UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Deputy Branch Director /s/ Vesper Mei VESPER MEI, D.C. Bar #455778 Trial Attorney Attorneys, Department of Justice Civil Division, Room 7316 Post Office Box 883 Washington, D.C. 20044 Telephone: (202 514-3367 Facsimile: (202 616-8470 E-mail: vesper.mei@usdoj.gov COUNSEL FOR DEFENDANT -2-

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PROJECT ON GOVERNMENT OVERSIGHT, Plaintiff, C.A. No. 1:04CV01032 (JDB v. JOHN ASHCROFT, in his official capacity as Attorney General of the United States, and UNITED STATES DEPARTMENT OF JUSTICE Defendants. DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS RELATED TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT Defendants hereby move the Court to stay any proceedings related to plaintiff s Motion for Summary Judgment, filed September 30, 2004, until after the Court decides defendants pending Motion to Dismiss, which will be fully briefed as of November 1, 2004. As fully explained in defendants pending Motion to Dismiss and its supporting papers, plaintiff lacks standing to pursue the claims enumerated in its complaint; alternatively, plaintiff s claims are subject to dismissal because they are not ripe. 1 The Court thus lacks Article III subject matter jurisdiction to consider plaintiff s claims because they do not meet the bedrock constitutional requirement that they present a justiciable case or controversy for this Court s decision. 1 In their Motion, defendants raise an additional threshold argument that plaintiff has no private right of action under the challenged Executive Order. If the Court were to agree with this argument, dismissal of the case would be required, and it would be unnecessary for the Court to reach the merits.

See Valley Force Christian Coll. v. American United for Separation of Church and State, 454 U.S. 464, 471 (1982. As fully explained herein, the Court has the inherent power to control its docket and, moreover, is required to address its own jurisdiction as a threshold issue. Defendants motion to dismiss for lack of jurisdiction will be fully briefed and submitted to the Court for resolution shortly. In such circumstances, it is both logical and practicable for the Court to determine whether the plaintiff has stated claims justiciable under Article III of the Constitution before addressing, or requiring the defendants to address, the merits of those claims. 2 Plaintiff filed its Complaint in this matter on June 23, 2004. On August 27, 2004, defendants filed their Motion to Dismiss on the grounds this Court lacks jurisdiction over this case because plaintiff does not have standing and plaintiff s claims are not ripe. Plaintiff responded on September 30, filing an Opposition to Defendants Motion to Dismiss as well as a Motion for Summary Judgment. Defendants reply brief in further support of its Motion to Dismiss was initially due on October 12, and its opposition to plaintiff s Motion for Summary Judgment was due on October 15, but defendants sought and received an extension to respond to plaintiff by November 1, 2004. Having had the opportunity to give the matter full consideration, and for the reasons explained below, defendants request that the Court find that priority is appropriately given to resolving defendant's pending Motion to Dismiss and stay all further proceedings on plaintiff s Motion for Summary Judgment pending resolution of Defendant's Motion, or alternatively, deny plaintiff s Motion for Summary Judgment without prejudice to 2 Pursuant to Local Civil Rule 7.1, counsel for defendants has conferred with plaintiff s counsel, who oppose defendants motion for stay. -2-

renew after disposition of the Motion to Dismiss. 3 ARGUMENT Defendants request to stay proceedings on plaintiff s Motion for Summary Judgment is grounded in two well-established principles of law. First, every court has "inherent" power to exercise its discretion to "control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for the litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936; accord United States v. Western Electric Co., Inc., 46 F.3d 1198, 1207 n.7 (D.C. Cir. 1995 ( a trial court has inherent power to control the sequence in which it hears matters on it calendar.... Second, and perhaps more importantly, it has been long established that the requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998 (emphasis added (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884. The first and fundamental question for any court is that of jurisdiction. Steel Co., 523 U.S. at 94 (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900. Thus, as the Court of Appeals has recognized, resolving a merits issue while jurisdiction 3 Should the Court decline to enter the stay requested herein, and in light of the significant litigation commitments of defendants counsel in other cases, defendants respectfully request that the Court grant defendants three weeks from the date of any order denying this request in which to file an opposition to plaintiff s Motion for Summary Judgment. In addition to the preparation and filing of a brief in opposition to plaintiff s Motion, defense of the merits may well require preparation and submission of declarations from government officials and other materials to rebut plaintiff s allegations. Plaintiff opposes this request for extension as well. -3-

