UNITED STATES DEPARTMENT OF JUSTICE AND THE FEDERAL BUREAU OF
INVESTIGATION, APPLICANTS V. SETH ROSENFELD

   No. A-936

   In The Supreme Court Of The United States

   October Term, 1990

   The United States Court Of Appeals For The Ninth Circuit

   Emergency Application For A Stay Pending Appeal

   Pursuant to Rule 23 of the Rules of this Court and the All Writs
Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the United
States Department of Justice and the Federal Bureau of Investigation,
respectfully applies for a stay of the order of the United States
District Court for the Northern District of California (Patel, J.),
entered on March 29, 1991, pending appeal of that order to the United
States Court of Appeals for the Ninth Circuit.  The district court's
order would require the government to release classified information,
as well the names of approximately 750 FBI sources.  Those sources
include persons who continue to provide information to the FBI and
persons connected with the FBI's counterintelligence mission.  The
specific results of this far-reaching disclosure order are explained
in the declaration of FBI Special Agent Marvin E. Lewis.  App. F,
infra.  Although the district court's order conflicts with the
decisions of other courts in several important respects, this case
will be rendered moot by the release of documents on June 14, 1991,
unless this Court grants a stay.  /1/

                               STATEMENT

   1. Respondent, a reporter for the San Francisco Examiner, filed a
series of requests under the Freedom of Information Act (FOIA), 5
U.S.C. 552, seeking documents concerning the FBI's investigation of
various individuals and organizations at the University of California
at Berkeley in the 1960s and 1970s.  The government identified 8,432
pages within the scope of respondent's requests.  It released 1,795
pages in their entirety, released an additional 4,985 pages with
redactions, and withheld 1,652 pages in their entirety.  App. F,
infra, at 2.  The government asserted that the withheld material was
exempt from disclosure under, inter alia, FOIA's Exemptions 1, 7(C),
and 7(D).  /2/

   Respondent objected to the FBI's claimed exemptions.  The district
court referred the case to a magistrate, who reviewed 450 pages of
responsive documents to determine whether the exemptions asserted by
the government were well taken.  In February 1988, the magistrate
filed a report concluding that a substantial number of the
government's asserted exemptions were not justified.  The magistrate
recommended that the government be required to release documents the
court determined not to be exempt and to re-process all other withheld
documents in accordance with the court's rulings.

   2. On March 29, 1991 -- more than three years later -- the district
court issued an order requiring the government to release certain
documents, and to reprocess all other withheld documents and make
corresponding disclosures, in accordance with the court's rulings,
within 30 days.  The district court's opinion considered the
government's argument that FBI documents concerning an organization
known as the Free Speech Movement (FSM) were compiled for a law
enforcement purpose within the meaning of FOIA's Exemption 7.  The
court found "sufficient evidence that the investigation was opened and
initially pursued for the legitimate purpose of ascertaining the role
of subversive organizations in the FSM, and the potential for civil
disorder in connection with campus protest." App. B, infra, at 10.
The court concluded, however, that "what may have begun as a good
faith effort * * * appears to have become a case of routine monitoring
for intelligence purposes." Id. at 18.  Accordingly, the court held
that documents created after January 19, 1965, were not compiled for a
law enforcement purpose, and therefore are not protected from
disclosure by Exemption 7.

   The court proceeded to make a number of rulings on exemptions
claimed by the government as to specific documents.  The district
court ordered disclosure of certain information classified on national
security grounds, despite the fact that the magistrate found that the
information was properly classified.  App. B, infra, at iii.  In
applying Exemption 7(D), the court refused to infer that the FBI's
sources wished to remain confidential absent some showing that the
source was promised confidentiality.  App. B, infra, xi, xiii.  In
addition, the court ordered that the identities of sources withheld
under Exemption 7(D) should be released if the source had testified,
or been anticipated to testify, at a trial, id. at xiii, or because a
long period of time had elapsed since the source provided the
information, id. at ii, xxx, or the information provided was not
derogatory, id. at xxviii.  In applying Exemption 7(C), the court
ordered the government to release the names of individuals under
investigation if it was well known that the individual was engaged in
activities likely to be the subject of an FBI investigation.  Id. at
ii.  The court also ordered the government to release the names of
some lower-level law enforcement officials involved in the
investigation.  Id. at ii.

