JW v DOJ 01510
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UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 12-1510 (JDB) U.S. DEPARTMENT JUSTICE, Defendant. ORDER This Freedom Information Act (FOIA) case, concerning Operation Fast and Furious documents, has been stayed pending developments another case this districtinvolving the same documentssince February 2013. Plaintiff, Judicial Watch, Inc., (Judicial Watch) has moved lift the stay. For the reasons explained below, the Court will grant part Judicial Watchs motion and partially lift the stay. BACKGROUND 2011, the House Oversight and Government Reform Committee (the House Committee) issued subpoena the Attorney General the United States, seeking documents related congressional investigation into Bureau Alcohol, Tobacco, Firearms and Explosives operation known Operation Fast and Furious. response, President Barack Obama invoked executive privilege. The House Committee filed suit, seeking enforce its subpoena and challenge the Presidents assertion executive privilege; that case pending before Judge Amy Berman Jackson, another judge this district. See Comm. Oversight Govt Reform, U.S. House Representatives Holder, No. 12-1332 (ABJ) (D.D.C. Aug. 13, 2012) (House Committee). Soon after the President invoked executive privilege, Judicial Watch submitted FOIA request for all records subject that claim executive privilege (in other words, for the very same records that are the subject House Committee). See Pl.s Compl. [ECF No. The Department Justice (DOJ) denied that request. Id. 2-3. Judicial Watch then filed suit, challenging that denial. This Court stayed the case February 2013, part to allow ongoing settlement discussions [to continue] and, full settlement not reached, let the House Committee court rule the [then-pending] motion dismiss. Feb. 15, 2013 Order Staying Case [ECF No. 20] the Order granting the stay, this Court explicitly noted that DOJ does not seek, and the Court will not award, indefinite stay pending ultimate resolution the House Committee litigation, and that the benefits delaying this case might well [become] too attenuated justify any further delay. Id. Since that Order, the Court has periodically reconsidered whether extend the stay, and has found each time that continuing the stay appropriate. See, e.g., Minute Order Oct. 11, 2013. For while, Judicial Watch opposed extension the stay, and after the Court again continued the stay November 2013, Judicial Watch appealed. Judicial Watch U.S. Dept Justice, No. 13-5337 (D.C. Cir. Nov. 2013). The D.C. Circuit dismissed that appeal for lack jurisdiction, see May 27, 2014 Mandate [ECF No. 34], after which Judicial Watch represented several times that continuing the stay was appropriate, see, e.g., Joint Status Report [ECF No. 33] 1-2. While all this was going on, Judge Jackson denied DOJs motion dismiss House Committee, and the parties that case then fully briefed and argued cross-motions for summary judgment. Settlement discussions there, while ongoing, have not been fruitful, and Judge Jackson has not ruled the recently filed summary judgment motions. Following oral argument the cross-motions for summary judgment House Committee, Judicial Watch reversed its position the propriety the stay here. now asks this Court lift the stay and for this litigation proceed normal FOIA case would, starting with order from the Court that DOJ produce Vaughn index. See generally Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973). DISCUSSION Whether grant lift stay discretionary, but [o]nly rare circumstances will litigant one cause compelled stand aside while litigant another settles the rule law that will define the rights both. Landis Am. Co., 299 U.S. 248 (1936); see Am. Life Ins. Co. Stewart, 300 U.S. 203, 215 (1937) (citing Landis, 299 U.S. 255) (in the exercise sound discretion court] may hold one lawsuit abeyance abide the outcome another, especially where the parties and the issues are the same); see also Colorado River Water Conserv. Dist. United States, 424 U.S. 800, 817 (1976) (As between federal district courts the general principle avoid duplicative litigation); Stark Wickard, 321 U.S. 288, 310 (1944) (noting that numerous parallel cases are filed, the courts have ample authority stay useless litigation until the determination test case). Here, [t]he Governments initial request for stay was avoid interference with another casea case public importanceand this present[s] strong consideration for [a] stay. Dellinger Mitchell, 442 F.2d 782, 787 (D.C. Cir. 1971). And unlike other cases where stay could harm plaintiffs case, here, Judicial Watch risks little prejudice resulting from the loss evidence, including the inability witnesses recall specific facts, the possible death party. Clinton Jones, 520 U.S. 681, 708 (1997). Nevertheless, Judicial Watch should required sit the sidelines here only for compelling reasons. Avoiding interference with the House Committee case, and allowing negotiations between two co-equal branches government proceed undisrupted, this Courts chief concern considering whether lift the stay. There are many good reasons not decide the constitutional question(s) lurking here1 before Judge Jackson does. The litigants House Committee are competing branches government. Resolution subpoena disputes between the legislature and the executive involves sensitive process negotiation and accommodation. See United States ATT Co., 567 F.2d 121, 130 (D.C. Cir. 1977) (The Constitution contemplates such accommodation. Negotiation between the two branches should thus