                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



JUDICIAL WATCH, INC.,

        Plaintiff,

                v.                                     Civil Action No. 12-1510 (JDB)
U.S. DEPARTMENT OF JUSTICE,

         Defendant.


                                              ORDER

       This Freedom of Information Act (“FOIA”) case, concerning Operation Fast and Furious

documents, has been stayed pending developments in another case in this district—involving the

same documents—since February 2013. Plaintiff, Judicial Watch, Inc., (“Judicial Watch”) has

moved to lift the stay. For the reasons explained below, the Court will grant in part Judicial

Watch’s motion and partially lift the stay.

                                        BACKGROUND

       In 2011, the House Oversight and Government Reform Committee (the “House

Committee”) issued a subpoena to the Attorney General of the United States, seeking documents

related to a congressional investigation into a Bureau of Alcohol, Tobacco, Firearms and

Explosives operation known as Operation Fast and Furious. In response, President Barack

Obama invoked executive privilege. The House Committee filed suit, seeking to enforce its

subpoena and to challenge the President’s assertion of executive privilege; that case is pending

before Judge Amy Berman Jackson, another judge in this district. See Comm. on Oversight &




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Gov’t Reform, U.S. House of Representatives v. Holder, No. 12-1332 (ABJ) (D.D.C. Aug. 13,

2012) (“House Committee”).

       Soon after the President invoked executive privilege, Judicial Watch submitted a FOIA

request for all records subject to that claim of executive privilege (in other words, for the very

same records that are the subject of House Committee). See Pl.’s Compl. [ECF No. 1] at 2. The

Department of Justice (“DOJ”) denied that request. Id. at 2-3. Judicial Watch then filed suit,

challenging that denial. This Court stayed the case in February 2013, in part “to allow ongoing

settlement discussions [to continue] and, if a full settlement is not reached, to let the House

Committee court rule on the [then-pending] motion to dismiss.” Feb. 15, 2013 Order Staying

Case [ECF No. 20] at 4. In the Order granting the stay, this Court explicitly noted that DOJ

“does not seek, and the Court will not award, an indefinite stay pending ultimate resolution of the

House Committee litigation,” and that “the benefits of delaying this case might well [become]

too attenuated to justify any further delay.” Id. Since that Order, the Court has periodically

reconsidered whether to extend the stay, and has found each time that continuing the stay is

appropriate. See, e.g., Minute Order of Oct. 11, 2013. For a while, Judicial Watch opposed

extension of the stay, and after the Court again continued the stay in November 2013, Judicial

Watch appealed. Judicial Watch v. U.S. Dep’t of Justice, No. 13-5337 (D.C. Cir. Nov. 8, 2013).

The D.C. Circuit dismissed that appeal for lack of jurisdiction, see May 27, 2014 Mandate [ECF

No. 34], after which Judicial Watch represented several times that continuing the stay was

appropriate, see, e.g., Joint Status Report [ECF No. 33] at 1-2.

       While all this was going on, Judge Jackson denied DOJ’s motion to dismiss in House

Committee, and the parties in that case then fully briefed and argued cross-motions for summary




                                                 2
judgment. Settlement discussions there, while ongoing, have not been fruitful, and Judge Jackson

has not ruled on the recently filed summary judgment motions.

       Following oral argument on the cross-motions for summary judgment in House

Committee, Judicial Watch reversed its position on the propriety of the stay here. It now asks this

Court to lift the stay and for this litigation to proceed as a normal FOIA case would, starting with

an order from the Court that DOJ produce a Vaughn index. See generally Vaughn v. Rosen, 484

F.2d 820 (D.C. Cir. 1973).

                                          DISCUSSION

       Whether to grant or lift a stay is discretionary, but “[o]nly in rare circumstances will a

litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law

that will define the rights of both.” Landis v. N. Am. Co., 299 U.S. 248 (1936); see Am. Life Ins.

