[00:00:01] Speaker 00:
Case number 14-5032, Barbara Fineman, Appellant, Garrett M. Graff versus Federal Bureau of Investigation at L. Mr. Moss for the appellant, and Mr. Kenna Shine for the appellees.

[00:00:31] Speaker 03:
That workability.

[00:01:05] Speaker 02:
Good morning, Your Honors, and may it please the Court, Bradley P. Moss for the appellant, Barbara Feynman, with me at Council Tables, my co-counsel, Mark Zaid.

[00:01:13] Speaker 02:
We're here before you on de novo review of a Rule 12b1 motion to dismiss for lack of subject matter jurisdiction, for lack of standing, for Ms.

[00:01:21] Speaker 02:
Feynman, as well as two issues that the appellee has brought up on appeal, that of mootness and that of whether or not the anti-assignment laws apply to FOIA.

[00:01:29] Speaker 02:
With the Secretary's permission, I'd like to address mootness first.

[00:01:33] Speaker 02:
Freedom of Information Act broadly states that a reasonably described request for records that's properly submitted to an agency shall be processed, subject to applicable exemptions and fees.

[00:01:43] Speaker 02:
In this case, in seeking to dismiss this appeal as moot, the appellee is sought to add additional caveat.

[00:01:49] Speaker 02:
Once you've had a single bite at the apple, never again should you have a second.

[00:01:53] Speaker 02:
Pelley's position, unfortunately, is flawed both factually.

[00:01:56] Speaker 06:
It is your position.

[00:01:57] Speaker 06:
I'm trying to figure out what it is you want here.

[00:01:59] Speaker 06:
So imagine we agree with you that there was standing and, more importantly, that you were able to make the assignment.

[00:02:09] Speaker 06:
What happens next in the litigation?

[00:02:12] Speaker 02:
It would be remanded back to the district court.

[00:02:14] Speaker 02:
It would be probably a motion for summary judgment on whether or not the assignment itself was valid.

[00:02:19] Speaker 06:
No, assume the assignment was valid.

[00:02:21] Speaker 06:
Then what happens?

[00:02:22] Speaker 02:
then it gets remitted actually back to the agency for administrative processing.

[00:02:25] Speaker 02:
It would be processed by the agency.

[00:02:28] Speaker 06:
The agency didn't refuse to process on the ground of improper assignment, did it?

[00:02:37] Speaker 06:
You never presented that to the agency.

[00:02:40] Speaker 02:
No, I respectfully disagree, Your Honor.

[00:02:42] Speaker 02:
We submitted, both Ms.

[00:02:43] Speaker 02:
Feynman-Fitt submitted letters from Ms.

[00:02:45] Speaker 02:
Catherine Byrne, signing the request to her, and the one she, Ms.

[00:02:48] Speaker 02:
Feynman, signed, accepting the request.

[00:02:50] Speaker 06:
Those were after the litigation began, or before?

[00:02:52] Speaker 02:
That was before the litigation began.

[00:02:53] Speaker 06:
And did the agency say, no, we're not going to process this because we don't recognize the assignment?

[00:03:00] Speaker 02:
The agency did not respond one way or the other.

[00:03:02] Speaker 06:
Okay, so then I understand that if the agency had said, we won't go any further because we don't recognize assignments,

[00:03:13] Speaker 06:
then that would be something to argue in court.

[00:03:16] Speaker 06:
But that's not what happened.

[00:03:17] Speaker 06:
The agency said to the two different people, both fine men in different ways, not unless there's a death, and OK, there's a death, and there's no, we don't have anything.

[00:03:30] Speaker 06:
But the agency never said, we're not going to process this because you have no assignment.

[00:03:36] Speaker 06:
So I don't understand what happens here next.

[00:03:39] Speaker 02:
There's just another argument.

[00:03:41] Speaker 06:
You have an argument that assume that Feynman has the standing of Bernie, is that how?

[00:03:47] Speaker 06:
Byrne.

[00:03:47] Speaker 06:
Byrne.

[00:03:48] Speaker 06:
Assume that she does.

[00:03:50] Speaker 06:
So what happens next?

[00:03:52] Speaker 06:
I'm not, I just don't follow.

[00:03:54] Speaker 02:
She'd be allowed to process this request through to fruition beyond what she had done in her own separate request.

[00:03:59] Speaker 06:
Well, but that is something that happens outside of litigation.

