Case 1:11-cv-01437-BAH Document 18

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ SHARIF MOBLEY, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant. ) ) ) ) ) ) Civil Action No. 11-1437 (BAH) ) ) ) ) )

JOINT STATEMENT REGARDING SCHEDULE In response to the Courts Orders of February 27, 2012, and March 6, 2012, the parties hereby jointly submit this statement pursuant to footnote 3 of the Courts Standing Order. Defendant believes that this matter can be resolved solely through the filling of dispositive motions and does not believe that an appearance before the Court will be necessary prior to the resolution of the dispositive motions. Plaintiff believes that this matter may be resolved solely through the filing of dispositive motions but believes that any disputes regarding Defendants responsibility for filing a Vaughn index will likely require an appearance before the Court. However, after much discussion, the parties have been unable to agree on an appropriate schedule for the filing of such motions. Accordingly, the parties have set forth below separate statements in support of their proposed schedules. Plaintiffs Statement Due to Plaintiffs urgent need for the information at issue, which has been previously briefed extensively and need not be revisited here, Plaintiff respectfully requests that Defendant be required to file its Motion for Summary Judgment with an accompanying Vaughn index by no

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later than 16 March 2012. Plaintiffs counsel has made numerous efforts to expedite this matter, even informing Defendants counsel that it will not be necessary to provide any information regarding records which do not pertain directly to Mr. Mobley (a renewal of his initial prelitigation offer to limit the scope of the request to just those records), but Defendant has rejected all attempts to compromise. Simply put, records which do not pertain directly to Mr. Mobley will not need to be coordinated with multiple agencies, and therefore Defendants estimate of thirty days to file a brief for all thirteen documents will not be applicable for less than thirteen documents. Based on the scope of the original Freedom of Information Act (FOIA) and Privacy Act (collectively FOIA/PA) request, it is likely that less than half of the thirteen records pertain directly to Mr. Mobley. Furthermore, with respect to Defendants claims that it needs time to coordinate review with multiple agencies to maximize the amount of material that can be released, Defendant neglects to mention the fact that it was required to do so before ever denying Plaintiffs request in the first place. Defendants argument only has merit if it did not properly review the responsive records prior to issuing its initial denial. If such is the case, the Court should not reward an agency for denying records without properly reviewing them at the administrative stage by giving it extra time to do so once suit has been filed. Defendant had ample time to coordinate this review prior to the filing of this suit. In fact, the Department of Justice (DOJ) Departmental Review Committee (the DOJ office responsible for declassifying classified material) in particular had two months to review this material between the filing of Plaintiffs administrative appeal and the filing of this suit. To the extent that Defendant argues that it did not have a responsibility to properly coordinate with all involved agencies while its Motion to Dismiss was pending, Defendant 2

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misunderstands Plaintiffs position. Defendant was required to perform all of the coordination it now wants to do before denying Plaintiffs request at the administrative stage. Furthermore, even if Defendant did not properly coordinate with the other agencies prior to denying Plaintiffs request, the Departmental Review Committee should have been doing so in accordance with established DOJ procedures for two months after Plaintiffs appeal before this lawsuit was filed. Defendant cannot argue that it did not coordinate with all relevant agencies at the administrative stage because it intuited that Plaintiff would file a Complaint months later that might be attacked through a Motion to Dismiss. Rather than operate in good faith to release all information not clearly exempt, Defendant has delayed this suit at every turn. First, Defendant obtained an enlargement of time by reassigning the case to an attorney who was leaving the country, prompting the Court to prohibit any further enlargements of time. Then Defendant filed a meritless Motion to Dismiss based on a clear misreading of Plaintiffs Complaint, delaying the production of the requested Vaughn index even further. Finally, once the Court ordered the case to proceed, Defendant claims that it is only now starting to coordinate with the numerous agencies required to properly brief this case. Defendants dilatory behavior is exacerbated by the fact that it took every one of these steps with full knowledge that Plaintiff was facing execution and desperately needed the information he requested to use in his defense. Contrary to Defendants position, Plaintiffs right to expedited processing of his FOIA/PA request did not expire with the filing of this lawsuit. Pursuant to 28 U.S.C. 1657, this Court shall expedite FOIA cases when good cause is shown. The statute states as follows:

