Opinion
Civil Action No. 01-1163 (RMU/JMF)
March 11, 2002
REPORT AND RECOMMENDATION
Plaintiff brings this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C.A. § 552 (1996), seeking documents maintained by the Department of Justice's ("DOJ") Office of Professional Responsibility ("OPR"). In another case, Judge Urbina accepted my Report and Recommendation that plaintiff's motions for a protective order and for contempt be denied. Report and Recommendation, Civ. No. 86-3220 (JMF) (D.D.C. September 19, 2001). Plaintiff has appealed from Judge Urbina's order and that matter is pending before the Court of Appeals.
My Report and Recommendation details the nearly endless battle between plaintiff and the DOJ that erupted after the Antitrust Division fired plaintiff. Crucial to that battle has been the production of documents within the Department pertaining to the decision to fire plaintiff. As I explained in that Report and Recommendation, plaintiff's earlier FOIA request led to the production of a redacted report by OPR. This report addressed plaintiff's allegations that a grand jury investigation into a merger between two Ohio newspapers was improperly obstructed by the DOJ. Plaintiff then relied on the redacted report as the basis for his attempt to overturn an order by the late Judge Gesell granting defendant's motion for summary judgment. I rejected plaintiff's de facto effort to reopen the case, and Judge Urbina adopted my Report and Recommendation.
DISCUSSION I. Motion for Vaughn Index
Plaintiff has moved for a Vaughn index, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). TheVaughn index describes each withheld document and explains the justification(s) for its withholding. Although plaintiff may be entitled to a Vaughn index at some point in this proceeding, the instant question is whether defendant must produce this index prior to the summary judgment stage. In the ordinary FOIA case, a Vaughn index is produced in conjunction with the defendant's summary judgment motion. Plaintiff offers no reason why the index should be produced at this earlier stage. The only case law cited in support of an advance index, Spirko v. United States Postal Service, 147 F.3d 992 (D.C. Cir. 1998), offers no such precedent, for it does not speak to this issue in any way. Other case law supports the defendant's position that production of a Vaughn index prior to the summary judgment stage is premature. United States Committee on Refugees v. Dept. of State, 1992 WL 35089 (D.D.C. 1992) ("The preparation of a Vaughn index is unwarranted before the filing of dispositive motions in FOIA actions because the filing of a dispositive motion, along with detailed affidavits, may obviate the need for indexing the withheld documents." Stimac v. United States Dept. of Justice, 620 F. Supp. 212, 213 (D.D.C. 1985)); See also Miscavige v. Internal Revenue Service, 2 F.3d 366, 369 (11th Cir. 1993).
If plaintiff is insistent on moving this case forward, he should request a status hearing and a deadline for defendant to submit its dispositive motion. Early production of a Vaughn index is not the appropriate vehicle for a speedy resolution of the matter, and I therefore recommend that plaintiff's Motion for Vaughn Index [#3] be DENIED.
II. Defendant's Object to Related Case Designation
Defendant objects to plaintiff's Notice of Related Case Designation under LCvR 40.5. Plaintiff asserts that the instant case is related toTwist v. Ashcroft, Civ. No. 86-3220 because they involve "common issues of fact" and "grow out of the same event or transaction." Defendant contends that, because this is a FOIA case, it involves an entirely different set of legal and factual issues than the previous cases.
Plaintiff also describes a grand jury investigation, Grand Jury 85-G-1, as related, but the rule refers only to civil cases.
First, defendant has the better point that the two cases do not involve common issues of fact. While it may help in the understanding of this case to know the facts of Civ. No. 86-3220, this case will be resolved on issues of law, i.e., the validity of whatever exemptions the defendant claims. It is a rare FOIA case in which there is a genuine issue of material fact and this does not appear to be one of them.
On the other hand, I do believe that this case and the other grow out of the same event and transaction, i.e., the DOJ's firing of plaintiff. As defendant correctly points out, random assignment is the rule and related cases the exception. Yet, there is an interest in judicial efficiency that is advanced by a judge's familiarity with certain central facts that, at least, spares another judge from having to start at ground zero. If, as I suppose, Judge Urbina refers defendant's ultimate dispositive motion in the FOIA case to me, I am certain that my running start will permit me to finish more quickly than another judge or magistrate judge. In a case that is related to a 1986 case, I have to conclude that the interest in judicial efficiency trumps the interest in random assignment. Simply put, I am half way up the hill and I cannot see why another judge or magistrate judge should have to start at the bottom. I therefore recommend that Defendant's Objection Under LCvR 40.5 to Related Case Designation [#6] be DENIED.
I remind both parties that, under LCVR 72.3(b), they must file written objections to this Report and Recommendation within 10 days after being served with a copy. Objections must "specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection." LCVR 72.3(b). Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn, 474 U.S. 140 (1985).
DATED: