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Judicial Watch • Fast & Furious Opposition to Lift Stay

Fast & Furious Opposition to Lift Stay

Fast & Furious Opposition to Lift Stay

Page 1: Fast & Furious Opposition to Lift Stay


Number of Pages:8

Date Created:July 1, 2014

Date Uploaded to the Library:July 01, 2014

Tags:Opp2Lift, Stay, FOIA

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  Plaintiff,  Civ. No. 1:12-cv-1510 (JDB)  

Plaintiffs Motion Lift the Stay this FOIA lawsuit not, plaintiff suggests, based any material new development.  Rather, the Motion based similar arguments that plaintiff has unsuccessfully made past filings with this Court and the D.C. Circuit and information known plaintiff the time that agreed the stay presently place.  The only allegedly new information consists comments made counsel for the Attorney General oral argument the House Committee litigation, which are taken out context plaintiff, and responses other unrelated FOIA requests, none which are relevant whether the stay should continue here. 
Plaintiff provides reason believe that the interests that motivated this Courts initial grant the stayincluding judicial economy, comity, and respect for the negotiation process between the political Brancheshave any way diminished. the contrary, the progress the House Committee litigation, which now includes fully briefed and argued cross-motions for summary judgment and the resumption settlement negotiations post-argument, demonstrates the importance not disrupting that litigation this stage. 
Accordingly, defendant respectfully requests that this Court deny plaintiffs request lift the stay this case.1 Defendant takes position plaintiffs request for oral argument. 

