[00:00:01] Speaker 00: Case number 14-5039, Catherine Sack, Appellant versus United States Department of Defense. [00:00:07] Speaker 00: Mr. McClanahan for the appellant, Mr. Mayor for the appellee. [00:00:24] Speaker 00: apologies I'm coming in over a cold. [00:00:27] Speaker 00: I may cough periodically during this. [00:00:31] Speaker 00: Your honor, this case involves a few issues that [00:00:40] Speaker 00: do not easily resolve themselves to quick discussion. [00:00:45] Speaker 00: And each topic has to be discussed separately from the other topics in order to really understand it, except for the severance and relatedness issues. [00:00:53] Speaker 00: So that being said, I apologize if I do skip around a bit in order to hit points that I think are most important for the court to hear. [00:01:04] Speaker 04: Can we dispose of two quick issues? [00:01:06] Speaker 04: You mentioned severance. [00:01:07] Speaker 00: Yes, sir. [00:01:08] Speaker 04: But I mean, have you read the district court's order? [00:01:14] Speaker 04: Which? [00:01:15] Speaker 04: The what you call the severance order. [00:01:17] Speaker 04: I have read it, yes. [00:01:22] Speaker 04: He says the claims against these agencies are dismissed. [00:01:28] Speaker 04: He doesn't say anything about severance. [00:01:29] Speaker 04: He says they're dismissed without prejudice. [00:01:31] Speaker 04: And then he says, to the extent the plaintiff wishes to proceed with these, [00:01:37] Speaker 04: plaintiffs shall refile the claims and force separate lawsuits. [00:01:41] Speaker 04: So he didn't sever, he dismissed the complaints, and he did that in what you call, he did that in SAC 2, and this is SAC 2A, so we don't have jurisdiction over that order. [00:02:05] Speaker 00: I respectfully disagree, Your Honor. [00:02:06] Speaker 04: Okay, tell me why. [00:02:07] Speaker 00: Well, first of all, even though he did use the words, I dismissed these claims, he did it by granting the agency's motion to sever. [00:02:17] Speaker 04: Yeah, but he dismissed the complaint and ordered them to file new lawsuits. [00:02:21] Speaker 00: And that's my second point, Your Honor. [00:02:24] Speaker 00: That is [00:02:27] Speaker 00: In my experience, an unusual method of severing cases, most people in response to, most judges in response to a motion to sever, sever the cases. [00:02:37] Speaker 00: The fact that he chose whether intentionally or unintentionally, whether or not he meant this consequence, we don't know. [00:02:46] Speaker 00: But the fact that he chose to dismiss them and order them to be refiled. [00:02:50] Speaker 05: Except for what he says. [00:02:53] Speaker 00: All we know from what he says is that he is removing those counts from the complaint with orders. [00:03:01] Speaker 04: And further order, he says, I know you said you didn't want to spend much time on this, but he says, [00:03:08] Speaker 04: He says, they're dismissed without prejudice. [00:03:11] Speaker 04: That's one word, or one reference. [00:03:14] Speaker 04: Sounds like dismissal to me. [00:03:16] Speaker 04: And then he says, to the extent plaintiffs wish to file a new, they must file a new claim for separate lawsuits. [00:03:25] Speaker 04: And then he even goes so far as to say, to note on the new cases that they're related cases. [00:03:30] Speaker 04: So that's all the language of dismissal in a different case than is the one before us. [00:03:39] Speaker 00: I think this is a case of if it looks like a duck and it quacks like a duck, then it's a duck. [00:03:45] Speaker 00: And the fact that he did this in response to a motion to sever. [00:03:49] Speaker 04: This duck looks like a dismissal to me. [00:03:50] Speaker 04: But go ahead. [00:03:51] Speaker 00: And he did this based on a motion to sever the entire discussion during the motion hearing, which he said were for the reasons in the hearing we had to say were separate. [00:04:03] Speaker 04: Why don't you go on to your other issues? [00:04:04] Speaker 04: Because I don't know what else we can say about that. [00:04:07] Speaker 04: I'll ask the government what it thinks. [00:04:09] Speaker 00: And so, I mean, if I can just say one more thing on that, if you don't mind. [00:04:14] Speaker 00: Even the fact that he did that does not change the fact that, you know, Wright and Miller, the [00:04:22] Speaker 00: Horn book on this says that creation of separate cases leads to final judgment upon complete disposition of any single case. [00:04:31] Speaker 00: That doesn't say leads to final judgment for each single case upon final disposition of that case. [00:04:37] Speaker 00: It says final judgment period upon a severance. [00:04:42] Speaker 00: And whether or not he called a severance a dismissal, I think is a distinction without a difference. [00:04:48] Speaker 00: to the point of whether or not it should have been severed. [00:04:51] Speaker 00: Well, do you wish to discuss the merits of severed human skin? [00:04:54] Speaker 04: It's your time. [00:04:55] Speaker 04: That was your time. [00:04:56] Speaker 04: Whatever you like. [00:04:57] Speaker 00: Okay. [00:04:58] Speaker 00: Well, we've really argued [00:05:00] Speaker 00: in our brief to death the