Co. v. Stewart, 300 U.S. 203, 215 (1937) (citing Landis, 299 U.S. at 255) (“in the exercise of a

sound discretion [a court] may hold one lawsuit in abeyance to abide the outcome of another,

especially where the parties and the issues are the same”); see also Colorado River Water

Conserv. Dist. v. United States, 424 U.S. 800, 817 (1976) (“As between federal district

courts . . . the general principle is to avoid duplicative litigation”); Stark v. Wickard, 321 U.S.

288, 310 (1944) (noting that if “numerous parallel cases are filed, the courts have ample

authority to stay useless litigation until the determination of a test case”). Here, “[t]he

Government’s initial request for a stay was to avoid interference with another case—a case of

public importance—and this present[s] strong consideration for [a] stay.” Dellinger v. Mitchell,

442 F.2d 782, 787 (D.C. Cir. 1971). And unlike in other cases where a stay could harm

plaintiff’s case, here, Judicial Watch risks little prejudice “resulting from the loss of evidence,

including the inability of witnesses to recall specific facts, or the possible death of a party.”



                                                 3
Clinton v. Jones, 520 U.S. 681, 708 (1997). Nevertheless, Judicial Watch should be required to

sit on the sidelines here only for compelling reasons.

       Avoiding interference with the House Committee case, and allowing negotiations

between two co-equal branches of government to proceed undisrupted, is this Court’s chief

concern in considering whether to lift the stay. There are many good reasons not to decide the

constitutional question(s) lurking here1 before Judge Jackson does. The litigants in House

Committee are competing branches of government. Resolution of subpoena disputes between the

legislature and the executive involves a sensitive process of negotiation and accommodation. See

United States v. AT&T Co., 567 F.2d 121, 130 (D.C. Cir. 1977) (“The Constitution contemplates

such accommodation. Negotiation between the two branches should thus be viewed as a dynamic

process affirmatively furthering the constitutional scheme.”). If any court is to resolve a dispute

between the political branches over executive privilege—and historically, such disputes have

been resolved through negotiation rather than by resort to the judiciary—it should be, in the first

instance, the court hearing the case in which both branches are represented. That is not this case.

Moreover, it is not efficient for two judges in the same district to simultaneously resolve the

same complex privilege question. What is more, House Committee is the earlier-filed suit, and

that case has advanced to the point where the issues may be decided in the near future (subject to

any appeals).

       But this Court now concludes that this case may proceed without interfering with House

Committee or upsetting the delicate balance of power between the branches. To fully resolve this

FOIA dispute, absent any settlement, the Court will have to determine many issues logically

antecedent to any constitutional question. That is because House Committee and this case are in

very different procedural postures. In House Committee, DOJ is refusing to produce any
       1
           Those questions involve the validity and scope of the executive privilege asserted by the President.

                                                          4
documents to the House Committee pursuant to a claim of executive privilege. The parties are

litigating whether that privilege claim was proper, whether it covers all the documents being

withheld, and whether the House Committee may defeat that privilege. Constitutional issues are

thus teed up for resolution there.

        Here, DOJ is withholding every document under FOIA Exemption 5. That provision

exempts from disclosure any “inter-agency or intra-agency memorandums or letters which would

not be available by law to a party other than an agency in litigation with the agency.”

5 U.S.C. § 552(b)(5). So if, for example, a document is protected by a valid claim of attorney-

client privilege, it will normally and properly be withheld under Exemption 5. See NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). So too if a document is protected by a valid

claim of executive privilege. Id. Another frequently cited rationale for withholding documents

under Exemption 5 is the common-law “deliberative process” privilege. Judicial Watch, Inc. v.

Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006). Under that privilege, documents may

be withheld if they are “predecisional” and “deliberative.” Id. Other reasons justify withholding

documents under Exemption 5 as well (e.g., attorney work-product), as its text makes plain.

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980).