Since February 15, 2013, this action has been stayed pending further developments Committee Oversight Government Reform, U.S. House Representatives Holder, No. 12-1332 (D.D.C. Aug. 13, 2012) (House Committee). See Order, Feb. 15, 2013, ECF No. (staying action); Minute Order, June 2013 (further staying action); Minute Order, Sept. 2013 (same); Minute Order, Nov. 2013 (same); Minute Order, Jan. 13, 2014 (same); Minute Order, March 10, 2014 (same); Minute Order, March 27, 2014 (same); Minute Order, May 2014 (same). these numerous minute orders demonstrate, the stay has not been indefinite.  Rather, this Court has continually requested joint status report from the parties evaluate the continuing legitimacy the stay, and has continually found further stay warranted. 
Following the D.C. Circuits recent denial its attempted interlocutory appeal the stay, even plaintiff recognized that continuation the stay was proper.  Indeed, the two most recent status reports, the parties agreed that this case should continue stayed pending resolution the fully-briefed cross-motions for summary judgment the House Committee lawsuit settlement that case.  See May 2014 Joint Status Report, ECF No. 33; March 27, 2014 Joint Status Report, ECF No. 32. the most recent report, the parties proposed, and this Court set, July 31, 2014 the latest due date for the next joint status report, at which time the Court w[ould] assess whether any further stay appropriate.  See Minute Order, May 2014 (emphasis added). 
Now, contrary its representations this Court that the case should continue stayed, and despite the Order this Court indicating that the stay would not reevaluated until the parties July status report (absent significant development the House Committee litigation), plaintiff now moves lift the stay its entirety.  Plaintiff proffers three justifications for such relief, none which has merit. 
First, plaintiff argues that the reasons for which the motion stay was granted have passed, because the House Committee litigation was not dismissed due lack jurisdiction and the case has not yet settled. Pl.s Mot. However, those same facts have existed since the Motion Dismiss was decided House Committee September 2013, and they were known plaintiff when agreed that the stay should remain place the last two joint status reports March and May 2014. 
Moreover, plaintiffs argument ignores the reasons that the Court granted stay this case. its February 15, 2013 Order, this Court noted that the stay furthered the interest judicial economy, because, among other reasons, this suit might well require the Court pass the merits the application executive privilege, and simultaneous resolution the same invocation privilege two judges this Court undesirable from judicial efficiency perspective. February Order Although the Court recognized that the benefits stay might too attenuated the House Committee court finds that lacks jurisdiction reach the merits, the House Committee court did not find lack jurisdiction; rather, the House Committee court found that has, and exercised, jurisdiction and (as evidenced the courts comments oral argument May 15) intends reach the merits the executive privilege claim, presenting the very concern about judicial economy and comity that this Court recognized its original opinion the basis for granting the stay.  Id. (emphasis added); see also Minute Order, Nov. 2013 (continuing stay case following denial defendants Motion Dismiss). 
Plaintiffs suggestion that the basis for this courts stay longer exists because settlement negotiations have come close the House Committee litigation also incorrect.  See Pl.s Mot. 4-5. response the parties most recent joint status report, see House Committee, May 30, 2014 Joint Status Report, ECF No. 78, the court ordered the parties meet and confer attempt reach settlement until July 2014, which point the case will referred for further mediation before Judge Rothstein not settled the interim.  See Minute Order, June 10, 2014. 
Second, plaintiff asserts that any eventual decision the merits the House Committee litigation would have little, any, effect Judicial Watchs case.  Pl.s Mot. support for this assertion, plaintiff argues that ruling House Committee would not estop plaintiff from pursuing its claim.  However, this Court indicated its initial order granting the stay, settlement (or potentially even ruling the House Committee court), may lead the production disputed documents over which Executive Privilege has been asserted, thereby narrowing the scope this litigation. February 15, 2013 Order  This same reasoning applies now just did when this Court first issued the stay, and nothing material has changed the interim. course, this case likely will continue litigated once the House Committee lawsuit has concluded; that why this case has only been stayed rather than dismissed consolidated.  But also clear that decision [in the House Committee lawsuit] may relevant the merits the FOIA dispute, such that the sequencing the two lawsuits, with the House Committee litigation preceding the present FOIA case, serves the interests judicial efficiency and comity.  See February Order plaintiff itself has argued, duplicative litigation the merits the privilege assertion would disserve judicial economy due the purported similarity the legal questions issue.  See Pl.s Mot. Consolidate ECF No. (At their core, both actions seek access the identical subset records being withheld the Department pursuant claim executive privilege. Therefore, the resolution both actions, despite minor differences, will turn largely how the Court answers one central legal question: whether the subset records being sought both the House Committee and Judicial Watch properly being withheld pursuant the claim executive privilege. Consolidation these actions before one judge will avoid duplicative review this central issue and thus serves the interest judicial economy.). 
Third, and finally, plaintiff suggests that the stay should limited because the issues the two cases, although related, are different.  Pl.s Mot. Plaintiff cites two claimed bases support for its argument that claims privilege are different the FOIA context from the Congressional subpoena context. Id. The first exchange between counsel for the defendant the House Committee litigation and the court oral argument May 15.  See id. 6-7. that exchange reveals, counsel for the government indicated that, in the ordinary course agency might, its discretion, decide release information FOIA that could subject Exemption, entitled do.  See Crumpton Stone, F.3d 1400, 1404 (D.C. Cir. 1995). The same is, course, true with respect the negotiation and accommodation process that takes place when committee Congress requests information from the Executive Branch, which the Executive Branch may decide turn over information that would properly within the scope potential claim privilege means accommodating legitimate need the Legislative Branch. 
This case, however, does not present the ordinary course.  This matter implicating ongoing dispute between the political Branches over whether the Legislative Branch may access certain information that the Executive Branch has deemed necessary protecta dispute that resulted the assertion Executive Privilege the President. such, counsels statement during argument House Committee that ordinary FOIA litigation (i.e., where claim Executive Privilege against Congress issue) distinct from the present context, way suggested, plaintiff incorrectly claims, that the Department could not withhold under FOIA all the records currently withholding the House Committee litigation. Pl.s Mot. Rather, the issue presented would the Executives contention that entitled withhold the documents subject the Presidents assertion Executive Privilege, and the decision the House Committee court the validity the Privilege would course bear the answer that question. 
Plaintiff also picks out particular documents produced response certain FOIA requests unrelated Operation Fast and Furious and broadly claims that responses the Executive Branch FOIA requests are more complete than those provided Congressional subpoenas. Pl.s Mot. Plaintiffs anecdotal examples, lacking explanation the circumstances and productions involved, are wholly insufficient support such argument.  More importantly, unlike this case, those examples did not involve FOIA requests for documents covered assertion Executive Privilege, let alone earlier-filed lawsuit committee Congress seeking obtain documents also sought the FOIA request notwithstanding assertion Executive Privilege.  Accordingly, those examples way undermine the interests judicial economy and comity that continue justify the stay entered the present case. 


For the foregoing reasons, defendant respectfully requests that this Court deny plaintiffs 
Dated: June 20, 2014 Respectfully submitted, 
STUART DELERY Assistant Attorney General 
JOHN TYLER Assistant Branch Director Eric Womack 
ERIC WOMACK Trial Attorney 
U.S. Department Justice Civil Division, Federal Programs Branch Massachusetts Avenue, NW, Room 7140 Washington, 20530 Tel: (202) 514-4020 Fax: (202) 616-8470 Email: 
Counsel for Defendant 

CERTIFICATE SERVICE hereby certify that June 20, 2014, caused true and correct copy the foregoing Opposition served plaintiffs counsel electronically means the Courts ECF system. 
/s/ Eric Womack