[00:04:03] Speaker 06:
This is not a, it doesn't seem to me that you're appealing the right thing here.

[00:04:09] Speaker 06:
The agency did not refuse to process on the ground of lack of assignment.

[00:04:15] Speaker 06:
To Feynman, the agency said, we don't have any documents.

[00:04:20] Speaker 06:
That's what she said.

[00:04:21] Speaker 02:
That was in Feynman's separate request.

[00:04:23] Speaker 06:
I understand.

[00:04:23] Speaker 06:
And to Byrne, they said, show us that he's dead.

[00:04:28] Speaker 06:
And then we'll do it.

[00:04:30] Speaker 06:
So you could appeal.

[00:04:33] Speaker 06:
in the court and say, well, that's an improper question because the government's not allowed to resist FOIA on that ground.

[00:04:40] Speaker 06:
But you're not making that argument.

[00:04:42] Speaker 06:
So I'm still a little puzzled by why we're here.

[00:04:46] Speaker 02:
Sure.

[00:04:47] Speaker 02:
Let me clarify.

[00:04:49] Speaker 02:
Because of what happened in the intervening time between this litigation being initiated, Ms.

[00:04:54] Speaker 02:
Fineman submitting her separate identical request in which the FBI now understands that the individual is deceased, if it were remanded, it would be allowed to be processed the way it should have been, even if it was still with Ms.

[00:05:06] Speaker 02:
Byrne.

[00:05:06] Speaker 06:
But now you're asking for an advisory opinion on the question of assignability, which should begin by bringing the case to the agency.

[00:05:16] Speaker 06:
You don't just, what normally happens with litigation is you go to the agency, the agency says no because of X. You don't come to the court and say I want a declaratory judgment that X is not going to be a good answer if the agency happens to give it to me.

[00:05:31] Speaker 06:
That's not the way it works, because that's an advisory opinion.

[00:05:35] Speaker 02:
Correct.

[00:05:35] Speaker 02:
And I understand, Your Honor.

[00:05:36] Speaker 02:
When we filed suit, it was not based on the idea that we thought they had denied the assignment.

[00:05:41] Speaker 02:
We had no idea if they'd accepted or denied it.

[00:05:42] Speaker 02:
Yeah, exactly.

[00:05:43] Speaker 02:
We had filed suit for constructive exhaustion of administrative remedies.

[00:05:47] Speaker 02:
More than 20 days had passed.

[00:05:49] Speaker 02:
It's well-established case law.

[00:05:50] Speaker 06:
Yeah, but what were you seeking?

[00:05:53] Speaker 02:
Processing it for the request.

[00:05:54] Speaker 06:
Well, they did process the request only in Feynman separate one They never processed it and this all you want is a processing of the request for information about this guy Is that right and they've already done that only for one?

[00:06:07] Speaker 06:
I understand only for one only for the initial administrative level, but it's the same You say it you say in your brief.

[00:06:14] Speaker 06:
It's the same, right?

[00:06:16] Speaker 02:
The information is the same.

[00:06:17] Speaker 02:
You want an appeal.

[00:06:18] Speaker 02:
Is that what you're saying?

[00:06:19] Speaker 02:
You want an administrative appeal.

[00:06:20] Speaker 03:
You think it was an inadequate search, right?

[00:06:22] Speaker 03:
It was correct.

[00:06:23] Speaker 03:
I mean, that's ultimately what this is about, I think.

[00:06:25] Speaker 06:
But are you going to make that argument here, or is your idea that you get to go back to the agency for an appeal?

[00:06:31] Speaker 02:
That would go back to the agency for the appeal, but we would not be able to do that on behalf of Ms.

[00:06:35] Speaker 02:
Feynman.

[00:06:36] Speaker 02:
Well, we don't know that.

[00:06:37] Speaker 06:
You didn't try.

[00:06:38] Speaker 06:
You didn't go back to the agency and say, we'd now like to make an administrative appeal.

[00:06:43] Speaker 06:
And then the agency said, no, we're not going to allow you to do an administrative appeal because you're out of time.

[00:06:49] Speaker 06:
That didn't happen.

[00:06:51] Speaker 06:
Once again, you're assuming what the agency will do.

[00:06:54] Speaker 02:
I'm suddenly confused by your question, Your Honor.

[00:06:56] Speaker 02:
The case was already in litigation.

[00:06:57] Speaker 02:
There was no opportunity to go back.

