UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) NATIONAL SECURITY COUNSELORS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No.: 1:12-cv-284 (BAH)
)
CENTRAL INTELLIGENCE AGENCY, )
)
and )
) OFFICE OF THE DIRECTOR OF NATIONAL )
INTELLIGENCE, )
)
Defendants. )
)
DEFENDANTS’ OBJECTION TO PLAINTIFFS’ NOTICE OF RELATED CASE Plaintiffs allege that this case involves “common issues of fact” with three other cases pending before Judge Beryl A. Howell and therefore should be assigned to her as a related case. See Notice of Designation of Related Civil Cases (“Pls.’ Notice”), Feb. 22, 2012, ECF No. 2. Plaintiffs’ cases, however, do not meet the standard required by the related case rule. The claims here have only the most tenuous connection to the allegedly related cases, and plaintiffs have demonstrated a repeated pattern of judge-shopping. Accordingly, this case should be transferred to the Calendar and Case Management Committee for reassignment in the ordinary fashion.
BACKGROUND
In this case, National Security Counselors and three other plaintiffs bring twenty-four counts against the Central Intelligence Agency (“CIA”) and the Office of the Director of
regarding the mandatory declassification review process established by executive order. Upon filing this case, plaintiffs declared it to be related to three FOIA cases filed by National Security Counselors on February 28, 2011. See Pls.’ Notice.
National Security Counselors, through its executive director Kelly McClanahan, regularly employs related case designations in his frequent lawsuits against government agencies,
primarily under the Freedom of Information Act (“FOIA”). See Leopold v. CIA, No. 1:12-cv-245, Doc No. 2 (D.D.C. Feb. 14, 2012) (identifying two cases assigned to Judge Howell as related); Mobley v. Dep’t of Homeland Security, No. 1:11-cv-2074, Doc. No. 6 (D.D.C. Nov. 22, 2011) (identifying case assigned to Judge Howell as related); Mobley v. Dep’t of Defense, No. 1:11-cv-2073, Doc No. 5 (D.D.C. Nov. 22, 2011) (identifying case assigned to Judge Howell as related); Mobley v. CIA, No. 1:11-cv-2072, Doc No. 6 (D.D.C. Nov. 22, 2011) (identifying case assigned to Judge Howell as related); Nat’l Security Counselors v. CIA, Nos. cv-443, 1:11-cv-444, 1:11-cv-445, Doc. Nos. 2 (D.D.C. Feb. 28, 2011) (identifying three cases filed the same day as related to each other); Quick v. U.S. Dep’t of Commerce, No. 1:09-cv-2064, Doc. No. 3 (D.D.C. Dec. 28, 2009) (identifying one related case); Koch v. Shapiro, No. 1:09-cv-1225, Doc. No. 2 (D.D.C. July 1, 2009) (identifying eight related cases).
reproducible in electronic format,” plaintiffs describe the justifications provided by the CIA in the earlier cases for that conclusion, stating “[s]ee generally CIA’s filings in Case Nos. 11-443, 11-444.” Am. Compl. ¶ 135. And in Count 22 plaintiffs explain that because they were not satisfied with the CIA’s response to one FOIA request subject to litigation in Case No. 11-444, they filed a new FOIA request for some of the same information, which they seek to litigate in this new case. See Am. Compl. ¶ 187.
ARGUMENT
The Court’s default rule for assigning cases states that “[e]xcept as otherwise provided by these Rules, civil, criminal and miscellaneous cases shall be assigned to judges of this court selected at random . . . .” LCvR 40.3(a). The rule’s importance has been described by the Court’s Calendar Committee:
The fundamental rationale for the general rule requiring random assignment of cases is to ensure greater public confidence in the integrity of the judicial process. The rule guarantees fair and equal distribution of cases to all judges, avoids public perception or appearance of favoritism in assignments, and reduces opportunities for judge-shopping.
Tripp v. Executive Office of the President, 196 F.R.D. 201, 202 (D.D.C. 2000). A limited exception to the general rule is set out in Local Rule 40.5, known as the “related case rule,” for instances where “the interests of judicial economy . . . outweigh the fundamental interests served by the random assignment rule.” Lucas v. Barreto, No. 04-1262, 2005 WL 607923, at *3
underlying statute” then “there is substantial overlap in both the factual underpinning and the legal matters in dispute,” and judicial economy is served by assignment to a single judge. See Autumn Journey Hospice, Inc. v. Sebelius, 753 F. Supp. 2d 135, 140 (D.D.C. 2010).
When filing a new case, plaintiffs are required to identify any allegedly related cases, and defendants must provide their objection with their first responsive pleading or motion. LCvR 40.5(b)(2). However, the burden to demonstrate relatedness lies with the party seeking to avoid random assignment. See Autumn Journey, 753 F. Supp. 2d at 140. Here, plaintiffs allege that this case is related because it shares “common issues of fact” with the three previous cases. See Pls.’ Notice.
“[a]ny common issues of fact are minimal and completely insufficient to meet plaintiff’s burden.” Dale, 121 F. Supp. 2d 35, 37 (D.D.C. 2000); see also Howard v. Gutierrez, 405 F. Supp. 2d 13, 15 (D.D.C. 2005) (rejecting related case designation where “the situations are factually distinct” even though involving the same lead plaintiff and same defendant). The tenuous relationship and minimal common issues of fact between this case and the prior cases render it unfit for related case treatment.
Further, the fact that the CIA’s actions in processing FOIA requests are at issue in each of these cases is not a sufficient “common issue of fact.” See, e.g., Dale, 121 F. Supp. 2d at 37 (holding that cases were not related “merely because all these cases involved the denial of a Privacy Act request” by the same agency). Nor is the fact that the defendant in the prior cases has already explained the operation of the CIA’s procedures at some length. See Am. Compl. ¶ 135. This is similar to the rejected argument that a new case should be related because discovery would overlap with the extensive discovery in a prior case that “consumed much judicial time and effort.” Tripp, 196 F.R.D. at 202. The Calendar Committee rejected this argument for several reasons, including that such a rule “could well lead to one judge being inundated with cases which might have only a tangential discovery connection, but no direct factual nexus, to the central allegations of the primary case.” Id. at 202-03. The same danger applies here because plaintiffs continue to press the same sort of arguments about the CIA’s handling of FOIA requests, and the mere similarity of the arguments should not force one judge to handle dozens or hundreds of utterly distinct FOIA requests.
behavior by National Security Counselors exhibits the very appearance of judge-shopping that the random assignment rule is intended to avoid. See id. at 202 (identifying as one of “the important goals” of the rule to “avoid any appearance of judge-shopping”).
For the foregoing reasons, defendants respectfully request that plaintiffs’ lawsuit be transferred to the Calendar and Case Management Committee for reassignment in the ordinary fashion.
Dated: March 30, 2012 Respectfully submitted, STUART F. DELERY
Acting Assistant Attorney General RONALD C. MACHEN
United States Attorney ELIZABETH J. SHAPIRO Deputy Director
Civil Division
/s/ Galen N. Thorp________________ GALEN N. THORP (VA Bar # 75517) Trial Attorney
United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Room 6140
Washington, D.C. 20530 Tel: (202) 514-4781 Fax: (202) 616-8460
