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UNITED S'I`ATES DISTRICT COURT
FOR THE DISTRIC'I` OF COLUMBIA

 

n

§
mcHARo A. HoRN, §
Plaintiff, §
§ ctv. A¢¢ion No. 94_1756 (RCL)
v. §
§
FRANKLIN HUDDLE, JR., er a/., § F l L E D
Def`endants. § SEP _ § Z{][]g
NANCY MAYER WH\TT\NGTUN, CLERK
MEMoRANDUM QPINIoN “~S~D‘ST'“°T°°U“T

Before the Court is the United States’ Emergency Motion for Stay Pending
Appeal [483]. Upon consideration of the motion, the oppositions, and the entire
record herein, thc government’s motion is denied for the reasons set forth below.

I. Background

On August 26th, after having earlier decided that the government had not
demonstrated the applicability of the state secrets privilege, this Court declared
that the attorneys for both the plaintiff and the defendants-all of whom have been
favorably adjudicated for security clearances~had a "need to l<now" classified
information related to this case that their clients possessed See Dkt. 479. That
order gave the government until September 10th to comply and clear c0unsel. ln
response the United States filed a notice of appeal, and subsequently has asked this
Court to stay its order pending the appeal. The practical effect of such a stay
would extend beyond this Court’s August 26th order and bring all proceedings in

this already protracted litigation to a halt once again.

UNCLASS|FIED

II. Analysis

As the nature of this Court’s August 26th order is injunctive, the United
States has moved for a stay under Federal Rule of Civil Procedure 62(0). In order
to prevail on their motion, the United States must demonstrate: first, that they have
a substantial likelihood of success on appeal; secondly, that they will suffer
irreparable harm if the stay is denied; thirdly, that the issuance of a stay will not
cause substantial harm to other parties; and, finally that a stay is in the public
interest. United States v. Phz'llip Morris Inc., 314 F.3d 612, 617 (D.C. Cir. 2003).

T his Court first considers the third element of this test because it believes
that it bears most heavily on its decision to deny the motion for stay. The United
States gives scant consideration to whether a stay will cause substantial harm to
the other parties in this case. lt suggests that any delay resulting from this
interlocutory appeal would be only slight] and that the "mere assertion of delay
does not constitute substantial harm." Motion at 16 (quoting Phillip Morrz`s, 314
F.3d at 622). But what might have only been a minor delay in this case, which has
now dragged on for fifteen years, could have major consequences as any further
delay now has the real possibility of forever depriving the plaintiff of evidence and
testimony which may decide whether he prevails on his claims Indeed, the

plaintiff has recently filed a motion for deposition,z where he seeks to depose a

' Perhaps any delay caused by a stay might be slight relatz'vely, but given the prior decision by
the Court of Appeals, it is likely that resolution of the government’s appeal could take up to a

ear.
§ This motion contains a factual proffer, which, if substantiatcd, goes to the heart of the Horn’s
claims

former investigator from the State Departmcnt inspector General’s Office,3 who
conducted an investigation into Horn’s claims.

While it might not seem as if this Court’s August 26th order would have
any bearing on whether or not this deposition could be taken, it will certainly
affect what is revealed at the deposition as much of what the plaintiff is likely to
ask about would be classified As such, even if Horn sought to go forward with
the deposition were this Court’s August 26th order stayed, his counsel would be
severely circumscribed in asking the deponent questions based on classified
information already known to him, and the deponent would likewise be limited to
only disclosing non-classified information. The process would be further
complicated as parsing such information even after lengthy and contemplative
review can be difficult and still result in inadvertent disclosure, while requiring
one to do so in real time during a deposition would likely make the process
unworkable.

