[00:00:00] Speaker 04:
Case number 24-5168, America First Legal Foundation appellant versus Hampton Dellinger in his official capacity.

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Mr. Block for the appellant, Mr. Peters for the appellant.

[00:00:14] Speaker 01:
Good morning, Mr. Block.

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This is Judge Wilkins.

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You may proceed when you're ready.

[00:00:23] Speaker 01:
Thank you, Your Honor.

[00:00:25] Speaker 00:
Good morning, Your Honors.

[00:00:26] Speaker 00:
My name is Andrew Block on behalf of Plaintiff Appellant America First Legal Foundation.

[00:00:31] Speaker 00:
May it please the court.

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The issue presented by this case is whether SHAL, as used in the Whistleblower Protection Act, imposes a mandatory duty on the Special Counsel.

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The plain reading of the statute, the role of the Special Counsel in the administration of the Civil Service,

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and the Special Counsel's historical practice and the discharge of their duties all indicate that they must investigate, as the statute says, any allegation of arbitrary and capricious withholding of information provided under Section 552 or the Freedom of Information Act.

[00:01:05] Speaker 03:
We ordered supplemental briefing on standing, so you might want to start there.

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Yes, Your Honor.

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So as we as we point out in the supplemental briefing,

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You know, we believe that this is a procedural injury that America First Legal has two concrete interests that are recognized by the procedure.

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So, starting with the statute, Section 1216 explicitly mentions FOIA and the process of FOIA.

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As a FOIA requester, that then entitles us into our, that incorporates our injuries.

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This case was born out of a FOIA request to the Civil Division, where the Civil Division admitted to having an arbitrary and capricious, as we believe, withholding practice.

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So on that theory, the informational injury is not getting the material you requested through FOIA?

[00:02:07] Speaker 03:
Well, it's, it's a little bit larger than that because it's, it's as a, as a, I know you have, I know you have, I know you have the second theory about the investigation, but let's take them one by one.

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No, absolutely.

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I think even on the theory of the FOIA injury as a FOIA requester and a repeat FOIA requester, there's no confidence that there could ever be an adequate search if there's an opt out policy at the civil division.

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And so,

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On that on that point, yes, that is that problem is traceable to the Civil Division, not to the special counsel.

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But it is traceable to the special counsel's investigation, because if they undertake their duty and look at the evidence that we have provided, and at least conduct the investigation that the statute requires them to conduct, then they're then they can make recommendations and they can

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take other actions to have the civil division update its policies.

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And of course, then secondly, our second theory is the information of the investigation.

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Yeah, and on that theory, the problem for you is you don't have a statutory entitlement to even assuming as you allege,

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that there's a mandatory duty to investigate, you don't have a statutory entitlement to the fruits of that investigation.

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And TransUnion in the Supreme Court following a case called Trichol in the 11th Circuit says informational injuries are not concrete

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absent a statutory entitlement to the information.

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Well, certainly, Your Honor, I think that if the OSC were to engage in its duty and conduct any sort of investigation, even if the disclosure requirements of 1214 do not apply, and we noted that they've continued to follow those updated procedural requirements as this case has progressed.

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As a matter of grace, not as a matter of entitlement.

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Sure, even as a matter of grace, we could receive that information, but then the FOIA also gives us another remedy to obtain that information independently or potentially discovery in a lawsuit.

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I recognize that one's a little bit more attenuated, but I think the Freedom of Information Act would allow us to obtain information relating to any activity that happened.

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So I think we would have

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informational and a statutory cause of action.

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And of course, because A3 specifically references FOIA, it envisions that the requester of these investigations is a FOIA requester, who of course Congress has given standing to.

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So I do want to just briefly, because I think it's important, touch on the facts that gave rise to this action, which is, as I was mentioning just a little bit ago, the interactions between AFL and the Civil Division.

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So AFL had submitted a FOIA request for all communications between the Civil Division and one specific nongovernmental email address.

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DOJ said that this would be very burdensome.

