- 3 proceeding, if not deferred, might undermine the party's Fifth The court in Dresser Industries concluded that a stay of the SEC investigation in that case was inappropriate because "no indictment has been returned; no Fifth Amendment privilege is threatened; Rule 16(b) has not come into effect; and the SEC subpoena does not require Dresser to reveal the basis for its defense." Id. at 1376. See also United States v. Private Sanitation Ind. Ass'n, 811 F. Supp. 802, 806 (E.D.N.Y. 1992) ("a stay is most appropriate where the subject matter of the parallel civil and criminal proceeding or investigation is the same and where the government is prosecuting both proceedings.") This case presents an even less compelling basis for a stay than Dresser Industries. In addition to all the elements listed by the D.C. Circuit in Dresser, neither of the parties to this proceeding are either investigating or being investigated as part of the Fiske investigation. Since the proceedings are not truly parallel, a stay would be inappropriate. II. THE FIVE CONSIDERATIONS NORMALLY USED Even if (contrary to fact), this case could be deemed truly parallel to the Fiske investigation, the five part test now used by courts in exercising their discretion to consider stay requests would counsel against staying this case pending the outcome of the Fiske investigation. As recently set forth by Judge Glasser, those elements are: "(1) The private interest of the plaintiffs in proceeding expedi- See also FSLIC v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989) (affirming denial of Nevertheless, the Private Sanitation court applied the five-fold test. It emphasized the "interest of the government, individuals, and corporations that are not parties to this action, and the public at large, in a speedy resolution of this civil action Id. at 807. It minimized the possibility, which is not present in this case, that the defendant would need to invoke the Fifth Amendment, since he had already done - 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 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. |