argument of whether or not it should have been severed. [00:05:05] Speaker 00: And so unless the court has any questions about that, we'll skip to one of the other issues. [00:05:11] Speaker 00: Although we will point out two things that are just the hallmark examples of why these should not have been severed and they should have been related. [00:05:21] Speaker 00: And that is the fact that one of them, as an example, the OPM request, was one request [00:05:28] Speaker 00: that parts of the same documents got referred to different agencies. [00:05:33] Speaker 00: And according to his order, we now have to litigate the same document in two different cases in three different counts. [00:05:41] Speaker 00: That's what we warned him about in the beginning, and he didn't take that into consideration. [00:05:48] Speaker 00: The second is [00:05:50] Speaker 00: that he did talk about the procedural postures. [00:05:53] Speaker 00: He spent a lot of time talking about the procedural postures, warranted severance, and then he severed them according to agency with no attention being paid to the different procedural postures. [00:06:04] Speaker 00: If he had really cared about the different procedural postures, he would have directed us to file all the ones that were still being searched in one case, all of ones that were charging exemptions in another case, all the ones that we had fees in another case, instead of saying, [00:06:18] Speaker 00: DOD DOJ CIA. [00:06:22] Speaker 00: That that division itself shows that he did not care about procedural postures to the NSA issue. [00:06:30] Speaker 00: There are two issues in play within the NSA case. [00:06:33] Speaker 00: One is whether or not she was entitled to be considered an educational free requester. [00:06:38] Speaker 00: This is really simple. [00:06:39] Speaker 00: We think this is to [00:06:42] Speaker 00: Her supervisor, the director of graduate studies, not just an adjunct professor or something, said, I endorse the fact that she is making this request on behalf of this department and further into the research goals of this department. [00:06:59] Speaker 01: Couldn't every professor for every student request around the country do the same? [00:07:06] Speaker 00: Yes, honestly, and I don't see a problem with that because that's an issue between the student and the professor. [00:07:13] Speaker 01: If the professor is willing to put his name on something saying for all intents and purposes, you can treat this as a request from me, then who is the agency to second guess that that does seem and run around the line drawn by at least the guidelines statute itself in terms of students versus professors. [00:07:34] Speaker 00: It's an end run only in that you wouldn't consider that to be a rule. [00:07:39] Speaker 00: That was first of all a guideline, a suggestion. [00:07:42] Speaker 00: And it was paired with the argument that if you receive something from a professor, he's an educational requester unless you prove otherwise. [00:07:50] Speaker 00: And so it's [00:07:52] Speaker 00: an end run, but it's a perfectly legitimate and legal end run. [00:07:56] Speaker 00: It's something that, given that the purpose of FOIA and the purpose of the educational fee category is to foster research, it's quibbling over technicalities. [00:08:09] Speaker 01: The statute, the text, if we go to the statute of the Senate guidelines, is made by an educational institution. [00:08:17] Speaker 00: and not made by a professor. [00:08:18] Speaker 00: So by the statute, even a professor couldn't do it. [00:08:21] Speaker 00: You would have to say, I am the University of Virginia. [00:08:25] Speaker 05: Don't the OMB guidelines say there's no meaningful distinction between professor and student in this setting? [00:08:32] Speaker 05: They do say, for instance, something from a professor should be presumed to be from the... I'm reading the institutional versus individual test would apply to student requests as well. [00:08:42] Speaker 05: So student requests can be [00:08:45] Speaker 05: on behalf of an educational institution. [00:08:47] Speaker 00: I would say yes, but I don't think we even need to get to that in this case. [00:08:51] Speaker 00: I think that honestly, [00:08:53] Speaker 00: A request from a PhD candidate who is doing research for the PhD program. [00:08:58] Speaker 00: You think the letter from Jeffrey Jenkins is persuasive? [00:09:02] Speaker 00: More than persuasive. [00:09:04] Speaker 00: And NSA's insistence that, oh, I did not find it supportable because it wasn't from the department chair is a test found nowhere in any statute or any guideline or any rank. [00:09:20] Speaker 01: What about the guideline says a student who makes a request and further into the completion of the course of instruction is carrying out an individual research goal and the request would not qualify. [00:09:31] Speaker 01: So if it were just the student here and if we follow that guideline, [00:09:36] Speaker 01: No good. [00:09:39] Speaker 01: And so the question is, can universities, educational institutions, in essence get around that by having their professors endorse their student requests as being on behalf of the institution