   3. On April 12, 1991, the government served a motion to alter or
amend the court's order pursuant to Fed. R. Civ. P. 59(e).  See App.
E, infra.  The government's motion was filed with the district court
on April 16, 1991.  The motion expressly asked the court to enter a
stay of its order pending disposition of the Rule 59 motion.  The
district court scheduled a hearing on the motion for May 31, 1991, but
did not otherwise rule on the government's motion or request for a
stay.

   At the May 31 hearing, the district court expressed doubt as to
whether the government's Rule 59 motion was timely.  The court
directed the parties to brief, by June 10, 1991, the question whether
a motion under Fed. R. Civ. P. 59(e) must be filed, as well as served,
within 10 days of the court's order.  The district court declined to
rule on the merits of the motion for reconsideration until it resolved
the timeliness issue, and scheduled a hearing for June 14, 1991, at
9:30 a.m. P.D.T.  It nevertheless ordered the government to comply
fully with its March 29, 1991 order on or before June 14, 1991.
Moreover, the district court stated that it would deny the
government's request for a stay pending resolution of the motion for
reconsideration or a stay pending appeal.  App. D, infra, at 12-13.

   As a result of this series of rulings by the district court, the
government is required to disclose classified information, identities
of confidential sources, and other sensitive information, by June 14,
1991, even though no court has determined whether its motion for
reconsideration was timely, and even though the government will not be
able to obtain appellate review of the order mandating disclosure of
FBI law enforcement and counterintelligence sources once it complies
with the district court's order.

   4. On June 7, 1991, the government filed a notice of appeal and an
emergency motion for a stay pending appeal, or in the alternative for
a writ of mandamus, in the United States Court of Appeals for the
Ninth Circuit.  The government's motion argued that the district
court's application of Exemptions 7(C) and 7(D) was inconsistent with
decisions of other courts of appeals, and in tension with this Court's
decision in United States Dep't of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749 (1989).  The government noted that,
unless the district court's order is stayed, the government will be
irreparably harmed and this case will become moot.

   On June 12, 1991, the court of appeals (D.W. Nelson, Noonan,
Fernandez, JJ.) issued an order denying the government's motion.  The
court reasoned that, if the government's motion for reconsideration
was timely, its notice of appeal was premature.  On the other hand,
the court noted, if the motion for reconsideration was untimely, the
notice of appeal was out of time.  "Either way," the court said, "the
merits of the March 29 order are not before this court on appeal."
Construing the government's submission as a petition for mandamus, the
court of appeals denied the petition.  App. A, infra.

                               ARGUMENT

   The district court has ordered the government to disclose
classified information and sensitive law enforcement investigatory
files -- including the identities of numerous confidential sources and
the subjects of FBI investigations -- before that court has even ruled
on the government's motion for reconsideration and before the
government has had any opportunity to obtain appellate review of the
district court's order.  The FBI has determined that disclosure of
this information can reasonably be expected to damage the national
security interests of the United States, and to disrupt severely the
FBI's intelligence-gathering and law enforcement capabilities.
Moreover, disclosure will moot this case, thus depriving the
government of its right to appellate review of the district court's
decision.  As set out below, the district court's order departs from
settled law on several important issues.  If the district court's
order were affirmed by the court of appeals, the case might well
warrant review by this Court.  In these circumstances, a stay pending
appeal is fully warranted.

   1. It is well settled that this Court, or a single Justice, has
authority under Rule 23 of the Rules of this Court and the All Writs
Act, 28 U.S.C. 1651, to stay a district court order pending appeal to
the court of appeals.  See Bureau of Economic Analysis v. Long, 450
U.S. 975 (1981);  Heckler v. Redbud Hospital Dist., 473 U.S. 1308
(1985) (Rehnquist, Circuit Justice);  Heckler v. Lopez, 463 U.S. 1328
(1983) (Rehnquist, Circuit Justice);  Clark v. California, 104 S. Ct.
540 (1983) (Rehnquist, Circuit Justice);  Republican State Central
Comm. v. Ripon Society, 409 U.S. 1222, 1227 (1972) (Rehnquist, Circuit
Justice);  R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice
Section 17.13 (6th ed. 1986).  An application for a stay in these
circumstances calls for a weighing of (1) whether irreparable injury
may occur absent a stay;  (2) the probability that the courts below
were in error;  and (3) the public interests that may be affected.
See Republican State Central Comm., 409 U.S. at 1224.  See also
California v. American Stores Co., 110 S. Ct. 1, 3-4 (1989) (O'Connor,
Circuit Justice);  John Doe Agency v. John Doe Corp., 109 S. Ct. 852,
853 (1988) (Marshall, Circuit Justice).  Those factors strongly
support a stay in this case.