is in doubt carries the court beyond the bounds of authorized judicial action... and violates the principle that the first and fundamental question is that of jurisdiction. In re Minister Papandreou, 139 F.3d 247, 254-55 (D.C. Cir. 1998 (citations omitted; accord Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999 ( Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of the case.... The Court should not require parties to litigate the merits of a cause of action over which the Court has no jurisdiction. To the contrary, [w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Steel Co., 523 U.S. at 94 (emphases added (quoting Ex parte McCardle, 74 U.S. 506, 514 (1968. Where the Court lacks jurisdiction over a cause of action, [a] defendant should not be put to the trouble and expense of any further proceeding, and the time of court should not be occupied with any further proceeding.... United Transport Serv. Employees of America, CIO v. Nat l Mediation Board, 179 F.2d 446, 454 (D.C. Cir. 1949. In light of these principles, and given the present posture of this litigation, staying consideration of plaintiff s Motion for Summary Judgment pending a resolution of defendants Motion to Dismiss is clearly warranted. Defendants have argued, for example, that plaintiff has failed to show that it has standing to bring its claims, and that its claims are not ripe. A decision in the defendants favor on these dispositive jurisdictional issues will terminate this litigation. 4 4 As noted above, defendants Motion to Dismiss raises an additional threshold argument that plaintiff has no private right of action under the challenged Executive Order. If the Court were to -4-

In such circumstances, the proper course is to decide the first and fundamental jurisdictional issues before entertaining any proceedings on plaintiff s pending motion. See Steel Co., 523 U.S. at 94. Plaintiff would suffer no prejudice from a stay of proceedings on its Motion for Summary Judgment. Plaintiff contends that defendants have imposed a prior restraint on POGO s speech and stifled public discussion regarding the adequacy of the FBI s translation capabilities and Ms. Edmonds reports of problems in the translation unit where she worked. Complaint 21. However, as more fully set forth in Defendants Motion to Dismiss, plaintiff has failed to identify any action taken by defendants against it constituting a prior restraint, either actual or threatened, with respect to the information at issue. In addition, plaintiff identifies numerous websites on which the letters at issue are posted, and remain accessible to the public. Declaration of Danielle Brian, 23-26. Under the circumstances, it is difficult to see how public debate has been stifled. In fact, resolution of the jurisdictional issues in this case is a critical, and necessary, antecedent to any consideration of the merits of plaintiff s claims, and it is the defendants that would be prejudiced in the absence of a stay by having to file a potentially unnecessary opposition to plaintiff s summary judgment motion. Indeed, it would be an inefficient use of resources both of the Court and of the defendants to expend time and effort now in the preparation and consideration of merits issues that may never need to be addressed. The jurisdictional issues will be fully briefed shortly. Staying proceedings on plaintiff s Motion for Summary Judgment here is the proper course in light of the Supreme Court s agree with this argument, dismissal of the case would be required, and the litigation would be terminated. -5-

admonition that the first and fundamental question to be addressed by a Court is the threshold issue of jurisdiction, Steel Co., 523 U.S. at 94-95. And, moreover, a stay is both reasonable and practicable, see Landis, 299 U.S. at 254. CONCLUSION For the foregoing reasons, this Court should grant defendants motion to stay further proceedings on plaintiff s motion for summary judgment pending the Court s determination regarding subject matter jurisdiction. Dated: October 19, 2004 Respectfully submitted, PETER D. KEISLER Assistant Attorney General KENNETH L. WAINSTEIN United States Attorney VINCENT M. GARVEY Deputy Branch Director /s/ Vesper Mei VESPER MEI, D.C. Bar #455778 Trial Attorney Attorneys, Department of Justice Civil Division, Room 7316 Post Office Box 883 Washington, D.C. 20044 Telephone: (202 514-3367 Facsimile: (202 616-8470 E-mail: vesper.mei@usdoj.gov COUNSEL FOR DEFENDANT -6-