        DOJ claims here that, in addition to other Exemption 5 rationales, at least two distinct

forms2 of executive privilege justify withholding documents: a “deliberative process” privilege

of constitutional dimensions and a “congressional response work-product” privilege. See Mem.

in Supp. of Def.’s Mot. for Summ. J., House Committee, No. 12-1332 [ECF No. 63] (“House

Committee Def.’s Mot.”) at 21-27, 27-30. It appears that neither form has been expressly


        2
            DOJ contends that these are differing justifications for, not forms of, executive privilege. House
Committee Def.’s Mot. at 20 (“[t]here is only one Executive Privilege, grounded in the Constitution”). Without
opining on the correctness of DOJ’s formulation, the Court notes that it will refer to different forms of executive
privilege for simplicity’s sake.

                                                        5
recognized by any court. Id. (citing Senate Select Comm. on Pres. Campaign Activities v. Nixon,

498 F.2d 725 (D.C. Cir. 1974)). The contours of the constitutionally based “deliberative process”

privilege seem plain: a document must, at minimum, be “predecisional” and “deliberative.” See

House Committee, No. 12-1332, May 15, 2014 Tr. of Oral Arg. [ECF No. 79] at 52-53 (attorney

representing DOJ confirming that those are two elements of constitutional deliberative process

privilege). The purported “congressional response work-product” privilege would cover a

broader range of documents. See House Committee Def.’s Mot. at 27-30.

        Importantly, the narrower constitutional privilege claimed by DOJ—the constitutional

“deliberative process” privilege—appears to overlap with the traditional FOIA “deliberative

process” privilege. In other words, if a document is both “predecisional” and “deliberative,” it

may be withheld under FOIA; it also would qualify as privileged under DOJ’s conception of

executive privilege.3 But because DOJ could refuse to release that document to Judicial Watch in

this case simply because it is exempt under garden-variety deliberative process privilege, the

Court need not reach the constitutional privilege question for that document.

        Setting aside documents that would be exempt under FOIA’s deliberative process

privilege, DOJ might withhold other documents in this case under Exemption 5 for reasons other

than executive privilege. Imagine a document that is not predecisional and deliberative but that is

protected by the attorney-client privilege. Other documents might also be protected from

disclosure by other FOIA exemptions, to the extent DOJ has not waived its right to assert them.

        Perhaps these exemption claims will permit DOJ to properly withhold all documents in

this case. If so, that would end this case without any inquiry into executive privilege. But perhaps


        3
           The Court does not opine on the existence or scope of that privilege; instead, the Court simply notes
DOJ’s arguments that a constitutionally-based “deliberative process” privilege exists and that it encompasses, at
least, “predecisional” and “deliberative” documents. See House Committee, No. 12-1332, May 15, 2014 Tr. of Oral
Arg. [ECF No. 79] at 52-53.

                                                       6
a Vaughn index or further litigation would reveal that some documents are not covered by

deliberative process privilege—constitutionally based or otherwise—and are not exempt for any

other reason under FOIA except perhaps for the congressional-response-work-product executive

privilege claim DOJ has identified. Picture a document that is not predecisional and deliberative,

that does not otherwise satisfy Exemption 5, and that is not covered by any other FOIA

exemption.4 DOJ might continue to withhold that document only because it is arguably the

subject of a congressional-response-work-product executive privilege claim, and thus exempt

under Exemption 5. To decide whether that document must be released, the Court would have to

determine whether the executive privilege claim is valid and that it covers the document. Put

differently, this Court needs to consider the executive privilege issue in this case only if no other

reason permits DOJ to withhold a particular document under FOIA.

       Thus, much is left to do here before this Court would reach any issues being addressed in

House Committee or in the negotiations between the political branches. In this circuit, when an

agency is withholding documents under exemption claims, courts require that the agency provide

a Vaughn index so that the FOIA requester—at a distinct informational disadvantage—may test

the agency’s claims. See Am. Civil Liberties Union v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013).

