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Judicial Watch • Defs Motion to Stay

Defs Motion to Stay

Defs Motion to Stay

Page 1: Defs Motion to Stay

Category:General

Number of Pages:16

Date Created:January 11, 2013

Date Uploaded to the Library:February 20, 2014

Tags:dispute, Furious, Operation, Branch, Litigation, house, EXECUTIVE, Attorney, jackson, president, Obama, ATF, watch, DOJ, committee, department, judicial, Supreme Court, court, EPA, IRS, ICE, CIA


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THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA  
JUDICIAL WATCH, INC.,  
  Plaintiff,  Civ. No. 1:12-cv-1510 (JDB)       
U.S. DEPARTMENT JUSTICE, 
  Defendant.  
 
DEFENDANTS MOTION STAY 
 
 The United States Department Justice moves stay this Freedom Information Act (FOIA) action, pending further developments the underlying congressional subpoena litigation between the House Oversight and Government Reform Committee (House Committee) and the Attorney General.  House Committee Holder, No. 1:12-cv-1332 (D.D.C.). temporary stay this FOIA action would avoid interference both with House Committee, dispute between the political branches extraordinary public moment, Landis North American Co., 299 U.S. 248, 256 (1936), and with ongoing efforts the parties that litigation resolve that dispute outside court conformity with constitutional principles negotiation and accommodation.1 Pursuant Local Rule 7(m), the Department conferred with Judicial Watch regarding this motion, and Judicial Watch opposes. the Court aware, Plaintiff Judicial Watch filed this action under FOIA, challenging the Department Justices denial June 22, 2012 FOIA request for [a]ll records subject the claim executive privilege invoked President Barack Obama about June 20, 2012.  Am. Compl.  ECF No.  The Presidential invocation executive privilege described the Judicial Watch complaint was response subpoena issued October 11, 2011 the Attorney General connection with congressional investigation into Bureau Alcohol, Tobacco, Firearms and Explosives (ATF) operation known Operation Fast and Furious.  That same subpoena the subject the House Committee suit. that action, the House Committee seeks enforce the October subpoena and challenge the Presidents assertion executive privilege.  Plaintiffs here thus seek under FOIA the very records that were withheld from the House Committee pursuant the Presidents assertion executive privilege and that are now issue the earlier-filed House Committee litigation. 
 Against this unique backdrop, this FOIA litigation should not proceed for least two reasons.  First, there currently live dispute between the political Branches over these same documents, well ongoing effort resolve that dispute.  Litigating this FOIA case, particularly while such live inter-Branch dispute persists, inconsistent with, and risks interference with, the negotiation and accommodation process contemplated the Constitution when such disagreements exist between the Executive and Legislative Branches.  Second, principles comity and respect for orderly judicial process counsel strongly against addressing the privilege claims this FOIA suit while Judge Jackson actively considers the House Committee litigation.  Not only that the earlier-filed litigation, but both principal stakeholdersthe Executive Branch and the House Representativesare present that litigation.  Judge Jacksons decisions any number issues that case could have significant implications for the issues presented here. 
 The Department thus proposes that the requested stay entered allow the House Committee suit proceed and allow the ongoing discussions that case unfold. The Department proposes filing status report later than two weeks following Judge Jacksons decision the pending motion dismiss following any settlement that case, updating the Court and Judicial Watch regarding the underlying subpoena dispute, and indicating the Departments view whether makes sense proceed with this FOIA suit that time continue the stay. short, rather than moving forward now with this litigation, this Court should allow the House Committee litigation pending before Judge Jackson proceed and should let the process negotiation and accommodation run its course, and then decide with the input the parties whether and how this action may appropriately proceed that time. 
 
