Case 1:08-cv-01046-JDB Document 42 Filed 11/05/2009 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON,

Plaintiff,
v. Civil Action No. 08-1046 (JDB)
U.S. DEPARTMENT OF HOMELAND
SECURITY,

Defendant.

ORDER

Before the Court is [39] the Department of Homeland Security's motion for a stay

pending appeal of the Court's September 1, 2009 Order. The Department is appealing the Court's

order insofar as it requires disclosure of certain previously-redacted documents pursuant to

FOIA. See Def.'s Notice of Appeal [Docket Entry 38]. The Department seeks a stay pending

appeal of that part of the Court's order, as well as the part requiring the filing of a supplemental

Vaughn index and supporting memorandum of law as to other documents. See Def.'s Mem. of P.

& A. in Supp. of Stay Pending Appeal [Docket Entry 39], at 1; see also September 1, 2009 Order

[Docket Entry 36], at 1-2.

According to the Department, a stay of the Court's order to disclose documents is

appropriate because "[r]elease of the information at issue . . . will render any appeal by the

government moot." Id. at 2. The harm, therefore, "would be irreparable." Id. Further, "good

cause" exists to stay the Vaughn filings "because the decision to withhold this information is

necessarily related to the appeal of the Court's Order requiring disclosure of the eight previously-
 Case 1:08-cv-01046-JDB Document 42 Filed 11/05/2009 Page 2 of 3

redacted records under the same FOIA exemption." Id. at 1 n.1.

For its part, plaintiff opposes the Department's motion only insofar as it seeks a stay of

the supplemental filings. They contend that it is "hard to fathom how defendant could

demonstrate 'irreparable injury' by complying with a routine requirement to submit additional

information in support of its still-pending summary judgment motion." Id.

A stay of the order requiring disclosure of the previously-redacted documents is

warranted. Requiring disclosure would render moot the Department's right to "to have [its]

case[] independently reviewed by an appellate tribunal." Providence Journal Co. v. FBI, 595

F.2d 889, 890 (1st Cir. 1979). This is sufficient irreparable injury to require a stay pending

appeal. See id. (if the documents are surrendered before review, "[t]he status quo could never be

restored"); see also DOJ v. Rosenfeld, 501 U.S. 1227, 1227 (1991) (mem.) (disclosure of

documents before appeal would moot appeal of order requiring disclosure); John Doe Agency v.

John Doe Corp., 488 U.S. 1306 (1989) (Marshall, Circuit Justice) (same). Plaintiff concedes as

much by not challenging this aspect of the Department's motion.

The Department's request to stay the Vaughn filings is unavailing, however. These filings

do not require disclosure of any documents; rather, the filings are further briefing in support of a

still-pending summary judgment motion. The Court ordered the briefing because the

Department's initial filing failed to provide "detailed information to demonstrate that it [had] met

FOIA's 'segregability' requirement." Citizens for Responsibility and Ethics in Washington v.

DHS, --- F. Supp. 2d ---, 2009 WL 2750486, at *9 (D.D.C. 2009). And although the exemptions

that the supplemental Vaughn index explains may be "related" to the Department's appeal, the

Court is not persuaded that it should indefinitely delay consideration of the still-pending

summary judgment motion.

 Case 1:08-cv-01046-JDB Document 42 Filed 11/05/2009 Page 3 of 3

Therefore, upon consideration of the Department's motion for a stay pending appeal,

plaintiff's opposition, the several memoranda, and the entire record herein, it is hereby

ORDERED that the Department's motion for a stay pending appeal is GRANTED in

part and DENIED in part; it is further

ORDERED that the motion is GRANTED with respect to the requirement that the

Department disclose the eight previously-redacted documents; it is further

ORDERED that the motion is DENIED with respect to the requirement that the

Department file a supplemental Vaughn index and supporting memorandum; it is further

ORDERED that the Department shall file its supplemental Vaughn index and supporting

memorandum by not later than November 27, 2009. Plaintiff shall file its response, if any, by not

later than December 11, 2009. Both memoranda may not exceed fifteen (15) pages; and it is

further

ORDERED that the Department shall file a report on the status of its appeal by not later

than November 27, 2009.

SO ORDERED.

/s/
JOHN D. BATES
United States District Judge

Dated: November 5, 2009