Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL SECURITY COUNSELORS, et al., Plaintiffs, v. Civil Action No.: 1:12-cv-284 (BAH CENTRAL INTELLIGENCE AGENCY, and OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Defendants. DEFENDANTS OBJECTION TO PLAINTIFFS NOTICE OF RELATED CASE Plaintiffs allege that this case involves common issues of fact with three other cases pending before Judge Beryl A. Howell and therefore should be assigned to her as a related case. See Notice of Designation of Related Civil Cases ( Pls. Notice, Feb. 22, 2012, ECF No. 2. Plaintiffs cases, however, do not meet the standard required by the related case rule. The claims here have only the most tenuous connection to the allegedly related cases, and plaintiffs have demonstrated a repeated pattern of judge-shopping. Accordingly, this case should be transferred to the Calendar and Case Management Committee for reassignment in the ordinary fashion. BACKGROUND In this case, National Security Counselors and three other plaintiffs bring twenty-four counts against the Central Intelligence Agency ( CIA and the Office of the Director of National Intelligence ( ODNI regarding twenty-seven FOIA requests to the CIA and one FOIA request to the ODNI, along with two non-foia claims regarding a final rule issued by the CIA

2 Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 2 of 6 regarding the mandatory declassification review process established by executive order. Upon filing this case, plaintiffs declared it to be related to three FOIA cases filed by National Security Counselors on February 28, See Pls. Notice. National Security Counselors, through its executive director Kelly McClanahan, regularly employs related case designations in his frequent lawsuits against government agencies, primarily under the Freedom of Information Act ( FOIA. See Leopold v. CIA, No. 1:12-cv- 245, Doc No. 2 (D.D.C. Feb. 14, 2012 (identifying two cases assigned to Judge Howell as related; Mobley v. Dep t of Homeland Security, No. 1:11-cv-2074, Doc. No. 6 (D.D.C. Nov. 22, 2011 (identifying case assigned to Judge Howell as related; Mobley v. Dep t of Defense, No. 1:11-cv-2073, Doc No. 5 (D.D.C. Nov. 22, 2011 (identifying case assigned to Judge Howell as related; Mobley v. CIA, No. 1:11-cv-2072, Doc No. 6 (D.D.C. Nov. 22, 2011 (identifying case assigned to Judge Howell as related; Nat l Security Counselors v. CIA, Nos. 1:11-cv-443, 1:11- cv-444, 1:11-cv-445, Doc. Nos. 2 (D.D.C. Feb. 28, 2011 (identifying three cases filed the same day as related to each other; Quick v. U.S. Dep t of Commerce, No. 1:09-cv-2064, Doc. No. 3 (D.D.C. Dec. 28, 2009 (identifying one related case; Koch v. Shapiro, No. 1:09-cv-1225, Doc. No. 2 (D.D.C. July 1, 2009 (identifying eight related cases. Here, the three allegedly related cases involved forty-five counts regarding twenty-four FOIA requests to six different agencies, seeking relief under the FOIA, the Administrative Procedure Act ( APA and Mandamus Act. See Nat l Security Counselors v. CIA, No. 1:11-cv- 443, Doc. 1 (Feb. 28, 2011; Nat l Security Counselors v. CIA, No. 1:11-cv-444, Doc. 6 (Mar. 21, 2011; Nat l Security Counselors v. CIA, No. 1:11-cv-445, Doc. No. 7 (Mar. 21, Only two paragraphs of plaintiffs Amended Complaint indicate any connection to those earlier-filed cases. In Count 15, challenging the CIA s conclusion that its records are not readily 2

3 Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 3 of 6 reproducible in electronic format, plaintiffs describe the justifications provided by the CIA in the earlier cases for that conclusion, stating [s]ee generally CIA s filings in Case Nos , Am. Compl And in Count 22 plaintiffs explain that because they were not satisfied with the CIA s response to one FOIA request subject to litigation in Case No , they filed a new FOIA request for some of the same information, which they seek to litigate in this new case. See Am. Compl ARGUMENT The Court s default rule for assigning cases states that [e]xcept as otherwise provided by these Rules, civil, criminal and miscellaneous cases shall be assigned to judges of this court selected at random.... LCvR 40.3(a. The rule s importance has been described by the Court s Calendar Committee: The fundamental rationale for the general rule requiring random assignment of cases is to ensure greater public confidence in the integrity of the judicial process. The rule guarantees fair and equal distribution of cases to all judges, avoids public perception or appearance of favoritism in assignments, and reduces opportunities for judge-shopping. Tripp v. Executive Office of the President, 196 F.R.D. 201, 202 (D.D.C A limited exception to the general rule is set out in Local Rule 40.5, known as the related case rule, for instances where the interests of judicial economy... outweigh the fundamental interests served by the random assignment rule. Lucas v. Barreto, No , 2005 WL , at *3 (D.D.C. Mar. 16, Under the related case rule, new civil cases are assigned to a judge already handling a pending case where both cases (i relate to common property, or (ii involve common issues of fact, or (iii grow out of the same event or transaction or (iv involve the validity or infringement of the same patent. LCvR 40.5(a(3. For example, when several cases present[] identical issues for resolution: whether the regulation impermissibly conflicts with the 3