in some respects, even though they're really student requests? [00:10:01] Speaker 01: They could. [00:10:02] Speaker 01: That seems to be what was concerning the district court judge. [00:10:05] Speaker 00: But that again is beyond the scope of the district court judges review, I believe. [00:10:11] Speaker 00: And my time is about to end. [00:10:14] Speaker 00: You can keep going. [00:10:15] Speaker 04: Don't worry about your time. [00:10:18] Speaker 00: Our point here is yes, and it's akin to the idea of if my law clerk, who is not a lawyer, writes a brief [00:10:30] Speaker 00: Can I add my imprimatur on it and file it with you so that you see it? [00:10:35] Speaker 00: The answer is yes. [00:10:37] Speaker 00: I have accepted her brief as my own. [00:10:40] Speaker 00: That's what these professors are doing. [00:10:42] Speaker 00: If it turns out that a university has a policy of just [00:10:47] Speaker 00: every student request gets a letter of endorsement from a professor, then that's an issue that the agency might want to pursue against that school or something. [00:10:57] Speaker 00: But that is not the case here. [00:10:59] Speaker 00: This was an individualized endorsement where he said, you may treat this request as a request from any of the faculty members in this department. [00:11:10] Speaker 01: I'm just concerned reading the statute. [00:11:12] Speaker 01: Obviously, one thing Congress could have done and could do is to say, request by students, [00:11:17] Speaker 01: get fee waivers. [00:11:20] Speaker 01: That would have been very simple by this game of statutory language, but Congress didn't do that. [00:11:26] Speaker 01: It said request by or made by an educational institution which seems distinct from request by students. [00:11:33] Speaker 01: I'm trying to thread that needles with what's concerning me here and concerning the district court judge too. [00:11:38] Speaker 01: I think it's a close call. [00:11:40] Speaker 00: And the OMB [00:11:41] Speaker 00: Well, this comes to another question of that the only guidelines were not written by Congress. [00:11:49] Speaker 00: They were written by a bunch of lawyers. [00:11:51] Speaker 00: interpreting something Congress wrote, and in many cases, such as this, injecting their own impression. [00:11:58] Speaker 05: The ways that you're arguing against the persuasiveness of the OMB guidelines, I thought that was your best argument, the OMB guidelines, because they don't distinguish between professors and students. [00:12:09] Speaker 00: The OMB guidelines do distinguish between professors and students. [00:12:13] Speaker 00: And I think that the OMB... Okay, if you want to abandon them, that's fine. [00:12:18] Speaker 00: No, my point is that the OMB guidelines, I don't think you should give them the imprimatur of what Congress intended. [00:12:28] Speaker 00: But if you do, [00:12:30] Speaker 00: then you should pay close attention to the fact that they do say a student is presumed not to be and a professor is presumed to be, which means a professor who endorses a student, it falls under the professor category, not the student category. [00:12:49] Speaker 04: Well, I want to make sure I understand the precise argument you're making about the letter. [00:12:54] Speaker 04: As I understand what you're saying in your brief, the Jenkins letter, which says, this verifies the taxpayer request falls under the category, right? [00:13:03] Speaker 04: That's enough, right? [00:13:05] Speaker 04: And the university, the agency can't look beyond that. [00:13:10] Speaker 04: Because that's what you say in your brief, right? [00:13:13] Speaker 04: It's not the place of an agency to second guess the intentions of a single faculty member who states unequivocally that it's on behalf of a faculty member, right? [00:13:22] Speaker 00: It was not that simple. [00:13:25] Speaker 00: It didn't lay out. [00:13:26] Speaker 00: This isn't further in tow of the University of Virginia. [00:13:29] Speaker 04: No, no, no. [00:13:30] Speaker 04: The question I'm asking you is that I understood your argument. [00:13:35] Speaker 04: It is that an unequivocal certification by a faculty member can't be second guessed by the agency, right? [00:13:43] Speaker 04: There's nothing, you're not depending on anything else in this one. [00:13:50] Speaker 04: Right? [00:13:51] Speaker 00: I'm going to take one step short of that because... Well, you have to stick with your brief. [00:13:57] Speaker 00: I know, but... So, go ahead. [00:14:01] Speaker 00: And an unequivocal endorsement from a faculty member should be treated as a request from that faculty member. [00:14:09] Speaker 00: Just like any faculty member can still be denied educational standing if he's getting it to further his own real estate holdings. [00:14:20] Speaker 00: It should be, but it should be evaluated under the presumption that it is legitimate. [00:14:25] Speaker 00: And since that presumption is a different argument. [00:14:29] Speaker 04: If it's a presumption, a presumption can be questioned. [00:14:32] Speaker 04: I thought your position was, and I'm reading from your brief. [00:14:38] Speaker 04: It is not the place of an agency or court to second