BACKGROUND 
 
 Judicial Watch filed this action under FOIA, U.S.C.  502, challenging the Departments denial June 22, 2012 FOIA request for [a]ll records subject the claim executive privilege invoked President Barack Obama about June 20, 2012.  Am. Compl.  ECF  The Presidential invocation executive privilege described the Judicial Watch complaint was made response House Committee subpoena issued October 11, 2011 the Attorney General connection with congressional investigation into ATF operation known Operation Fast and Furious.  That subpoena the subject the House Committee Holder lawsuit, currently pending this district before Judge Jackson, which the House Committee seeks judicial enforcement the subpoena. 
 The Underlying Congressional Subpoena Dispute 
 The congressional inquiries into Operation Fast and Furious began January 2011, when Senator Charles Grassley, the Ranking Minority Member the Senate Judiciary Committee, wrote the ATF expressing concern about allegations that ATF had sanctioned the sale guns suspected straw purchasers who then transferred the weapons throughout the southwest border area and into Mexico, and that two those guns were connected December 2010 firefight which Customs and Border Protection Agent Brian Terry had been killed.  See U.S. Department Justice, Office Inspector General, Review ATFs Operation Fast and Furious and Related Matters 329 (2012) (IG Report), http://www.justice.gov/oig/reports/2012/s1209.pdf. its February 2011 response Senator Grassley, the Department indicated its understanding that ATF did not sanction otherwise knowingly permit the tactics described Senator Grassleys letter, and that ATF made every effort interdict weapons that were purchased illegally.  See id. 332-61.  However, conflicting information began emerge after the Departments letter was sent, and, among various steps undertaken understand what happened Operation Fast and Furious, the Attorney General asked the Departments Inspector General conduct independent review. December 2011, the Department formally withdrew the February letter. the same time, the Department produced the House Committee 1,364 pages records containing deliberative material documenting the drafting the February letter.  See id. 289-391. 
 Meanwhile, the House Committee had issued document subpoena the ATF March 31, 2011.  Over the course several months, the Department produced 2,050 pages records, addition responding more than dozen additional letters and requests from Congress and providing frequent briefings and sworn testimony.  Notwithstanding this response, October 11, 2011, the Committee issued second subpoena for records, this one directed the Attorney General, which contained separate broad requests for documents. response the October 11, 2011 subpoena, the Department produced Congress thousands pages executive branch documents, including sensitive law enforcement information.  The Department also provided hours congressional testimony and interviews with senior Department officials.  The Department endeavored responsive the Congressional requests, while simultaneously protecting certain sensitive materials, including those involving ongoing law enforcement investigations and Departmental deliberations about how respond the congressional requests media inquiries. June 2012, was nonetheless clear that the Committee would seek hold the Attorney General contempt for withholding documents responsive the October subpoena.  Accordingly, June 19, 2012, the Attorney General requested that the President assert executive privilege over documents generated after February 2011, and created the course the Departments deliberative process concerning how respond congressional and related media inquiries into [Operation Fast and Furious].2  Assertion Exec. Privilege over Documents Generated Response Congressional Investigation into Operation Fast and Furious, 2012 2869615, (U.S.A.G. June 19, 2012).  The Attorney General explained his concern that the release such documents would have significant damaging consequences and would inhibit the candor Executive Branch deliberations the future and significantly impair the Executive Branchs ability respond independently and effectively congressional oversight.  Id. *2.  Thereafter, the President asserted executive privilege, requested the Attorney General.  Despite the Presidents assertion executive privilege, the House Committee, and then the full House, cited noted above, the Department had already produced the House Committee December 2011, all documents generated before February 2011, the course preparing the February letter. 
the Attorney General for contempt Congress for his response the October 11, 2011 subpoena.  Approximately two months later, August 13, 2012, the House Committee filed suit against the Attorney General, seeking judicial enforcement certain portions the October 11, 2011 subpoena, allegedly order determine whether the Department attempted obstruct the Committees investigation.  Soon after the filing the Committees lawsuit, September 19, 2012, the Departments Inspector General issued comprehensive 471-page report Operation Fast and Furious and the Departments response the related congressional investigations. order provide the public with the Inspector Generals complete analysis Operation Fast and Furious and its aftermath, the President authorized the Department release unredacted form those portions the Report that discuss the Departments responses Congress after February 2011. addition, the President authorized the production Congress the post-February documents referenced the report regarding the Departments response Congress. October 15, 2012, the Attorney General moved dismiss the Committees lawsuit for lack jurisdiction, arguing, among other grounds, that the limits imposed Article III preclude jurisdiction over such inherently political dispute and that the proper means for attempting resolve the dispute are through the constitutionally grounded process negotiation and accommodation.  The Attorney Generals motion dismiss has been fully briefed the parties. joint status report, addressing, among other things, the parties respective positions regarding the legal impact the termination the 112th Congress January 2013 and the consequent expiration the subpoena that the subject the Committees lawsuit, was filed January 2013, and Judge Jackson held status conference yesterday, January 10, 2013.  Today, January 11, 2013, the House Committee expected file response amicus brief filed five members Congress supporting dismissal the House Committee suit.  Oral argument the motion dismiss scheduled for February 2013. 
 Notwithstanding the ongoing House Committee litigation, the Department believes the subpoena dispute should resolved between the political branches consistent with the constitutionally grounded process negotiation and accommodation.  Negotiations between the parties are ongoing.   
 This FOIA Suit 
 Judicial Watch filed its suit September 13, 2012. letter dated August 2012, the Departments Office Information and Privacy denied Judicial Watchs FOIA request, citing FOIA Exemption Five, U.S.C. 552(b)(5), and referencing the Presidents assertion executive privilege.  Plaintiff administratively appealed, requiring the Department make determination regarding the appeal September 12, 2012.  Having not received determination that date, Judicial Watch filed suit the following day. 
 The Department answered Plaintiffs Complaint October 18, 2012. November 16, 2012, the Department indicated connection with proposed briefing schedule that was investigating potentially available threshold arguments that may prove dispositive this case otherwise obviate the need for proceeding with this litigation.  Joint Filing ECF No. 13. December 2012, response separate order, the Department further indicated that anticipated arguing that this FOIA litigation should not proceed this time, light the House Committee litigation and efforts resolve that underlying dispute.  See Notice, ECF 14.  Support for that argument presented here. 
  