[00:06:59] Speaker 06:
You didn't have to go into litigation.

[00:07:01] Speaker 06:
You could have started by asking the agency to appeal.

[00:07:05] Speaker 06:
In fact, why didn't it assume for the moment that we accept the assignment?

[00:07:10] Speaker 06:
Why didn't Byrne ask the agency to appeal?

[00:07:15] Speaker 06:
Why didn't she?

[00:07:17] Speaker 02:
I can't speak for her, given that she's not here.

[00:07:19] Speaker 06:
No, no, but she is not.

[00:07:21] Speaker 06:
It's her assignment, right?

[00:07:23] Speaker 06:
So you stand in her shoes, correct?

[00:07:24] Speaker 02:
Correct.

[00:07:25] Speaker 06:
All right.

[00:07:26] Speaker 06:
She wasn't given notice, right?

[00:07:28] Speaker 02:
No.

[00:07:28] Speaker 06:
OK, so that means she has the right to go to the agency and say, I want to appeal.

[00:07:32] Speaker 06:
If the agency said, no, time's expired, you would have a very good case, because they never told you.

[00:07:40] Speaker 06:
But the agency didn't say that.

[00:07:42] Speaker 06:
So why wasn't it the obligation, regardless of whose shoes you're standing in, to begin by making administrative appeal?

[00:07:50] Speaker 06:
We've said that the whole point of exhaustion is to create a record that we can deal with.

[00:07:56] Speaker 06:
We can't even create a record about the question that Judge Kavanaugh's point asked, which I agree is your underlying point, whether the search was good enough, until you make an administrative appeal and they explain what they did.

[00:08:09] Speaker 02:
But why didn't you do that?

[00:08:10] Speaker 02:
The reason that was not done at this point, sorry, the reason that was not done by Ms.

[00:08:14] Speaker 02:
Byrne was at the time, the FBI's response letter was actually legally insufficient and was later changed in the course of this district court litigation.

[00:08:22] Speaker 02:
It only would indicate you had to provide proof of death.

[00:08:25] Speaker 06:
No, but you knew that at the time you filed the lawsuit.

[00:08:29] Speaker 06:
on behalf of finemen standing in the shoes of Bern, right?

[00:08:33] Speaker 06:
At that time, you knew that the government had failed to advise on time because you say that of the right to administrative appeal.

[00:08:40] Speaker 06:
You say that in your complaint, right?

[00:08:44] Speaker 06:
Correct.

[00:08:44] Speaker 06:
So why isn't the right thing to have done is to have gone, before filing a lawsuit on behalf of finemen in the shoes of Bern,

[00:08:54] Speaker 06:
for Feynman in the shoes of Byrne to go to the agency and say, or for Byrne in her own shoes, going to the agency and saying, I would now like to appeal.

[00:09:03] Speaker 06:
And then the agency would say, well, time's up.

[00:09:06] Speaker 06:
And Byrne would say, well, no, it's not, because you didn't tell us.

[00:09:09] Speaker 06:
And if the agency said, well, we don't care, then you would have a lawsuit.

[00:09:15] Speaker 02:
The reason that was not done, Your Honor, was because the policy the FBI was employing was itself legally flawed.

[00:09:20] Speaker 02:
They were not providing a third option that the district court has since required them to include in their response letters.

[00:09:27] Speaker 02:
which was then in addition to a privacy waiver or proof of death, that the requester be allowed to provide an overriding public interest in why the record should be disclosed.

[00:09:35] Speaker 06:
Well, but you could have appealed.

[00:09:36] Speaker 06:
That's the purpose of administrative appeal.

[00:09:38] Speaker 02:
Correct.

[00:09:38] Speaker 02:
But that was not even referenced in the response letter.

[00:09:40] Speaker 02:
So the complaint, in addition to the specific requests at issue, was also a broader, at least at the time, planned as a class action to challenge this policy.

[00:09:49] Speaker 02:
The policy was modified by the agency in the course of the district court litigation.

[00:09:54] Speaker 02:
But that's why at the time the administrative appeal was not submitted because we were challenging the policy as a whole.

[00:10:01] Speaker 06:
I know, but the question is you still have to set up a lawsuit.

[00:10:03] Speaker 06:
You can't just assume what's going to happen by the agency.

[00:10:07] Speaker 06:
And so I don't see why the right answer here isn't either Byrne or Feynman or both go back to the agency and ask for an appeal.