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And so, you know, as you can see at the joint appendix, beginning between pages 14 and 16, there's the communications between AFL and the Civil Division.

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In picking up on an email that memorializes a phone call, AFL writes, I understand that the Civil Division has a policy of not conducting a FOIA surge on an employee's emails without first getting their permission or consent.

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to which the Civil Division responds, this is correct.

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And AFL even follows up writing, is that policy of getting consent from employees prior to a FOIA search a written policy or more of a practice?

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If written, would you be able to provide that?

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To which the DOJ responds, it is not a written policy.

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And so there is not a kind of, under 1216, the special counsel is charged with investigating, quote,

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any allegation of then arbitrary and capricious withholding under FOIA.

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So that fits our situation perfectly.

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Now as to the merits that the government has advanced, their theory falls under kind of two main, well their primary argument I guess is that the

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special counsel is akin to the Attorney General or the Secretary of Homeland Security and the exercise of executive power.

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Now that fails for two main reasons.

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One, the special counsel is charged with effectuating laws as to the civil service, which is largely the government as an employer and not the government as the

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Article two head of the executive branch.

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But even if we were to accept that premise of equivalency, the courts have still recognized that.

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The Congress can impose even on executive actors, ministerial duties, and it's it's not hard to imagine some of those requirements, right?

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Reporting requirements from the Attorney General to Congress, or you could imagine a situation.

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where Congress instructs the Secretary of Transportation to build a road between points A and B, as opposed to kind of just making a grant to, you know, or do it in their discretion.

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So there's really a kind of fundamental flaw in the answering of our case, which is presented in our reading of the statutory interpretation.

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Suppose we agree with you

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that shall in 1216A means shall, and there's an obligation to do some measure of investigation.

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It's a little odd.

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A has a shall investigate, C has a may investigate.

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Let's just assume the investigation is a shall.

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You still have this further

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problem that the corrective action step is controlled by the may and only by the may in 1216 C. So what are you left with as a mandatory obligation other than an investigation unconnected to any enforcement on the back end?

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Certainly your honor, so the I think that what we are entitled to and really this is spelled out.

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I think in the courts opinion in Ren I think is instructed now.

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Ren is a 1982 case and of course there have been changes to the statutory structure since then, but I think.

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The circuit courts language here is and this is 681 F second at 874.

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Quote, so far as we can tell from the record, the petitioner's case was never investigated as the statute requires.

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Skipping down a little bit, it says the plain language of the statute and the legislative history clearly indicate that while the scope of the initial OSC investigation need only be extensive enough to determine whether there are reasonable grounds to believe a prohibited practice is occurring or has occurred, and then it continues.

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And I think that's really, that's what we would be after, which is a good faith,

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look at what's going on.

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And of course, the may here is discretionary.

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And so the special counsel may proceed under 12-14 or under 12-15 in those processes.

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They may do something else.

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But we think we've provided what is very strong evidence of a pretty blatant arbitrary and capricious FOIA withholding practice at the Department of Justice's Civil Division, and that the special counsel has a duty to investigate that.

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And maybe they make a finding, maybe they make a referral to the inspector general, maybe they make a report to Congress, maybe they make suggestions.

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All of which is discretionary.

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Of course.

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Which just circles back to the mandatory, the assertedly mandatory investigation just amounts to a procedural right in the vacuum.

[00:11:24] Speaker 00:
Well, of course, they have to operate within the confines of the Administrative Procedures Act.

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And so

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Um, if they do anything that's arbitrary and capricious there, then that is a separate, you know, I think cause of action.

[00:11:36] Speaker 02:
Well, when we, we did get back from the district court did receive back from OSC, um, the fruits of their investigation, right?

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They, the OSC said we looked at this and, um, considering the resource constraints were under, we don't think it warrants any further investigation.

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I would, I would take a little bit of issue with the categorization of what OSC did at the end of the district court stage.

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The OSC, OSC's letter by, by its confines amounts to a rejection of an investigation.

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It's only in the briefing did the government try to style it a investigation that has, you know, the minimum amount required.