viewed dynamic process affirmatively furthering the constitutional scheme.). any court resolve dispute between the political branches over executive privilegeand historically, such disputes have been resolved through negotiation rather than resort the judiciaryit should be, the first instance, the court hearing the case which both branches are represented. That not this case. Moreover, not efficient for two judges the same district simultaneously resolve the same complex privilege question. What more, House Committee the earlier-filed suit, and that case has advanced the point where the issues may decided the near future (subject any appeals). But this Court now concludes that this case may proceed without interfering with House Committee upsetting the delicate balance power between the branches. fully resolve this FOIA dispute, absent any settlement, the Court will have determine many issues logically antecedent any constitutional question. That because House Committee and this case are very different procedural postures. House Committee, DOJ refusing produce any documents the House Committee pursuant claim executive privilege. The parties are litigating whether that privilege claim was proper, whether covers all the documents being withheld, and whether the House Committee may defeat that privilege. Constitutional issues are thus teed for resolution there. Here, DOJ withholding every document under FOIA Exemption That provision exempts from disclosure any inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency. U.S.C. 552(b)(5). if, for example, document protected valid claim attorney-client privilege, will normally and properly withheld under Exemption See NLRB Sears, Roebuck Co., 421 U.S. 132, 149 (1975). too document protected valid claim executive privilege. Id. Another frequently cited rationale for withholding documents under Exemption the common-law deliberative process privilege. Judicial Watch, Inc. Food Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006). Under that privilege, documents may withheld they are predecisional and deliberative. Id. Other reasons justify withholding documents under Exemption well (e.g., attorney work-product), its text makes plain. Coastal States Gas Corp. Dept Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). DOJ claims here that, addition other Exemption rationales, least two distinct forms2 executive privilege justify withholding documents: deliberative process privilege constitutional dimensions and congressional response work-product privilege. See Mem. Supp. Def.s Mot. for Summ. J., House Committee, No. 12-1332 [ECF No. 63] (House Committee Def.s Mot.) 21-27, 27-30. appears that neither form has been expressly recognized any court. Id. (citing Senate Select Comm. Pres. Campaign Activities Nixon, 498 F.2d 725 (D.C. Cir. 1974)). The contours the constitutionally based deliberative process privilege seem plain: document must, minimum, predecisional and deliberative. See House Committee, No. 12-1332, May 15, 2014 Tr. Oral Arg. [ECF No. 79] 52-53 (attorney representing DOJ confirming that those are two elements constitutional deliberative process privilege). The purported congressional response work-product privilege would cover broader range documents. See House Committee Def.s Mot. 27-30. Importantly, the narrower constitutional privilege claimed DOJthe constitutional deliberative process privilegeappears overlap with the traditional FOIA deliberative process privilege. other words, document both predecisional and deliberative, may withheld under FOIA; also would qualify privileged under DOJs conception executive privilege.3 But because DOJ could refuse release that document Judicial Watch this case simply because exempt under garden-variety deliberative process privilege, the Court need not reach the constitutional privilege question for that document. Setting aside documents that would exempt under FOIAs deliberative process privilege, DOJ might withhold other documents this case under Exemption for reasons other than executive privilege. Imagine document that not predecisional and deliberative but that protected the attorney-client privilege. Other documents might also protected from disclosure other FOIA exemptions, the extent DOJ has not waived its right assert them. Perhaps these exemption claims will permit DOJ properly withhold all documents this case. so, that would end this case without any inquiry into executive privilege. But perhaps Vaughn index further litigation would reveal that some documents are not covered deliberative process privilegeconstitutionally based otherwiseand are not exempt for any other reason under FOIA except perhaps for the congressional-response-work-product executive privilege claim DOJ has identified. Picture document that not predecisional and deliberative, that does not otherwise satisfy Exemption and that not covered any other FOIA exemption.4 DOJ might continue withhold that document only because arguably the subject congressional-response-work-product executive privilege claim, and thus exempt under Exemption decide whether that document must released, the Court would have determine whether the executive privilege claim valid and that covers the document. Put differently, this Court needs consider the executive privilege issue this case only other reason permits DOJ withhold particular document under FOIA. Thus, much left here before this Court would reach any issues being addressed House Committee the negotiations between the political branches. this circuit, when agency withholding documents under exemption claims, courts require that the agency provide Vaughn index that the FOIA requesterat distinct informational disadvantagemay test the agencys claims. See Am. Civil Liberties Union CIA, 710 F.3d 422, 432 (D.C. Cir. 2013). Vaughn indices were designed allow the agency to justify its actions without compromising its original withholdings disclosing too much information. allowing the agency provide descriptions withheld documents, the index gives the court and the challenging party measure access without exposing the withheld information. Judicial Watch, Inc. