Id. The parties agreed limit draft Vaughn indexes records withheld full
effort narrow any claims exemptions, possible. July 24, 2015 Joint Status Rpt. pp. 1-2
(ECF No. 28).
The only remaining issue concerning Defendant State Department production
records before the parties can begin narrow claims exemption commencement
summary judgment briefing the production the emails and records former Secretary
Clinton and some her senior aides Cheryl Mills, Huma Abedin, Jacob Sullivan and Philippe
Reines the extent the records are potentially responsive. light the revelation that
Secretary Clinton exclusively used clintonemail.com email server for her government work the State Department, Plaintiff raised concerns about Defendant State Department
production responsive records. See Exhibit see also Sep. 14, 2015 Joint Status Rpt.
Plaintiff has asked that the search all remaining potentially responsive records conducted
expeditiously given that Defendant State Department has acknowledged that the records are now
readily searchable and have been searched response other FOIA requests. Id.; see e.g., Sep.
22, 2015 Minute Order entered Judicial Watch, Inc. U.S. Dep State, Case No. 13-1363
(EGS) (D.D.C.); Defendant Status Report, filed Judicial Watch, Inc. U.S. Dep State,
Case No. 13-1363 (EGS) (D.D.C.) (ECF No. 26), Declaration John Hackett, filed
Plaintiff reserves all rights challenge Defendants search and withholdings this case. Former
Secretary Clinton exclusive use clintonemail.com email server during her term the head the agency
raises host legal questions about Defendant State Department obligations under FOIA. September 16,
2015, Plaintiff most recently raised concerns about reported gaps the records returned Secretary Clinton. See
Exhibit Defendant has not yet responded Plaintiff communication about this issue.
-3-
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Leopold U.S. Dep State, Case No. 15-123 (RC) (D.D.C.) (ECF No. 12-1), 15, 19.
Defendant State Department prefers wait until January 2016 commence the search. See
Sep. 14, 2015 Joint Status Rpt. Judicial Watch offered meet with the State Department try reach agreement schedule for completing searches Secretary Clinton emails
that would take into account other FOIA cases and other FOIA requestors, but the State
Department did not respond. See Exhibit Regardless, neither coordinating judge nor
stay pending the designation coordinating judge necessary resolve the relatively
simple scheduling dispute about federal records remaining searched, the extent
Defendant believes has obligation search them response Plaintiff FOIA request.
The State Department has asserted other litigation that has obligation
search records returned Secretary Clinton top aides. See Joint Status Report, Judicial
Watch, Inc. U.S. Dep State, Case No. 15-692 (APM) (D.D.C.) (July 29, 2015) (ECF No.
11) n.3. Defendant maintains that reasonable search only requires search the
Clinton emails. While true that Defendant has agreed additional discrete search
specifically, search any emails that has received from Ms. Mills, Mr. Sullivan, and Ms.
Abedin did not because believes the FOIA requires such search. Defendant
Opposition Plaintiff Motion Allow Time for Limited Discovery Pursuant Rule 56(d),
Judicial Watch, Inc. U.S. Dep State, Case No. 14-1242 (RCL) (D.D.C.) (Sept. 18, 2015)
(ECF No. 27) Despite the fact that had obligation under FOIA so, State was
willing stay summary judgment briefing and ask the Court set schedule allow
search those documents for records responsive the FOIA request, notwithstanding that those
records were not State possession and control the time the FOIA search was conducted.
The lack response Defendant State Department constitutes failure meet and confer. LCvR
7(m).
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Case 1:12-cv-00893-JDB Document Filed 09/28/15 Page
see also Defendant Motion Stay Pending Resolution Its Motion for Designation
Coordinating Judge, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511(ABJ)
(D.D.C.) (ECF No. 17) State willing search [these records] Plaintiff wishes,
notwithstanding that those records were not State possession and control the time the
FOIA search was conducted.