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So what are their direction on remand to investigate?

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Would you consider whether to investigate?

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The district court said that the OSCE had the discretion whether or not to investigate, and the OSCE said we are going to exercise our discretion to not investigate.

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And that is at JA 66.

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In consideration of the above, OSCE is exercising its discretion to respectfully decline to undertake any further investigation.

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Any further investigation?

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Sure, but it has not been done.

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And we're not going to go any further.

[00:13:01] Speaker 00:
I think the point is, is that its inclusion of the word further does not turn this letter into any sort of an investigation.

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It says we're not going to look at it because we're constrained by resources.

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So it's an antithetical argument.

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Well, the word means nothing is what you're saying.

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I'm saying that the idea that they conducted an investigation is not what that letter in its entirety

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is, it's a decline to investigate.

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The district court said, you have the discretion to decline to investigate.

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And then the special counsel comes back with a letter that says, we're going to use this discretion to decline to investigate.

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Further.

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That's what they said.

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They did say further.

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And so I see that my time is getting a little bit low here.

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And so I would just ask that, again,

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The court look at the conversation in Ren and as well as our briefing to see that the statutory structure really requires the special counsel to investigate this here and I'll reserve my remaining minute and 10 seconds.

[00:14:14] Speaker 01:
All right, thank you.

[00:14:15] Speaker 01:
Mr. Peters, we'll hear from you.

[00:14:21] Speaker 04:
Good morning and may it please the court, David Peters on behalf of the United States of America.

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I'd like to start my time just focusing on standing.

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As we point out in our supplemental brief, there are several fundamental defects with plaintiffs procedural injury theory of standing.

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But the most fundamental one is the one that Judge Katz has you pointed out, which there's even in

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The relaxed setting of a procedural injury theory for race for address ability and traceability plaintiffs have not plaintiff has not established address ability and traceability here because plaintiffs only concrete interest that they've identified is an interest in their underlying and underlying for your request.

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But there is an attenuated chain of speculation that connects any link to that between the alleged procedural injury here.

[00:15:08] Speaker 04:
I mean, as you pointed out, Judge Katz's, you know, whether to investigate is committed to I mean, whether to even assuming that whether to investigate is a mandatory obligation, especially counsel, and we don't think that's true, but even assuming that is the case.

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whether to take enforcement action is entirely discretionary for the special counsel.

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And then on top of that, and this is really the problem, all the special counsel can do is go before the board and the board is independent of special counsel.

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It has to exercise its independent authority to determine whether there's a kind of viable claim here.

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Even then, all that the board can do is discipline the individual employee who committed the violation.

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The special counsel cannot request that the agency, that the board order the agency to release records.

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It can't request that the board order the agency to change its policy.

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The board can't do that.

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So even if then the board just takes some independent action against the employee, there would still be the independence of the Department of Justice

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determine in light of that decision what to do.

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And of course, it's operating under its own statutory obligations under FOIA.

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And plaintiff has not shown in any way kind of the link between those to establish traceability or addressability.

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And this court, both in the Florida Audubon Society case and the Center for Law case, rejected a theory of procedural injury on that exact same kind of problem of redressability and traceability, hinging on the independent actions of third parties.

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And so I'm happy to address kind of the merits further, but I think there's just a fundamental problem here with plaintiff's theory of standing.

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And this court can affirm the dismissal on that ground.

[00:17:01] Speaker 01:
If we were to affirm the dismissal on that ground though, the dismissal would be a different type of dismissal.

[00:17:09] Speaker 01:
It would be a dismissal without prejudice as opposed to a dismissal of demerits with prejudice, right?

[00:17:17] Speaker 04:
Yes judge well because maybe the most precise way of the exact remedy that this court would order would be to vacate the district court's judgment.

[00:17:25] Speaker 04:
Remand with instructions to dismiss for lack of subject matter jurisdiction so maybe not exact formal but it would be agreeing that dismissal is proper here and that would be I think the precise way in which this court would style its remedial order.

[00:17:40] Speaker 03:
Can you just tell us what's happening in the FOIA litigation?

