Plaintiffs' Reply In Support of Their Motion to Stay Proceedings

Case 8:12-cv-02297-AW Document 69 Filed 01/07/13 Page 1 of 5IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLANDSENIOR EXECUTIVESASSOCIATION, et al.,Plaintiffs,v.UNITED STATES OF AMERICA, et al.,Civil Action No. 8:12-cv-02297-AWDefendants.INTERNATIONAL FEDERATION OFPROFESSIONAL & TECHNICALENGINEERS, et al.,Plaintiffs,v.Civil Action No. 8:12-cv-03448-AWUNITED STATES OF AMERICA, et al.,Defendants.PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO STAY PROCEEDINGSThe reason for Plaintiffs’ Motion to Stay is clear: staying proceedings until thecongressionally-mandated STOCK Act report is issued will preserve judicial resources.Defendants oppose a stay, incorrectly arguing that “Plaintiffs Do Not Offer a Single Reason inSupport of Their Motion.” Int’l Fed’n of Prof’l & Technical Eng’rs, et al. v. United States ofAmerica, et al. (“IFPTE v. U.S.”), Opp’n of Def. Haas, Clerk of the U.S. House ofRepresentatives, to Pls.’ Mot. to Stay Proceedings [ECF No. 25] at 2; see also IFPTE v. U.S.,United States’ and Senate Defs.’ Opp’n to Pls.’ Mot. to Stay [ECF No. 26] at 1 (“Plaintiffsprovide no reasoning or authority to support their request”); Senior Executives Ass’n, et al. v.

Case 8:12-cv-02297-AW Document 69 Filed 01/07/13 Page 2 of 5United States of America, et al. (“SEA v. U.S.”), Government’s Opp’n to Mot. to Stay [ECF No.65] at 1 (same). However, Plaintiffs respectfully submit that the reasoning behind their motionwas quite obvious and consistent with their previous arguments regarding conservation ofjudicial resources, and should come as no surprise to Defendants. In fact, Plaintiffs’ motionexpressly states that it was made “[i]n light of today’s enactment of a law extending the deadlinefor Internet publication of plaintiffs’ personal financial information under the STOCK Act toApril 15, 2013.” Pls.’ Mot. to Stay Proceedings [SEA v. U.S ECF No. 58; IFPTE ECF No. 18].As Plaintiffs have continually argued, it would be a waste of judicial resources to litigateissues that may be obviated or, at the very least, altered by anticipated legislative action. See,e.g., Legend Night Club v. Miller, 637 F.3d 291, 296 (4th Cir. 2011) (district court stayed casesinvolving First Amendment claims, “recognizing that they may be affected, and possibly mooted,by action in the next session of the Maryland Legislature”) (internal quotation marks omitted);see also Order Staying Cases at 1, Legend Night Club v. Ehrlich, No. MJG-05-2138 (D. Md.July 17, 2006) (ECF No. 63) (“It appears that the State would prefer to defer litigation of theinstant cases pending the next session of the Maryland Legislature. The State’s position isperfectly reasonable. The Legislature may well moot the instant case by amending or rescindingthe statute at issue herein.”). None of the cases presented by Defendants provide otherwise, oreven involve anticipated legislative action. In SEA v. U.S., Defendants themselves agreed inprior briefing that “[j]udicial economy . . . appropriately may be considered in the context ofstaying judicial proceedings.” 1 This Court has previously stayed the parties’ briefing in SEA v.1SEA v. U.S., Defs.’ Opp’n to Pls.’ Mot. for a Temp. Prelim. Inj. [ECF No. 24] at 6 (“Judicial economythus appropriately may be considered in the context of staying judicial proceedings. If the Courtcredits Plaintiffs’ speculation that, later this month, Congress likely will amend the statutory provisionchallenged here and determines that a stay of proceedings is warranted, the government is not opposedto that result.”) (footnote omitted).2

