Memphis Publ'g Co. v. Fed. Bureau of Investigation

• Decision Date: 05 April 2012
• Docket Number: Civil Action No. 10–1878 (ABJ)
• Citation: 195 F.Supp.3d 1
• Court: U.S. District Court — District of Columbia
• Parties: MEMPHIS PUBLISHING COMPANY, et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

195 F.Supp.3d 1

MEMPHIS PUBLISHING COMPANY, et al., Plaintiffs,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 10–1878 (ABJ)

United States District Court, District of Columbia.

Signed April 5, 2012

Charles D. Tobin, Christine N. Walz, Drew E. Shenkman, Holland & Knight LLP, Washington, DC, for Plaintiffs.

Elizabeth J. Shapiro, Lesley R. Farby, Nathan Michael Swinton, U.S. Department of Justice, Washington, DC, Wendy Michelle Doty, Libertyville, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

AMY BERMAN JACKSON, United States District Judge

Pending before the Court is defendant Federal Bureau of Investigation's motion for a stay pending an appeal determination by the Solicitor General. [Dkt. # 35]. The motion arises in the following procedural context:

• On January 31, 2012, the Court entered its order granting plaintiff's motion to compel. [Dkt. # 31].

• The Order directed the FBI to process plaintiff's FOIA request and produce the responsive records and/or a Vaughn index identifying the grounds for any withholdings on or before March 16, 2012.

• On February 21, 2012, the FBI moved for reconsideration of that order. [Dkt. # 32].

• On March 2, 2012, the FBI moved the Court to stay its January 31, 2012 order until sixty days after its ruling on defendant's motion to reconsider the order. The government did not seek a stay pending appeal; it simply asked to be relieved of the obligation of compliance with the Court's order while it took the time necessary to ponder whether to take an appeal at all, and the order itself was under review.

• On March 9, 2012, the Court issued a minute order vacating the March 16, 2012 deadline while it addressed the two pending motions.

• On April 4, 2012, the Court denied the motion for reconsideration. [Dkt. # 38].

So what is before the court now is the FBI's request to stay its FOIA obligations until after June 4, 2012, so that the Solicitor General can consult with all of the necessary agency components and interested parties while evaluating the legal, factual, and policy issues that underlie the appeal decision. The government points out that the Federal Rules of Appellate Procedure appreciate the complexities involved in such institutional decision making, and that therefore, they accord the United States sixty days from the date an order is issued to file an appeal. See Fed. R. App. P. 4(a)(1)(B).¹

Given that backdrop, the Court notes that at this point, the Solicitor General has already had sixty-five days to study the January 31, 2012 order and to conduct considerable consultation and deliberation. The April 4, 2012 order denying the motion for reconsideration does not raise any significant new issues. So, if the Court were to grant defendant's motion at this point, it would in effect be permitting the FBI to put its FOIA obligations on hold for 125 days, or a little more than four months, while the Solicitor General makes up his mind about an appeal. This is an unreasonably long period of time, and the FBI does not invoke any rule of civil procedure in support of its request.

Rather, the defendant proffers the authorities that govern the adjudication of a request for a stay pending appeal. A stay or injunction pending appeal is an extraordinary remedy. Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). It is "an intrusion into the ordinary process of administration and judicial review ... and accordingly is not a matter of right, even if irreparable injury might otherwise result to the appellant." Nken v. Holder , 556 U.S. 418, 129 S.Ct. 1749, 1757, 173 L.Ed.2d 550 (2009) (internal quotation marks and citation omitted). Instead, an injunction is an exercise of judicial discretion, and whether to grant it depends upon the specific circumstances of the case. Id. at 1760. The moving party bears the burden of justifying why the court should grant this extraordinary remedy, based upon a consideration of the following four factors:

(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 1761 (internal quotation marks and citation omitted).

The analysis is even more complicated in this case because there is some question about whether the order compelling the creation of a Vaughn index is an appealable order in the first place. The government takes the position that the January 31, 2012 order is in the nature of an interlocutory order granting an injunction and therefore it is appealable under 28 U.S.C. § 1292(a). Plaintiff has taken the position that it is not an appealable order and that defendant was required to seek the Court's certification of the question for appeal. The Court has solicited additional briefing on this difficult question, and it is of the view that those...