Leopold v. U.S. Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JASON LEOPOLD et al., ) ) Plaintiffs, ) ) v. ) Case No. 21-cv-0558 (APM) ) U.S. DEPARTMENT OF JUSTICE et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

It should come as no surprise that in the aftermath of the January 6, 2021 attack on the

U.S. Capitol there are demands for public access to records under the Freedom of Information Act

(“FOIA”). This case involves one such demand. Plaintiffs Jason Leopold and Buzzfeed Inc. seek

from “[the Department of Justice (‘DOJ’)] and its 38 components” a broad array of records relating

to the January 6 attack. Compl., ECF No. 1 [hereinafter Compl.], ¶ 7. Defendants in this action

now ask the court to consolidate this case with two others that also request records concerning the

events of January 6: Citizens for Responsibility & Ethics in Washington (CREW) v. Department

of Justice, No. 1:21-cv-572 (RC) (D.D.C.), and American Oversight v. Department of Defense,

No. 1:21-cv-624 (RDM) (D.D.C.). See Defs.’ Mot. to Consolidate Cases, ECF No. 11 [hereinafter

Defs.’ Mot.]. Plaintiffs in all three cases oppose consolidation, see id., and two Plaintiffs have

filed oppositions, see Am. Oversight’s Opp’n to Defs.’ Mot., ECF No. 14 [hereinafter Am.

Oversight Opp’n]; Leopold & Buzzfeed Inc.’s Opp’n to Defs.’ Mot., ECF No. 16.

Federal Rule of Civil Procedure 42(a) permits a court to consolidate cases involving “a

common question of law or fact.” Fed. R. Civ. P. 42(a). The decision to consolidate rests within

the court’s “broad discretion.” Biochem Pharma, Inc. v. Emory Univ., 148 F. Supp. 2d 11, 13 (D.D.C. 2001). In deciding whether consolidation is appropriate, the court should “weigh the risk

of prejudice and confusion wrought by consolidation against the risk of inconsistent rulings on

common factual and legal questions, the burden on the parties and the court, the length of time,

and the relative expense of proceeding with separate lawsuits if they are not consolidated.” Singh

v. Carter, 185 F. Supp. 3d 11, 18 (D.D.C. 2016).

“FOIA-related consolidation cases are not common.” Am. Oversight v. U.S. Dep’t of

Health & Hum. Servs., No. 1:20-cv-947 (TNM), 2020 WL 3469687, at *1 (D.D.C. June 25, 2020).

Courts consider a number of additional factors in making consolidation determinations in FOIA

cases, including: “a comparison of the document-producing government agencies, whether the

requests involve common affiants or documents, the risk of conflicting rulings on disputed

questions, the scope of the FOIA requests, and whether the cases have a common procedural

posture.” Id. (citations omitted). Evaluating those factors here, the court declines Defendants’

request to consolidate.

To begin, a comparison of the document-producing agencies reveals the markedly different

scope of each case. The instant case involves a FOIA request directed at “DOJ and its

38 components.” Compl. ¶ 7. The other two cases involve agencies in addition to DOJ. The

American Oversight action is limited to only two DOJ offices but also includes the Department of

Defense (“DOD”), the National Guard Bureau, the U.S. Army, and the U.S. Secret Service.

Compl., Am. Oversight v. U.S. Dep’t of Def., 21-cv-624 (RDM) (D.D.C. Mar. 9, 2021), ECF No.

1 [hereinafter Am. Oversight Compl.]. The CREW case involves, in addition to documents

requested from DOJ, documents requested from the Department of the Interior (“DOI”), DOI’s

Park Police, the Department of Homeland Security (“DHS”), the Army, and DOD. Compl., CREW

v. Dep’t of Justice, No. 1:21-cv-572 (RC) (D.D.C. Mar. 4, 2021), ECF No. 1. Although “[i]dentity

2 of the parties is not a prerequisite” to consolidation, Nat’l Ass’n of Mortg. Brokers v. Bd. of

Governors of Fed. Rsrv. Sys., 770 F. Supp. 2d 283, 286 (D.D.C. 2011), the disparate agencies

involved portend disputes regarding searches and withholdings that are likely to be unique to each

case.

Next, although the parties acknowledge some overlap in the documents requested, see, e.g.,

Am. Oversight Opp’n at 6, that overlap is likely to be a small percentage of the overall universe

of records sought. The only common request among the three suits has been defined narrowly by

American Oversight, which has directed its request to just two components of DOJ and sought

documents from only specific custodians. See Am. Oversight Compl. ¶¶ 19–24. Thus, outside

some minimal overlap, the three cases will involve differently scoped searches across multiple

different agencies, sub-agencies, and custodians. That reality inevitably will lead to an assortment

of declarants describing varying search protocols and withholdings, should disputes arise. The

court sees little efficiency to be gained when only a small sub-set of records is common among the

three cases.

Defendants fear that non-consolidation risks conflicting rulings, but such a concern at this

juncture is at best speculative. Again, the overlap among the cases is limited, and Defendants have

presented no reason to believe that a dispute is likely to arise as to that group of records.

Finally, although all three cases are in their early stages, and would benefit from a

coordinated approach, consolidation is not necessary to achieve efficiencies. The same defense

counsel from Main Justice has entered an appearance in all three cases, thereby ensuring that the

government will take a uniform approach to these cases across the various agencies and

subcomponents involved.

3 For the foregoing reasons, Defendants’ Motion to Consolidate is denied without prejudice.

Should concrete problems arise that would benefit from consolidation, the court is prepared to

reconsider.

Dated: May 24, 2021 Amit P. Mehta United States District Court Judge