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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case3:08-cv-02997-JSW Document77 Filed10/06/09 Page1 of 16 1 Marcia Hofmann (SBN 250087) [email protected] 2 Kurt Opsahl (SBN 191303) [email protected] 3 Nathan D. Cardozo (SBN 259097) [email protected] 4 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street 5 San Francisco, CA 94110 Telephone: (415) 436-9333 x116 6 Facsimile: (415) 436-9993 7 David L. Sobel (pro hac vice) [email protected] 8 ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Avenue NW 9 Suite 650 Washington, DC 20009 10 Telephone: (202) 797-9009 x104 Facsimile: (202) 707-9066 11 Attorneys for Plaintiff 12 ELECTRONIC FRONTIER FOUNDATION 13 14 UNITED STATES DISTRICT COURT 15 FOR THE NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 ELECTRONIC FRONTIER FOUNDATION, ) NOS. 08-1023 JSW & 08-2997 JSW ) 18 Plaintiff, ) OPPOSITION TO MOTION FOR A 60-DAY ) STAY PENDING APPEAL 19 v. ) ) DETERMINATION BY SOLOCITOR GENERAL 20 ) OFFICE OF THE DIRECTOR OF NATIONAL ) INTELLIGENCE and DEPARTMENT OF Date: October 9, 2009 21 ) JUSTICE, ) Time: 9:00 a.m. Courtroom: 2, 17th Floor 22 ) Defendants. ) 23 ) 24 25 26 27 28 Case3:08-cv-02997-JSW Document77 Filed10/06/09 Page2 of 16 1 TABLE OF CONTENTS 2 3 TABLE OF AUTHORITIES..........................................................................................................ii 4 I. Introduction .............................................................................................................................2 5 II. Issue to be Decided.................................................................................................................2 6 III. Statement of Facts.................................................................................................................2 7 IV. Argument..............................................................................................................................4 8 A. Legal Standard................................................................................................................ 4 9 B. The Government Has Failed to Make a Strong Showing That It is Likely to Prevail on the Merits of An Appeal. ...................................................................................................... 5 10 11 C. The Government Has Failed to Show It Will Be Irreparably Harmed If It Does Not Have 60 Days to Decide Whether to Appeal............................................................................. 7 12 D. EFF Will Suffer Irreparable Harm If the Court Stays Its September 24, 2009 Order for 60 13 Days. .............................................................................................................................. 9 14 E. The Public Interest Will Be Served By the Expeditious Release of Documents At Issue In This Case...................................................................................................................... 10 15 V. Conclusion ...........................................................................................................................12 16 17 18 19 20 21 22 23 24 25 26 27 28 - i - OPPOSITION TO MOT. FOR A 60-DAY STAY PENDING DETERMINATION OF APPEAL BY SOLICITOR GENERAL Case3:08-cv-02997-JSW Document77 Filed10/06/09 Page3 of 16 1 TABLE OF AUTHORITIES 2 CASES 3 Acumenics Research & Technology v. Dep’t of Justice, 843 F.2d 800 (4th Cir. 1988) .................... 7 4 Armstrong v. Executive Office of the President, 877 F. Supp. 750 (D.D.C. 1995)........................... 7 5 August v. FBI, 328 F.3d 697 (D.C. Cir. 2003) .............................................................................. 10 6 Barber v. Simpson, No. 2:05-cv-2326-GEB-DAD, 2006 WL 2548189 (E.D. Cal. Sept. 1, 2006).... 8 7 Board of Educ. v. Pico, 457 U.S. 853 (1982)................................................................................ 11 8 Caribbean Marine Services Co. v. Baldridge, 844 F.2d 668 (9th Cir. 1988)............................... 5, 7 9 Century Laminating, Ltd. v. Montgomery, 595 F.2d 563 (9th Cir. 1979)......................................... 8 10 Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985)........................................... 11 11 Corpus Christi Peoples' Baptist Church, Inc. v. Texas Dep’t of Human Resources, 481 F. Supp. 12 1101 (S.D. Tex. 1979)................................................................................................................ 8 13 Costal States Gas Corp. v. Dep’t of Energy, 644 F.2d 969 (3d Cir. 1981) ...................................... 7 14 Ctr. for Int'l Envtl. Law v. Office of the United States Trade Rep., 240 F. Supp. 2d 21 (D.D.C. 2003) ................................................................................................................................. 