   2. There is no doubt that, absent a stay, the government will
suffer irreparable injury.  Once the FBI's documents have been
disclosed to the respondent in accordance with the district court's
order, this case will be moot.  The public and private interests at
stake will have been irretrievably compromised, and there will be no
opportunity for any court to decide the substantial legal questions
raised by the government's appeal.  As one court of appeals recognized
in the FOIA context:

      (T)he Constitution and laws entitle litigants to have their
      cases independently reviewed by an appellate tribunal.
      Meaningful review entails having the reviewing court take a
      fresh look at the decision of the trial court before it becomes
      irrevocable.  Appellants' right of appeal here will become moot
      unless the stay is continued pending determination of the
      appeals.  Once the documents are surrendered pursuant to the
      lower court's order, confidentiality will be lost for all time.
      The status quo could never be restored.

Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979).
Absent a stay, there will be no possibility of a petition for
certiorari in this case, because compliance with the district court's
order will render an appeal from that order moot.  Justice Marshall
has recognized that "(p)erhaps the most compelling justification for a
Circuit Justice to upset an interim decision by a court of appeals
would be to protect this Court's power to entertain a petition for
certiorari." New York v. Kleppe, 429 U.S. 1307, 1310 (1976) (Marshall,
Circuit Justice).  See also John Doe Agency v. John Doe Corp., 109 S.
Ct. at 853-854.

   Agent Lewis's declaration (App. F, infra) describes the substantial
injury to the interests of the United States, as well as innocent
citizens, that will result from denial of a stay.  The declaration
states that the district court's order would require release of
information provided by an "intelligence source of more than 30 years
duration." Id., at 4.  That information "is of critical value to a
hostile entity." Ibid.  Disclosure "could reasonably be expected to
cause damage to our national security." Id. at 5.  In addition, more
than 200 of the FBI sources at issue in this litigation are so
sensitive that the FBI has assigned them "symbol numbers" to be used
in place of their names in FBI records.  Id. at 6.  Some of these
sources continue to provide information to the FBI.  Id. at 7.
Releasing their identities would destroy the FBI's relationship with
these sources, and could cause other sources and potential sources to
decide not to cooperate with the FBI.  Ibid.  Moreover, the documents
at issue refer to 38 intelligence-gathering methods by a symbol
number.  Release of this information "would allow a hostile entity to
conduct a damage assessment and develop countermeasures which would
severely disrupt the FBI's intelligence gathering capabilities." Id.
at 8.  The denial of a stay would also result in wholesale disclosure
of the identities of individuals who were investigated by the FBI,
subjecting them to embarrassment and humiliation.  Id. at 10-12.

   3. Although the government is not automatically entitled to a stay
pending appeal in FOIA litigation, a stay is appropriate where the
appeal has "potential merit" and raises "serious legal questions."
Providence Journal Co., 595 F.2d at 890.  The government's appeal
easily satisfies that standard.  Indeed, there is a high probability
that the government's arguments will prevail on appeal.

   a. As an initial matter, the government's Rule 59(e) motion (and,
consequently, its notice of appeal) were timely.  The plain language
of Rule 59(e) states that a motion to alter or amend a judgment "shall
be served not later than 10 days after entry of the judgment." It is
well settled that the Rule means what it says:  "It is the date of
service that is significant in this connection.  If there is timely
service of the motion, it is sufficient if it is filed with the court
within a reasonable time after service." 11 C. Wright & A. Miller,
Federal Practice & Procedure Section 2812, at 83 (1973).  See, e.g.,
Sadowski v. Bombardier, Ltd., 527 F.2d 1132, 1134 (7th Cir. 1975);
Claybrook Drilling Co. v. Divanco, Inc., 336 F.2d 697 (10th Cir.
1964).  See also Fed. R. Civ. P. 5(d) ("All papers after the complaint
required to be served upon a party shall be filed with the court
either before service or within a reasonable time thereafter.").