guess the intentions of a single faculty member who states unequivocally that this is on behalf of the institution. [00:14:51] Speaker 04: It does not matter why the faculty member granted such authorization. [00:14:56] Speaker 04: That's from your briefing. [00:14:57] Speaker 00: It is not for the court to second guess his intention as to whether or not he truly meant to endorse it. [00:15:08] Speaker 00: It should still be, he should still be treated, the request should still be treated as any other faculty member. [00:15:14] Speaker 00: To do otherwise would be to say that a student who got a faculty member's endorsement would be able to get an educational fee category where that same faculty member on his own could not. [00:15:26] Speaker 04: So does that mean that the agency can look at the content of the letter? [00:15:30] Speaker 04: So is there, in your view then, is it this [00:15:34] Speaker 04: Is it the statement by the professor that this meets the standards of the educational exemption, or is it that plus the content of the letter? [00:15:45] Speaker 00: It's only the content of the letter. [00:15:47] Speaker 00: Well, it's partially. [00:15:48] Speaker 00: I mean, if he just gave, I endorse this, and it was a one-line statement, you could argue that it would have. [00:15:55] Speaker 04: Where do you argue in your brief that there's something else in this letter that makes it clear that it's [00:16:01] Speaker 04: Well, when we quote the letter, and the letter was... I know you quote the letter, but where do you argue that there's something in this letter that makes it clear that this particular research she is doing... I mean, I think you could make the argument looking at the letter, but where do you make it? [00:16:20] Speaker 00: I make it, if you give me one second. [00:16:22] Speaker 00: Yeah, just tell me, and I'll look at it. [00:16:25] Speaker 00: Where's the... [00:16:30] Speaker 00: Uh, page nine of the reply. [00:16:32] Speaker 04: Yeah, the reply brief. [00:16:33] Speaker 04: I found that, too. [00:16:34] Speaker 04: But what about the blue brief? [00:16:35] Speaker 00: Oh, okay. [00:16:37] Speaker 00: That would be... Sorry. [00:16:39] Speaker 00: We found the right section. [00:16:59] Speaker 00: We implied it. [00:17:02] Speaker 00: I'll be honest about that. [00:17:03] Speaker 00: We didn't come out and say. [00:17:04] Speaker 04: In your reply brief, you sort of make the point at the end. [00:17:07] Speaker 04: You say, the DOD ignores a simple fact that a significant percentage of research performed by educational institutions is performed by PhD students. [00:17:18] Speaker 00: Correct. [00:17:19] Speaker 04: There's nothing like that in a booger. [00:17:21] Speaker 04: correct okay so that's not an argument it's probably and to try you understand that pardon that's not an argument and it's properly before us you can't raise new arguments in a reply brief that was more for [00:17:39] Speaker 00: context and argument, honestly. [00:17:42] Speaker 00: But to answer your question of should it be a presumption versus should it be a requirement, I can just quote the OMB guidelines for what a professor is. [00:17:53] Speaker 00: A request from a professor of geology at a state university for records relating to soil erosion written on letterhead of the Department of Geology could be presumed to be from an educational institution. [00:18:04] Speaker 00: So we're saying, and all we're saying, [00:18:08] Speaker 00: is that a letter from a professor on the university letterhead adopting as his own a student. [00:18:17] Speaker 04: Thanks. [00:18:18] Speaker 04: We're way over your time. [00:18:20] Speaker 00: Okay. [00:18:20] Speaker 00: Thank you. [00:18:21] Speaker 04: Give you a couple of minutes for [00:18:31] Speaker 03: May it please the Court, my name is Peter Mayer, counsel to the United States government here at the Department of Defense. [00:18:38] Speaker 03: I'd like to begin by addressing the issue that the Court was discussing with Mike Helen. [00:18:43] Speaker 03: That is the fee waiver issue. [00:18:45] Speaker 03: That is, as Judge Kavanaugh, your question pointed out, a close question. [00:18:50] Speaker 03: That's how Judge Wilkins characterized it, too. [00:18:53] Speaker 03: And I think it's really the only close question that this case presents. [00:18:57] Speaker 03: Notwithstanding the fact that it may be a close question, and it's fact-intensive, I think the agency got it correct, and I think the district court got it correctly, too. [00:19:06] Speaker 05: What was deficient in the response? [00:19:08] Speaker 05: DOD asked for certain representations about the nature of the request, and the May 12, 2011, letter was responsive to it. [00:19:18] Speaker 05: If you're just looking at that letter as a response to what DOD asked, what's deficient in the letter? [00:19:24] Speaker 03: I think the primary deficiency, Judge Griffith, is the absence of anything in the letter that disabuses the agency of the notion that this is a FOIA request in support of the students' personal research in fulfillment of coursework and not something that's supporting faculty research, which is the research of the