Vaughn indices were designed to allow the agency “to justify its actions without compromising

its original withholdings by disclosing too much information. . . . By allowing the agency to

provide descriptions of withheld documents, the index gives the court and the challenging party a

measure of access without exposing the withheld information.” Judicial Watch, Inc. v. FDA, 449

F.3d 141, 146 (D.C. Cir. 2006). True, nothing in the subpoena enforcement context of House

Committee would require DOJ to produce a particularized description of the withheld

documents. See Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d
       4
           Again, to the extent DOJ has not waived its right to assert other exemptions.

                                                          7
53, 107 (D.D.C. 2008). But this is a FOIA case, and since 1973, when Vaughn was decided,

courts in this circuit have required agencies to justify their FOIA withholdings on a

particularized basis.5 And doing so here will not prematurely expose or resolve the executive

privilege issues ahead of Judge Jackson and the political branches; it will merely permit the

parties and this Court to cull from the dispute any documents as to which a valid, non-executive-

privilege reason for withholding exists, thereby narrowing or perhaps even resolving the case. To

the extent DOJ argues that the mere production of the Vaughn index—not involving the release

of any documents in dispute—would alter the historical balance of powers between the branches,

any unbalancing would result from FOIA itself, a law passed by Congress and signed into law by

the President, and which this Court cannot ignore forever.

        Because many of the issues to be resolved in this case do not overlap with House

Committee, and because resolving those issues will not risk upsetting the delicate balance of

powers in subpoena disputes between the political branches, the Court will require DOJ to

produce a Vaughn index here. That index should satisfy the law of this circuit, permitting

Judicial Watch to test DOJ’s exemption claims without exposing the withheld information. See

Am. Civil Liberties Union, 710 F.3d at 432-433 (describing requirements of a Vaughn index).

DOJ should focus in particular on explaining its reasons, if any, other than executive privilege6

for withholding documents. Once Judicial Watch has a chance to review that index, and engage

in discussions with DOJ to narrow the issues, the Court will set a briefing schedule to resolve

        5
           Agencies frequently assert in FOIA litigation that “categorical withholding” of documents is proper, and
that they need not even produce a Vaughn index as a result. But categorical withholding is appropriate “[o]nly when
the range of circumstances included in the category ‘characteristically support[s] an inference’ that the statutory
requirements for exemption are satisfied.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 893
(D.C. Cir. 1995). A common example is documents withheld under FOIA Exemption 7(C)—not at issue in this
case—involving investigatory records compiled for law enforcement purposes, disclosure of which would constitute
an unwarranted invasion of personal privacy. Id.
         6
           To be precise, reasons other than DOJ’s claimed “deliberative process” privilege of constitutional
dimensions, since documents fitting into that category very likely may be withheld under the common-law
deliberative process privilege.

                                                        8
any outstanding non-constitutional issues. Only after the Court has resolved those issues will it

turn to any issues involving executive privilege; by that time, Judge Jackson will likely have

ruled on the issue, providing this Court with guidance, or the political branches may have settled

their dispute.

        To be clear, the Court is not ordering the release of any documents currently being

withheld in this litigation or in House Committee. But it is time for this case to move forward.

Upon consideration of [35] Judicial Watch’s motion to lift the stay, the various memoranda filed

by the parties, the hearing held on July 8, 2014, and the entire record herein, and for the reasons

explained above, it is hereby

        ORDERED that [35] Judicial Watch’s motion to lift the stay is GRANTED IN PART;

it is further

        ORDERED that the Department of Justice shall submit a Vaughn index in accordance

with this Order and the law of this circuit by not later than October 1, 2014; it is further

        ORDERED that this case shall remain STAYED, except for the further proceedings set

out in this Order; it is further

        ORDERED that the parties shall file a joint status report with the Court within fourteen

days of any significant development in House Committee, but in any event by not later than

October 15, 2014, at which time the Court will assess the future course of this case, including

whether any further stay is appropriate; and it is further

        ORDERED that a party seeking an extension of the production deadline for the Vaughn

index shall file a motion in accordance with the Local Rules.

        SO ORDERED.




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                                     /s/
                                 JOHN D. BATES
                            United States District Judge
Dated: July 18, 2014




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