Public.Resource.org v. United States Internal Revenue Service

Filing 81

RESPONSE (re 80 MOTION to Stay re 62 Order on Motion for Summary Judgment,,, 72 Order on Stipulation ) PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR STAY PENDING APPEAL filed byPublic.Resource.org. (Burke, Thomas) (Filed on 5/12/2015)

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DAVIS WRIGHT TREMAINE LLP

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THOMAS R. BURKE (CA State Bar No. 141930)
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
RONALD G. LONDON (Pro Hac Vice)
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington, DC 20006
Telephone: [phone]
Email: [e-mail]

DAN LAIDMAN (CA State Bar No. 274482)
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, Suite 2400
Los Angeles, CA 90017-2566
Telephone:
[phone]
Email:
[e-mail]
DAVID HALPERIN (Pro Hac Vice)
1530 P Street NW
Washington, DC 20005
Telephone:
[phone]
Email:
[e-mail]
Attorneys for Plaintiff Public.Resource.Org

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IN THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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PUBLIC.RESOURCE.ORG., a California non- )
profit organization,
)
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Plaintiff,
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v.
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UNITED STATES INTERNAL REVENUE
)
SERVICE,
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)
Defendant.
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)

Case No. 13-cv-02789 WHO
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR
STAY PENDING APPEAL
Hearing noticed for June 10, 2015
at 2:00 p.m. before Judge Orrick in
Courtroom 2, 17th Floor

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Plaintiff Public.Resource.Org (“Public.Resource”) hereby opposes the IRS’s Motion for

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a Stay pending appeal that seeks to indefinitely suspend the IRS’s obligation to produce agency
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR STAY PENDING APPEAL
Case No. 13-cv-02789-WHO
DWT 26808720v1 0200593-000001

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records that this Court ordered released in this case. The stay is necessary, the IRS states, because

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the Solicitor General has yet to decide whether the United States should pursue the appeal that the

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IRS already filed in this matter. See Mot. 2. It has been nearly four months since this Court

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issued its ruling, and the government already has had nearly twice the amount of time that the

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Court originally allotted for producing the records at issue, under a stipulation to which

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Public.Resource agreed.1 Defendant accordingly has had four months – ample time – to decide

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“whether [] a ruling by from the Ninth Circuit, or [] dismissal of the notice of appeal” is the route

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the government prefers. Id. The instant Motion seeks not only an indefinite “stay … until the

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appeal in this matter is resolved,” id. 1; see also id. 6, it does not even offer an hint of when the

DAVIS WRIGHT TREMAINE LLP

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Court (and Public.Resource) can expect a decision by the government on “whether to proceed with

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the appeal or not.” Id. 2.

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This speaks directly to two elements of the showing that the IRS must make to earn

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a stay that are among those to which the instant Motion affords the least attention – harm to

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Public.Resource, and the public interest. 2 As the IRS admits – and Public.Resource agrees –

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this case “involves novel, important, and complicated issues” that surround E-FOIA. Id. 2, 4. To

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the extent the government is considering whether to allow this Court’s ruling to become settled

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law on that point – which it should – Public.Resource and the public have a right to have that

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open issue settled sooner rather than later.

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Indeed, as Public.Resource has already shown in this case, access to the records that the

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Court ordered produced in machine-readable format would enable the public, journalists, and

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watchdog groups to better understand and monitor the grant and administration of tax-exempt

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status to non-profits, and how the IRS carries out this vital function for the federal government.

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See id. As the IRS recites, Public.Resource also agreed to an additional fixed period –
though not the open-ended invitation the government requested – even in conferring on this latest
need for further extension.
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See id. 5. See also id. 3 (quoting Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985)
(“propriety of a stay pending appellate review turns on (1) the likelihood that the party seeking
the stay will prevail on the merits …; (2) the likelihood that the moving party will be irreparably
harmed …; (3) the prospect that others will be harmed …; and (4) the public interest”)) (internal
quotation marks omitted, ellipses added).
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR STAY PENDING APPEAL
Case No. 13-cv-02789-WHO
DWT 26808720v1 0200593-000001

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E.g., Public.Resource Reply in Support of Cross-Motion for Summary Judgment 11 & n.12 (citing

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Public. Resource Cross-Mot. for Sum. J. at 15-17; Noveck & Taggart Decls., and Kowack v. U.S.

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Forest Serv., 766 F.3d 1130, 1133 (9th Cir. 2014)). As this Court noted, requestors are unlikely

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to seek this data in machine-readable format – given how the IRS presently dissuades them from

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doing so via “practices that are inconsistent with the E–FOIA amendments,” Public.Resource.Org

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v. IRS, 2015 WL 393736, at *4 (N.D. Cal. Jan. 29, 2105) – until it is settled that the IRS must

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produce the records in machine-readable format. Thus it is not only Public.Resource harmed

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by the undue delay, but the other public interest groups and, ultimately, the public as well.

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Such delay runs directly counter to “faithful adherence to [FOIA’s] statutory mandate” for

DAVIS WRIGHT TREMAINE LLP

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“the expeditious release of documents” to serve the “core purpose of shedding light on an agency's

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performance.” Martins v. USCIS, 962 F.Supp.2d 1106, 1127 (N.D. Cal. 2013) (quoting EPIC v.

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DOJ, 416 F.Supp.2d 30, 42 (D.D.C. 2006); Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59

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(D.C. Cir. 1977)) (internal quotation marks omitted). Given this, the Court should not simply

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grant the government an indeterminate stay without an explanation of when it will decide to

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pursue the appeal (which again, of course, already has been filed). Even if the Solicitor General

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required some additional time, beyond the one week to which Public.Resource already agreed,

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in order to make a decision (and we submit no further time should be necessary), the Court should

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establish a date certain by which the IRS must fish or cut bait in this case. Specifically, the Court

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should specify a hard deadline for the government to either dismiss its appeal and produce the

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documents, or to definitively state that its appeal will go forward.

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DATED this 19th day of March, 2015.
DAVIS WRIGHT TREMAINE LLP

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By: /s/ Thomas R. Burke
THOMAS R. BURKE
Attorneys for Plaintiff Public.Resource.Org

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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR STAY PENDING APPEAL
Case No. 13-cv-02789-WHO
DWT 26808720v1 0200593-000001