institution. [00:19:48] Speaker 05: Is that always the case, that research by a doctoral candidate? [00:19:55] Speaker 05: doesn't have the status of research by faculty? [00:19:58] Speaker 05: As a matter of fact, that's not the case. [00:20:01] Speaker 05: The OMB guidelines make clear that that's not the case, right? [00:20:05] Speaker 05: I agree. [00:20:06] Speaker 05: There's no categorical difference in the request between a student and a faculty member according to the OMB guidelines. [00:20:13] Speaker 03: No, that's right. [00:20:14] Speaker 03: I guess the point that I want to emphasize is this. [00:20:17] Speaker 03: I think the dichotomy in the guidelines is a dichotomy between [00:20:24] Speaker 03: work that's being done by the student in fulfillment of course requirements. [00:20:30] Speaker 03: and work that's being done by the faculty. [00:20:33] Speaker 03: Keep in mind that the guidelines and the educational institution isn't confined to institutions of art. [00:20:40] Speaker 05: But you've got the university here saying, it's for us, right? [00:20:43] Speaker 05: Isn't that what the letter says? [00:20:45] Speaker 05: You've got the associate professor and director of graduate studies saying, this is for us. [00:20:54] Speaker 05: She's doing this for us. [00:20:56] Speaker 05: Why isn't that enough? [00:20:58] Speaker 05: Why in the world do we get into [00:21:00] Speaker 05: this questioning of what Professor Jenkins is saying. [00:21:06] Speaker 05: Why isn't that sufficient? [00:21:08] Speaker 05: As I read it, that's exactly what DOD asked. [00:21:12] Speaker 05: They asked for something to show that it's coming from the university. [00:21:15] Speaker 05: The university says, yep, this is research we're interested in. [00:21:21] Speaker 05: She's doing it for us. [00:21:23] Speaker 03: I understand that's the position that the plaintiff is taking this morning. [00:21:27] Speaker 03: I don't believe that the guidelines are indicating that merely a rubber stamp by any faculty member or a student request makes the request one on behalf of the institution. [00:21:40] Speaker 05: He writes, Ms. [00:21:42] Speaker 05: Sack is acting as a representative [00:21:45] Speaker 05: of the University of Virginia's Department of Politics, and you may consider the department to be the requester for purposes of fee calculations." [00:21:52] Speaker 05: Do you call that a rubber stamp? [00:21:53] Speaker 05: I do. [00:21:54] Speaker 04: Well, wait. [00:21:55] Speaker 04: The letter goes beyond that. [00:21:57] Speaker 04: It actually explains the point that Judge Griffith just read you. [00:22:01] Speaker 04: It actually explains what the mission of the department is, and then it explains how her work. [00:22:07] Speaker 04: It's obvious that what she's doing conforms to that mission. [00:22:12] Speaker 04: It says it right in the letter. [00:22:14] Speaker 03: Judge Table, there's really no way that you could characterize any student research as being inconsistent with admit. [00:22:23] Speaker 04: No, but he's explaining it. [00:22:24] Speaker 04: He says, let me just find my notes here, he says, [00:22:40] Speaker 04: OK, Jenkins says he describes the goals of his department. [00:22:44] Speaker 04: And they are, quote, to explain contemporary political in a broad philosophical sense that sheds light in the long-term development of institutional structures. [00:22:56] Speaker 04: Right? [00:22:57] Speaker 04: Yes, Your Honor. [00:22:58] Speaker 04: And then the next sentence says that the student [00:23:03] Speaker 04: intends to review, evaluate, and synthesize and present all this information publicly, access publicly, available, usable for. [00:23:13] Speaker 04: The way, I don't think DOD has any idea how graduates' departments work. [00:23:19] Speaker 04: You have [00:23:21] Speaker 04: departments that often have substantive missions like this one, and they have PhD graduate students doing coursework, and that coursework is carefully structured to promote the goals of the department. [00:23:36] Speaker 04: That's the way graduate, many graduate programs work. [00:23:39] Speaker 05: This isn't a student doing a book report and asking for help from FOIA. [00:23:44] Speaker 05: This is scholarly research, and the University of Virginia has stood behind it. [00:23:48] Speaker 05: Why in the world is the Department of Dent second guessing that? [00:23:50] Speaker 05: What's the worry here? [00:23:54] Speaker 03: The worry, Judge Griffith, is only in terms of conformity with the purpose of the statute, which is to prove... In this instance, it's supposed to broadly construe, right? [00:24:04] Speaker 03: Generously construe. [00:24:05] Speaker 03: That's true. [00:24:06] Speaker 03: But it isn't a statute that gives a fee waiver to everyone. [00:24:12] Speaker 05: It's not a statute that gives... It's a statute that gives a fee waiver to everyone where the university says, this is for us. [00:24:20] Speaker 05: Now, if you want to get behind that and depose Mr. Jenkins, I guess we could go down that path, but that doesn't seem to be consistent with the statute or our case law. [00:24:29] Speaker 03: One point I think I need to make, Your Honor, is