Case 1:08-cv-01046-JDB Document 39 Filed 11/02/2009 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

DEFENDANT’S MOTION FOR STAY PENDING APPEAL

OF SEPTEMBER 1, 2009 ORDER

Defendant, United States Department of Homeland Security (“DHS”), by and through

undersigned counsel, respectfully moves for a stay pending appeal of the Court’s September 1, 2009

Memorandum Opinion and Order (Docket Entries 35 and 36) requiring the United States Customs

and Border Protection (“CBP”), a component of DHS, to disclose portions of eight previously-

redacted documents in this case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, as amended. Defendant also requests 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 also ordered as part of the September 1, 2009

Order.1 Defendant agrees to file a status report in 30 days advising of the status of the appeal filed

1
Good cause exists for Defendant’s request for a stay of the deadline to file a
supplemental Vaughn index and supporting memorandum of law relating to these records
because they also involve information withheld in part under FOIA Exemption 5. Thus, 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.
Defendant is awaiting a decision from the Department of Justice that may moot the appeal.
 Case 1:08-cv-01046-JDB Document 39 Filed 11/02/2009 Page 2 of 3

today.2

By Minute Order dated October 5, 2009, the Court stayed until November 2, 2009 the

deadlines contained in its September 1, 2009 Order. A longer stay is requested because compliance

with the Court’s disclosure order would irreparably harm defendant by rendering its appeal rights

moot. See, e.g., Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979). Defendant is also

waiting for a final decision by the Department of Justice that may otherwise render the appeal moot.

See nn. 1 and 2, supra.

Pursuant to Local Rule 7(m), defendant notified plaintiff of its decision to file a notice of

appeal and seek a stay of the Court’s September 1, 2009 Order when it became clear that a final

decision on the appeal could not be made within 60 days of the Court’s Order. Plaintiff, through

counsel, David Sobel, Esq., has indicated that Plaintiff's position with respect to the motion is as

follows: “because counsel for defendant failed to bring this matter to the attention of counsel for

plaintiff until after 4:00 today, counsel for plaintiff has been unable to ascertain plaintiff's position

with respect to defendant's motion.” In support of this motion, defendant relies on the

accompanying memorandum of points and authorities. A proposed order is also attached.

2
Alternatively, defendant would request a 30-day extension of the November 2, 2009
deadline to file a supplemental Vaughn index and memorandum of law.
 Case 1:08-cv-01046-JDB Document 39 Filed 11/02/2009 Page 3 of 3

Respectfully submitted,

/s/
CHANNING D. PHILLIPS, DC BAR #415793
Acting United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division, Room E-4806
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
John.Interrante@usdoj.gov

Of Counsel:

Simon Fisherow, U.S. Customs and Border Protection

Susan Shama, U.S. Customs and Border Protection
 Case 1:08-cv-01046-JDB Document 39-2 Filed 11/02/2009 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S

MOTION FOR STAY PENDING APPEAL OF SEPTEMBER 1, 2009 ORDER

This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

amended. In a Memorandum Opinion and Order dated September 1, 2009 (Docket Entries 35 and

36), the Court ruled on the parties’ cross-motions for summary judgment as to the first part of

Plaintiff’s FOIA request (“Part I FOIA request”), granting the motions in part and denying them in

part. The Court ordered, inter alia, that the United States Customs and Border Protection (“CBP”),

a component of Defendant, United States Department of Homeland Security (“DHS”), disclose

portions of eight previously-redacted records responsive to Plaintiff’s Part I FOIA request.1 The

1
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 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. Defendant is awaiting a
decision from the Department of Justice that may moot the appeal. In the meantime, CBP
continues to process and disclose electronic records on a monthly basis in response to the second
part of Plaintiff’s FOIA request.
 Case 1:08-cv-01046-JDB Document 39-2 Filed 11/02/2009 Page 2 of 4

Court should stay its September 1, 2009 Order until disposition of the appeal from the order filed

today.

ARGUMENT

I. THE COURT SHOULD STAY ITS SEPTEMBER 1, 2009 ORDER PENDING

APPEAL BECAUSE IT REQUIRES DEFENDANT TO DISCLOSE PORTIONS
OF PREVIOUSLY-REDACTED RECORDS

Pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure, defendant has 60 days

from the date of the Court’s final judgment to determine whether it will appeal from any aspect of

the Court’s rulings. Although a final judgment has not yet been entered in this case, the Court’s

September 1, 2009 Order requires defendant to disclose portions of eight previously-redacted

documents and therefore is arguably appealable pursuant to 28 U.S.C. § 1292(a), which permits

immediate appeal from interlocutory orders involving injunctions. See Ferguson v. FBI, 957 F.2d

1059, 1063-64 (2d Cir. 1991). Release of the information at issue, however, will render any appeal

by the government moot. Once disclosure is made, the harm to the government will be complete,

and no remedy by this Court or by the Court of Appeals can correct it. It is, therefore, accurate to

say that the harm to defendant would be irreparable.

In Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979), the plaintiff sought to obtain

under the FOIA certain FBI documents concerning a wiretap. The district court ordered the records

disclosed. The First Circuit, after only a short stay was granted by the district court, recognized that

failure to grant a stay would completely undercut the government's right to secure meaningful

review, and that a stay would be detrimental to the plaintiff only to the extent that it postponed the

moment of disclosure. In addressing the importance of granting a stay in cases where the disclosure

of documents is sought, the First Circuit stated:

2
 Case 1:08-cv-01046-JDB Document 39-2 Filed 11/02/2009 Page 3 of 4

This Court necessarily approaches the matter from a different perspective. While we
give weight to the views of the District Court, the Constitution and laws entitle
litigants to have their cases independently reviewed by an appellate tribunal.
Meaningful review entails having the reviewing court take a fresh look at the
decision of the trial court, before it becomes irrevocable. Appellants' right of appeal
here will become moot unless the stay is continued pending determination of the
appeals. Once the documents are surrendered pursuant to the lower court's order,
confidentiality will be lost for all time. The status quo could never be restored.

Id. at 890 (emphasis added).

The Supreme Court has also determined that a stay of a disclosure order in a FOIA case

pending appeal is clearly warranted. In John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989),

Justice Marshall held that compliance with a court's disclosure order creates an irreparable injury

for the government because it moots any appeal from such an order. 488 U.S. at 1309. Similarly,

in Department of Justice v. Rosenfeld, 501 U.S. 1227 (1991), the Court granted an application for

a stay of a disclosure order in a FOIA case pending final disposition of the appeal of that order by

the Ninth Circuit Court of Appeals.

As the cases cited above show, failure to defer release of the information at issue here

pending appeal would totally frustrate the government's right to appellate review and would result

in irreparable harm. Once disclosure has been made, that harm cannot be remedied. Moreover, the

effect on plaintiff would be relatively insignificant because such a stay would merely postpone the

moment of disclosure if the government’s appeal is unsuccessful.

In Providence Journal, the First Circuit compared the harms resulting from a stay in that case

and concluded:

Weighing this latter hardship [of a stay upon plaintiff] against the total and
immediate divestiture of appellants' rights to have effective review in this court, we
find the balance of hardship to favor issuance of a stay.

595 F.2d at 890. The same conclusion follows here.

3
 Case 1:08-cv-01046-JDB Document 39-2 Filed 11/02/2009 Page 4 of 4

Therefore, based on the foregoing and on the entire record herein, the Court should order

that defendant shall not be required to produce to plaintiff any material the release of which is

ordered by the Court in this action until disposition of the appeal from its September 1, 2009

disclosure order.2

WHEREFORE defendant asks that the Court stay its September 1, 2009 Memorandum

Opinion and Order.

Respectfully submitted,

/s/
CHANNING D. PHILLIPS, DC BAR #415793
Acting United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division, Room E-4806
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
John.Interrante@usdoj.gov

Of Counsel:

Simon Fisherow, U.S. Customs and Border Protection

Susan Shama, U.S. Customs and Border Protection

2
Of course, defendant would like to avoid wasteful and inefficient piecemeal litigation,
and agrees to file a status report in 30 days advising of the status of the appeal. In the interim, the
Department of Justice may render a decision that will moot the appeal.

4
 Case 1:08-cv-01046-JDB Document 39-3 Filed 11/02/2009 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

ORDER

Upon consideration of Defendant United States Department of Homeland Security’s Motion

for Stay Pending Appeal of the Court’s September 1, 2009 Memorandum Opinion and Order

(Docket Entries 35 and 36), for good cause shown, and the entire record herein, it is hereby

ORDERED that the motion is GRANTED.

It is further ORDERED that this Court’s Memorandum Opinion and Order dated September

1, 2009 is stayed until disposition of defendant’s appeal therefrom.

It is further ORDERED that defendant shall file a status report as to the status of the appeal

in 30 days or by December 2, 2009.

It is SO ORDERED this day of , 2009.

John D. Bates
United States District Judge