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Notwithstanding any other provision of law, each court of the United States shall determine the order in which civil actions are heard and determined, except that the court shall expedite the consideration of any action brought under chapter 153 or section 1826 of this title, any action for temporary or preliminary injunctive relief, or any other action if good cause therefor is shown. For purposes of this subsection, good cause is shown if a right under the Constitution of the United States or a Federal Statute (including rights under section 552 of title 5) would be maintained in a factual context that indicates that a request for expedited consideration has merit. 28 U.S.C. 1657(a). The legislative history of the FOIA amendments to 1657 defines good cause and explains the circumstances in which FOIA cases must be expedited: The Committee included a definition of good cause to emphasize the type of factual inquiry which the court should make. The Committee wishes to preclude clearly frivolous lawsuits from being granted expedited treatment merely by involving a statutory cause of action which had been given expedited status. The Committee recognizes in Section 2(A) the special nature of Freedom of Information Act cases. This section recognizes the need to expedite hearings upon the showing of good cause and defines good cause as including a right under Section 552 of Title 5, The Freedom of Information Act (FOIA) The Freedom of Information Act is a major tool through which the public and the press obtain information about their Government. Prompt review of decisions denying access to Government information is critical to FOIA users and to the purposes of the Act. Without such prompt review, Government officials can delay access to public records, and extended delays in court can encourage unjustified refusals to disclose information. Frequently, the value of disclosed information is transitory. If this information is not released in a timely manner, it may be of no value at all. Further, most FOIA cases do not involve extended discovery or testimony and therefore do not burden court dockets for extensive periods of time. Expedited action by the courts in these cases can reduce the opportunities to hamper reporting of Governmental activities, and it is the intent of the committee that the good cause provision be liberally construed by the courts in granting requests for expedited consideration under the Freedom of Information Act. H.R. Rep. No. 98-985, at 4-5 (Aug. 31, 1984) (emphasis added).

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For all the reasons stated above,1 Plaintiff requests that the Court order Defendant to file a Motion for Summary Judgment with an accompanying Vaughn index by 16 March 2012. Defendants Statement Plaintiffs Freedom of Information Act/Privacy Act request to defendant the DOJ Office of Legal Counsel (OLC) in this case sought records about [Plaintiffs] seizure and detention in Yemen and about the role of the U.S. government in his and others situations. Compl. 6. OLC responded that it was in possession of thirteen records responsive to that request but would withhold all thirteen records in their entirety, as all were exempt under Exemption 1 and eleven were also exempt under Exemption 5. OLC also informed plaintiff that it did not locate any responsive records in its Privacy Act system of records. Plaintiffs complaint stated that plaintiff did not currently intend to challenge OLCs withholding determinations, but does insist on his due process right to a list of the records withheld in their entirety. OLC has denied him this right, forcing him to file this lawsuit to obtain a Vaughn index from DOJ. Compl. 17. Plaintiff further stated that, [s]hould Plaintiffs faith be undermined by DOJs Vaughn index, however, Plaintiff reserves his right to challenge some or all of the withholdings. Id. n.1. Because plaintiff at that time sought only a Vaughn index, DOJ moved to dismiss plaintiffs Complaint on the ground that plaintiff had explicitly

Plaintiff also takes issue with Defendants claim that its delay is justified because its counsel is currently engaged in preparing dispositive motions in Plaintiffs other cases before this Court. Of the three related cases before this Court, none are currently scheduled for briefing. The agencies in Case No. 11-2073 have not completed processing their requests; no briefing schedule has been established for Case No. 11-2074 (although much of the U.S. governments argument has already been made in its Opposition to Plaintiffs Motion for a Preliminary Injunction); and the parties will not propose a briefing schedule for Case No. 11-2072 until 26 March 2012. This case is the only case of the four currently in briefing. 5

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disavow[ed] any claim that [OLC] has improperly withheld any agency records, and that there was no freestanding right to a Vaughn index. Dkt. 10, Mem. at 1. On February 27, 2012, the Court denied that motion, concluding that plaintiff had set forth sufficient allegations reserving his right to challenge the withholdings themselves to state a cognizable FOIA claim and survive a motion to dismiss. Dkt. 15 at 6. Though not deciding the issue, the Court indicated that it was skeptical of plaintiffs argument that agencies are required to provide a list of withheld documents in response to a FOIA request. Id. at 67. The Court then ordered the parties to submit a joint statement on March 5, 2012, and that date was extended to March 6, 2012, upon joint motion by the parties. After the Courts February 27 Order, plaintiffs counsel indicated that he wished to move to the summary judgment stage; i.e., stating that he would now exercise the right he had reserved in his Complaint to actually challenge the withholdings themselves on their merits. Accordingly, DOJ must now file for summary judgment and explain to the Court the basis for its conclusions that the records at issue were properly withheld under Exemptions 1 and 5. In so doing, DOJ must attempt to provide the Court with as much information as possible in a public setting about the records and why they fall within Exemptions 1 and 5 to justify the exemptions taken. The records responsive to plaintiffs request are classified at the highest levels of Executive Order 13256 and additional programs. Multiple agencies and components have equities in the information contained in these records; accordingly, OLC must consult with each agency and component and engage in intensive review of any information filed publicly describing the records in any fashion. Further, an original classifying authority must submit a declaration explaining in as much detail as possible publicly why each of the records withheld qualifies under Exemption 1. As national security is implicated at very high levels and all such 6

