Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, PLAINTIFF vs. DEPARTMENT OF JUSTICE, DEFENDANT Civil Action No. 1:15-cv-2117 (RDM MOTION TO SHOW CAUSE On March 25, 2016, Defendant filed a Motion for Summary Judgment (ECF No. 7, and supporting documents (ECF Nos. 7-1, 7-2, 9, 9-1. The same day Defendant also filed a Notice of Lodging of Classified, In Camera, Ex Parte Declaration. (ECF No. 8. The notice indicates that Defendant is lodging with the Department of Justice s Classified Information Security Office ( CISO a classified declaration for the Court s in camera, ex parte review in support of Defendant s Motion for Summary Judgment. (ECF No. 8. On April 10, 2016, Plaintiff requested that Defendant voluntarily file a redacted version of the classified, ex parte declaration referenced in the Notice filed as ECF No. 8 on the public docket for Plaintiff's full consideration of Defendant's arguments in support of its summary judgment motion. On April 13, 2016, Defendant declined to do so, and stated its opposition to this motion. Defendant has submitted an in camera, ex parte declaration without having previously obtained leave of Court to do so. Plaintiff respectfully requests that Defendant 1

2 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 2 of 7 be ordered to show good cause why it should not be required to file a redacted version of the classified in camera, ex parte declaration so that the unclassified portion will be on the public record. In the meantime, Plaintiff respectfully requests that this Court not review the declaration until Plaintiff has had an opportunity to respond to any arguments made by Defendant as to why a redacted version of the classified ex parte submission for in camera review should not be placed on the public docket. Alternatively, Plaintiff respectfully requests that the Court strike the in camera, ex parte declaration. Dated this 19 th day of April Respectfully, Submitted /s/ Ryan S. James Ryan S. James D.C. Bar # Capricorn Loop Killeen, TX ( RSJameslaw@gmail.com Jeffrey L. Light D.C. Bar # Eye St., NW Suite 915 Washington, DC ( Jeffrey@LawOfficeOfJeffreyLight.com Counsel for Plaintiff 2

3 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 3 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, PLAINTIFF vs. DEPARTMENT OF JUSTICE, DEFENDANT Civil Action No. 1:15-cv-2117 (RDM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SHOW CAUSE Defendant made a unilateral decision to submit a classified declaration ex parte for in camera review. Defendant did not obtain permission from this Court, precluding the Court from determining whether the submission was proper. Plaintiff therefore respectfully requests that Defendant be ordered to show good cause why it should not be required to place a redacted version of the classified in camera, ex parte declaration on the public docket, or alternatively that the declaration be stricken. Defendant never contacted counsel for Plaintiff to request permission to file the declaration ex parte for in camera review, or advised counsel for Plaintiff of its intent to do so. Instead, Defendant submitted the declaration ex parte for in camera review without requesting permission from the Court or providing Plaintiff with an opportunity to object. Plaintiff now moves the Court for an order to show cause why a redacted version of the classified ex parte declaration should not be placed on the public docket. Such an order will allow the public record to be as complete as possible, containing either a redacted version of the declaration, or alternatively the reasons why a redacted version of 3

4 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 4 of 7 the declaration cannot be placed on the public docket. Such an order is necessary both to ensure public access to judicial records and to minimize the disruption to the adversarial nature of civil litigation caused by ex parte filings. Alternatively, Plaintiff respectfully requests that the Court strike the in camera, ex parte declaration. Additionally, Plaintiff respectfully requests that this Court not consider the ex parte declaration until the Court has ruled on this motion. The D.C. Circuit has made clear that the use of in camera affidavits has generally been disfavored. Case law in this Circuit is clear that when a district court uses an in camera affidavit, it must both make its reasons for doing so clear and make as much as possible of the in camera submission available to the opposing party. Armstrong v. Executive Office of the President, 97 F.3d 575, 580 (D.C. Cir In Lykins v. United States Dep t of Justice, 725 F.2d 1455, (D.C. Cir the D.C. Circuit provided the following guidance: The legitimacy of accepting in camera affidavits (as opposed to in camera review of withheld documents has troubled this court in the past. Although in camera review of withheld documents is permissible (and even encouraged, we have held that a trial court should not use in camera affidavits unless necessary and, if such affidavits are used, it should be certain to make the public record as complete as possible. We have permitted such in camera affidavits in national security cases, and have stated that the use of such affidavits is at the discretion of the trial court. As appellees contend, we have never limited the use of in camera affidavits to national security cases, but we have expressed reservations about such use in cases which do not involve national security. When a trial court does make use of in camera affidavits, it must see to it that such use is justified to the greatest extent possible on the public record, and must then make available to the adverse party as much as possible of the in camera submission. The above standards concerning the use of in camera affidavits arise from the judicial system's interest in an effective adversary system. In Vaughn we emphasized the crucial importance of providing as much information as possible to FOIA plaintiffs, so that the adversary system can function effectively in assisting the trial court to make a determination and producing a record that is susceptible to appellate review. Even in cases in which we have permitted in camera affidavits, we have noted that they are only permissible if the interests of the adversary process are outweighed by other 4

