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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

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CIVIL ACTION NO. 1:08-cv-01535-RCL

DEFENDANT’S MOTION TO STAY PROCEEDINGS Defendant the United States Department of Homeland Security respectfully moves the Court to stay this action pending resolution of a related case, Citizens for Responsibility and Ethics in Washington v. Department of Homeland Security, No. 06-cv-01912-RCL (D.D.C. filed Nov. 9, 2006). The accompanying memorandum sets forth the grounds for this motion. In accordance with Local Rule 7(m), undersigned counsel for the defendant has conferred with counsel for the plaintiff in this action regarding the relief sought in this motion. Plaintiff has stated that it will oppose the motion.

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Dated: October 6, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney ELIZABETH J. SHAPIRO (DC Bar 418925) Assistant Director JOHN R. TYLER (DC Bar 297713) Senior Trial Counsel

/s/ Brad P. Rosenberg Brad P. Rosenberg (DC Bar 467513) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Counsel for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

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CIVIL ACTION NO. 1:08-cv-01535-RCL

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO STAY PROCEEDINGS INTRODUCTION Defendant the United States Department of Homeland Security (“DHS”) respectfully moves this Court for a stay of proceedings in this action pending resolution of a related action, Citizens for Responsibility and Ethics in Washington v. Department of Homeland Security, No. 06-cv-01912-RCL (D.D.C. filed Nov. 9, 2006) (hereinafter, CREW 2). Because this Court’s resolution of issues in CREW 2 arising under the Freedom of Information Act will control in this case, a stay is appropriate to avoid unnecessary and duplicative expenditures of resources by the Court and the parties.

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ARGUMENT This Court Should Enter A Stay Pending Resolution Of CREW 2 To Avoid Unnecessary And Duplicative Litigation. 1. This Court has broad discretion to stay all proceedings in an action pending the

resolution of proceedings elsewhere. Int’l Painters and Allied Trades Indus. Pension Fund v. Painting Co., ___ F. Supp. 2d ___, 2008 WL 2977627, at *6 (D.D.C. Aug. 5, 2008); see generally Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants”). 2. Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”)

acknowledges that this case is related to CREW 2. CREW 2 involves an October 4, 2006 FOIA request for all records in the Secret Service’s possession showing whether and the extent to which any of nine individuals had visited the White House or the Vice President’s Residence. So too, here. CREW’s September 4, 2008 Complaint in this case seeks the same declaratory and injunctive relief for the same types of records; the only relevant difference is that this case involves a July 15, 2008 FOIA request for visitor information relating to an additional individual — Stephen Payne — who was not identified in the October 4, 2006 FOIA request that gave rise to CREW 2.1 To that end, plaintiff filed with its Complaint in this case a Notice of Designation of Related Civil Cases, tying this case to CREW 2. See Docket No. 2 (09/04/2008). Accordingly, this case was assigned to this Court, which is also hearing CREW 2.

CREW 2 is broader in scope than this case because it also names Allen Weinstein, Archivist of the United States, as a defendant, and alleges certain claims arising under the Federal Records Act. CREW has not asserted similar claims in this case. 2

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3.

Defendant DHS moved for summary judgment in CREW 2. On December 17,

2007, this Court issued a Memorandum Opinion in that case granting in part, and denying in part, DHS’s motion for summary judgment. As relevant here, this Court rejected DHS’s argument that, even though the Secret Service is an “agency” for FOIA purposes, the requested records did not qualify as “agency records” subject to disclosure. See CREW 2, 527 F. Supp. 2d 76, 98 (D.D.C. 2007) (concluding that visitor records at the White House Complex and Vice President’s Residence are “agency records” under FOIA).2 The Court then ordered DHS to process plaintiff’s FOIA request within 20 days. Order, CREW 2 (Docket No. 45, 12/17/2007). Shortly thereafter, DHS appealed this Court’s decision to the D.C. Circuit, whereupon this Court entered a stay pending that appeal. Order, CREW 2 (Docket No. 49, 12/21/2007). 4. The D.C. Circuit dismissed the appeal of CREW 2 for lack of jurisdiction. In so

doing, the court expressly noted that DHS “has yet to claim the right to withhold the requested records under any of FOIA’s nine exemptions.” Citizens for Responsibility and Ethics in Washington v. DHS, 532 F.3d 860, 862 (D.C. Cir. 2008). To that end, the court stated that “[o]nly after the district court rules on any claimed exemptions — either for or against the government — will there be a final decision for the government or CREW to appeal.” Id. at 863. 5. By letter dated September 24, 2008, and following the remand of CREW 2 to this

Court, DHS provided CREW with a “Glomar response.” See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). That letter informed CREW that DHS would be unable to confirm or deny the existence of any records that fall within its October 4, 2006 FOIA request:
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This Court also rejected DHS’s argument that the doctrine of constitutional avoidance necessitated a construction of FOIA that did not encompass visitor records. See CREW 2, 527 F. Supp. 2d at 98-100. 3

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Beyond the specific searches heretofore identified in this litigation, however, the Secret Service can neither confirm nor deny the existence of any records that fall within your request. We are advised by the Department of Justice that disclosure of records of visitors to the White House or the Vice President’s Residence could reveal information protected by the presidential communications privilege. Stating whether such records are found in response to FOIA requests, or invoking (or determining not to invoke) exemptions based on the circumstances of any particular visit reflected in such records, would risk revealing with whom the President, the Vice President, or their advisers have and have not consulted, thus violating the presidential communications privilege. Accordingly, any additional records within your request found as a result of the Secret Service’s search would be protected by Exemption 5 of the FOIA, and the remainder of your request is denied on this basis. DHS filed a copy of that letter with this Court in CREW 2. See Amended Notice of Filing, CREW 2 (Docket No. 57, 09/25/2008).3 This Court subsequently vacated its stay in CREW 2, ordering the production of non-exempt responsive records and the filing of dispositive motions. See Order, CREW 2 (Docket No. 58, 09/30/2008). 6. Granting a stay of the present case would avoid unnecessary and duplicative

expenditures of resources by the Court and the parties. DHS’s Answer in this case sets forth a Glomar response to plaintiff’s FOIA request for records. Accordingly, resolution by this Court of the validity of DHS’s Glomar response in CREW 2 will have a direct bearing on this case, since a determination by this Court in CREW 2 that DHS’s Glomar response is applicable to records reflecting visits to the White House and Vice Presidential Residence would resolve all outstanding issues in this case. 7. Moreover, the D.C. Circuit dismissed the appeal of the denial of DHS’s summary

judgment motion in CREW 2 without deciding the merits of DHS’s argument that visitor logs are
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The letter also informed CREW that, if any responsive records were located, they would generally be withheld pursuant to FOIA Exemptions (b)(2), (b)(6), (b)(7)(C), and (b)(7)(E). See id. 4

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not “agency records” subject to disclosure. Because the D.C. Circuit has not addressed that argument, DHS will be forced to make it again here in order to preserve its record, should this Court not grant a stay. Conversely, the entry of a final appealable order in CREW 2 would allow for appellate review of that issue which has a direct bearing on this case. 8. Unlike CREW 2, this case is very early in its proceedings. The Complaint was

only filed on September 4, 2008, and defendant DHS has, concurrently with this Motion to Stay, just filed its Answer. There have been no other substantive filings in this case. CREW 2, by contrast, has been litigated for nearly two years, and provides the appropriate vehicle to litigate the issues that are common to both cases. Granting a stay will therefore eliminate the need to separately litigate these multiple issues that are already being litigated in CREW 2. CONCLUSION Defendant DHS respectfully requests the Court enter a stay of proceedings in this action pending a final resolution of the claims in CREW 2, including any subsequent appeal. A proposed order is attached.

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Dated: October 6, 2008 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney ELIZABETH J. SHAPIRO (DC Bar 418925) Assistant Director JOHN R. TYLER (DC Bar 297713) Senior Trial Counsel

/s/ Brad P. Rosenberg Brad P. Rosenberg (DC Bar 467513) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Counsel for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

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CIVIL ACTION NO. 1:08-cv-01535-RCL

[PROPOSED] ORDER Upon consideration of defendant’s motion to stay and any opposition thereto, the Court concludes that it is appropriate to stay this action pending the entry of a final order and any subsequent appeal in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, No. 1:06-cv-01912-RCL.

SO ORDERED. ENTERED:_____________

____________________________________ JUDGE ROYCE C. LAMBERTH United States District Court District of Columbia