Professional Documents
Culture Documents
Background
In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, plaintiff
Citizens for Ethics and Responsibility in Washington (“CREW”) seeks the disclosure of records
concerning allegations that defendant Department of Homeland Security (“DHS”) and its
component, U.S. Customs and Border Protection (“CBP”), engaged in improper political
favoritism when CBP made decisions concerning the location of the U.S.-Mexico border fence
and the property owners who would be adversely impacted by the construction project.
Following briefing and the Court’s in camera inspection of the disputed records, by
memorandum opinion and order dated September 1, 2009, the Court granted in part and denied
in part the parties’ cross-motions for summary judgment. Specifically, the Court ordered
defendant DHS to release to CREW certain information previously withheld by CBP, and “with
respect to the Exemption 5 claims in Document Nos. 1, 9 and 27 and relevant attachments within
Document Nos. 22 and 24,” the Court directed that “defendant must file a supplemental Vaughn
submission, along with a memorandum in support of its exemption claims, by not later than
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October 2, 2009 or the Court will treat these remaining exemption claims as conceded and order
that the withheld material be released.” Order of September 1, 2009 (Docket No. 36) at 2.
On September 25, 2009 – 24 days after the Court issued its Order and seven days before
addressed in the Order – counsel for defendant for the first time indicated to counsel for plaintiff
that defendant would “like to talk to [plaintiff] about resolving the Part I FOIA claim” in this
action. Declaration of David L. Sobel (“Sobel Decl.”) (attached hereto as Exhibit A), ¶ 2.
Counsel for defendant sought plaintiff’s consent to a motion defendant intended to file seeking a
stay of the Court’s Order of September 1, 2009. Counsel represented that defendant wished to
discuss a “global settlement” of “Part I” of the case, “which would include an agreement to
disclose contested documents and payment of a reasonable amount of attorneys fees,” and that
defendant would be requesting a 30-day stay of the Court’s Order to facilitate such a discussion.
Id., ¶3.
Defendant filed a consent motion requesting a 30-day stay on October 2, 2009 (Docket
No. 37). The motion stated that “[t]he stay is requested so that the parties can discuss a global
settlement of all issues relating to the first part of Plaintiff’s FOIA request, including attorney
fees, and eliminate the need for any additional litigation relating to this request.” By minute
order dated October 5, 2009, the Court granted defendant’s motion and stayed defendant’s
deadline for filing a supplemental Vaughn submission, along with a memorandum in support of
Despite its representation to plaintiff and the Court, defendant made no effort to engage
in a “settlement” discussion during the duration of the 30-day stay granted by the Court. Sobel
2
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Decl., ¶¶ 6-8.1 Instead, late on the afternoon of November 2 – the day it was due to make a
exemption claims – defendant DHS filed a notice of appeal of the Court’s September 1 Order
(Docket No. 38) and moved to stay the Order pending appeal (Docket No. 39). Significantly,
defendant’s notice of appeal references only that part of the Court’s Order “ordering defendant to
disclose previously-redacted portions of certain records that were withheld by defendant in its
response to plaintiff’s Freedom of Information Act request,” and does not reference defendant’s
obligation to file a supplemental Vaughn submission with respect to documents that remain to be
adjudicated. See Notice of Appeal. To the extent that defendant’s pending motion seeks “a stay
pending appeal of the deadline to file a supplemental Vaughn index and supporting
attachments,” Defendant’s Motion for Stay Pending Appeal of September 1, 2009 Order at 1,
Argument
Defendant DHS does not even attempt to advance a coherent argument in support of its
request to stay its deadline for filing a supplemental Vaughn submission, relying instead on a
In its September 1, 2009 Order, as amended by the Court’s Minute Order dated
October 5, 2009, the Court also ordered CBP to file a supplemental Vaughn index
and supplemental memorandum of law in support of the agency’s withholding of
a portion of eleven other records and attachments under FOIA Exemption 5 by
November 2, 2009. Thus, good cause exists for defendant’s request for a stay of
1
Lest there be any doubt as to whether or not defendant initiated or participated in any
settlement discussions, plaintiff notes that defendant represented to the Court in its “consent
motion” for a stay that “[t]he parties will submit a report to the Court pertaining to the status of
these discussions no later than November 2, 2009,” and that defendant did not endeavor to file
such a report.
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Memorandum of Points and Authorities in Support of Defendant’s Motion for Stay Pending
The applicable standard is not “good cause,” as defendant suggests. Rather, as our court
[t]he standard for granting a motion for stay pending appeal is well-established in
this Circuit. To prevail on such a motion, a party must show:
(1) that it has a substantial likelihood of success on the merits; (2) that it
will suffer irreparable injury if the stay is denied; (3) that issuance of the
stay will not cause substantial harm to other parties; and (4) that the public
interest will be served by issuance of the stay.
United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003) (citing Washington
Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)).
Defendant does not even attempt to meet this standard with respect to the Court’s order to file a
supplemental Vaughn submission, and it is difficult to imagine how there is any “likelihood of
success on the merits” when defendant has not even appealed this aspect of the Court’s Order.
See, e.g., Comm. on the Judiciary v. Miers, 575 F. Supp. 2d 201, 203 (D.D.C. 2008) (“the stay
pending appeal inquiry looks to the likelihood of success on the merits of the appeal itself”). It is
similarly hard to fathom how defendant could demonstate “irreparable injury” by complying
2
While defendant asserts that “compliance with a court’s disclosure order creates an irreparable
injury for the government because it moots any appeal from such an order,” Def. Stay Mem. at 3
(citation omitted; emphasis added), it does not attempt to explain how the portion of the Court’s
order that does not require any disclosure of information might similarly cause irreparable harm.