   Here, the government served its Rule 59(e) motion on April 12,
1991, within the 10-day period prescribed by the Rule.  /3/ See App.
E, infra.  The motion was filed with the court two business days
later, on April 16, 1991, a reasonable time after service.  See Fed.
R. Civ. P. 5(d).  Consequently, the Rule 59 motion is timely.  Because
a timely Rule 59 motion stays the time to file an appeal, the
government's notice of appeal in this case was also timely.

   Even if the timeliness of the government's motion were in doubt --
and, in light of the foregoing, we do not see how that can be -- a
stay would be warranted in this case.  Neither the court of appeals
nor the district court has yet determined that the government's motion
was untimely.  Absent a stay, that question -- along with the merits
of the government's motion for reconsideration and its appeal -- will
become moot when the government complies with the district court's
order.  In this situation, the balance of equities strongly favors
preserving the status quo at least until such time as the courts below
have actually ruled on the timeliness of the government's motion.

   The district court has refused to rule on the government's motion
for reconsideration -- or even to rule whether the motion was timely
-- prior to the time at which it has ordered the government to turn
over the disputed documents.  See App. C, infra.  This has put the
government in a classic Catch-22 position:  it cannot obtain appellate
review so long as the motion is pending, yet the ordered disclosure of
the documents will moot any appeal.  Our system of appellate review
does not countenance permitting a district court in this manner
effectively to insulate its own decisions from any appellate scrutiny.
 /4/

   b. The district court's application of Exemption 7(D) is contrary
to decisions of several courts of appeals.  First, the district court
refused to presume that the FBI's sources were promised
confidentiality unless it appeared from the face of the documents that
the source had received such a promise.  This conflicts with appellate
decisions holding that there is a strong presumption that information
is provided to the FBI pursuant to an assurance of confidentiality.
See Parker v. Department of Justice, No. 90-5070 (D.C. Cir., June 4,
1991), slip op. 5;  Dow Jones & Co. v. Department of Justice, 917 F.2d
571, 576-577 (D.C. Cir. 1990);  Schmerler v. FBI, 900 F.2d 333, 337
(D.C. Cir. 1990).

   Second, the district court erroneously held that the FBI cannot
protect sources who testified, or were anticipated to testify, at
trial.  Again, the overwhelming weight of authority is contrary to
that holding.  See, e.g., Parker, slip op. at 7;  Irons v. FBI, 880
F.2d 1446, 1447 (1st Cir. 1989) (en banc);  L & C Marine Transp., Ltd.
v. United States, 740 F.2d 919, 925 (11th Cir. 1984) ("per se
limitation on disclosure under 7(D) does not disappear if the identity
of the confidential source later becomes known through other means");
Kiraly v. FBI, 728 F.2d 273, 278-279 & n.8 (6th Cir. 1984);  Radowich
v. United States Attorney, 658 F.2d 957, 960 (4th Cir. 1981).

   Third, the district court ordered the disclosure of information
withheld under Exemption 7(D) because of the passage of time, or
because it surmised that the information was not derogatory.  The
District of Columbia Circuit rejected both these rationales in its
recent decision in Schmerler, holding that FOIA "contains no sunset
provision on the promise of confidentiality," and that "the substance
of information provided in confidence does not determine the
applicability of Exemption 7(D)." 900 F. 2d at 336, 338.

   c. The district court also misapplied FOIA's Exemption 7(C).  The
court ordered disclosure of the names of individuals under
investigation where it was generally known that the individual was
engaged in activities likely to be the subject of an FBI
investigation.  This overlooks the reality that, even if the public
may suspect that an individual was investigated by the FBI,
confirmation of such an investigation may be a source of
"embarrassment and potentially more serious reputational harm." Senate
of Puerto Rico v. Department of Justice, 823 F.2d 574, 588 (D.C. Cir.
1987);  Fitzgibbon v. CIA, 911 F.2d 755, 767-768 (D.C. Cir. 1990).