STANDARD REVIEW 
 
 District courts considering motion stay action pending developments another case are guided principally the Supreme Courts decision Landis North American Co., which held that the power stay proceedings incidental the power inherent every court control the disposition the causes its docket with economy time and effort for itself, for counsel, and for litigants.  299 U.S. 254; see also Belize Social Dev. Ltd. Govt Belize, 668 F.3d 724, 731-733 (D.C. Cir. 2012) (applying Landis and its D.C. Circuit progeny).  Landis teaches that deciding whether grant stay motion calls for the exercise judgment, which must weigh competing interests and maintain even balance.  299 U.S. 254-55.  While [t]he proponent stay bears the burden establishing its need, Clinton Jones, 520 U.S. 681, 708 (1997), courts should be guard against depriving the processes justice their suppleness adaptation varying conditions.  Landis, 299 U.S. 256. stay proper, long kept within the bounds moderation.  Id.; see also id. 257 stay immoderate and hence unlawful unless framed its inception that its force will spent within reasonable limits, far least they are susceptible prevision and description.). Courts discretionary authority stay one action light another not diminished simply because the parties the issues the two proceedings are not identical.  Id. 254 ([W]e find ourselves unable assent the suggestion that before proceedings one suit may stayed abide the proceedings another, the parties the two causes must shown the same and the issues identical.); id. 255 (rejecting too mechanical and narrow rule that irrespective particular conditions, there power stay compel unwilling litigant wait upon the outcome controversy which stranger.).  Indeed, [e]specially cases extraordinary public moment, the individual [plaintiff] may required submit delay not immoderate extent and not oppressive its consequences the public welfare convenience will thereby promoted.  Id. 256. 
 