[00:10:19] Speaker 06:
Maybe the agency will allow Feynman to have the appeal because they've already done the search and there's no point anymore.

[00:10:28] Speaker 06:
Or maybe they will allow Bernd to because they have to because they didn't get her notice on time.

[00:10:34] Speaker 06:
Either one of which would create a record for us as to the ultimate question, which is whether or not they did a sufficient search.

[00:10:43] Speaker 06:
and then we would have a regular ordinary everyday FOIA case instead of a case that seems to be burning up an awful lot of time on a relatively obscure question about assignment law.

[00:10:56] Speaker 06:
What would be the harm of dismissing the case and having you make those requests and having them either decide or not?

[00:11:07] Speaker 06:
Because what you want to do is remand to them anyway, right?

[00:11:11] Speaker 06:
You want an order back to the agency, a remand back to the agency.

[00:11:14] Speaker 02:
Correct, Your Honor.

[00:11:15] Speaker 06:
What does the remand order say?

[00:11:17] Speaker 02:
Remand order would reverse

[00:11:19] Speaker 02:
the district court's opinion as a matter of law.

[00:11:22] Speaker 02:
Right, and direct it to remand back to the agency for... Direct it to remand back to the agency to determine whether or not the assignment is valid.

[00:11:30] Speaker 06:
But why is that necessary?

[00:11:31] Speaker 06:
Feynman has her own claim, so what's the difference?

[00:11:36] Speaker 06:
The documents you want are the same, right?

[00:11:39] Speaker 01:
Correct, Your Honor.

[00:11:39] Speaker 06:
Absolutely the same, identical, that's the word you used.

[00:11:42] Speaker 06:
Correct, Your Honor.

[00:11:43] Speaker 06:
So what's the difference if they just process Feynman's?

[00:11:47] Speaker 02:
Respectfully, I don't believe it's necessary for us to prove a difference in the sense of the statutory entitlement is the same, regardless of whether or not Feynman does it herself or if it's done through the course of this litigation.

[00:11:57] Speaker 06:
So let me just ask you this.

[00:11:58] Speaker 06:
If the agency, because I asked them to today, gave you every single document, you would say the case is not moot because I asked them to give you every document rather than you asked them to give you every document?

[00:12:10] Speaker 06:
Is that your point?

[00:12:11] Speaker 02:
I'm not sure I quite understand your question.

[00:12:13] Speaker 06:
Well, let's say after we leave here, I file a FOIA request for all the documents.

[00:12:20] Speaker 06:
They give me all the documents and they put them up on the website.

[00:12:24] Speaker 06:
Now, would you say the case is not moot because they didn't give it in response to your client request?

[00:12:29] Speaker 02:
Correct, Your Honor.

[00:12:30] Speaker 06:
And on what theory?

[00:12:32] Speaker 02:
On the theory that... What's your injury?

[00:12:34] Speaker 02:
That Feynman was not afforded the statutory rights she was allowed.

[00:12:37] Speaker 02:
She got all the documents she wanted.

[00:12:39] Speaker 02:
But not in the course in which it was originally requested, which was by way of assignment.

[00:12:43] Speaker 06:
Okay.

[00:12:44] Speaker 06:
Strikes me as a losing argument, so I hope you have another one.

[00:12:46] Speaker 02:
Understood, Your Honor.

[00:12:48] Speaker 02:
See, my time is up.

[00:13:00] Speaker 05:
May it please the Court, Robert Kamenschein with the Department of Justice, and with me at the Council table is Leonard Scheitman, also with the Department of Justice.

[00:13:09] Speaker 06:
Mr. Kamenschein, just so I know whether there is a very easy solution to this case.

[00:13:16] Speaker 06:
If this case were dismissed and either Feynman or Byrne, separately or together, were to ask for an appeal,

[00:13:25] Speaker 06:
of the decision that there's no documents.

[00:13:31] Speaker 06:
Would the FBI process the appeal?

[00:13:35] Speaker 05:
Your Honor, I'm not sure I can give that a definitive answer.

[00:13:38] Speaker 05:
I mean, it's certainly a possibility.

[00:13:42] Speaker 06:
Well, if you gave that definitive answer, the case would be moot, at least in my view.

[00:13:47] Speaker 06:
If you don't, we may decide against you on the question of assignability.

[00:13:51] Speaker 05:
Right.

[00:13:51] Speaker 05:
But I'm not in a position where I can give a definitive answer.