this. [00:24:32] Speaker 03: The agency's decision, I don't think, is confined to that letter. [00:24:36] Speaker 03: It also includes the prior representations that the requestor made. [00:24:43] Speaker 03: It has to take a holistic approach to all of this. [00:24:47] Speaker 03: If there is a simple point that I want to make, [00:24:50] Speaker 03: It is that requests that are for the university, for a faculty member, are requests for an educational institution. [00:25:00] Speaker 05: Requests by a student in... It doesn't need to be for a faculty member. [00:25:03] Speaker 05: That's a really important point. [00:25:05] Speaker 05: It can be a request for a student, at least according to the OMB guidelines. [00:25:09] Speaker 05: There's no categorical difference between faculty and student. [00:25:13] Speaker 05: It's the nature of the research and who's going to benefit from it, right? [00:25:17] Speaker 03: The point that I wanted to make, Judge Griffith, is that it can't be a request designed to permit the student to fulfill the requirements of his course. [00:25:30] Speaker 05: You're saying if it has that as one feature of it, it's disqualified? [00:25:35] Speaker 03: No, but if that's the only feature of it, I think it's important here that the requester never disavowed the proposition that the request was in fulfillment of her coursework. [00:25:48] Speaker 04: In fulfillment of coursework that promotes the goals of the department. [00:25:54] Speaker 03: Judge, if that's the standard, keep in mind that the educational institution definition isn't confined to institutions of higher learning. [00:26:06] Speaker 03: It also includes secondary schools. [00:26:08] Speaker 03: It also includes middle schools. [00:26:10] Speaker 03: How many middle schools are doing scholarly research? [00:26:13] Speaker 03: That's absurd. [00:26:14] Speaker 03: I think not, Judge Griffith. [00:26:17] Speaker 03: If this position is right, any student in a middle school or secondary school who wants to do research in fulfillment of their course requirements [00:26:29] Speaker 03: would be entitled of fee waiver because the research would be in support of the educational institution. [00:26:36] Speaker 05: The fact that it's in fulfillment of course work is disqualifying, regardless of the benefit that might accrue to the university of it. [00:26:45] Speaker 05: We can phrase it. [00:26:45] Speaker 05: If it's in fulfillment of course work, you think that's automatically disqualifying. [00:26:49] Speaker 03: Yes, I do. [00:26:49] Speaker 05: And what's the basis for that in the statute of regulations? [00:26:53] Speaker 03: I believe that's the difference between an educational institution and the students who attend it. [00:26:59] Speaker 01: And so the question to me is not necessarily what's in the letter specifically, but there's a broader legal question here, which is PhD students or college students who send requests, are those going to be deemed requests by the educational institution if a faculty member says as much? [00:27:20] Speaker 01: And to me, that's the question here, the fork in the road we have. [00:27:27] Speaker 01: I'm not sure we have a, I mean, I think it's a very, I still think it's very close whether that's on behalf of the educational institution, but that seems to me the broad legal question. [00:27:37] Speaker 03: I think that's right. [00:27:38] Speaker 03: There is one factual point that the agency relied on that we haven't discussed this morning, and that is that the faculty member who endorsed this [00:27:49] Speaker 03: was not the faculty member who was the chairman of the department. [00:27:54] Speaker 01: I don't think that, I mean, that's a point in your favor, but I don't know that we should turn the case on that because the point is the next time we'll just get the department head, it'll be easy enough. [00:28:05] Speaker 05: Director of Graduate Studies, I mean, [00:28:08] Speaker 05: That's a pretty significant position. [00:28:10] Speaker 01: Your concern, as I understand it, is that this will become common practice for student FOIA requests. [00:28:18] Speaker 01: And I assume they make a lot of FOIA requests. [00:28:21] Speaker 01: You just get the cover letter from the faculty member, and all of a sudden you have the fee waiver, which may be great policy, actually. [00:28:28] Speaker 01: I'm surprised there isn't a student fee waiver in the statute. [00:28:31] Speaker 01: The question is whether we can consider that made by the educational institution. [00:28:36] Speaker 03: Well, there's a practical concern that I think is the credit. [00:28:40] Speaker 01: How often does this arise, by the way? [00:28:41] Speaker 01: Do we have any idea of how? [00:28:43] Speaker 03: There's nothing in the record that suggests that. [00:28:44] Speaker 01: I know outside the record, you know. [00:28:46] Speaker 03: Not to my knowledge, Judge Gaffner. [00:28:48] Speaker 03: But how many do you get from middle school students? [00:28:52] Speaker 04: Hasn't the president issued an executive order requiring agencies to interpret FOIA to promote its goals? [00:28:59] Speaker 03: Yes, Your Honor. [00:28:59] Speaker 04: And wouldn't it make an enormous