First Amendment Coalition v. U.S. Department of Justice

Filing 27

ORDER by Judge Claudia Wilken DENYING IN PART, AND GRANTING IN PART, 20 MOTION TO STAY PROCEEDINGS AND DIRECTING PARTIES TO MEET AND CONFER.(ndr, COURT STAFF) (Filed on 7/24/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FIRST AMENDMENT COALITION,

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Plaintiff,

United States District Court
For the Northern District of California

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ORDER DENYING IN
PART, AND GRANTING
IN PART, MOTION TO
STAY PROCEEDINGS
(Docket No. 20)
AND DIRECTING
PARTIES TO MEET
AND CONFER

v.
U.S. DEPARTMENT OF JUSTICE,

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No. C 12-1013 CW

Defendant.
________________________________/

Defendant United States Department of Justice (DOJ) moves to

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stay this case pending resolution of two related cases ongoing

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before the United States District Court for the Southern District

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of New York.

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DOJ’s motion.

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papers.

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the Court GRANTS the motion in part and DENIES it in part.

Plaintiff First Amendment Coalition (FAC) opposes
The Court takes the motion under submission on the

Having considered the papers submitted by the parties,

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BACKGROUND
In September 2011, Anwar al-Awlaki, a United States citizen

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and a supporter and propagandist for Al Qaeda in the Arabian

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Peninsula, was killed.

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his death was the result of a United States drone strike in Yemen.

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Compl. ¶ 3.

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have taken on an operational role in organizing terrorist attacks

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against the United States.

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Obama, in multiple statements, addressed al-Awlaki’s death.

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Compl. ¶ 3.

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a “success” that is a “tribute to our intelligence community.”

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Compl. ¶ 3; Answer ¶ 3.

FAC alleges that

Al-Awlaki was believed by United States officials to

Compl. ¶ 3; Answer ¶ 3.

President

The President said that the killing of al-Awlaki was

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Id.

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were able to remove him from the field.”

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The President also said, of the attack on al-Awlaki, that “we
Compl. ¶ 3.

In October 2011, the New York Times, the Washington Post and

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other news organizations reported on a purported DOJ legal

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memorandum, written in early or mid-2010, concerning legal issues

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raised by the government’s targeted killing of terrorists who are

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United States citizens.

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the memorandum was prepared by DOJ’s Office of Legal Counsel (OLC)

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and provided a legal analysis and justification for the United

United States District Court
For the Northern District of California

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Compl. ¶ 4.

According to news reports,

States government’s targeted killing of al-Awlaki.

Compl. ¶ 4.

On October 5, 2011, FAC made a written Freedom of Information
Act (FOIA) request to DOJ, seeking
A legal memorandum prepared by OLC concerning the
legality of the lethal targeting of Anwar al-Aulaqi, an
American-born radical cleric who, according to federal
government officials, was killed September 30, 2011 in a
U.S. drone strike in Yemen. The memorandum was the
subject of a story (“Secret U.S. memo sanctioned killing
of Aulaqi”) in the September 30, 2011 Washington Post,
in which multiple (albeit unnamed) administration
officials discussed the memorandum and internal
government debates on the legal issues addressed in it.
Compl. ¶ 11, Ex. A, 1.

FAC acknowledged, “The memorandum is

almost certainly classified,” and noted that it was “not
interested in factual information about intelligence sources and
methods or US military capabilities,” but rather “only in the
memorandum’s discussion of the legal issues posed by prospective
military action against a dangerous terrorist who also happens to
be a US citizen.”

Id.

It asked that “all sensitive factual

information” be redacted and that the “discussion of legal issues”
be released.

Id.

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On October 25, 2011, DOJ responded to the FAC’s request.

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Compl. ¶ 12, Ex. B.

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denies the existence of the document described in your request,

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. . . because the very fact of the existence or nonexistence of

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such a document is itself classified, protected from disclosure by

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statute, and privileged.”

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It stated that it “neither confirms nor

Id.

On December 12, 2011, FAC filed an administrative appeal of

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DOJ’s denial of its FOIA request.

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respond within the time allowed by statute.

United States District Court
For the Northern District of California

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Compl. ¶ 13.

