Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 1 of 9 Civil Action No. 1:11-cv MSK-KLM KEVIN D. EVANS, v. Plaintiff, CENTRAL INTELLIGENCE AGENCY, Defendant. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DEFENDANT S MOTION FOR A STAY OF PROCEEDINGS Defendant Central Intelligence Agency ( CIA ) respectfully moves the Court for a temporary stay of proceedings in this Freedom of Information Act ( FOIA ) matter. The records plaintiff seeks are the subject of pending litigation in the United States District Court for the District of Columbia. See Judicial Watch v. Dept. of Defense, Civil Action No (JEB) (D.D.C.). Briefing on the merits in that case is well underway and will be completed by the end of January Because a decision in Judicial Watch as to whether the records plaintiff seeks were properly withheld from disclosure likely will benefit the Court s adjudication of this case, the CIA respectfully moves for a stay of these proceedings pending a decision in Judicial Watch. Pursuant to D.C. Colo. L. Civ. R. 7.1A, defense counsel conferred with plaintiff s counsel about this motion, and plaintiff does not consent to it. BACKGROUND 1. The Instant Suit. On May 1, 2011, the United States conducted an operation that killed Osama bin Laden, the leader of al-qa ida, in Abbottabad, Pakistan. On May 11, 2011, plaintiff Kevin D. Evans

2 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 2 of 9 sent a Freedom of Information Act request to the CIA for copies of the photographs of Osama Bin Laden s deceased body taken during the raid in Abbottabad, Pakistan. Complaint, Exhibit 1. The CIA responded on May 23, 2011, acknowledging the request and indicating that due to the large number of FOIA requests the CIA receives, it was unlikely that it would be able to substantively respond to the request within the twenty working days required by FOIA. Complaint, Exhibit 2. Evans wrote to the CIA on June 28, 2011, inquiring about when he would receive a response to his FOIA request. Complaint, Exhibit 3. The Agency wrote back on July 8, 2011, that it could not give him a definitive date for completing its response. Complaint, Exhibit 4. Evans then filed this suit. The CIA s response to the complaint is due on November 3, Judicial Watch v. Dept. of Defense. On May 2, 2011, Judicial Watch sent a request to the CIA and the Department of Defense ( DoD ) under the FOIA seeking all photographs and/or video recordings of Osama (Usama) Bin Laden taken during and/or after the U.S. military operation in Pakistan on or about May 1, The agencies both provided interim responses stating that it was unlikely that they would be able to provide substantive responses within the twenty-day statutory time period under FOIA. On May 13, 2011, Judicial Watch filed a lawsuit against DoD seeking release of the requested records. See Judicial Watch v. Dept. of Defense, Civil Action No (JEB) (D.D.C.). Judicial Watch then amended its complaint to add the CIA as a defendant. The CIA 1 The CIA has received approximately twenty FOIA requests for photographs of Osama Bin Laden taken during the raid in Abbottabad. This case and the Judicial Watch case are the only cases arising from those requests at this time. 2

3 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 3 of 9 and DoD answered the amended complaint on June 28, 2011 and filed their motion for summary judgment on September 26, Defendants Motion for Summary Judgment (Dkt. No. 14). The CIA and DoD supported their motion with multiple declarations, including one declaration submitted in classified form. The agencies explained that fifty-two unique responsive records were located and were withheld in their entirety pursuant to FOIA Exemption 1, for classified information, and Exemption 3, for information covered by nondisclosure statutes. 5 U.S.C. 552(b)(1), (3). As fully explained in the Government s motion and declarations, the CIA and DoD correctly determined that images of Osama bin Laden after he was killed by United States forces must not be publicly disclosed in the interest of national security. Among other reasons, the danger is simply too great that dissemination of these images would provoke violent attacks on the United States or its citizens abroad. See Defendants Motion for Summary Judgment at 1. Briefing in Judicial Watch will be completed before the end of January See October 20, 2011 minute order concerning schedule, attached hereto as Exhibit 1. ARGUMENT THIS COURT SHOULD EXERCISE ITS DISCRETION TO TEMPORARILY STAY THESE PROCEEDINGS SO THAT IT CAN BENEFIT FROM THE RULING OF ANOTHER DISTRICT JUDGE ALREADY CONSIDERING THE MATTER. The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. Clinton v. Jones, 520 U.S. 681, 706 (1997). [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Landis v. North American Co., 299 U.S. 248,

4 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 4 of 9 (1936). Accord, United Steelworkers of America v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227 (10th Cir. 2003); Denver NMR, Inc. v. Front Range Mobile Imaging, Inc., Civil Action No. 08-cv KMT-BNB, 2009 WL , at * 3 (D. Colo. Sept. 8, 2009). See also String Cheese Incident, LLC v. Stylus Shows, Inc., No , 2006 WL , at * 2 (D. Colo. Mar. 30, 2006) (in considering propriety of a stay, court considers (1) the plaintiff s interests in proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litigation; and (5) the public interest). Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted. Landis, 299 U.S. at 256. Indeed, [a] trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. IBT/HERE Employee Representatives Council v. Gate Gourmet Div., 402 F. Supp. 2d 289, 292 (D.D.C. 2005) (quoting Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, (9th Cir. 1979)). The power to grant a stay pending proceedings in another court is not limited to those instances where the parties and issues are identical. See Landis, 299 U.S. at ; Commodity Futures Trading Comm n v. Chilcott Portfolio Management, Inc., 713 F.2d 1477, (10th Cir. 1983). Although not required, courts have deferred to other district courts in FOIA cases involving requests for the same documents, as is the case here. In Church of Scientology of Cal. v. Dept. of the Army, 611 F.2d 738, (9th Cir. 1979), the court affirmed the district court s 4

