- 5 so in other situations. Finally, the court observed that "convenience of the courts is best served when motions to stay proceedings are discouraged." Id. at 808. Based upon these reasons, the court denied the motion for stay. In this case, the five-fold test clearly argues against a stay. First, Congressman Leach has undeniable oversight responsibilities for Defendants imposed by the Constitution, statute, and House rules. Since it is imponderable how long the Fiske investigation will go on, a stay of this proceeding pending completion of that investigation could delay this lawsuit for much of the coming decade. Second, this litigation will impose no substantial burden on Defendants, who at most will be required to copy the documents already gathered. Third, although Plaintiff does not minimize the effort that will be required by the Court to resolve this matter, the Court has demonstrated substantial familiarity with the issues already, and the matter is poised for resolution. Fourth, persons not parties to this litigation are intensely interested in resolution, as shown by the substantial and continuing media interest in this matter. Finally, the public interest would be best served by allowing the litigation to proceed, and requiring disclosure pursuant to the Freedom of Information Act. See e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 290 n.10 (1979) ("disclosure, not secrecy, is the dominant objective" of FOIA). A stay should, we respectfully submit, be rejected. ข The Court can take judicial notice that the investigation by Independent Counsel Lawrence Walsh consumed seven years. - 6 III. THIS COURT HAS ALREADY PROCEEDED TO THE EXISTENCE OF A CLOSELY RELATED This Court has proceeded to the merits of a FOIA lawsuit despite the existence of a related criminal proceeding. In Crowell & Moring v. Department of Defense, 702 F. Supp. 1004, 1005 (D.D.C. 1989) (Richey, J.), the Court addressed a FOIA request to the Department of Defense by a law firm representing a corporate client then under investigation by the Department for potential criminal activity. The Court proceeded to the merits, finding certain FOIA exemptions relating to law enforcement applicable. As here, neither party requested a stay, even though the evident purpose of the FOIA request was to obtain information about the criminal investigation. The case for proceeding to the merits is far stronger here because none of the parties in this case is involved in the criminal investigation, whereas in Crowell & Moring both were. Cf. in Durham v. Department of Justice, 829 F. Supp. 428 (D.D.C. 1993) (Richey, J.) (ruling on a request under FOIA by a convicted murderer for investigative records pertaining to the murder for which he was convicted). In this case, of course, the exemptions from disclosure are not applicable. See Murphy v. Department of the Army, 613 F.2d 1151 (D.C. Cir. 1979). Nevertheless the willingness of this Court to consider other FOIA cases on the merits -7. despite pending criminal proceedings further indicates that a stay of this action would be inappropriate. CONCLUSION For the foregoing reasons, Plaintiff respectfully urges this Court to exercise its discretion and decline to stay this case, to address the merits, and to grant Plaintiff's motion for summary judgment. Respectfully submitted, Bobby R Burchfield 1201 Pennsylvania Ave., N.W. Washington, D.C. 20044-7566 Attorneys for Plaintiff Dated: July 15, 1994 At argument, the Court asked for comment on Public Citizen v. United States Trade Representative, 5 F.3d 549 (D.C. Cir. 1993). In that case, the D.C. Circuit held that the U.S. Trade Representative's completion of negotiations of the North American Free Trade Agreement did not constitute "final agency action" that was reviewable under the Administrative Procedure Act, 5 U.S.C. § 702. Rather, the final action would occur when the President presented the treaty to Congress; since the President is not an "agency" under the APA, his "action [was] clearly not reviewable under the APA." Id. at 552. Thus, "the judiciary has no role to play," id. at 553, because actions of the President (as opposed to agencies), are not subject to judicial review under the APA. In contrast, there is no question that the agencies' actions here are final and reviewable under both FOIA and the APA. CERTIFICATE OF SERVICE I hereby certify that I have caused true and correct copies of the foregoing Plaintiff's Supplemental Memorandum With Regard To Parallel Criminal and Civil Proceedings to be hand-delivered to the following parties, on this 15th day of July, 1994: Kirk K. Van Tine Jesse R. Adams III BAKER & BOTTS, L.L.P. The Warner 1299 Pennsylvania Avenue, N.W. Elizabeth R. Moore OFFICE OF THRIFT SUPERVISION 1700 G Street, N.W. Washington, DC. 20552 John C. Binkley RESOLUTION TRUST CORPORATION 801 17th Street, N.W. Washington, D.C. 20434-0001 Bill Bowm Bobby R. Burchfield |