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Friday, February 10, 2012

New Rakoff Opinion Slams Solicitor General's Office

Wow.  Last week, Attorney General Eric Holder spent time on the Congressional hot seat responding to allegations that the DOJ misled Congress regarding a flawed firearms investigation. 

This week, Attorney General Holder was probably feeling a little better ...until this morning.  Today, the Wall Street Journal reports that Judge Rakoff (of SEC-settlement fame) issued a rather interesting 20 page opinion granting the National Immigration Project of the National Lawyer's Guild and several other organizations (including NYU's immigration clinic and Northeastern's Immigration Prof Rachel Rosenbloom) the right to view previously redacted information in four emails that pertained to a 2009 Supreme Court immigration case.  

As Rakoff explains in his Order, in a 2009 immigration case, the Office of the Solicitor General represented to the Supreme Court that:

[b]y policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courtseffective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary,and according them the status they had at the time of removal." Brief for Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No.08-681), 2009 WL 45980 at *44. Although the OSG did not support thisassertion with any citation, id., the Supreme Court in Nken, inholding that deportation of an alien before the resolution of anappeal from her order of removal does not constitute irreparable injury, expressly relied on this representation

Rakoff Order at 2.  The plaintiff organizations subsequently filed a FOIA request to obtain information regarding the government's alleged "policy and practice."  According to Rakoff, the plaintiff organizations did not receive overwhelming evidence demonstrating such policy or practice.  At issue were four heavily redacted emails that the OSG's lawyers apparently relied upon in making their representation to the Supreme Court.   These four emails, which were between OSG lawyers and other government officials, formed the basis of the plaintiffs' motion and Judge Rakoff's Order. 

The emails, which the government produced in response to the plaintiffs' FOIA request, were redacted by the OSG for a number of reasons, most of which Rakoff rejected after reviewing the emails himself in camera. Judge Rakoff's Order directs the government to unredact specific factual information contained in each of the four emails.

An order directing the government to produce emails, or even unredact statements contained in those emails, is not necessarily a blockbuster event.  It is Rakoff's characterization of the emails, however, that is so stinging:

[N]either 8 U.S.C.§ 1182(d)(5)(A), nor the MOA, nor any other evidence here proffered bythe Government supports the suggestion that the OSG’s representation in Nken was based on anything other than the facts provided to the OSG in the email chain here at issue.

By contrast, the email chain (as reviewed by the Court in camera) evidences an attempt to cobble together a factual basis for making the representation the OSG made to the Court in Nken.  

Rakoff Order at 12 (emphasis added).   Yikes! "Cobble together" is not one of those phrases that suggests strong factual support for one's assertions. 

And in case you have any doubt about where Judge Rakoff stands, consider the Order's opening paragraphs:

“Trust everybody, but cut the cards,” as the old saying goes.
When the Solicitor General of the United States makes a representation to the Supreme Court, trustworthiness is presumed. Here, however, plaintiffs seek to determine whether one such representation was accurate or whether, as it seems, the Government’s lawyers were engaged in a bit of a shuffle.
Rakoff Order, at 1 (emphasis added, citation omitted).  Ouch!  If the Order is as bad as it seems, we will likely hear more about it in the days to come.  What will be of most interest to me is the organizational dynamics at play.  How does the size and organizational structure of an organization such as the DOJ (or much smaller organization like the OSG) affect information-reporting failures such as the one that quite possibly occurred here?  What reforms would we seek to prevent information-based failures of the type that occurred here?  Or is this simply a one-off problem, an outlier that will solve itself thanks to an embarrassing opinion by a district court judge?  Stay tuned ....


Posted by Miriam Baer on February 10, 2012 at 12:35 PM | Permalink


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Query: is Judge Rakoff's job here to investigate the facts and circumstances behind the drafting of a brief in another court? Or it simply to adjudicate a question about the applicability of a FOIA exemption?

Posted by: Query | Feb 12, 2012 7:49:34 PM

Miriam, thanks for posting this opinion. Your questions (to the extent that they relate to how FOIA operates) are part of what I'm focusing on currently, and alas, I don't think that these are one-off problems. I agree that this order is not a blockbuster from a FOIA perspective, but it is more evidence of a trend towards greater secrecy in government operations. While it is a challenge for busy and often overworked government lawyers to perform all tasks to the level of professionalism that we'd like, FOIA's exemptions are increasingly swallowing the rule, particularly in areas where there is a high public interest (i.e., ACTA, the Bank Bailout, etc.) It is far easier to label something as exempt and wait for a battle that may never materialize than risk releasing information that may later prove to have been exempt. Combine that with increasing amounts of information from both the public and private sectors being treated as secret, and this opinion is just the latest example of the errant overuse of secrecy by our federal government.

Posted by: Dave Levine | Feb 10, 2012 1:37:28 PM

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