5 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 5 of 9 refusal to order the release a document that was the subject of pending litigation in federal district court in the District of Columbia. Similarly, in Beck v. DOJ, Civ. A. No (JHG), 1991 WL , at * 5 (D.D.C. Jan. 31, 1991), aff d in part, 1992 WL (D.C. Cir. Nov. 19, 1992) (per curiam, summary affirmance), the court dismissed a FOIA action as it pertained to a set of Drug Enforcement Administration ( DEA ) documents that were the same records at issue in a case filed in the Western District of Texas, on grounds of federal comity. Because plaintiff Evans is not the plaintiff in Judicial Watch, the CIA is not moving to dismiss this case in light of the pending Judicial Watch case. Cf. Taylor v. Sturgell, 553 U.S. 880 (2008) (holding that a non-party to an earlier judgment cannot be precluded from bringing a FOIA suit involving the same documents at issue in the prior judgment). However, there are compelling reasons for the Court to exercise its discretion to stay this case until there is a decision in the Judicial Watch case. Evans FOIA request is virtually identical to the one being litigated in Judicial Watch, and the documents Evans seeks are squarely at issue in that case. And in these FOIA cases (as in most FOIA cases), the only issue is the propriety of the Government s withholdings; the identity of the plaintiff is irrelevant. In this instance, the first-filed case for the Osama bin Laden photographs was brought in the District of Columbia. FOIA grants the district court in the District of Columbia venue for all FOIA cases, see 5 U.S.C. 552(a)(4)(B), and, as a result, that district adjudicates more FOIA cases than any other jurisdiction. In addition, due to its location, the district court in D.C. is also uniquely experienced in handling cases involving classified information and national security. This FOIA case, involving documents currently classified as Top Secret, falls squarely within the mainstream of FOIA litigation routinely handled by the district courts in D.C. See, e.g., In re 5

6 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 6 of 9 Scott, 709 F.2d 717, 720 (D.C. Cir. 1983) (district courts in D.C. have substantial expertise in working with the FOIA, quoting S. Rep. No. 854, 93d Cong., 2d Sess (1974) (FOIA legislative history)). Although the D.C. court s ruling in Judicial Watch is not binding, this court respectfully would benefit from the Judicial Watch court s analysis and conclusions as to whether the very documents at issue here are exempt from disclosure under FOIA. See esoft, Inc. v. Blue Coat Systems, Inc., 505 F. Supp. 2d 784, 788 (D. Colo. 2007) (staying patent infringement case pending proceeding in Patent and Trademark Office ( PTO ) concerning validity of patent at issue in stayed case, finding that deferral to the expertise of the PTO will streamline the issues and reduce the burden of litigation for both the parties and this Court. ). Staying the case pending a decision in Judicial Watch will not prejudice Evans given that briefing will soon be completed in that case. Thus, there is no reason to believe that the stay will be immoderate in extent. Landis, 299 U.S. at A stay would also conserve the resources of the parties and the Court in litigating the case. A decision in Judicial Watch has the potential to affect the parties litigating positions in this case and the Court s analysis of the merits of the case. It would therefore promote judicial economy to stay this case pending a decision in Judicial Watch. Nor are there any additional claims that would still need to be resolved in this case after Judicial Watch is decided, as there is complete parity of issues and claims in the two cases. See Commodity Futures Trading Comm n, 713 F.2d at 1485 (stay of investors action rejected where individual claims would eventually have to proceed after Receiver s action was litigated, so conservation of judicial efforts was negligible). In summary, staying these proceedings pending a decision in Judicial Watch will promote economy of time and effort for [the Court], for counsel, and for litigants. Landis, 299 6

7 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 7 of 9 U.S. at 254. CONCLUSION For all of the foregoing reasons, the CIA respectfully requests that the Court stay proceedings in this matter until 30 days after the district court issues its decision in Judicial Watch v. Dept. of Defense, Civil Action No (JEB) (D.D.C.). On or before 30 days after that decision, the parties to this action will confer and jointly provide notice to the Court of a schedule for proceeding in this action. The CIA further requests that the Scheduling Conference set for January 26, 2012 before Magistrate Judge Kristen L. Mix (see Dkt. No. 4) be vacated, consistent with this motion. Respectfully Submitted, TONY WEST Assistant Attorney General IAN H. GERSHENGORN Deputy Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch JOHN F. WALSH United States Attorney /s/ Marcia Berman ELIZABETH J. SHAPIRO (D.C. Bar No ) MARCIA BERMAN (PA Bar No ) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7132 Washington, D.C Tel.: (202) Fax: (202) elizabeth.shapiro@usdoj.gov marcia.berman@usdoj.gov 7

8 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 8 of 9 Attorneys for Defendant. 8

9 Case 1:11-cv MSK-KLM Document 9 Filed 10/26/11 USDC Colorado Page 9 of 9 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 26, 2011, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following addresses: Counsel for Plaintiff: Kevin D. Evans Steese, Evans & Frankel, PC-Denver 6400 South Fiddlers Green Circle #1820 Denver, CO Fax: kdevans@s-elaw.com /s/ Marcia Berman MARCIA BERMAN 9