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Case number 23-5058.

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Legal Women Voters of the United States et al.

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versus Stephen Fried in his capacity as the Executive Director of the United States Election Assistance Commission et al.

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EGLE Foreign Education and Legal Defense Fund et al.

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Mr. Joseph for the appellant, Ms.

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Lopez for the appellees.

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Good morning, counsel.

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Mr. Joseph, please proceed when you're ready.

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Thank you, Your Honor.

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Lawrence Joseph for the Appellant Eagle Forum Education and Wheel Defense Fund.

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May I please the court?

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There are, I think, three two-part questions and then a six-part test that are the key issues here.

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The three two-part questions are, are we substantively dealing with the First Amendment or the common law right of access?

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On the attorney-client issue, there are two, I think, key issues, two key ones.

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One, is there a dual-hunt relationship where DOJ was essentially working as or working with

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um the agency to make law to decide cases as opposed to um counseling in a litigation capacity or that's one and then two whether if indeed there was an attorney client relationship was there some sort of um fraud misconduct anything that would vitiate that

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The third two-part question is about the mandate from this court's new B2 decision.

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That's where my client's intervention was granted.

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And I think the two mandate questions or mandate-related questions are, did the remand to the district court presume that, given that my client would then be an intervener,

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which is not the public, that some form of party, maybe not a full party, but certainly some form of party, were they entitled under the protective order as written to have access to the sealed materials.

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That would have helped, obviously, the briefing.

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And then second, on the mandate, this is more law of the case, we argued initially

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when we moved to intervene, that the court could unseal without looking covered because of the alleged fraud in the 10th Circuit.

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And so the unsealing could be done as a sanction because the party didn't have clean hands.

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The ceiling is equitable relief if the ESE came to that court with unclean hands about being

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in the 10th Circuit, then they might not be entitled to the seal.

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The district court on remand was bound by this this court's mandate under the mandate rule to work out the Hubbard factors, which we're getting to, but this court on

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Further appeal, you're not, I don't think, bound.

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I mean, you can choose to bind yourself to the maybe two decision, the intervention, saying let's look at Hubbard, but you don't have to.

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You could decide that what was done here and in Colorado in the 10th Circuit was sufficiently disingenuous that we're going to go the sanction route.

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So then that brings.

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It involves an abuse of discretion standard, which is a very high standard.

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And then we look into the Hubbard factors

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how do we get there on abuse of discretion?

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Because you're coming in as generally a non-party first, does not give you any more rights essentially than a party, but then also the court below suggests that this could be a fishing expedition, and then even more importantly, that it did not use the documents for the ruling.

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OK, so first off, I mean, my client publishes about this issue.

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So we're like the Washington Post in a sense.

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And the public has a watchful eye interest under Hubbard itself.

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The more recent Los Angeles LA Times case talks about

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I don't have the language in front of me.

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But again, there's a public interest in making sure agencies behave.

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And that is shared by everyone.

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As to didn't use, that may be true.

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It didn't need to be true.

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The court could have remanded without vacating.

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The court could have retained jurisdiction.

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So some of this issue.

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So let's back up.

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Newby 1.

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preliminary injunction appeal in this court was a preliminary injunction case.

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So I'm not sure I can pronounce this, but University of Texas versus Kamenish, what's decided in a preliminary injunction case doesn't necessarily decide the merits.

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So the fact that, hey, no necessity finding, which is something that the EAC needed to have in order to approve the documents in question in the underlying litigation, if they didn't have that, then there would be a preliminary injunction, I guess.

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But that didn't resolve the case.

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They could have remanded the agency, see if they could make a necessity finding, and then come back.

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Or they could have just dismissed as they did.

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So it could have been used.

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And it was offered with the intent that it be used.

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So under factor six, why was it offered?

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Under factor one, there's this public interest separate and apart from the underlying case.

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the LA Times case it was is a senator misusing information I forget if it was a here or she that he or she got from their privileged position in the Senate that wasn't what the case was about but it was related and there's a public interest in that and then of course in the fourth factor which is perhaps the biggest one in in the series for this case at least that is

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I mean, there's the issue of was there an attorney-client relationship because of the lawmaking adjudicating function that DOJ was essentially ghostwriting, according to my understanding.

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I mean, I don't have access to the documents, so I don't know.

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But that was one of the questions in the four part question about the depositions.

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I'm sorry.

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So did I answer the question?

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Yes.

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Thank you.

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Should I go on with mine?

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OK.

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So this is, we think, Hazel Atlas on steroids.

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Hazel Atlas is the paradigm fraud in the court case.

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There, a patent holder planted an article in the trade press and then cited it to defend their patent.

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Here, it's markedly worse.

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First of all, though.

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And it is not these councils.

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So I don't even want to refer to them.

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This was someone else at DOJ.

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It was not the Federal Programs Branch.

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But they have a burger duty to win fairly or to litigate fairly more than to win under the United States versus Burger.

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That's been applied to agency defense by this court in Freeport

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like more an oil.

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Anyway, and so in addition to the hey, palace of justice, lawyers shouldn't lie, any lawyers.

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There's also a separation of powers issue there, because they're pleading deference to the agency, the independent agency, when in fact it was written by a political-sized DOJ.

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There is also federalism, which is this is trenching state power by the federal government.

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with regards to their voter registration issues.

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So it's worse than Hagell-Alice in that regard.

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As far as the

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so-called concessions, again, both.

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I mean, DOJ tried to say that my client conceded something by saying that this didn't come up in Newby 1.

