then appealed. During the time when briefs were being prepared in that FOIA
appeal, however, the long-pending appeals of Maydak's conviction (and that of
his co-defendant) were denied with sufficient finality that a criminal retrial
was no longer in realistic prospect -- which thereby removed the need for the
agency to withhold Maydak's files from him under Exemption 7(A). Accordingly,
and assuming that Maydak was still interested in pursuing access to those files,
the agency then moved to remand the case so that the files could for the first
time be processed, and if necessary defended, on the basis of their underlying
the first time in any such FOIA case on appeal, the D.C. Circuit flatly refused
to allow this. Rather, in a decision authored by Circuit Court Judge David B.
Sentelle and joined by Circuit Court Judges Lawrence H. Silberman and Judith
W. Rogers, the D.C. Circuit took a sharply different approach to Exemption 7(A).
It chose to conclude that the agency had effectively "waived" its right to invoke
all underlying exemptions because the agency, it said, had not complied with
"a general rule [that] it must assert all exemptions at the same time, in the
original district court proceedings." 218 F.3d at 764-65. This D.C. Circuit
panel simply failed to see any good reason to give Exemption 7(A) what it called
"preferential treatment" in this regard. Id. at 766. Because of this,
it ruled, the appropriate next step was not a remand for individual document
processing, but rather "the release of all requested documents to the appellant."
Id. at 769.
With the certiorari petition in Maydak filed in early spring, and the
opposition to it currently due to be filed in early June, it is possible that
the Supreme Court will act on the petition before the end of its current Term
in late June or early July. Otherwise, the Court most likely will announce its
decision on whether to accept the case when it reconvenes next fall on the first
Monday of October. In either case, if it grants certiorari, the Supreme Court
likely will hear oral argument in the case at the end of this year or the beginning
of next year and then issue its decision by no later than early summer 2002.
Circuit ruled this way even though the underlying facts of the case had changed
during the course of the litigation, even though that change struck to the very
heart of Exemption 7(A), and even though it was unprecedented for an appellate
court to rule in such a fashion in a FOIA case -- especially one involving such
sensitive law enforcement records. In fact, the D.C. Circuit's opinion contains
little if any indication of its awareness that it actually was ordering the
disclosure of highly sensitive grand jury records -- a judicial action that
had never before occurred in the history of the FOIA.
the Supreme Court to review this very troubling D.C. Circuit decision, the Solicitor
General has pointed to its unprecedented nature, to its sharp departure from
Supreme Court case law (as well as that of other circuit courts of appeals),
and to its utterly unrealistic approach to the operation of Exemption 7(A).
In the words of the Justice Department's certiorari petition, the Maydak
force(s) upon the government, at the behest of any criminal or incarcerated
prisoner, the Hobson's Choice of either providing the type of detailed and
individualized document analysis that Congress specifically designed Exemption
7(A) to avoid, or invoking Exemption 7(A)'s categorical protection but forfeiting
the right to raise most other exemptions if and when Exemption 7(A)'s protection
for a Writ of Certiorari at 21-22, United States Dep't of Justice
v. Maydak, 69 U.S.L.W. 3657 (U.S. Mar. 29, 2001) (No. 00-1507) (citation
omitted). Further, the Solicitor General pointed out, the D.C. Circuit in
has prescribed an unworkable procedure that has already begun to interfere
with pending enforcement proceedings and that, at best, will impose unwarranted
litigation burdens on the federal government and district courts [and] needlessly
prolong FOIA litigation.
at 8. In sum, the Solicitor General characterized the Maydak decision
as threatening a "profound incursion" on the practical way in which FOIA requests
and FOIA lawsuits involving Exemption 7(A) have been handled by both agencies
and the courts for more than thirty years. Id. at 23.
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