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Case 1:08-cv-01046-JDB Document 41 Filed 11/05/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )


ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. 08-1046 (JDB)
)
DEPARTMENT OF HOMELAND SECURITY, )
)
Defendant. )
)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION


FOR STAY PENDING APPEAL OF SEPTEMBER 1, 2009 ORDER

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

defendant’s deadline to make a submission in support of its continued withholding of material

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

its exemption claims, until November 2, 2009.

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

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Decl., ¶¶ 6-8.1 Instead, late on the afternoon of November 2 – the day it was due to make a

supplemental Vaughn submission in support of its withholding or concede its remaining

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

memorandum of law relating to portions of eleven previously-redacted documents and

attachments,” Defendant’s Motion for Stay Pending Appeal of September 1, 2009 Order at 1,

plaintiff opposes defendant’s motion.

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

footnote that states, in pertinent part:

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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this deadline because the decision to withhold this information is necessarily


related to the appeal of the Court’s Order requiring disclosure of the eight
previously-redacted records under the same FOIA exemption.

Memorandum of Points and Authorities in Support of Defendant’s Motion for Stay Pending

Appeal of September 1, 2009 Order (“Def. Stay Mem.”) at 1, n.1.

The applicable standard is not “good cause,” as defendant suggests. Rather, as our court

of appeals has held,

[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

with a routine requirement to submit additional information in support of its still-pending

summary judgment motion.2

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.

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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,

indeed, cannot be – the subject of defendant’s appeal.

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’

still-pending cross-motions. Should defendant’s appeal go forward and result in a final

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

present a quintessential example of “wasteful and inefficient piecemeal litigation.”

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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

requirement to file a supplemental Vaughn submission, should be denied.3

Respectfully submitted,

/s/ David L. Sobel


DAVID L. SOBEL, D.C. Bar No. 360418
1875 Connecticut Avenue, N.W.
Suite 650
Washington, DC 20009
(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190


MELANIE SLOAN, D.C. Bar No. 434584

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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Citizens for Responsibility and


Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff

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EXHIBIT A
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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )


ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. 08-1046 (JDB)
)
DEPARTMENT OF HOMELAND SECURITY, )
)
Defendant. )
)

DECLARATION OF DAVID L. SOBEL

I, David L. Sobel, hereby depose and state:

1. I am co-counsel for plaintiff in the above-captioned action.

2. On September 25, 2009, I received an e-mail message from John Interrante,

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

plaintiff’s consent to an anticipated motion defendant intended to file seeking a stay of

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

a “global settlement” of “Part I” of the case, “which would include an agreement to


Case 1:08-cv-01046-JDB Document 41-2 Filed 11/05/2009 Page 3 of 4

disclose contested documents and payment of a reasonable amount of attorneys fees,”

and that he would be requesting a 30-day stay of the Court’s September 1 Order to

facilitate such a discussion.

4. Defendant filed a consent motion requesting a 30-day stay on October 2, 2009.

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

defendant wished to discuss a settlement and required additional time to do so. 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 its exemption claims, until November 2, 2009.

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

stay on October 2 purportedly to facilitate a settlement discussion. After I provided Mr.

Interrante with the “breakdown of the fees” he had requested, I received no

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

motion for a stay.

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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

order to engage in a settlement discussion. Indeed, after I unilaterally transmitted

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

concerning “an agreement to disclose contested documents.”

8. Based upon the foregoing facts, it is my belief that, contrary to the

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

best of my knowledge and belief.

11/5/09 /s/ David L. Sobel


Date DAVID L. SOBEL