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That is a preliminary injunction case, as I said.

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It's not binding on the merits, such as the remedy.

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And similarly, with the then Secretary of State Kobach's concession about, yeah, I guess you can get to the merits, there, again, it was in the preliminary injunction hearing.

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And even there, he says there are some ridiculous assertions of privilege, such as things that are already in the record or already released.

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So some things have been withheld in these sealed documents that shouldn't have been withheld.

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And then there's also the questions.

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And this is important for the next stage.

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If we lose here, we would petition for cert if we don't get an answer.

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But if we get to see the questions at least, we might realize that we don't care what's in this document.

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Is it a fishing expedition?

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I guess we don't know what we're going to get.

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So in that sense, it is.

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But in the other sense, it is.

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We feel that the agent that there's a non transparency and we asked this court to help make that process.

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Thank you.

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Give you some time to rebuttal.

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Slow pass.

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Sorry, I'll just take me second.

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May it please the court.

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Carolyn Lopez on behalf of the government.

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Consistent with this court's instructions to apply the Hubbard factors on remand, the district court correctly denied EGLE form's request for disclosure of the sealed materials.

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Because the sealed materials, as the district court emphasized, did not affect the resolution of the case in the merits because the district court did not rely on them, as in the district court's view at the past of the parties which told the district court didn't need to rely on them.

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which this court has recognized most recently in CNN, can be the most important and, in fact, an almost just positive factor in the decision to maintain the seal under the Hubbard factors.

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And in addition, the government had, of course, lodged substantial claims of privilege.

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On the other side of the ledger, Eagle Forum failed to overcome those interests in maintaining the seal based solely on, as the district court described it, its speculative claims

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that DOJ had somehow engaged in misconduct by offering advice to its client agency on a remand, on a determination the agency was making at the behest of a court ordered remand and ongoing litigation.

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And that's just, that's not government misconduct to provide advice to a client agency in the course of

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ongoing litigation.

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And that's, you know, the attorney, you know, the heartland of the attorney client privilege of attorney work product, and also just the general deliberative asset privilege, the client that agencies can consult with other government actors in making its determinations.

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And here, the record evidence by the decision maker, decision maker herself confirmed that she made that decision after consulting all relevant resources.

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Can I just ask you, on the other side, mentioned the First Amendment at the outset of the argument.

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I take it from your submission, the sense that the First Amendment would add something to the Hubbard analysis so that it would ratchet up the standard to do something different.

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You think that was forfeited?

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Yes, Your Honor.

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That was absolutely forfeited.

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So this court, of course, their appeal remanded for an analysis under the Hubbard factors.

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And at no point before, the district court

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Did EGLE form suggest that applying the First Amendment instead of the Hubbard factors would alter the analysis?

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So that question is certainly forfeited as we argued in the brief.

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Even though the First Amendment was mentioned, it just wasn't developed in a way that would suggest that it was something that would differentiate the analysis from what would normally ensue under Hubbard.

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That's exactly right.

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So there were no arguments that there would be a different, that the First Amendment will require a different sort of analysis than this court has traditionally applied

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factors and then, you know, particularly in the civil context in which the court has sort of repeatedly said that it doesn't need to address whether or not the First Amendment would play out any differently.

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And so that that issue was certainly forfeited here.

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Okay.

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Let me show my colleagues that have questions for you.

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Thank you.

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Joseph, I'll give you two minutes for your rebuttal.

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So it did not affect the merits, but it could have under factor six.

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It was offered so that it could affect the merits under CNN can be does not mean is it can be.

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But in this case, it isn't the.

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substantial claims of privilege and speculative fraud.

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I mean, they said, trust my client, the expert nonpartisan entity.

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And at least under the newbie declaration, which is all we have, DOJ wrote it.

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DOJ does not have the right to say whatever they think.

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I mean, they haven't been given a leg up in litigation.

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They have a client that has a leg up in litigation.

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But if they take over that task, they have to disclose that they wrote it.

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I mean, again, as in Hazel Atlas, only more so.

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As far as the forfeit of the First Amendment, the remand was, we've argued the First Amendment, I believe, throughout the case.

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The remand was for Hubbard.

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That's what was sent back.

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But that doesn't mean, that doesn't bind this court.

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This court has the right to

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decide, you know what, actually we're going to do a sanction.

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You know what, actually we're going to do the First Amendment.

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And whenever one of these cases comes up and the person seeking disclosure loses, then I suppose you don't have to look at the First Amendment.

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I'm sorry, I got that wrong.

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When they win, you don't have to look at the First Amendment.

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But if they're going to lose and the First Amendment is different, such as

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narrow tailoring, then it is a second step in the analysis and one that they can't possibly win.

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This wasn't narrowly tailored.

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It didn't even require them to show privilege.

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So as far as the misleading, the Tenth Circuit was very clear.

[00:14:28] Speaker 01:
But have you ever said the First Amendment applies in the civil context?

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We have, yeah.

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OK.

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Out of time, I believe.

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You can answer the question.

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Oh, I'm sorry.

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I thought I did.

[00:14:40] Speaker 01:
Well, I mean, you said we have it.

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You want to just further elaborate on that?

[00:14:43] Speaker 01:
Because it didn't seem very clear to me.

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I don't have a page number of it.

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I could submit it in a letter.

[00:14:50] Speaker 01:
Yes, I'll take that.

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Thank you.

[00:14:52] Speaker 04:
Thank you, Your Honor.

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Thank you, counsel.

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Thank you to both counsel.

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We'll take this case under submission.