amount of sense to interpret this statute to encourage [00:29:05] Speaker 04: to maximize the opportunity of students in their coursework to seek government information, to write their papers. [00:29:14] Speaker 04: I just don't understand the government's position in this case. [00:29:17] Speaker 04: It seems completely counterintuitive when you think about the goals of FOIA and the purposes of education. [00:29:24] Speaker 04: It just makes no sense to me. [00:29:25] Speaker 03: It's a line drawing exercise, Judge Taylor. [00:29:27] Speaker 04: That's my whole point. [00:29:28] Speaker 04: I don't understand why the line has been drawn where it is, given the goals of FOIA. [00:29:33] Speaker 03: Because the pie is limited. [00:29:35] Speaker 04: The pie is limited? [00:29:36] Speaker 03: The pie is limited in terms of whom you can provide waivers for FOIA request research. [00:29:42] Speaker 04: You may end up winning here, because I'm not sure, as I explored with Mr. McClanahan, that he's really made the argument that [00:29:54] Speaker 04: I have to say, I just don't get the government position. [00:30:01] Speaker 04: And let me ask you about another issue. [00:30:03] Speaker 04: What about the two hours of time and 100 pages? [00:30:10] Speaker 04: Why couldn't the agency have just said, OK, you don't want to make the commitment, you get two hours and 100 pages, and we'll stop? [00:30:19] Speaker 03: Because the regulations, and it's not just the regulations of the Department of Defense judge table, but for example, DOJ's regulations say the same thing. [00:30:27] Speaker 03: Before the agency conducts the search, there has to be an agreement with respect to how the search fees are going to be handled. [00:30:38] Speaker 04: But there's no fee for the first two hours or 100 pages. [00:30:43] Speaker 04: So you say, OK, you're not. [00:30:45] Speaker 04: I still understand why this ends up in this court. [00:30:49] Speaker 04: It just seems to me to be so simple for the agency to have said in its letter, you're not making the commitment, so you get your two hours. [00:30:57] Speaker 04: That's it. [00:30:58] Speaker 04: What would be the problem with that? [00:31:00] Speaker 03: The agency could have, I suppose, conceded... Wouldn't that have been a lot cheaper than bringing this here? [00:31:07] Speaker 03: We're not the appellate, Your Honor. [00:31:08] Speaker 03: We didn't bring the suit. [00:31:10] Speaker 04: Well, but if you'd done it, you wouldn't have this lawsuit. [00:31:12] Speaker 03: I suppose you can say that on a lot of issues in which the government takes a position. [00:31:17] Speaker 01: In terms of your policy, you're trying to figure out what it made by an educational institution means, right? [00:31:24] Speaker 01: Right. [00:31:25] Speaker 01: And I assume the reason for the government's policy is you're not sure that every student is the educational institution. [00:31:38] Speaker 03: The thought that I'd like to leave you with on this question is this. [00:31:43] Speaker 03: If the rule basically is that its request from an educational institution, if it comes from a student, [00:31:52] Speaker 03: And there is a faculty member who says this student's request is one that is made on behalf of the educational institution. [00:32:02] Speaker 03: There are no disincentives for any faculty member not to endorse that proposal. [00:32:09] Speaker 01: Why not go even broader and say just every student request shall be deemed by the educational institution? [00:32:17] Speaker 03: I don't understand your question. [00:32:19] Speaker 03: You say, why wouldn't faculty members or a university? [00:32:22] Speaker 01: I should be so broader and just say, you know, this sham of having a faculty member's chance of loaded work, but this procedure of the faculty member writing a letter, why don't we just do away with that ridiculous paperwork and just say every student request is a request by the educational institution. [00:32:39] Speaker 01: I'd vote for that. [00:32:41] Speaker 01: What's wrong with that? [00:32:44] Speaker 03: It's a policy question, Your Honor. [00:32:46] Speaker 03: It seems to me that the... No, no. [00:32:48] Speaker 01: It's a policy question you're going to lose. [00:32:49] Speaker 01: I think your answer should be it's a legal question. [00:32:52] Speaker 03: The legal question is a reflection of a policy determination. [00:32:58] Speaker 03: That's what I'm saying. [00:32:59] Speaker 01: And what do you think Congress's policy determination was in choosing the term made by an educational institution? [00:33:05] Speaker 03: I think it was on the basis of a determination that these should be waived when they are made on behalf of a school. [00:33:16] Speaker 01: What were they thinking about? [00:33:17] Speaker 01: What do you think they were thinking about when they said what kind of research is done by an institution? [00:33:23] Speaker 01: Isn't it the student research and the faculty research? [00:33:26] Speaker 01: It's both, right? [00:33:29] Speaker 03: I think, honestly, Your Honor, they wanted to draw a line between supporting what you and I would agree is research and something that is simply fulfillment