[00:13:56] Speaker 05:
I will say that in Bern's case,

[00:13:59] Speaker 05:
The letter to Byrne did not flag administrative rights, although Byrne's letter itself referred to the possibility of an administrative appeal.

[00:14:11] Speaker 05:
So there's that aspect.

[00:14:13] Speaker 05:
In Feynman's case, the letter... I'm not following.

[00:14:15] Speaker 06:
What's the that aspect, since you didn't provide notice?

[00:14:18] Speaker 05:
I'm saying that that would give Byrne an argument.

[00:14:23] Speaker 05:
in terms of making that administrative appeal, now that there was never a notice, a proper notice of a right to administrative appeal, so that that would be a plus in terms of her going forward with her administrative appeal.

[00:14:41] Speaker 05:
In Fineman's case,

[00:14:44] Speaker 05:
the response to Feynman did flag the opportunity for an administrative appeal and Feynman's brief says that references some kind of miscommunication but without any more

[00:15:03] Speaker 05:
So, you know, there's an ambiguity there as to what the circumstances were that Feynman is alluding to in terms of some kind of miscommunication.

[00:15:16] Speaker 06:
Well, what if Feynman just filed a new FOIA request, got the same answer, guy's dead, and we don't have any documents, and then asked for an appeal?

[00:15:27] Speaker 06:
What would happen next?

[00:15:29] Speaker 05:
It would go forward.

[00:15:31] Speaker 06:
It would go forward.

[00:15:32] Speaker 06:
So you're not taking the position that they're precluded from making a new request?

[00:15:39] Speaker 06:
No.

[00:15:42] Speaker 05:
And so, Your Honor, I don't want to take up too much of the Court's time unnecessarily, just to say that I think that this report really got it right when it became aware of Feynman's identical FOIA request and said, I'm not going to certify this to the Court of Appeals at that point.

[00:16:03] Speaker 05:
because Feynman could bring suit in her own name without any need for the court to reach the question of assignment.

[00:16:09] Speaker 05:
Assignment is a significant issue.

[00:16:11] Speaker 05:
It's kind of esoteric.

[00:16:13] Speaker 05:
But the amicus brief here indicates our context in which assignment might have some real significance, but not here.

[00:16:23] Speaker 05:
And the district court also properly

[00:16:27] Speaker 05:
found that there was a lack of standing.

[00:16:31] Speaker 05:
We've also said it's a priori.

[00:16:34] Speaker 06:
Oh, go ahead.

[00:16:34] Speaker 06:
I'm very perplexed by the standing argument.

[00:16:37] Speaker 06:
OK.

[00:16:37] Speaker 06:
So how does this relate to the Lexmark case?

[00:16:39] Speaker 06:
Lexmark case says that statutory causes of action, statutory standing is not a standing question at all.

[00:16:45] Speaker 06:
It's a question of cause of action.

[00:16:47] Speaker 06:
So the question here is, under FOIA, does an assignee have a cause of action?

[00:16:53] Speaker 05:
I think Your Honor is correct on that.

[00:16:57] Speaker 05:
Certainly the district court's opinion verges over into really a discussion of the merits.

[00:17:04] Speaker 05:
The FOIA is geared totally toward a requester.

[00:17:09] Speaker 05:
It's silent on the question of assignment.

[00:17:13] Speaker 05:
Now, Feynman says, well,

[00:17:16] Speaker 05:
It's silent on that.

[00:17:18] Speaker 05:
Therefore, we can construct that if he asks the court to create this, we say it's silent on this.

[00:17:27] Speaker 05:
It's geared toward the requester.

[00:17:29] Speaker 05:
And with that silence, there's no cause of action created.

[00:17:34] Speaker 06:
So you agree it's a cause of action question.

[00:17:36] Speaker 05:
It's not a waiver of sovereign immunity.

[00:17:39] Speaker 05:
Yeah.

[00:17:40] Speaker 03:
Suppose the administrative appeals are out of time.

[00:17:44] Speaker 03:
And so if she went back to the agency and the agency said, sorry, you're out of time.

[00:17:53] Speaker 03:
Let me finish the question.

[00:17:55] Speaker 03:
Is this still moot?

[00:18:00] Speaker 05:
I think it's moot because Ms.

[00:18:05] Speaker 05:
Feynman herself already got a substantive determination that there were no

[00:18:12] Speaker 03:
That sounds like race judicata more than moodness.