5 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 5 of 7 crucial interests. In this case the District Court s failure to hold the government to the accepted standards for submission of in camera affidavits made it impossible for the adversary system to function effectively in the District Court.... Furthermore, there was no finding (and no basis in the record for a finding that the government had a crucial interest in secrecy in this case that outweighed the importance of an effectively functioning adversary system and that would therefore justify circumvention of that system in this case. We therefore hold that the proper predicates for acceptance of in camera affidavits were not met in this case, and the District Court should not have relied upon the in camera Marble affidavit in reaching its decision. (Citations omitted. Because Defendant submitted the declaration ex parte for in camera review without prior permission from the Court, or opportunity for Plaintiff to be heard, there is no public record justifying the need for such secrecy of the portions that are not classified, or for the court to rule on the lawfulness of the Defendant s nondisclosure. Defendant s conduct in this case is similar to that of the defendants in Parisi v. Rochester Cardiothoractic Assocs., 159 F.R.D. 406 (W.D.N.Y In Parisi, the defendants submitted a letter to the court which, without prior application, enclose[d], ex parte, a copy of the requested discovery, an index. Id. at 407. The defendants gave notice of the ex parte submission to the opposing party, but did not indicate whether opposing counsel had agreed to the submission. Id. The court noted that the manner of submission of the index gave no opportunity to be heard on the question whether in camera submission is appropriate or desirable in the circumstances. Id. The court recognized the due process concerns of in camera review which concerned the Supreme Court in United States v. Zolin, 491 U.S. 554 (1989 would become even more stark when an attempt is made by one party to submit matters in camera without advance notice to the opposing party that in camera review will be sought. Parisi, 159 F.R.D. at 407. Accordingly, the court rejected the ex parte submission and required defendants to 5

6 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 6 of 7 make application on notice, with an opportunity to be heard, for in camera review. Id. at 408. Defendant should have provided notice to allow the plaintiff[] to object to the in camera proceeding before it occurred. Bareford v. General Dynamics Corporation, 973 F.2d 1138, 1145 (5th Cir As the Seventh Circuit has explained: A designation of an affidavit as in camera did not render that affidavit judicially sealed or trigger an in camera review by the district judge. An in camera review requires much more. The properly limited use of in camera review typically occurs during the course of litigation and requires adversarial safeguards. Initially, a party seeking a in camera review of any material must give appropriate notice of such a request to the opposing party as well as the court. Once the purpose for the in camera review is explained, the opposing party has an opportunity to respond, and the court may then either accept or reject the review proposal. If the court agrees to an in camera review, the moving party submits the material to the judge with such submission noted on the docket. The judge makes his in camera review. Then, depending on the judge s findings, and the terms of submission outlined by him, the material may be ordered sealed. Whether sealed or unsealed, the material is preserved as a part of the court record. Of course, variations of this method may be provided by the district judge. United States v. Hall, 854 F.2d 1036, 1042 (7th Cir In another case involving conduct similar to that engaged in by the Defendant here, a party incorrectly submitted the affidavit of Mark Wentzel to the court ex parte without seeking leave to do so. Williams v. Bd. of Trs. for the Univ. of Conn., 2008 U.S. Dist. LEXIS 8956, at *1 (D. Conn. Feb. 7, The court refused to review or open the ex parte submission and returned it to counsel for the defendants. Id. at *1-*2. The court instructed that if the defendants still wished to rely upon the affidavit, they may either file the unredacted affidavit as a supplement to their filing or they may move for a sealing order or in camera review of the affidavit in compliance with local rules which set forth procedural guidelines for sealing motions and permit a sealing order only upon particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons. Id. at *2. The consequence of 6

7 Case 1:15-cv RDM Document 11 Filed 04/19/16 Page 7 of 7 Defendant s failure to file a motion for leave to file should therefore be the placement of the unclassified portions of the declaration on the public record, or alternatively, that the declaration be stricken. This Court should reject Defendant s attempt to submit the entirety of the declaration ex parte for in camera review and Defendant should be ordered to show cause why it should not be required to place a redacted version of the classified in camera, ex parte declaration on the public docket, or, alternatively, the declaration should be stricken, because Defendant s actions are not permitted by the local rules and are inconsistent with basic notions of due process. Dated: April 19, Respectfully Submitted, /s/ Ryan S. James Ryan S. James D.C. Bar # Capricorn Loop Killeen, TX ( RSJameslaw@gmail.com Jeffrey L. Light D.C. Bar # Eye St., NW Suite 915 Washington, DC ( Jeffrey@lawofficeofjeffreylight.com Counsel for Plaintiff 7