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filings must be extensively reviewed to be sure not to disclose classified information, such review necessarily takes a significant amount of time.2 Plaintiffs attempt to narrow the request does nothing to speed up the process of this review. Put simply, OLC cannot agree to narrow the request in the way plaintiff seeks. Although OLC determined after review that it could confirm the existence of thirteen responsive records to plaintiffs original, broader request, OLC cannot confirm or deny the existence of records that directly discuss Mr. Mobley, Compl. 12, or any other particular individual. The fact of the existence or nonexistence of records responsive to plaintiffs original request that directly discuss Mr. Mobley or any other particular individual is itself exempt from disclosure under Exemption 1 (as DOJ will argue in its motion for summary judgment). Accordingly, OLC cannot agree to limit the scope of plaintiffs request. Plaintiffs request that DOJs motion for summary judgment be due in ten days is unreasonable. There is no feasible way that the review and consultation described above and preparation of the summary judgment brief, declaration, and Vaughn index can be accomplished in that time. Further adding to DOJs inability to meet that deadline are the following facts: The undersigned counsel for DOJ, who will have primary responsibility for drafting and preparing the summary judgment brief, is currently fully occupied by the following upcoming deadlines in other matters: an opposition to a motion for class certification in Vietnam Veterans of America, et al. v. CIA, et al., No. 090037 (N.D. Cal.), due Thursday, March 8, 2012; an oral argument in Cozen O Connor v. Tobits et al., No. 11-0045 (E.D. Pa.) on Monday, March 12, 2012; and an opposition to a motion to compel in Vietnam Veterans of America, et al. v. CIA et al., supra, due Thursday, March 15, 2012.

Contrary to plaintiffs assertion, OLC had no reason or duty to begin the process of interagency consultation and preparation of materials to accompany a motion for summary judgment defending its withholdings on the merits during the pendency of a dispositive motion, which, if granted, would have obviated the need for the preparation of such materials, including a Vaughn index. This is particularly true when, up to this point, plaintiff had been affirmatively seeking only a Vaughn index and not challenging the withholdings on the merits.
2

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The undersigned counsel for defendant DOJ also represents the various agency defendants in the three other lawsuits plaintiff has brought that are currently pending before the Court. Undersigned counsel is currently engaged in preparing dispositive motions in those cases as well. The OLC attorney who had previously been assigned to this case was with OLC on detail. Such detail has concluded, and that attorney has returned to his position in another component of the Department. The new OLC attorney to this case, who will be drafting the declaration justifying the (b)(5) exemption, is new to the case and requires some time to get fully up to speed.

For the foregoing reasons, plaintiffs request that DOJs motion for summary judgment be filed on March 16, 2012, is unreasonable, and DOJ cannot feasibly meet that deadline. As counsel for defendant explained to plaintiffs counsel, thirty (30) days is the minimum time that OLC and its counsel can reasonably be expected to prepare a motion for summary judgment under the circumstances of this case. Accordingly, defendant requests that the Court order that its motion for summary judgment be due no earlier than April 4, 2012.

Dated: March 6, 2012 /s/ Kelly B. McClanahan_ Kelly B. McClanahan, Esq. D.C. Bar #984704 National Security Counselors 1200 South Courthouse Road Suite 124 Arlington, VA 22204 301-728-5908 240-681-2189 fax Kel@NationalSecurityLaw.org Counsel for Plaintiffs

Respectfully submitted, TONY WEST Assistant Attorney General RONALD C. MACHEN JR. U.S. Attorney ELIZABETH J. SHAPIRO Deputy Branch Director /s/ Judson O. Littleton JUDSON O. LITTLETON Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 Tel.: (202) 305-8714 8

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Fax: (202) 616-8470 E-Mail: judson.o.littleton@usdoj.gov Attorneys for Defendant