Plaintiff seeks less and more than what FOIA requires. Defendant
State Department position that must search these materials satisfy its FOIA obligations,
the agency should say so. Plaintiff would then amenable discussing reasonable schedule
for completion this task. Defendant State Department disputes that has obligation
search these materials, should say well. Staying this action indefinitely that
coordinating judge can appointed oversee the completion task the agency may
dispute has any obligation undertake puts the cart before the horse. also demonstrates
that the motion stay unfounded.
10. September 26, 2015, Defendant State Department had filed motions stay only lawsuits, not the identified its consolidation motion. those motions,
have been denied. See Minute Order, Judicial Watch, Inc. U.S. Dep State, Case No. 131363 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Bauer Central Intelligence Agency,
Case No. 14-963 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Joseph U.S. Dep State,
Case No. 14-1896 (RJL) (D.D.C.) (Sept. 10, 2015); Minute Order, Citizens United U.S. Dep State, Case No. 15-374 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Judicial Watch, Inc. U.S. Dep State, 15-692 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Citizens United Defendant State Department disputes that has obligation search these materials, but asserts that
will voluntarily, has provided assurances this effect. voluntary search also would raise substantial
questions about this Court jurisdiction adjudicate issues about the scope the agency search and any claims exemption.
-5-
Case 1:12-cv-00893-JDB Document Filed 09/28/15 Page
U.S. Dep State, Case No. 15-1031 (EGS) (D.D.C.) (Sept. 11, 2015). Only one motion has
been granted, and that ruling was issued before the requestor even filed response. See Minute
Order, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511 (ABJ) (D.D.C.) (Sept. 10,
2015). second was granted part and denied part. See Minute Order, Citizens United
U.S. Dep State, Case No. 15-518 (ABJ) (D.D.C.) (Sept. 18, 2015). third being held
abeyance. See Minute Order, Judicial Watch, Inc. U.S. Dep Justice, Case No. 15-321
(CKK) (D.D.C.) (Sept. 2015).
11.
Although Defendant State Department downplays its motion, the agency not
only seeks order designating coordinating judge, but also order transferring ongoing
FOIA cases pending before district judges whomever designated the coordinating
judge. This coordinating judge will then decide common legal, factual, and procedural
issues. The law could not any clearer that one district judge cannot order another district
judge take action case pending before that judge. See, e.g., Klayman Kollar-Kotelly,
2013 U.S. App. LEXIS 10148 (D.C. Cir. May 20, 2013); McBryde, 117 F.3d 208 (5th Cir.
1997). makes difference the district judge issuing the order the chief judge the order order reassignment. McBryde, 117 F.3d 225 [N]ot one case upholds
reassignment pending case chief judge without the consent the presiding judge. result, highly unlikely that Defendant State Department will prevail its
coordination/transfer motion. There reason stay this action pending ruling
Defendant State Department meritless miscellaneous action. See also Respondent Judicial
Watch, Inc. Motion Dismiss, or, the Alternative, Opposition Designation/Transfer
Motion, U.S. Dep State FOIA Litigation Regarding Emails Certain Former Officials,
Case No. 15-ms-1188 (Unassigned) (D.D.C.) (ECF No. 24) (Sept. 14. 2015).
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Case 1:12-cv-00893-JDB Document Filed 09/28/15 Page
WHEREFORE, Judicial Watch respectfully requests that the motion stay denied.
Dated: September 28, 2015
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Ramona Cotca
Ramona Cotca, D.C.
Bar No. 501159
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: rcotca@judicialwatch.org
Attorneys for Plaintiff
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Case 1:12-cv-00893-JDB Document 33-4 Filed 09/28/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE, al.
Defendants.
____________________________________)
Civil Action No. 12-00893 (JDB)
[PROPOSED] ORDER
Upon consideration Defendants Motion Stay Pending Resolution Its Motion for
Designation Coordinating Judge, Plaintiff Opposition thereto, any reply, oral argument, and
the record herein, hereby
ORDERED that Defendant Motion Stay Pending Resolution Its Motion for
Designation Coordinating Judge DENIED.
Dated:
U.S. District Court Judge
Cc:
All counsel record