[00:18:15] Speaker 05:
And so she's asking the court to take the validity of the assignment from Ms.

[00:18:21] Speaker 05:
Byrne to her, and the result of that would be that she tests ultimately get back where she was.

[00:18:28] Speaker 03:
I'm not sure about this, but I think ultimately what their real world complaint is is that the search was not adequate.

[00:18:40] Speaker 03:
And given that the FBI said there were no documents, their complaint, I think, is that the search was not adequate.

[00:18:47] Speaker 03:
And that's never been, they've never had a forum to seek that relief.

[00:18:53] Speaker 03:
So they're seeking, if they were seeking that in this litigation, how is it moot?

[00:19:01] Speaker 05:
Well, I mean, Ms.

[00:19:02] Speaker 03:
Feynman had the opportunity to... Again, that sounds like race judicata, not mootness to me.

[00:19:10] Speaker 05:
Well, if she gets, she goes full circle here.

[00:19:16] Speaker 03:
In other words, if she procedurally defaulted, to use that term loosely here, in seeking an administrative appeal before, does that make the current attempt to seek relief that she procedurally defaulted from seeking before, does that make this moot?

[00:19:33] Speaker 05:
I don't believe that she can

[00:19:36] Speaker 05:
effectively waive her right to administrative appeal in her own case as a vehicle for going forward with a test of whether an assignment... The record is confusing as to whether that was deliberate or not, right?

[00:19:54] Speaker 05:
I'm sorry, Your Honor.

[00:19:55] Speaker 04:
The record is unsettled, unclear, whether the not pursuing an administrative appeal was a deliberate choice or some sort of neglect.

[00:20:05] Speaker 05:
You're right.

[00:20:05] Speaker 05:
You're right.

[00:20:06] Speaker 05:
Because she says the word with some kind of miscommunication.

[00:20:10] Speaker 05:
Right.

[00:20:10] Speaker 05:
So we don't know that.

[00:20:12] Speaker 04:
So I thought I understood your response to a question from Judge Garland to be that if the spineman filed again a request for these documents and they were rejected on the same ground they've already been rejected, then she could appeal and move on through the process.

[00:20:36] Speaker 05:
Correct.

[00:20:38] Speaker 05:
Right.

[00:20:41] Speaker 05:
I mean, if this is a case about a – which is what FOIA is about – But the opportunity to file a new suit doesn't – To get information.

[00:20:49] Speaker 03:
Well, let me just finish.

[00:20:50] Speaker 03:
If the opportunity to file a new suit doesn't make the current suit moot – No, it wouldn't.

[00:20:55] Speaker 05:
I'm not aware of any theory that suggests that.

[00:20:57] Speaker 05:
No, not strictly.

[00:20:58] Speaker 06:
No, it wouldn't.

[00:20:59] Speaker 06:
But the consequence of them continuing with this suit is

[00:21:04] Speaker 06:
as he said, only to send it back to the agency to do the same thing that they would otherwise do by making an outside request.

[00:21:12] Speaker 06:
It would be to appeal.

[00:21:13] Speaker 06:
First of all, in order for this to work, they would have to win the argument that they have a right to appeal.

[00:21:24] Speaker 06:
And so far, the agency has never turned them down on an appeal.

[00:21:27] Speaker 06:
Is that right?

[00:21:27] Speaker 05:
That's correct.

[00:21:28] Speaker 06:
The agency's never told them that they can't appeal.

[00:21:30] Speaker 05:
No.

[00:21:31] Speaker 06:
So there's nothing to adjudicate about whether they have a right to appeal right now, or is there?

[00:21:37] Speaker 05:
No, Your Honor.

[00:21:38] Speaker 05:
The only interaction, well, there was interaction with Byrne in addressing her request.

[00:21:47] Speaker 05:
There was interaction with Feynman in addressing her request.

[00:21:50] Speaker 05:
And then the agency received a notice about this assignment having taken place.

[00:21:57] Speaker 05:
But at that juncture, there was nothing for the agency to do because the administrative end of this had already been completed.

[00:22:06] Speaker 06:
So the agency has neither turned down the recognition of the assignment nor turned down an appeal by either of the two.

[00:22:15] Speaker 06:
Either of the two people.

[00:22:16] Speaker 04:
That's correct.

[00:22:20] Speaker 03:
Is the assignment statute, the anti-assignment statute, why wasn't that raised earlier?