5, 8, 9 15 Ctr. for Nat’l Security Studies v. Dep’t of Justice, 217 F. Supp. 2d 58 (D.D.C. 2002)..................... 8 16 Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972 (D.C. Cir. 1977).................................. 5 17 Davila v. Texas, 489 F. Supp. 803 (S.D. Tex. 1980)....................................................................... 8 18 Dep’t of Commerce v. Assembly of the State of California, 501 U.S. 1272 (1991) .......................... 7 19 Dep’t of Justice v. Rosenfeld, 501 U.S. 1227 (1991)....................................................................... 7 20 Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181 (N.D. Cal. 21 2008) .................................................................................................................................passim 22 Elec. Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30, 41 (D.D.C. 2006) ....................... 11 23 Gerstein v. CIA, No. C-06-4643 MMC, 2006 WL 3462659 (N.D. Cal. Nov. 29, 2006) ................ 11 24 Golden Gate Restaurant Ass'n v. City and County of San Francisco, 512 F.3d 1112 (9th Cir. 2008) .................................................................................................................................................. 4 25 Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466 (9th Cir. 1984) ...................................... 7 26 Hilton v. Braunskill, 481 U.S. 770 (1987) ...................................................................................... 4 27 Humane Soc'y of the United States v. Gutierrez, 523 F.3d 990 (9th Cir. 2008) ............................... 4 28 - ii - OPPOSITION TO MOT. FOR A 60-DAY STAY PENDING DETERMINATION OF APPEAL BY SOLICITOR GENERAL Case3:08-cv-02997-JSW Document77 Filed10/06/09 Page4 of 16 1 Hydrick v. Hunter, 466 F.3d 676 (9th Cir. 2006).......................................................................... 10 2 In re Seizure of Approximately 28 Grams of Marijuana, No. 3-01 M 30204 MHP, 2004 WL 2915286 (N.D. Cal. Dec. 16, 2004)............................................................................................ 8 3 Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en banc)............................................................ 10 4 John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989) .......................................................... 7 5 Martin v. IRS, 857 F.2d 722 (10th Cir. 1988) ................................................................................. 7 6 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).................................................................. 11 7 Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374 (9th Cir. 1985).............................. 5 8 Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ........................................ 9 9 People for the Am. Way Found. v. Dep't of Education, 518 F. Supp. 2d 174 (D.D.C. 2007)............ 9 10 Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979)......................................................... 7 11 Richardson v. United States, 841 F.2d 993 (9th Cir. 1988)........................................................... 10 12 Saldate v. Adams, 573 F. Supp. 2d 1303 (E.D. Cal. 2008) .............................................................. 8 13 Senate of the Commonwealth of Puerto Rico v. Dep't of Justice, 823 F.2d 574 (D.C. Cir. 1987)... 10 14 Summers v. Howard University, No. 02-7069, 2002 WL 31269623 (D.C. Cir. Oct. 10, 2002) ........ 4 15 Taylor v. Dep’t of the Army, 684 F.2d 99 (D.C. Cir. 1982)............................................................. 7 16 17 STATUTES AND RULES 18 Fed. R. Civ. P. 62(c) .............................................................................................................. 1, 4, 7 19 OTHER AUTHORITIES 20 Attorney General Eric Holder, Memorandum for Heads of Executive Departments and Agencies re 21 the Freedom of Information Act, March 19, 2009 (available at http://www.usdoj.gov/ag/foia- memo-march2009.pdf)........................................................................................................ 11-12 22 Memorandum for Heads of Executive Departments and Agencies, 74 Fed. Reg. 4683 (Jan. 21, 23 2009) ......................................................................................................................................... 3 24 25 26 27 28 - iii - OPPOSITION TO MOT. FOR A 60-DAY STAY PENDING DETERMINATION OF APPEAL BY SOLICITOR GENERAL Case3:08-cv-02997-JSW Document77 Filed10/06/09 Page5 of 16 1 SUMMARY OF ARGUMENT 2 The Court should deny Defendants’ request for a 60-day stay to decide whether or not they 3 wish to appeal the Court’s September 24, 2009 order. First, the government has failed to show it 4 has a strong likelihood of success on the merits
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