ARGUMENT TEMPORARY STAY APPROPRIATE AVOID INTERFERENCE WITH THE PROCEEDINGS HOUSE COMMITTEE HOLDER. stay may appropriate merely avoid interference with another dispute, especially case public importance.  Dellinger Mitchell, 442 F.2d 782, 787 (D.C. Cir. 1971) (avoid[ing] interference with case public importance presented strong consideration for stay).  The House Committee litigation and the underlying dispute between the political branches over the documents issue this FOIA suit are unquestionably disputes public importance.  Litigating Judicial Watchs FOIA action this time inconsistent with, and risks interference with, that litigation, could well call upon this Court decide the first instance questions regarding the viability and application the Presidents invocation executive privilege over the documents issuequestions that the Legislative Branch had earlier put before Judge Jackson House Committee.  Moreover, the House Committee litigation has before the two parties with the most direct interest those questions.  The court House Committee thus should least given the opportunity decide whether has, and should exercise, jurisdiction determine the first instance any questions regarding the viability application the Presidents invocation executive privilege.    
Moreover, proceeding with the FOIA suit this time risks interference with efforts the political branches resolve the subpoena dispute consistent with the process negotiation and accommodation contemplated the Constitution.  That process product constitutional scheme designed preserve the separation powers.  United States ATT Co., 567 F.2d 121, 130 (D.C. Cir. 1977) (The Constitution contemplates such accommodation.).  The accommodation process thus represents more than the mere degree which ordinary parties are willing compromise.  Id.  Rather, [n]egotiation between the two branches should thus viewed dynamic process affirmatively furthering the constitutional scheme, id., and each branch should take cognizance implicit constitutional mandate seek optimal accommodation through realistic evaluation the needs the conflicting branches the particular fact situation.  Id. 127. 
The ability the Executive and Legislature engage this complex and politically sensitive process will negatively impacted if, the same time, the Executive required litigate against third party separate case over the very documents that are the subject negotiation and accommodation.  For example, the Legislative Branch may well less inclined reach accommodation with the Executive believes there possibility that third party might obtain court order the records over which negotiating.  Conversely, the negotiation and accommodation process allowed continue without the encroachment that this case threatens, that process may ultimately result the release additional records currently withheld the grounds executive privilege, which the very relief sought Judicial Watch.  And even that does not occur, advisable this circumstance enter stay allow further efforts resolve the House Committee dispute, because any resolution the dispute would surely promote public welfare and conveniencereducing the burdens the court, the parties, and counsel that case, well conserving significant public resources that would otherwise expended potentially protracted litigation. the Supreme Court has recognized, [e]specially cases extraordinary public moment, plaintiff] may required submit delay not immoderate extent and not oppressive its consequences public welfare convenience will thereby promoted.  Clinton, 520 U.S. 707 (quoting Landis, 299 U.S. 256). 
 This not merely circumstance where two cases involving related issues (or concerning the same documents) are proceeding simultaneously.  The House Committee litigation involves clash between the political branches the federal government, raising significant constitutional questions regarding the separation powers and the fundamental structure our government. that litigation, the Legislative Branch seeks obtain records from the Executive, and the Judiciary must now determine whether can and should assume jurisdiction over the dispute between these parties regarding the same documents that are issue here. weighty and unusual case.  Landis, 299 U.S. 256 (An application for stay suits weighty and unusual will not always fit within the mould appropriate application for such relief suit upon bill goods.); see also Comm. the Judiciary Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (noting that similar congressional subpoena dispute was of potentially great significance for the balance power between the Legislative and Executive Branches). contrast, this FOIA suit, concerning private partys FOIA request made immediately after the Presidents assertion executive privilege the context the subpoena dispute underlying House Committee, ancillary the House Committee suit.  Sound judgment counsels favor permitting that dispute proceed first, and without interference. 
 
II. PRINCIPLES COMITY FURTHER COUNSEL FAVOR STAY. 
 
 Principles comity and respect for orderly judicial process, including considerations judicial economy, also weigh favor temporary stay.  [A] trial court may, with propriety, find efficient for its own docket and the fairest course for the parties enter stay action before it, pending resolution independent proceedings which bear upon the case. Hisler Gallaudet Univ., 344 Supp. 29, (D.D.C. 2004) (quoting Leyva Certified Grocers California, Ltd., 593 F.2d 857, 86364 (9th Cir.1979)) (alteration original). 
 Judge Jacksons decision any number issues the House Committee case could have significant implications for the issues presented here.  Most significant, course, would any decision regarding the merits the executive privilege assertion. Judge Jackson were reach the merits the assertion, such ruling would, the very least, relevant here.  Likewise, however, any ruling this Court the merits the assertion would relevant the House Committee litigation.  And because only the first-filed House Committee litigation that the principal stakeholders the underlying disputethe Executive Branch and the House Representativesare present, principles comity strongly suggest that this Court should refrain from proceeding this case, least temporarily, avoid interference with the proceedings that should take precedence. 
 Moreover, even the House Committee action were not settle every question fact and law this case, the requested stay would still appropriate.  Landis, 299 U.S. 256. stay should issued would advance the interests economy time and effort for [the court], for counsel, and for litigants.  Id. 254.  Because further developments the House suit short ruling the merits may still narrow the issues and assist the determination the questions law involved the FOIA suit, proper temporarily stay this action.  Id. 253. 
 