[00:22:28] Speaker 05:
Well, Your Honor, very candidly, and I think we pointed that out in our brief, where it is in the U.S.

[00:22:36] Speaker 05:
Code and the language of it seems to be pitched toward monetary claims.

[00:22:42] Speaker 05:
And so it was only upon

[00:22:45] Speaker 05:
further research, in particular looking at this court's decision in the numerics, that it became evident that the statute really had a broader scope.

[00:22:57] Speaker 05:
So I don't think it was just a matter of not looking in depth at the statute and the case law to see that the Anti-Simon Act had relevance.

[00:23:09] Speaker 05:
And certainly it has relevance.

[00:23:12] Speaker 05:
in terms of the arguments about whether a cause of action is created.

[00:23:18] Speaker 05:
Because I think to trump that, it would have to be explicit in the FOIA.

[00:23:24] Speaker 05:
Because it's against the government or because of the... Because it's a claim against the government, correct.

[00:23:30] Speaker 05:
And there are special laws that deal with that.

[00:23:33] Speaker 05:
So when you have special laws that deal with the topic, I think particularly it's problematic

[00:23:40] Speaker 05:
to then look at the statute that says nothing about the topic and try to imply something there.

[00:23:46] Speaker 05:
So at least the FOIA should say something about assignment.

[00:23:50] Speaker 05:
It's been around for 50 years.

[00:23:52] Speaker 05:
It's been amended numerous times.

[00:23:54] Speaker 06:
Is that really a function?

[00:23:56] Speaker 06:
I'm having the same difficulty with the statute that

[00:23:59] Speaker 06:
you must have originally had.

[00:24:00] Speaker 06:
When I read the Gillis case, which is the Supreme Court's 1877 discussion of it, it's all about the right to bring a case in the court of claims for money.

[00:24:11] Speaker 06:
And the court very carefully distinguishes, says, chooses an action

[00:24:16] Speaker 06:
which are not commercial instruments, though assignable in equity in some cases, are not generally assignable at common law, and certainly the holder of a mere equitable right can have no standing as a plaintiff in the court of claims, which is what that case was about.

[00:24:31] Speaker 06:
And then it says the court of claims is without power to adjudicate upon merely equitable rights.

[00:24:36] Speaker 06:
And leaving aside their characterization of their FOIA claim as worth some money, somewhat extremely speculative of how that could be other than maybe they get fees or something, which is not part of their claim, this is a case in equity.

[00:24:55] Speaker 06:
At least Gillis thinks about the statute as being a statute of common law for money, right?

[00:25:02] Speaker 06:
Right.

[00:25:02] Speaker 06:
So I'd hate to have to rely on the statute at this point.

[00:25:06] Speaker 05:
But I think, remember, that this court in barracks was not dealing at all with a claim for money.

[00:25:11] Speaker 05:
It was dealing with a case where the assignee

[00:25:15] Speaker 05:
was asserting the astronaut's right to be able to get a lease from the government.

[00:25:22] Speaker 05:
And the government had leased the land to somebody else.

[00:25:25] Speaker 05:
And that was what that was about.

[00:25:27] Speaker 05:
And it was a constitutional claim there and an administrative law claim.

[00:25:33] Speaker 05:
It had nothing to do with the claim for money.

[00:25:35] Speaker 06:
Well, they would get a lease back, right?

[00:25:38] Speaker 05:
Well, they might.

[00:25:39] Speaker 05:
Yeah.

[00:25:40] Speaker 05:
But the question was whether you could invalidate

[00:25:43] Speaker 05:
lease that the government made so that the assignee there would be able to get a lease from the government.

[00:25:54] Speaker 05:
That's nothing to do with a monetary claim of a certain value, the kind of thing that the court of claims would be.

[00:26:01] Speaker 03:
And so the government's asserting this statute now, though, when this issue arises in district court or not?

[00:26:07] Speaker 03:
Is the government now asserting this statute in district court?

[00:26:10] Speaker 05:
We are, and we think that, given the fact that that issue has been fully briefed,

[00:26:15] Speaker 05:
No, I mean in district court proceedings, maybe there's... Oh, we have not asserted in any district court proceeding that I know of.

[00:26:22] Speaker 03:
There aren't other cases pending.

[00:26:24] Speaker 05:
I know there's the National Security Counselor's case, but I don't think that... Right, in that case, the court ruled that...

[00:26:31] Speaker 05:
The claim could be assigned.