This case has already been delayed long enough by the government’s
failure to disclose information that had long been unclassified And while there is
no indication that the United States is moving for this stay in anything other than
good faith, this Court must be sensitive to the effect its ruling will have on the
parties to this litigation. And there can be no question that given the problems
associated with deposing this key witness, that any further delay caused by a stay

might render his testimony forever unavailable and as such would greatly

3 Footnote Three has been filed separately under seal.

prejudice the plaintiff." The government’s perplexing position that the parties
themselves could present the classified information to the Court, would certainly
prejudice not only the plaintiff and the defendants by depriving them of counsel,
but also the Court itself as it tries to develop procedures to best proceed with this
case, a process that would be greatly enhanced by adversarial presentation

As to the other factors in this test, the Court believes that the government
has not demonstrated the likelihood of their success or why a stay is necessarily in
the public interest. Given its decision in the August 26th opinion, the Court does
not think that the government has a substantial likelihood of success upon appeal.
Furtherrnore, although the government claims the public interest is in preserving
classified information, though it has time after time failed to provide a sufficient
basis as to why this decades-old information should be protected, there is certainly
a weightier public interest in the speedy and full resolution of this Court’s inquiry
into the extent of the governmental misconduct in this case, as well as the
paramount interest in ensuring the government upholds and abides by the
Constitution. The only secret the government might have left to preserve is the
fact they did what Horn alleges.

Finally, the Court thinks the government overstates the extent of the injury
it would suffer unless this Court’s order were stayed. First, for large portions of

this litigation counsel for Horn had a security clearance and discussed most, if not

4 The Court notes that even the defendants, who would presumably benefit from the stay, have
nonetheless opposed the government’s motion, albeit for different reasons.

all, of the classified information Hom knew related to this case. As to the renewal
of Horn’s counsel’s security clearance, the government cannot demonstrate an
lnjury, since it has once before allowed disclosure of the information it now seeks
to "protect." "l`he defendants, though not their counsel, also know virtually all of
the relevant classified information And since the government has done no more
than say “that sources and methods are the heart of intelligence," without
cxplaining, even generally, how disclosure to these attorneys would irreparably
harm the United States, this Court does not have a basis for believing that the
government will be concretely harmed. 'f his is especially so since the government
had previously determined that the defendants’ prior counsel, who were
government attorneys, had a need to know this very same classified inforrnation.
lt is not as if this Court has ordered that persons who would not otherwise qualify
for a security clearance have a need to know; rather the attorneys here were
selected in part because they were deemed trustworthy and able to obtain security
clearances. Furthermore, the government only has itself to blame for the retention
of these private attorneys, as it was a conflict of interest the government created
that necessitated their retention in the first place. The United States has not
alleged that these attorneys would be likely to improperly disclose classified
information. And even were they to do so, such an allegation would be
incredulous unless supported by specific evidence, given the nature of the

attorncys’ sclection. The harm to the government cannot be merely theoretical.

See Wz`sconsin Gas C0. v. Fed. Energy Reg. Comm ’n, 758 F.Zd 669, 674 (D.C. Cir.
l985)

Having considered all the elements of the Phz`llz`p Morris test, the Court
finds that the government has failed to satisfy its burden and demonstrate that it
needs a stay to be imposed.

III. Conclusion

There is no doubt that substantial legal questions have been raised by the
Court’s August 26th order. While the government insists that the paramount
question is whether this Court has the authority to authorize disclosure of
classified information in the limited context of a litigation that has been ongoing
for fifteen years to counsel who have been favorably adjudicated for clearances
(and indeed, in some cases selected due to their ability to be cleared), this Court
thinks that the real issue is still whether the government can evade the resolution
of serious questions regarding its constitutional obligations by merely asserting
that the underlying information needed for resolution is classified, even if
unprotected by the state secrets privilege I~Iaving lost on the on their assertion of
the state secrets privilege, the government’s new refrain is heads you lose, tails we
win.

Until the government noted there was a conflict of interest in the
defendants’ continued representation by government attorneys, the defendants
were represented by attorneys who had been cleared. The decision not to grant

clearances to the defendants’ attorneys only serves to highlight the separate

conflict of interest that is inherent when the discretion to disclose classified
information lies with the agency whose very conduct is at issue. See M'otion at 8-9
(stating the originating agencies have discretion to determine whether classified
information is disseminated). The ability to conduct this sort of "cover up"
undoubtedly intrudes on the judiciaxy’s function to "say what the law is," Marbury
v. Macz'z'son, 5 U.S. (1 Cranch) 137, 177 (1803). Given that any further delay in
these proceedings may result in material evidence being forever unavailable,
which would undoubtedly prejudice the plaintiff, the United States’ motion for a
stay pending appeal is hereby DENIED.

A separate order shall issue this date. September 4, 2009

@/rx 

RoYcé£ c. LAMBERTH
Chief judge
United States District Court