III. THE REQUESTED STAY WOULD NOT CAUSE UNFAIR PREJUDICE. temporary stay this FOIA suit will not unfairly prejudice Judicial Watch. initial matter, whatever individual interest Judicial Watch may have obtaining the records sought irrelevant, because this FOIA case.  Friedman Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984) (In the FOIA context, the requesting partys need for the information irrelevant.).  Moreover, the typical, evidence-related reasons for avoiding stay litigationsuch the benefit obtaining testimony soon possible the need ensure preservation physical evidenceare also not relevant here, given that discovery not appropriate FOIA.   See Doe Sipper, 869 Supp. 113, 117 (D.D.C. 2012) (discussing interests plaintiff could assert opposing motion stay); see also Engelking Drug Enforcement Admin., 119 F.3d 980, 980-81 (D.C. Cir. 1997). sure, there generalized public interest the proper administration FOIA, which, its core, contemplates the release records not subject exemption order enable the public know what their government to.  Dept Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 773 (1989).  But the FOIA interest advanced herechallenging the Departments withholding certain recordsis also being pursued the context the House Committee litigation and the process negotiation and accommodation.  Therefore, the public need not rely FOIA plaintiff advance its interest here.  And, indeed, permitting the process negotiation and accommodation proceed might even lead the further release records over which the President has invoked privilege.3   Indeed, the public interest making known the government operations issue has already been addressed, noted above, the public release the IGs comprehensive report Operation Fast and Furious. that report, the made findings specifically regarding the very concern expressed the House Committee that asserted the basis its request for the documents question. 
 
 This Court can furthermore properly take into account the fact that Judicial Watch has requested under FOIA records that are their face subject executive privilege. the very least, the President entitled presumption good faith the invocation this privilege, which therefore underscores the likelihood that the records issue can appropriately withheld under Exemption Five FOIA.  For all these reasons, Judicial Watch cannot demonstrate that either its interests the publics interest would sufficiently harmed counsel against temporary stay this FOIA action. 
 Lastly, the process proposed for evaluating the stay also argues favor granting stay.  Here, the Department proposes that the requested stay entered allow the House Committee suit proceed and let the ongoing discussions that case unfold.  The Department proposes filing status report later than two weeks following Judge Jacksons decision the pending motion dismiss following any settlement that case, updating the Court and Judicial Watch regarding the underlying subpoena dispute, and indicating the Departments view whether makes sense proceed with this FOIA suit that time continue the stay. 
  
CONCLUSION 
 For the foregoing reasons, Defendants motion for stay proceedings should granted. proposed order attached. 
 
January 11, 2013     Respectfully submitted, 
 
       STUART DELERY 
       Principal Deputy Assistant Attorney General 
 
       IAN HEATH GERSHENGORN 
       Deputy Assistant Attorney General 
 
       JOHN TYLER 
       Assistant Branch Director 
 
       Luke Jones       
       LUKE JONES 
Trial Attorney 
       U.S. Department Justice 
       Civil Division, Federal Programs Branch Massachusetts Avenue, NW, Room 6126 
       Washington, 20530 
       Tel: (202) 514-3770 
       Fax: (202) 616-8460 
       Email:  luke.jones@usdoj.gov 
 
       Counsel for Defendant 
  
CERTIFICATE SERVICE hereby certify that January 11, 2013, caused true and correct copy the foregoing motion served plaintiffs counsel electronically means the Courts ECF system. 
 
        /s/ Luke Jones    
        LUKE JONES



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