Fair Political Practices Commission v. United States Postal Service

Filing 42

ORDER denying 41 Motion to Stay signed by Judge Garland E. Burrell, Jr on 11/1/12. (Kaminski, H)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE EASTERN DISTRICT OF CALIFORNIA

7
8

FAIR POLITICAL PRACTICES
COMMISSION,

9

Plaintiff,

10

)
)
)
)
)
)
)
)
)
)
)

v.

11

UNITED STATES POSTAL SERVICE,

12

Defendant.
________________________________

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2:12-cv-00093-GEB-CKD
ORDER DENYING MOTION TO STAY
PENDING APPEAL

Pro se non-party William Eisen moves under Federal Rule of
Appellate Procedure (“Rule”) 8(a)(1) for a stay pending appeal of the
Order filed on October 16, 2012, in which the United States Postal
Service

(“USPS”)

was

directed

to

disclose

under

the

Freedom

of

Information Act (“FOIA”) the quantity of mail sent using a USPS bulk
mailing permit. Eisen requests in the alternative that if his motion is
denied he be granted “a temporary stay of 10 days . . . to allow
sufficient time for a presentation of a motion for a stay to the Court
of Appeals.” (ECF No. 41, 5:11-12.)
I. BACKGROUND
On November 10, 2008, the California Fair Political Practices
Commission (“FPPC”) received a sworn complaint alleging that Eisen
violated the California Political Reform Act’s disclosure requirements
by sending out mass mailings in connection with his reelection campaign
without properly identifying himself as the sender. (Compl. ¶¶ 8-10.)
1

1

Since this disclosure requirement only applies to mailings of “over two

2

hundred substantially similar pieces of mail,” the FPPC requested from

3

the USPS the quantity of mail sent using the bulk mailing permit during

4

the time period in question. (Id. ¶ 12 & n.4.) When the USPS refused to

5

tender this information, citing FOIA Exemptions 3 and 4 as the basis for

6

the refusal, the FPPC filed the instant federal action under FOIA. Eisen

7

moved

8

alternatively, by permission of the Court. (ECF No. 10.) His motion to

9

intervene was denied, and he subsequently filed an interlocutory appeal

10

of the denial of his intervention motion. (ECF Nos. 21-23; Appeal No.

11

12-16165.) Eisen did not, however, move to stay the FOIA case pending

12

appeal of the denial of his motion to intervene. Nor did he request

13

expedited briefing and hearing of his appeal. Instead, he moved “for an

14

order to permit [his] opening [appellate] brief to be filed late.”

15

(Appeal No. 12-16165, Dkt. 6, 1:26-27.) Meanwhile, the underlying FOIA

16

action proceeded, and the parties filed cross-motions for summary

17

judgment. (ECF Nos. 29-30.) On October 16, 2012, following a hearing on

18

the cross-motions, judgment was entered in favor of the FPPC, and the

19

USPS was directed to disclose the quantity of mail sent using the bulk

20

mailing permit by November 5, 2012. (ECF Nos. 37-38.) Eisen then filed

21

an appeal of this judgment, and on October 30, 2012, he moved for a stay

22

of enforcement of the judgment pending his appeal of the same. (ECF Nos.

23

39-41; Appeal No. 12-17438.)

24

to

intervene

in

this

action

as

a

matter

of

right,

or

II. DISCUSSION

25

Rule 8(a)(1) prescribes the procedures that “[a] party” must

26

follow to move for a stay pending appeal. Likewise, Rule 3(c)(1)(A)

27

prescribes that the notice of appeal must name “the party or parties

28

taking the appeal,” and Rule 4(a)(1)(B) provides that the “notice of

2

1

appeal may be filed by any party.” Rules 3 and 4 “clearly contemplate

2

that only parties may file a notice of appeal.” United States v. City of

3

Oakland, Cal., 958 F.2d 300, 301 (9th Cir. 1992). Similarly, “Rule 8(a)

4

requires that a party seek a stay from the district court when appealing

5

the district court’s judgment.” In re Imperial Real Estate Corp., 234

6

B.R. 760, 762 (B.A.P. 9th Cir. 1999). Eisen is not a party in this

7

action. As an unsuccessful

8

subsequent order or judgment in the proceeding.’” Stringfellow v.

9

Concerned Neighbors in Action, 480 U.S. 370, 378 (1987) (citation

10

omitted).

11

participation in the litigation and bars the applicant from appealing

12

the

13

Stringfellow, 480 U.S. at 377-78); see also United States v. $129,374 in

14

U.S. Currency, 769 F.2d 583, 590 (9th Cir. 1985) (rejecting unsuccessful

15

intervenor’s

16

extraordinary circumstances “‘one who was not a party of record before

17

the trial court may not appeal that court’s judgment’”) (citation

18

omitted); 7C Charles Alan Wright et al., Federal Practice and Procedure

19

§ 1923 (3d ed. 2007) (“One . . . whose application to intervene is

20

denied, ordinarily may not appeal from any subsequent order in the

21

proceeding.”). Only if Eisen’s appeal of the denial of his motion to

22

intervene were successful could he then appeal the underlying judgment.