4 Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 4 of 6 underlying statute then there is substantial overlap in both the factual underpinning and the legal matters in dispute, and judicial economy is served by assignment to a single judge. See Autumn Journey Hospice, Inc. v. Sebelius, 753 F. Supp. 2d 135, 140 (D.D.C When filing a new case, plaintiffs are required to identify any allegedly related cases, and defendants must provide their objection with their first responsive pleading or motion. LCvR 40.5(b(2. However, the burden to demonstrate relatedness lies with the party seeking to avoid random assignment. See Autumn Journey, 753 F. Supp. 2d at 140. Here, plaintiffs allege that this case is related because it shares common issues of fact with the three previous cases. See Pls. Notice. Plaintiffs cannot meet their burden. This case includes a plethora of claims that are united only by the fact that they concern FOIA requests to the CIA and a few other federal agencies. While this fact makes them very much like other lawsuits brought by National Security Counselors, it falls far short of proving relatedness. Plaintiffs Amended Complaint only attempts to link two counts out of the twenty-six in this case to the other pending cases. See Am. Compl. 135, 187. In Lucas v. Barreto, the Court addressed a similar situation. The new case involved scatter-shot claims that were tied together by nothing more than the Agency s failure to act on plaintiffs underlying EEO claims, and the hook linking the new case to the pending case only linked one count in each case. See Lucas, 2005 WL , at *3. The Court concluded that this tenuous relationship did not create sufficient judicial economy to outweigh the fundamental interests served by the random assignment rule. Id. Similarly, in Dale v. Executive Office of the President, the Court reaffirmed the conclusion of a prior judge in that case that a case regarding alleged improper use of FBI file of a current White House employee was not related to cases regarding improper use of FBI files regarding former employees because 4

5 Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 5 of 6 [a]ny common issues of fact are minimal and completely insufficient to meet plaintiff s burden. Dale, 121 F. Supp. 2d 35, 37 (D.D.C. 2000; see also Howard v. Gutierrez, 405 F. Supp. 2d 13, 15 (D.D.C (rejecting related case designation where the situations are factually distinct even though involving the same lead plaintiff and same defendant. The tenuous relationship and minimal common issues of fact between this case and the prior cases render it unfit for related case treatment. Further, the fact that the CIA s actions in processing FOIA requests are at issue in each of these cases is not a sufficient common issue of fact. See, e.g., Dale, 121 F. Supp. 2d at 37 (holding that cases were not related merely because all these cases involved the denial of a Privacy Act request by the same agency. Nor is the fact that the defendant in the prior cases has already explained the operation of the CIA s procedures at some length. See Am. Compl This is similar to the rejected argument that a new case should be related because discovery would overlap with the extensive discovery in a prior case that consumed much judicial time and effort. Tripp, 196 F.R.D. at 202. The Calendar Committee rejected this argument for several reasons, including that such a rule could well lead to one judge being inundated with cases which might have only a tangential discovery connection, but no direct factual nexus, to the central allegations of the primary case. Id. at The same danger applies here because plaintiffs continue to press the same sort of arguments about the CIA s handling of FOIA requests, and the mere similarity of the arguments should not force one judge to handle dozens or hundreds of utterly distinct FOIA requests. These cases share no common factual nexus that would require two judges to expend more time and resources than one judge resolving the claims. See Tripp, 196 F.R.D. at 202. Thus, there is no avoidance of waste or gain in judicial economy. Instead, the repeated pattern of 5

6 Case 1:12-cv BAH Document 11 Filed 03/30/12 Page 6 of 6 behavior by National Security Counselors exhibits the very appearance of judge-shopping that the random assignment rule is intended to avoid. See id. at 202 (identifying as one of the important goals of the rule to avoid any appearance of judge-shopping. For the foregoing reasons, defendants respectfully request that plaintiffs lawsuit be transferred to the Calendar and Case Management Committee for reassignment in the ordinary fashion. Dated: March 30, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General RONALD C. MACHEN United States Attorney ELIZABETH J. SHAPIRO Deputy Director Civil Division /s/ Galen N. Thorp GALEN N. THORP (VA Bar # Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Room 6140 Washington, D.C Tel: ( Fax: ( galen.thorp@usdoj.gov Attorneys for Defendants 6