4
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Indeed, defendant (in its notice of appeal) apparently recognizes that the Court’s directive
to make a supplemental Vaughn submission is not appealable. As the D.C. Circuit has noted,
[i]n an FOIA case a “final decision” is an order by the District Court requiring
release of documents by the Government to the plaintiff, or an order denying the
plaintiff’s right to such release. The case at bar [in which the agency was ordered
to inform commercial submitters of information of a pending disclosure “so that
they could object to specific disclosures that might cause them competitive
injury”] does not present an appealable “final order,” but rather an interlocutory
order issued in the course of a continuing proceeding.
Green v. Dep’t of Commerce, 618 F.2d 836, 841 (D.C. Cir. 1980). See also Citizens for
Responsibility & Ethics v. U.S. Dep’t of Homeland Sec., 532 F.3d 860, 863 (D.C. Cir. 2008)
(“Here, as in Green, it is entirely possible that the government will never have to turn over a
single document given that the [agency] may yet be entitled to withhold some or all of the
documents”). It is thus clear that what defendant seeks is a stay of an “interlocutory order
issued in the course of a continuing proceeding” despite the fact that the order is not – and,
Oddly, defendant asserts in support of its motion that it “would like to avoid wasteful and
inefficient piecemeal litigation.” Def. Stay Mem. at 4, n.2. Yet “piecemeal litigation” is exactly
what will result if defendant is permitted to delay indefinitely the submission of additional
information that will enable the Court to resolve the remaining issues relevant to the parties’
resolution of the issues raised by the Court’s disclosure order, there would remain unresolved the
status of material on which the Court has not yet ruled. Plaintiff submits that such a result would
5
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Conclusion
Defendant DHS has not appealed the portion of the Court’s September 1 Order directing
the agency to file a supplemental Vaughn submission “or the Court will treat the[] remaining
exemption claims as conceded and order that the withheld material be released.” As such, that
part of the Order is not subject to a “stay pending appeal.” In any event, defendant has not even
attempted to show that relief from that part of the Court’s Order is warranted under the familiar
four-part test for issuance of a stay. Defendant’s motion, to the extent that it seeks a stay of the
Respectfully submitted,
3
Plaintiff notes that defendant’s “consent motion” for a stay, which the Court granted on
October 5, appears to have been premised upon a misrepresentation – namely, that the “stay is
requested so that the parties can discuss a global settlement of all issues relating to the first part
of Plaintiff’s FOIA request.” As plaintiff has shown, defendant in fact made no effort to discuss
a settlement – “global” or otherwise – during the duration of the 30-day stay granted by the
Court. See Sobel Decl. Rather, it appears that defendant’s motion was “presented . . . [to] cause
unnecessary delay” in violation of Fed. R. Civ. P. 11(b)(1), and thus the Court may properly
impose a sanction “to deter repetition of the conduct,” and such sanction “may include
nonmonetary directives.” Fed. R. Civ. P. 11(c)(4). Plaintiff submits that, under these
circumstances, it would be appropriate for the Court to “treat the[] remaining exemption claims
as conceded and order that the withheld material be released.” Order of September 1, 2009 at 2.
Alternatively, defendant should be directed to submit its supplemental justification for
withholding the material immediately and without further delay.
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EXHIBIT A
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counsel for defendant, in which Mr. Interrante stated that he would “like to talk to [me]
about resolving the Part I FOIA claim” in this action. This was the first indication I had
received that defendant had an interest in “resolving” any issues in this case.
3. Through subsequent contacts with Mr. Interrante, I learned that he was seeking
the Court’s Order of September 1, 2009, directing defendant to disclose certain agency
records and ordering that “defendant must file a supplemental Vaughn submission, along
with a memorandum in support of its exemption claims, by not later than October 2, 2009
or the Court will treat these remaining exemption claims as conceded and order that the
withheld material be released.” Mr. Interrante indicated that defendant wished to discuss
and that he would be requesting a 30-day stay of the Court’s September 1 Order to
The motion stated that “[t]he stay is requested so that the parties can discuss a global
settlement of all issues relating to the first part of Plaintiff’s FOIA request, including
attorney fees, and eliminate the need for any additional litigation relating to this request.”
Plaintiff’s consent to the motion was premised upon Mr. Interrante’s representation that
minute order dated October 5, 2009, the Court granted defendant’s motion and stayed
5. On October 5, 2009 (the day the Court granted defendant’s stay motion), I sent
to Mr. Interrante by e-mail a letter setting forth plaintiff’s request for reimbursement of
attorney’s fees.
6. By e-mail dated October 13, 2009, Mr. Interrante requested “a more detailed
breakdown of the fees,” which I provided to him later that day. This request from Mr.
Interrante was the first contact I received from him since defendant filed its motion for a
communication from him concerning plaintiff’s attorney fee request or any other matter
related to the “global settlement” he had earlier mentioned as the basis for defendant’s
2
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7. At no time during the duration of the 30-day stay period defendant requested
from the Court did Mr. Interrante or any other representative of defendant contact me in
plaintiff’s attorney’s fee request to Mr. Interrante, I never received a response, rejection
or counter-proposal from Mr. Interrante or any other representative of defendant. Nor did
I ever receive from Mr. Interrante or any other representative of defendant any proposal
representations defendant made to plaintiff and to the Court, defendant never intended to
“discuss a global settlement of all issues relating to the first part of Plaintiff’s FOIA
request.”
Under penalty of perjury, I hereby affirm the foregoing is true and correct to the