Case 8:12-cv-02297-AW Document 69 Filed 01/07/13 Page 3 of 5U.S., to allow time to determine if anticipated congressional action would moot the parties’dispute. 2 Plaintiffs’ motion to stay proceedings would preserve judicial and the parties’ resources,while Congress reconsiders relevant sections of the STOCK Act, Pub. L. No. 112-105, 126 Stat.291 (2012). The parties have known since September 28, 2012, that Congress directed theOffice of Personnel Management to contract with the National Academy of PublicAdministration (the “National Academy”) to conduct a study regarding the very issues raised bythese actions in the ensuing six months. 3Particularly, Congress mandated that the NationalAcademy examine, “the nature, scope, and degree of risk, including risk of harm to nationalsecurity, law enforcement, or other Federal missions and risk of endangerment, including topersonal safety and security, financial security (such as through identity theft), and privacy, ofofficers and employees and their family members, that may be posed by website and otherpublication of financial disclosure forms and associated personal information.” 4The NationalAcademy’s report based on the study is due March 28, 2013. 5Last month, Congress passed and the President signed into law a bill that extended thedeadline for Internet publication of Plaintiffs’ personal financial information under the STOCKAct beyond the National Academy report due date, to April 15, 2013. 6Thus, there is approximately a two-and-a-half-week window between the deadline for theissuance of the National Academy report and the new Internet publication deadline. Plaintiffs’suggestion of April 1, 2013, as the date by which the parties must file status reports with the23456See SEA v. U.S., Order [ECF No. 27] at 3.See Pub. L. No. 112-178, § 2, 126 Stat. 1408, 1408-09 (2012).Id. at § 2(b)(1).See id. at § 2(c).See Pub. L. No. 112-207, 126 Stat. 1495 (2012).3

Case 8:12-cv-02297-AW Document 69 Filed 01/07/13 Page 4 of 5Court regarding what, if any, further proceedings they believe may be necessary, is accordinglynot arbitrary. It will, Plaintiffs hope, provide the parties with adequate time to obtain and reviewthe National Academy report and learn about possible related Congressional action. It will alsoprovide the Court two weeks to hold a hearing or telephonic conference regarding how toproceed in these actions, in light of the National Academy report and any potentialCongressional action. Continuing to litigate in the interim would be inefficient, because nomatter how well researched or how well reasoned the parties’ briefs may be, they may becomeirrelevant if the STOCK Act is subsequently amended before the Court needs to rule.Defendants’ claims that they would somehow be prejudiced by a stay are withoutsubstance; 7 they would simply be relieved of the burden of doing work now that they might, ormight not, ever have to do later.7Defendants’ case, Ferlita v. Ferlita, 09 Civ. 3769 (BSJ) (MHD), 2010 WL 4668967, at *5 (S.D.N.Y.Nov. 8, 2010), does not support the notion that there is prejudice here. Ferlita does not deal with anyalleged prejudice related to a motion to stay proceedings in anticipation of congressional action thatmight moot or alter proceedings; rather, it addresses prejudice to defendants related to the plaintiffs’motion to reopen the discovery period, to serve interrogatories and document requests beyond thosepreviously served, on plaintiff’s “vague contention” that his predecessor counsel failed to do anadequate job in pursuing discovery. Id.4

Case 8:12-cv-02297-AW Document 69 Filed 01/07/13 Page 5 of 5ConclusionFor the reasons given above, Plaintiffs’ motion to stay proceedings should be granted.Dated: January 7, 2013Respectfully Submitted,/s/ Daron T. Carreiro_______________________Jack McKay (D. Md. Bar No. 05628)Thomas G. AllenDaron T. Carreiro (D. Md. Bar No. 18075)Kristen E. BakerBenjamin J. CotePILLSBURY WINTHROP SHAW PITTMAN LLP2300 N Street, NWWashington, D.C. 20037Office: (202) 663-8000Fax: (202) 663-8007Email: jack.mckay@pillsburylaw.comthomas.allen@pillsburylaw.comdaron.carreiro@pillsburylaw.comkristen.baker@pillsburylaw.combenjamin.cote@pillsburylaw.com/s/ Arthur B. Spitzer____________________Of counsel: Arthur B. Spitzer (D. Md. Bar No. 08628)Deborah A. JeonAmerican Civil Liberties UnionACLU Foundation of Maryland of the Nation’s Capital3600 Clipper Mill Road, Suite 350 4301 Connecticut Avenue, N.W., Suite 434Baltimore, Maryland 21211 Washington, DC 20008Office: 410-889-8550 x 120 Office: (202) 457-0800Fax: 401-366-7838 Fax: (202) 457-0805Email: jeon@aclu-md.org Email: artspitzer@aclu-nca.orgCounsel for Plaintiffs5