DOJ did not

Compl. ¶ 14.

On February 29, 2012, FAC filed this case, seeking release
the OLC memorandum.

Docket No. 1.

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On June 12, 2012, DOJ filed the instant motion, seeking to

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stay the proceeding before this Court, until the SDNY reaches a

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decision on a pending motion for summary judgment in the two

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related FOIA actions currently before that court.

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Docket No. 20.

In the first SDNY case, filed on December 20, 2011, the

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plaintiffs, the New York Times and two of its reporters, seek

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documents pursuant to two FOIA requests.

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v. United States Dept. of Justice, Case No. 11-9336 (SDNY) (New

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York Times).

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sought release of “copies of all Office of Legal Counsel opinions

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or memoranda since 2001 that address the legal status of targeted

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killing, assassination, or killing of people suspected of ties to

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Al Qaeda or other terrorist groups by employees or contractors of

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the United States government.”

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second New York Times request, made on October 7, 2011, sought a

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copy of “all Office of Legal Counsel memorandums analyzing the

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circumstances under which it would be lawful for United States

See New York Times Co.

The first request, originally made on June 11, 2010,

New York Times Compl. ¶ 37.

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The

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armed forces or intelligence community assets to target for

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killing a United States citizen who is deemed to be a terrorist.”

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Id. at ¶ 44.

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stating that it neither confirmed nor denied the existence of

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documents described in the requests.

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DOJ denied both requests on October 27, 2011,

Id. at ¶¶ 38-40, 45-46.

In the second SDNY case, filed on February 1, 2012, the
plaintiffs, the American Civil Liberties Union and the American

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Civil Liberties Union Foundation (collectively referred to

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hereinafter as the ACLU), pursue one broad record request made to

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United States District Court
For the Northern District of California

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DOJ, as well as to the Department of Defense (DOD) and the Central

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Intelligence Agency (CIA).

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United States Dept. of Justice, Case No. 12-794 (SDNY) (ACLU).

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that request, made on October 19, 2011, the ACLU sought multiple

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categories of documents, including records related to the “legal

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authority and factual basis for the targeted killing” of al-Awlaki

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and two other United States citizens.

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October 27, 2011, DOJ informed the ACLU that it would not be able

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to respond to the request within the statutory deadline.

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¶ 33.

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at ¶ 34.

See American Civil Liberties Union v.

ACLU Compl. ¶ 30.

In

On

Id. at

The ACLU received no further correspondence from DOJ.

Id.

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After the government requested and received three extensions

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of time, it filed a joint motion for summary judgment in the ACLU

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and New York Times cases.

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and cross-motions for summary judgment on July 18, 2012.

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Defendant represents that “it seems likely that any additional

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briefing will be completed before the end of August.”

The plaintiffs filed their oppositions

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Mot. at 20.

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LEGAL STANDARD
It is well-established that “the power to stay proceedings is

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incidental to the power inherent in every court to control the

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disposition of the cases on its docket with economy of time,

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effort for itself, for counsel, and for litigants.”

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North Am. Co., 299 U.S. 248, 254 (1936).

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Landis explained that the party seeking a stay bears the burden of

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proving “a clear case of hardship or inequity” if it is required

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to go forward in this action.

Landis v.

The Supreme Court in

Id. at 255.

Based on Landis, the

United States District Court
For the Northern District of California

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Ninth Circuit requires courts to consider the competing interests

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at stake, including (1) the possible damage that may result from

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granting the stay; (2) the hardship the party seeking the stay may

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suffer if required to go forward; and (3) the orderly course of

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justice as it relates to simplifying or complicating issues,

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evidence or questions of law presented in the case.

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Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005).

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Lockyer v.

DISCUSSION
DOJ has not established that it will face a hardship if the

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instant case proceeds prior to the resolution of the pending

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motion for summary judgment in the SDNY cases.

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“is faced with the possibility of conflicting judicial decisions

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in multiple circuits related to identical information, making it

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difficult to manage conflicting decisions and litigation in

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varying stages.”

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“Conflicting decisions can effectively nullify the holdings of

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other circuits, and unnecessarily compromise the Government’s

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ability to protect privileged information,” resulting in hardship

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to it.