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). True, nothing the subpoena enforcement context House Committee would require DOJ produce particularized description the withheld documents. See Comm. Judiciary, U.S. House Representatives Miers, 558 Supp. 53, 107 (D.D.C. 2008). But this FOIA case, and since 1973, when Vaughn was decided, courts this circuit have required agencies justify their FOIA withholdings particularized basis.5 And doing here will not prematurely expose resolve the executive privilege issues ahead Judge Jackson and the political branches; will merely permit the parties and this Court cull from the dispute any documents which valid, non-executiveprivilege reason for withholding exists, thereby narrowing perhaps even resolving the case. the extent DOJ argues that the mere production the Vaughn indexnot involving the release any documents disputewould alter the historical balance powers between the branches, any unbalancing would result from FOIA itself, law passed Congress and signed into law the President, and which this Court cannot ignore forever. Because many the issues resolved this case not overlap with House Committee, and because resolving those issues will not risk upsetting the delicate balance powers subpoena disputes between the political branches, the Court will require DOJ produce Vaughn index here. That index should satisfy the law this circuit, permitting Judicial Watch test DOJs exemption claims without exposing the withheld information. See Am. Civil Liberties Union, 710 F.3d 432-433 (describing requirements Vaughn index). DOJ should focus particular explaining its reasons, any, other than executive privilege6 for withholding documents. Once Judicial Watch has chance review that index, and engage discussions with DOJ narrow the issues, the Court will set briefing schedule resolve precise, reasons other than DOJs claimed deliberative process privilege constitutional dimensions, since documents fitting into that category very likely may withheld under the common-law deliberative process privilege. any outstanding non-constitutional issues. Only after the Court has resolved those issues will turn any issues involving executive privilege; that time, Judge Jackson will likely have ruled the issue, providing this Court with guidance, the political branches may have settled their dispute. clear, the Court not ordering the release any documents currently being withheld this litigation House Committee. But time for this case move forward. Upon consideration  Judicial Watchs motion lift the stay, the various memoranda filed the parties, the hearing held July 2014, and the entire record herein, and for the reasons explained above, hereby ORDERED that  Judicial Watchs motion lift the stay GRANTED PART; further ORDERED that the Department Justice shall submit Vaughn index accordance with this Order and the law this circuit not later than October 2014; further ORDERED that this case shall remain STAYED, except for the further proceedings set out this Order; further ORDERED that the parties shall file joint status report with the Court within fourteen days any significant development House Committee, but any event not later than October 15, 2014, which time the Court will assess the future course this case, including whether any further stay appropriate; and further ORDERED that party seeking extension the production deadline for the Vaughn index shall file motion accordance with the Local Rules. ORDERED. /s/ JOHN BATES United States District Judge Dated: July 18, 2014 Those questions involve the validity and scope the executive privilege asserted the President. DOJ contends that these are differing justifications for, not forms of, executive privilege. House Committee Def.s Mot. ([t]here only one Executive Privilege, grounded the Constitution). Without opining the correctness DOJs formulation, the Court notes that will refer different forms executive privilege for simplicitys sake. The Court does not opine the existence scope that privilege; instead, the Court simply notes DOJs arguments that constitutionally-based deliberative process privilege exists and that encompasses, least, predecisional and deliberative documents. See House Committee, No. 12-1332, May 15, 2014 Tr. Oral Arg. [ECF No. 79] 52-53. Again, the extent DOJ has not waived its right assert other exemptions. Agencies frequently assert FOIA litigation that categorical withholding documents proper, and that they need not even produce Vaughn index result. But categorical withholding appropriate [o]nly when the range circumstances included the category characteristically support[s] inference that the statutory requirements for exemption are satisfied. Nation Magazine, Wash. Bureau U.S. Customs Serv., F.3d 885, 893 (D.C. Cir. 1995). common example documents withheld under FOIA Exemption 7(C)not issue this caseinvolving investigatory records compiled for law enforcement purposes, disclosure which would constitute unwarranted invasion personal privacy. Id.