UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PROJECT ON GOVERNMENT OVERSIGHT, Plaintiff, v. Civil Action No. 1:04cv01032 (JDB JOHN ASHCROFT, in his official capacity as Attorney General of the United States, and UNITED STATES DEPARTMENT OF JUSTICE, Defendants. PLAINTIFF S OPPOSITION TO DEFENDANTS MOTION TO STAY PROCEEDINGS RELATED TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT Plaintiff Project On Government Oversight ( POGO filed this case to challenge defendants unlawful prior restraint on POGO s First Amendment right of free speech. Defendants actions have silenced POGO on a matter of great public importance and interfered with POGO s ability to pursue its organizational mission to serve the public interest by promoting government accountability. Defendant seeks to delay resolution of this case by staying all proceedings related to POGO s motion for summary judgment until after a decision on defendants motion to dismiss. Defendants motion should be denied. ARGUMENT A. Because this Case Challenges a Prior Restraint on POGO s First Amendment Rights, It Should Be Resolved Expeditiously. POGO agrees with defendants observation that a court should address its own jurisdiction before reaching the merits of a case, and POGO addresses the jurisdictional dispute

2 in its combined memorandum in opposition to dismissal and in support of summary judgment. See POGO s Memorandum at If the Court dismisses POGO s complaint for lack of standing, the Court will not have to reach the merits of the case. However, as explained fully in its memorandum, POGO has Article III standing because POGO has suffered an injury-in-fact under the test set forth in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979, and POGO s injury is traceable to defendants conduct and would be redressed by the judicial relief sought. See Navegar, Inc. v. United States, 103 F.3d 994, 997 (D.C. Cir Once the Court determines that POGO has standing, the Court should resolve the case expeditiously because defendants interference with POGO s First Amendment rights constitutes irreparable injury. See Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1304 (1983 (Brennan, Circuit Justice ( [W]e have recognized the special importance of swift action to guard against the threat to First Amendment values posed by prior restraints. ; Nebraska Press Ass n v. Stuart, 427 U.S. 539, 559 (1976 ( [P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. ; Elrod v. Burns, 427 U.S. 347, 373 (1976 ( The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. ; National Treasury Employees Union v. King, 961 F.2d 240, 244 (D.C. Cir. 1992; National Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C. Cir. 1991; Branch v. FCC, 824 F.2d 37, 40 (D.C. Cir Incredibly, defendants ignore this well-settled principle and assert that POGO would suffer no prejudice from a stay of proceedings on its Motion for Summary Judgment. Defendants Memorandum at 5. 2

3 POGO suffers irreparable harm every day that defendants actions stifle POGO s ability to engage in public discourse about the reclassified information. Indeed, the Supreme Court has recognized that such damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events. Nebraska Press Ass n, 427 U.S. at 559. Defendants assertion that POGO has not identified a prior restraint because defendants have not specifically threatened POGO with prosecution is belied by the fact that defendants refuse to state that POGO will not be prosecuted if it disseminates the reclassified information. Such a statement by defendants would end this case, but defendants prefer to maintain the threat of prosecution to restrict POGO s speech while attempting to delay a decision on the merits for as long as possible. B. Defendants Have No Basis for Seeking Another Extension of Time to Respond to POGO s Motion for Summary Judgment. Defendants are using their motion to stay proceedings as a means to further delay resolution of this case. After POGO filed its combined memorandum in opposition to dismissal and in support of summary judgment, defendants sought and received an extension of time to file their reply and opposition. POGO consented to defendants request for more time because it was understood that defendants would be responding to all of POGO s combined memorandum. Indeed, this Court ordered that defendants shall file the reply to their motion to dismiss and opposition to plaintiff s motion for summary judgment by not later than November 1, See Minute Entry dated October 6, 2004 (emphasis added. The relief defendants now seek would allow the government more than 30 days to file a simple reply brief on their motion to dismiss, and more importantly, delay indefinitely their response on summary judgment. 3

4 Defendants offer no explanation that would justify further delay. Defendants claim that it would be an inefficient use of their resources to brief merits issues that may never need to be addressed, and they speculate that defense of the merits may well require preparation and submission of declarations from government officials and other materials to rebut plaintiff s allegations. Defendants Memorandum at 5 & 3, n.3. Defendants knew this when they first asked for more time to respond to POGO s motion for summary judgment. Indeed, defendants studied POGO s motion for five days before they sought an extension to November 1, 2004, [i]n order to have sufficient time to prepare and serve a thorough brief. Defendants Unopposed Motion for Extension of Time, filed October 5, 2004, at 1. C. Maintaining the Current Briefing Schedule Will Conserve Judicial Resources. The Court has already ordered the briefing schedule previously requested by defendants. If defendants current motion to stay proceedings is granted, it will likely result in an additional round of briefing and further delay resolution of this case. POGO filed a combined memorandum in opposition to dismissal and in support of summary judgment because the issues are intertwined and rest on the same undisputed facts. If defendants prevail on their motion to dismiss, the Court need not reach the merits on summary judgment and no judicial resources will have been wasted. But if defendants motion to dismiss is denied, the combined briefing on jurisdiction and the merits will save judicial resources, speed the resolution of POGO s First Amendment claim, and shorten the time that POGO must labor under an unconstitutional prior restraint. CONCLUSION The Court should deny defendants motion to stay proceedings. 4

5 Dated: October 21, 2004 Respectfully submitted, /s/ Michael T. Kirkpatrick (DC Bar No Brian Wolfman (DC Bar No Public Citizen Litigation Group th Street, NW Washington, DC ( ( (fax David C. Vladeck (DC Bar No Georgetown University Law Center Institute for Public Representation 600 New Jersey Avenue, NW Washington, DC ( ( (fax Counsel for Plaintiff 5