[00:26:33] Speaker 05:
It was a very different case.

[00:26:35] Speaker 05:
The CIA has processed that request.

[00:26:39] Speaker 05:
The CIA has a flattenal assignment policy, which was up before the district court.

[00:26:44] Speaker 05:
So know that the anti-assignment law was not before that court at all.

[00:26:51] Speaker 05:
There are no other questions.

[00:26:55] Speaker 05:
Thank you.

[00:27:03] Speaker 02:
Sorry, two quick points for Judge Garland.

[00:27:07] Speaker 02:
You had mentioned the question to counsel for the appellee of whether or not a right to administrative appeal had been denied or addressed at all.

[00:27:15] Speaker 02:
The original request letter from the FBI to Ms.

[00:27:18] Speaker 02:
Byrne did not reference any right to administrative appeal.

[00:27:21] Speaker 06:
No, I understand that, but I think what, so I'm just again having trouble understanding the difference between what would happen if we agree that you have standing and assignment and what would happen if you just

[00:27:33] Speaker 06:
today or frankly if you had just a year ago filed a new request on behalf of one or the other of them with the FBI whether there's any difference at all for you and as to what happens in the litigation we can't adjudicate the question of whether you have a right to an administrative appeal because no one has ever denied you a right to an administrative they may not have informed you of the right

[00:28:00] Speaker 06:
which gives you an argument about why you do have the right, but they haven't denied the right in any way.

[00:28:07] Speaker 06:
So the best that could happen would be not a ruling from the district court that you have a right to an appeal because you weren't told on time, but just a remand to the FBI to determine what their answer is.

[00:28:23] Speaker 06:
Isn't that right?

[00:28:23] Speaker 01:
Correct, Your Honor.

[00:28:25] Speaker 06:
Okay.

[00:28:25] Speaker 06:
And similarly, if when you leave the building here today, you file a request on behalf of Feynman or Byrne or both for the same documents, the FBI has told you, and the person of its lawyer, that they will permit an appeal.

[00:28:44] Speaker 06:
So, yes, we could go through the entire process of

[00:28:48] Speaker 06:
Writing an opinion in this case may be against you, but I'll assume for the moment, in your favor.

[00:28:55] Speaker 06:
I don't know, three months from now it comes out.

[00:28:59] Speaker 06:
We wait until a mandate issues.

[00:29:01] Speaker 06:
Many weeks later it goes to the district court.

[00:29:04] Speaker 06:
When the district court gets to it because it has a criminal case or something else first,

[00:29:10] Speaker 06:
It then just looks at the question before you.

[00:29:12] Speaker 06:
There's a debate, litigation, and ultimately it goes back to the agency to do exactly the same thing that you could do in two minutes by just asking for another request.

[00:29:24] Speaker 06:
What purpose is served by continuing to litigate this question when you have their agreement that they will process a new request

[00:29:33] Speaker 06:
by either of the two of you, not either of the two of you, either of the two possible parties here and allow an appeal, which would also give you an ability to see whether or not there was an adequate search or not.

[00:29:46] Speaker 02:
Well, respectfully to counsel for the appellees, I don't know how to square their promise here today with the arguments they've just made in their briefs regarding muteness.

[00:29:55] Speaker 06:
Well, I think you can take it on faith, subject to a contempt citation against them for lying to the court.

[00:30:03] Speaker 03:
Well, that's for the new request.

[00:30:04] Speaker 03:
They haven't said anything about the administration.

[00:30:05] Speaker 06:
They haven't promised the administrative appeal on the old request.

[00:30:08] Speaker 06:
You can file a new request.

[00:30:10] Speaker 06:
And if you lose, he said that you could then appeal that request, the new request.

[00:30:15] Speaker 03:
This is a test case about assignment.

[00:30:16] Speaker 03:
That's what the issue is.

[00:30:18] Speaker 01:
That's what I thought, right?

[00:30:19] Speaker 01:
That's all this is really about.

[00:30:21] Speaker 01:
Correct.

[00:30:21] Speaker 01:
At this point, that's what this case, the only part of this case remains.

[00:30:24] Speaker 01:
It's a test case about assignment.

[00:30:27] Speaker 06:
All right.

[00:30:29] Speaker 06:
Well, I guess that's it.

[00:30:31] Speaker 01:
Thank you.

[00:30:31] Speaker 06:
We'll take a brief break while the next