   In United States Dep't of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749 (1989), this Court held that
disclosure of an FBI rap sheet to a third party is prohibited by
Exemption 7(C).  In so holding, the Court rejected an argument that
the rap sheet should be subject to disclosure because the events
recorded on it have already been made public.  The Court summarized
its analysis by observing that "the fact that an event is not wholly
'private' does not mean that an individual has no interest in limiting
disclosure or dissemination of the information." 489 U.S. at 770
(quoting Rehnquist, "Is an Expanded Right of Privacy Consistent with
Fair and Effective Law Enforcement?," Nelson Timothy Stephens
Lectures, University of Kansas Law School, pt. 1, p. 13 (Sept. 26-27,
1974)).  In light of the Reporters Committee decision, the D.C.
Circuit recently held that

      unless access to the names and addresses of private individuals
      appearing in files within the ambit of Exemption 7(C) is
      necessary in order to confirm or refute compelling evidence that
      the agency is engaged in illegal activity, such information is
      exempt from disclosure.

SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1206 (1991).  /5/

   d. The district court's novel holding that the law enforcement
purpose for the FBI's investigation of the FSM "disintegrated" during
the course of the investigation is contrary to the decisions of other
appellate courts.  Some courts of appeals hold that "the investigatory
records of law enforcement agencies are inherently records compiled
for 'law enforcement purposes' within the meaning of Exemption 7."
Irons v. Bell, 596 F.2d 468, 475 (1st Cir. 1979).  Accord Williams v.
FBI, 730 F.2d 882, 884-885 (2d Cir. 1984) (records of a law
enforcement agency should be given "absolute protection" even if
"compiled in the course of an unwise, meritless or even illegal
investigation");  Kuehnert v. FBI, 620 F.2d 662, 666 (8th Cir. 1980).
These decisions reflect a recognition that innocent individuals who
would be harmed by release of law enforcement records generally have
no way to test the legality of an FBI investigation, and that the loss
of protection under Exemption 7 would deter individuals from
cooperating with the FBI.  Moreover, it is difficult to

      conceive of a standard that would enable a district court to
      distinguish at an in camera proceeding between a colorably
      justifiable investigation that turned out to be a blind alley
      and an investigation that was bogus from the beginning.  At
      best, the district court would be forced, on a record grown cold
      after years or decades, to second or third guess the judgment of
      a Special Agent in Charge that an investigation was warranted.

Irons, 596 F.2d at 474.  Here, the district court went even further.
Although the court found that the investigation was begun with a
legitimate law enforcement purpose, and conceded that identifying the
date on which the investigation ceased to have a legitimate purpose
"is like trying to identify the moment at which a once-hirsute man
became bald," App. B, infra, at 18, the court nevertheless held that
the investigation should have been concluded by January 19, 1965
rather than -- as was in fact the case -- by the end of 1965.  Such
judicial second-guessing is plainly improper.

   Moreover, the district court ordered the government to disclose a
substantial number of documents that were created during
investigations of other organizations, such as the Communist Party USA
and the Socialist Workers Party, and placed in the FBI's FSM file for
cross-reference.  The district court made no effort to determine
whether these documents were compiled for a law enforcement purpose
other than investigation of the FSM, and thus retain their law
enforcement character.  See FBI v. Abramson, 456 U.S. 615, 626 (1982).

   e. In addition, a substantial number of sources that would be
disclosed under the district court's order are intelligence sources
classified pursuant to Executive Order 12356, 3 C.F.R. (1982 Comp.) p.
166, and thus are exempt from disclosure under FOIA Exemption 1.  See
App. E, infra, at 4-5, 8-10.  Disclosure of these sources would be
contrary to this Court's decision in CIA v. Sims, 471 U.S. 159, 175
(1985) (recognizing the "importance of providing intelligence sources
with an assurance of confidentiality that is as absolute as
possible"), and to the decisions of other courts deferring to an
intelligence agency's assessment of the harm that such disclosure
would cause to its counterintelligence mission.  See Fitzgibbon v.
CIA, 911 F.2d at 762-764;  King v. Department of Justice, 830 F.2d
210, 217 (D.C. Cir. 1987);  Abbotts v. NRC, 766 F.2d 604, 607-608
(D.C. Cir. 1985);  Miller v. Casey, 730 F.2d 773, 776 (D. C. Cir.
1984);  Church of Scientology v. Department of the Army, 607 F.2d 1282
(9th Cir. 1979).