[00:17:46] Speaker 03:
Documents being produced and or exemptions being claimed.

[00:17:53] Speaker 04:
Yes, your honor, the plaintiff has filed a separate FOIA action against the department.

[00:17:58] Speaker 04:
My understanding based on the most recent joint status report is that the department is producing documents responsive to the request.

[00:18:07] Speaker 04:
I don't think there has been litigation.

[00:18:09] Speaker 04:
The case has been stayed while that has been unfolding.

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I'm not aware of the precise.

[00:18:14] Speaker 03:
The adequacy or inadequacy of any search could be teed up in that litigation.

[00:18:24] Speaker 03:
Of course, Your Honor.

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I mean, there are some standing issues here, of course, but

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I have to say the policy, I mean, it would be quite extraordinary if the Civil Division had the policy that's alleged here.

[00:18:39] Speaker 04:
Understood.

[00:18:40] Speaker 04:
And that's why in district court, there was a declaration submitted by the Civil Division explaining why there is no policy.

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There has never been such a policy.

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There isn't currently a policy that would kind of limit searches in that way.

[00:18:57] Speaker 04:
I think at the end of the day, there's a miscommunication or misunderstanding about the way in which the department's policy was being, the department was responding to FOIA requests, but that is not a policy that has ever existed.

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And that declaration that was submitted in Drister Gort has not been rebutted by plaintiff in any way.

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And of course, to the extent there was some kind of ongoing FOIA violation, plaintiff could challenge that in the course of its underlying FOIA request.

[00:19:23] Speaker 02:
I actually, in the email exchange, pardon me, to which Mr. Black pointed us earlier, as I recall, I think he said the government in the email did not say there is an unwritten policy.

[00:19:41] Speaker 02:
It says it said there is no written policy.

[00:19:45] Speaker 04:
There is no written policy.

[00:19:47] Speaker 04:
I mean, the usual course, and this is just explained in the declaration, is that in responding to FOIA requests, kind of for ease, the department, you know, oftentimes asks the individuals who are

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whose documents are being requested to help find those documents just to facilitate the process.

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But of course, there isn't a case where those individuals could exercise some kind of veto.

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And again, to the extent there was a problem along these lines, of course, the way in which that plaintiff could exert its interest is through the underlying FOIA request.

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And the real problem here is that even if

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special counsel was to conduct an investigation, that there's no way to correct this alleged policy through the board's actions or, you know, there's no way for the special counsel to request a correction of that.

[00:20:41] Speaker 02:
But you would have the court rest entirely on redressability, is that correct?

[00:20:46] Speaker 04:
As we pointed out in our supplemental brief, we think the characterization of 1216 as a statutory scheme that's granting procedural rights is not correct.

[00:20:57] Speaker 04:
The ability to investigate is part and parcel of the special counsel's ability to take enforcement actions.

[00:21:04] Speaker 04:
We don't think it's a source of procedural rights.

[00:21:06] Speaker 04:
Again, I think the Center for Law case from Judge Santel several years ago is instructive here.

[00:21:13] Speaker 04:
Even if you think there's a procedural

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requirement.

[00:21:16] Speaker 04:
It doesn't mean that every violation of a procedural requirement gives rise to standing because the procedural right has to be designed for the interests of the plaintiffs.

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We don't think that's right.

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And so I think it's another reason to think that there's not standing here, Judge Ginsburg.

[00:21:30] Speaker 04:
But I think the most fundamental problem is the redressability and traceability problem.

[00:21:36] Speaker 02:
If I recall correctly, neither party

[00:21:38] Speaker 02:
in the briefs on standing.

[00:21:41] Speaker 02:
I may be missing this, but I don't think either party referred to the zone of interest as a standard for or a test for evaluating, looking at the, whether the statute was meant to serve the interests of the plaintiff.

[00:22:02] Speaker 04:
We didn't, your honor, I mean, as I understand it, zone of interest is not, you know, and Lena Black's mark isn't,

[00:22:09] Speaker 04:
strictly a standing doctrine, a jurisdictional one.