Mot. at 4; Reply at 4.

Reply at 4.

DOJ argues that it

It further contends,

The government, however, does not explain how
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multiple FOIA cases “unnecessarily compromise” its “ability to

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protect privileged information.”

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proceedings will compromise the government’s ability to withhold

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information is if a court determines that the information is not

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subject to a FOIA exemption, in which case the government does not

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have a legitimate interest in withholding it from public

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disclosure.

The only way that these

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Further, the Supreme Court has clearly stated that

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“conflicting decisions,” such as those described by the

United States District Court
For the Northern District of California

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government, are acceptable in FOIA cases.

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553 U.S. 880 (2008), the Court held that a party is not barred

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from bringing a successive suit seeking the same documents under

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FOIA that were the subject of an adverse ruling in a prior suit

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against a previous requester.

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ruling in Taylor, the Supreme Court said recently, “The Government

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there cautioned that unless we bound nonparties a ‘potentially

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limitless’ number of plaintiffs, perhaps coordinating with each

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other, could ‘mount a series of repetitive lawsuits’ demanding the

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selfsame documents. . . . But we rejected this argument, even

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though the payoff in a single successful FOIA suit--disclosure of

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documents to the public--could ‘trum[p]’ or ‘subsum[e]’ all prior

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losses, just as a single successful class certification motion

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could do.”

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In Taylor v. Sturgell,

Id. at 903-04.

In describing its

Smith v. Bayer Corp., 131 S. Ct. 2368, 2381 (2011).

In the case at hand, FAC is ready to proceed with this

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action, including by filing a motion for summary judgment.

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Because DOJ has already filed a summary judgment motion in the

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SDNY cases, in which the plaintiffs pursue broader document

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requests that include the single document at issue here, it should
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not be difficult for DOJ to file a cross-motion for summary

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judgment here.

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Thus, the Court declines to stay the proceedings completely

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and requires the parties to file cross-motions for summary

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judgment.

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will stay ruling on the motions until the SDNY has issued its

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ruling on the motion already pending before it.

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orders disclosure of the memorandum, this case may be rendered

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moot.

However, in the interest of judicial economy, the Court

If the SDNY

However, as DOJ acknowledges, if the SDNY declines to

United States District Court
For the Northern District of California

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require disclosure of the memorandum, this Court will be required

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to address separately the merits of this suit.

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n.2.

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no legislative constraints on successive FOIA suits by different

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requesters and declining to impose a judicial constraint through

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preclusion).

See Reply at 4

See also Taylor, 553 U.S. at 903 (recognizing that there are

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CONCLUSION

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For the reasons set forth above, DOJ’s motion to stay is

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GRANTED IN PART and DENIED IN PART (Docket No. 20).
The parties are directed to meet and confer regarding a

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briefing schedule for their cross-motions for summary judgment.

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The schedule shall provide that the parties’ briefs are filed in

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series, not simultaneously, with as little repetition as possible.

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FAC shall move for summary judgment first, in a brief of twenty-

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five pages or less.

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to FAC’s motion and its cross-motion for summary judgment, both

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contained in a single brief of twenty-five pages or less.

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shall then file its reply in support of its motion and its

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opposition to the government’s cross-motion, in a single brief of

The government shall then file its opposition

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FAC

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fifteen pages or less.

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in support of its cross-motion, in a brief of fifteen pages or

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less.

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shall file a stipulated briefing schedule or, if they are not able

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to reach an agreement, their separate proposals.

The government shall then file its reply

Within two weeks of the date of this Order, the parties

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The Court will not rule on the cross-motions for summary

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judgment until the SDNY issues its decision resolving the motions

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currently pending before it.

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of the SDNY’s ruling within three days of the date on which it is

The parties shall notify the Court

United States District Court
For the Northern District of California

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issued.

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for summary judgment at that time, and may request supplemental

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briefing addressing the SDNY’s opinion prior to the hearing.

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The Court will set a hearing date on the cross-motions

IT IS SO ORDERED.

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Dated: 7/24/2012

CLAUDIA WILKEN
United States District Judge

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