   4. The public interest and the balance of the equities weighs
heavily in favor of a stay pending appeal.  In the absence of a stay,
the government will be compelled to release the names of numerous
confidential sources, as well as the subjects of FBI investigations.
Aside from the suffering this will cause to innocent citizens, these
disclosures may reasonably be expected to damage the national security
interests of the United States, and to substantially interfere with
the intelligence-gathering and law enforcement capabilities of the
FBI.  Where, as here, the district court's order has departed in
important respects from the decisions of this Court and other federal
courts, there is a strong public interest in staying disclosure at
least until the court of appeals has had an opportunity to consider
the government's appeal on the merits.  /6/

   Moreover, the irreparable harm to the government and innocent
citizens that will result from denial of a stay far outweighs the harm
to the respondent that will result from staying the district court's
order.  If the respondent ultimately prevails on appeal, he will of
course obtain all the information to which he is entitled under the
district court's order.  The magistrate's report was pending before
the district court for more than three years before the court issued
its order of March 29, 1991.  Although the delays in this case are
regrettable, the additional delay entailed by a stay to afford the
government its right to appellate review of what it regards as a
seriously flawed order is far outweighed by the irreparable harm that
would be caused by immediate disclosure of the identities of the FBI's
confidential sources and the subjects of FBI investigations.

                              CONCLUSION

   The application for a stay of the March 29, 1991, order of the
United States District Court for the Northern District of California
should be granted.

   KENNETH W. STARR

      Solicitor General

   JUNE 1991

   /1/ Appended to this application, in addition to Agent Lewis's
declaration, are the June 12, 1991 order of the court of appeals (App.
A, infra);  the March 29, 1991, order of the district court (App. B,
infra);  the June 10, 1991 order of the district court requiring the
government to comply with its order of March 29 by June 14, 1991 (App.
C, infra);  the transcript of the May 31, 1991, hearing before the
district court (App. D, infra);  and the certificate of service that
accompanied the government's motion for reconsideration (App. E,
infra)

   /2/ Exemption 1 exempts from disclosure information that is
properly classified pursuant to Executive Order to protect the
national security or foreign relations of the United States.
Exemption 7(C) exempts information compiled for law enforcement
purposes that "could reasonably be expected to constitute an
unwarranted invasion of personal privacy." Exemption 7(D) exempts
information compiled for law enforcement purposes that "could
reasonably be expected to disclose the identity of a confidential
source, including a state, local or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and in the case of a record or information compiled by a
criminal law enforcement authority in the course of a criminal
investigation * * *, information furnished by a confidential source."
5 U.S.C. 552(b)(1), 552(b)(7)(C)-(D).

   /3/ Under Fed. R. Civ. P. 6(a), when a period of time prescribed or
allowed is less than 11 days, intermediate Saturdays and Sundays are
excluded from the computation.  Thus, April 12, 1991, was the tenth
day.

   /4/ Because the court of appeals concluded that the merits of the
district court's March 29, 1991, order were not before it, see App. A,
infra, this case does not present the usual situation in which a
Circuit Justice is inclined to defer to the decisions of both courts
below to deny a stay.  At a minimum, a stay is warranted to allow the
court of appeals to reconsider the government's motion for a stay
after the district court disposes of the motion for reconsideration.

   /5/ The district court's order also conflicts with decisions
holding that the names of lower-level law enforcement officers are
exempt from disclosure under Exemption 7(C) except in unusual
circumstances.  See, e.g., Stone v. FBI, 727 F. Supp. 662, 666-667
(D.D.C. 1990);  Kirk v. Department of Justice, 704 F. Supp. 288, 292
(D.D.C. 1989).

   /6/ Applicants have asked this Court to enter a stay pending a
decision by the court of appeals in this case.  In the alternative,
applicants ask this Court to enter a stay to remain in effect at least
until (1) the district court rules on the government's motion for
reconsideration, and (2) the court of appeals has an opportunity to
rule on the merits of the government's application for a stay pending
appeal.