[00:22:11] Speaker 04:
It's more considered by a cause of action.

[00:22:13] Speaker 04:
I think to some degree, this court has, when it is asked whether a procedural right is one that is designed for the interests of a litigant, it has kind of, there's some overlapping interests there, but that has been an analysis that is conducted through the standing framework and not through a zone of interest or cause of action framework.

[00:22:40] Speaker 01:
All right.

[00:22:41] Speaker 01:
Are there any other questions from the panel for Mr. Peters?

[00:22:48] Speaker 04:
No.

[00:22:50] Speaker 04:
We would ask that the court affirm, or more specifically, vacate remand and with instructions dismissed for lack of standing.

[00:22:59] Speaker 01:
Thank you, Mr. Peters.

[00:23:02] Speaker 01:
Mr. Brock, I believe you had a minute and 10 seconds remain.

[00:23:07] Speaker 00:
Yeah, thank you, Your Honor.

[00:23:08] Speaker 00:
So I'll say a couple of points.

[00:23:10] Speaker 00:
First, our redressability issue is, I think, covered by mandamus.

[00:23:14] Speaker 00:
Mandamus is the redress that we would seek and the actions.

[00:23:20] Speaker 00:
From where the OIC goes from there, obviously, we've talked about is a little less under our control.

[00:23:26] Speaker 00:
But we do think that a good faith investigation would redress our issues.

[00:23:31] Speaker 00:
And really, the court's power is to either grant or not grant mandamus.

[00:23:35] Speaker 00:
And so that's the redress.

[00:23:36] Speaker 00:
Um, the Florida case and the center for law and education cases came up on those our zone of interest cases.

[00:23:45] Speaker 00:
I think it's not briefed extensively.

[00:23:47] Speaker 00:
I don't think I think we note it a little bit in passing in our reply supplemental briefing at 3.

[00:23:53] Speaker 00:
I'll just say that I think.

[00:23:55] Speaker 00:
As I said earlier, AFL would be in a, if this were a zone of interest case, AFL would be in the zone of interest as a FOIA requester as it's incorporated in through 1216 subsection A3.

[00:24:07] Speaker 00:
The LIM deceleration came up and again, we didn't really spend a lot of time on that.

[00:24:14] Speaker 00:
We did note it was a red herring and is largely irrelevant as LIM doesn't even purport to have firsthand knowledge.

[00:24:21] Speaker 00:
and it's just kind of reinterpreting the documents that were submitted to the special counsel.

[00:24:26] Speaker 02:
And then my last- In front of me, is A3 the procedural arm?

[00:24:33] Speaker 00:
Subsection 1268A3 refers to the FOIA, so that would bring- Sorry, I was thinking of the APA.

[00:24:39] Speaker 02:
I was thinking of the APA.

[00:24:40] Speaker 00:
Okay, sorry.

[00:24:42] Speaker 00:
Yeah, so 1216 would bring the FOIA requester into the zone of interest.

[00:24:45] Speaker 00:
And that really ties into my last point, which is just that

[00:24:49] Speaker 00:
FOIA is certainly a remedy, but it is not the only remedy.

[00:24:53] Speaker 00:
And the district court correctly recognized the difference between the FOIA remedy and the 1216 remedy.

[00:25:00] Speaker 00:
And I think that is exemplified by the bringing of this case.

[00:25:04] Speaker 00:
The fact that it's been three years since that FOIA request was filed and we still haven't been able to challenge the adequacy of search is why this Congress gave FOIA requesters the ability to bring to the special counsel's attention

[00:25:19] Speaker 00:
arbitrary and capricious actions so that they could be investigated on the front end and not three to four years later.

[00:25:27] Speaker 00:
So with all of that, I'd like to thank the court for its time, its consideration and ask it to reverse with instructions to, with an instruction to enter mandamus as to the special counsel.

[00:25:43] Speaker 01:
Thank you, counsel.

[00:25:44] Speaker 01:
The case is submitted.