23

See League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1301

24

n.1 (9th Cir. 1997) (stating that “if it were concluded on appeal that

25

the district court had erred in denying the intervention motion, and

26

that the applicant was indeed entitled to intervene in the litigation,

27

then the applicant would have standing to appeal the district court's

28

judgment”) (emphasis added);

later

“Denial

of

intervenor, Eisen may “‘not appeal from any

judgment.”

challenge

intervention

City

to

of

entry

‘terminates’

Oakland,

of

958

summary

F.2d

[an]

at

judgment

applicant’s

302

since

(citing

absent

DBSI/TRI IV Ltd. P’ship v. United States,

3

1

465 F.3d 1031, 1037 (9th Cir. 2006) (same); Canatella v. California, 404

2

F.3d 1106, 1109 n.1 (9th Cir. 2005) (same). However, Eisen’s appeal of

3

the denial of his motion to intervene has not been judged successful, as

4

it remains pending.

5

Since Eisen is a non-party, he can neither move for a stay

6

pending his appeal of the judgment nor appeal the judgment itself.

7

Accordingly, Eisen’s motion for a stay pending appeal of the judgment is

8

denied.

9

Eisen’s alternative request for a temporary stay of ten days

10

concerns the equitable factors of whether Eisen has demonstrated a

11

likelihood of success on the merits of his motion to intervene, combined

12

with possible irreparable injury, or whether serious legal questions

13

combined with a balance of hardships favor granting the stay. Levia-

14

Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011) (citation omitted);

15

see also, United States v. Nat'l Broad. Co., Inc., 842 F. Supp. 402, 405

16

(C.D. Cal. 1993) (considering and denying motion for stay pending appeal

17

of denial of intervention); United States ex rel. Richards v. De Leon

18

Guerrero, No. 92-00001, 1992 WL 212272, at *2 (D. N. Mar. I. May 22,

19

1992)

20

intervention since "a court may exercise its discretion" in considering

21

such motions "in the same fashion as it deals with an injunction pending

22

appeal").

(considering

motion

for

stay

pending

appeal

of

denial

of

23

To be entitled to intervene as a matter of right Eisen was

24

required to show he had a “significant protectable interest relating to

25

the property or transaction that is the subject of the action.” Citizens

26

for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir.

27

2011) (citation omitted). Eisen alleged in his intervention application

28

that the information the FPPC requests is “contained in USPS postage
4

1

statements

2

belong[ed] to the Committee Against Measure BB for which Eisen was the

3

treasurer.”

4

information that the USPS has been ordered to release to the FPPC is

5

simply the number of pieces of mail that were sent using a bulk mail

6

permit on certain dates. (ECF No. 37, 10:24-11:1.) Eisen makes the

7

conclusory argument that this information “comprises [his] personal

8

data[,]” the “[r]elease of [which] . . . would infringe on [his

9

constitutional] right to privacy.” (Appl. 1:26; Eisen’s Reply 3:6-7;

issued

under

(Eisen’s

a

Appl.

standard

to

mail

Intervene

postal

(“Appl.”)

permit[,

which]

1:26-28.)

The

10

Eisen’s Ans. 2:16-21, 6:1-2.).

11

likihood of prevailing on this argument, since the postal permit at

12

issue belonged to a committee for which he was the treasurer.

13

However, Eisen has not shown he has a

Nor has Eisen shown that he is likely to prevail on the merits of

14

his

15

contentions that disclosure would violate his rights to privacy, freedom

16

of speech, and freedom of association, and that the FPPC has unclean

17

hands, since he failed to demonstrate how these defenses shared a common

18

issue of law or fact with the FPPC’s FOIA claim. (Eisen’s Proposed Ans.

19

2:15-21.) “The language of [Rule 24(b)(2)] makes clear that [permissive

20

intervention under Rule 24(b)(2) must be denied since Eisen’s defenses

21

and claims] contain[] no question of law or fact that is raised [in] the

22

main action . . . .” Kootenai Tribe of Idaho, 313 F.3d 1094, 1111 (9th

23

Cir. 2011), abrogated on other grounds by Wilderness Soc. v. U.S. Forest

24

Serv., 630 F.3d 1173 (9th Cir. 2011).

25

/

26

/

27

/

permissive

intervention

argument,

28
5

which

was

premised

on

his

1

For the stated reasons, Eisen’s request for a temporary ten

2

(10) day stay is denied.

3

Dated:

November 1, 2012

4
5
6

GARLAND E. BURRELL, JR.
Senior United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6