of ordinary course requirement. [00:33:43] Speaker 05: Yeah, and that line is not drawn. [00:33:45] Speaker 05: always between faculty and students. [00:33:48] Speaker 05: Students can and do many times in better institutions participate in scholarly research that endures to the benefit of the institution. [00:33:57] Speaker 05: I can't argue with that. [00:33:59] Speaker 01: The guidelines, I just want to make sure I understand those, they do draw a distinction between students and faculty. [00:34:05] Speaker 01: Right? [00:34:05] Speaker 01: In the illustrations, they do. [00:34:07] Speaker 01: In the illustrations. [00:34:09] Speaker 03: But not in the term educational institution, unfortunately. [00:34:12] Speaker 01: Right. [00:34:12] Speaker 01: But in the illustrations, they say a student who makes a request in furtherance to the completion of a course of instruction is carrying out an individual research goal. [00:34:23] Speaker 01: What is the legal status of the guidelines here? [00:34:27] Speaker 03: I think they are persuasive no more than that. [00:34:29] Speaker 03: Right. [00:34:30] Speaker 03: They're not law in this case. [00:34:31] Speaker 03: They are not. [00:34:32] Speaker 03: They are not. [00:34:38] Speaker 04: I just have one question. [00:34:40] Speaker 04: Do you have any views about this severance issue in my reading of the order? [00:34:47] Speaker 04: You didn't say that in the brief. [00:34:50] Speaker 04: You agree it's a dismissal over which we have no jurisdiction. [00:34:54] Speaker 03: Indeed, but we've laid out our reasons why we don't think it's appealable and why if it was appealable, it wasn't an abuse of discretion. [00:35:02] Speaker 03: And I have nothing more to add to what you said. [00:35:05] Speaker 01: Sorry, I do have one more question. [00:35:06] Speaker 01: Is there anything in the legislative history that would suggest drawing a line between faculty and students? [00:35:13] Speaker 01: I know there's the one line from Senator Leahy, [00:35:16] Speaker 01: roping in faculty requests, but is there anything that you're aware of that excludes students? [00:35:23] Speaker 03: I'm not aware of anything appropriative, one way or the other, from the legislative history on that, Judge. [00:35:32] Speaker 04: OK, thank you. [00:35:35] Speaker 04: Council is out of time, right? [00:35:37] Speaker 04: Yeah, you can take two minutes. [00:35:39] Speaker 04: Thank you. [00:35:42] Speaker 04: I only have two hours. [00:35:46] Speaker 04: Why didn't she just amend her request and say, OK, give me my two hours? [00:35:53] Speaker 04: Why are we here about this issue? [00:35:54] Speaker 00: Because she was still insisting that she was entitled to an educational fee waiver. [00:35:58] Speaker 00: If she had amended the request, we could not have come and later argued the fee issue. [00:36:03] Speaker 04: I see. [00:36:04] Speaker 00: Gotcha. [00:36:06] Speaker 00: So I just have three very short points. [00:36:08] Speaker 00: Number one, both the court and opposing counsel use the term fee waiver. [00:36:15] Speaker 00: This is not a fee waiver. [00:36:18] Speaker 00: The limited pie issue does not apply here because this is not a fee waiver. [00:36:23] Speaker 00: This is a fee category where someone in the category still has to pay for duplications. [00:36:29] Speaker 00: Now, by DOD policy, [00:36:32] Speaker 00: They don't have to pay for electronic duplications. [00:36:34] Speaker 00: But that's not the same as a statutory fee waiver. [00:36:39] Speaker 00: And so that distinction does need to be made. [00:36:43] Speaker 00: The second issue is, as we pointed out, every other agency in every request that she has filed, except for the Department of Defense Inspector General's Office, [00:36:56] Speaker 00: accepted this letter or, in many cases, didn't even require the letter, treated her as an educational institution, including many DOD components. [00:37:05] Speaker 00: If the NSA is saying they're following the DOD guidelines and four or five other DOD components, including the Office of the Secretary of Defense, say they're following the DOD guidelines and they're recognizing her as an educational institution... It is all – are the responses of all the other agencies in the record? [00:37:23] Speaker 00: I believe so, yes. [00:37:24] Speaker 04: What do you mean you believe so? [00:37:27] Speaker 00: Yes or no? [00:37:27] Speaker 00: They may not be in the record in this case because of the severance. [00:37:31] Speaker 00: That's a problem, but I do not know that for sure. [00:37:36] Speaker 00: And as to the non-perfection issue, the two hours issue, [00:37:42] Speaker 00: It's not, can I have like 30 more seconds? [00:37:46] Speaker 00: It's not just that the statute is very clear that you get two hours and 100 pages. [00:37:52] Speaker 00: It's that both OIP and OGIS reached the same conclusion. [00:37:56] Speaker 00: And we gave those letters to the district judge and said, look, the two agencies that everybody recognizes are the FOIA experts in the executive branch said, you get two free hours and 100 free pages if you're in all weather, even if you don't commit to pay. [00:38:12] Speaker 04: Go ahead. [00:38:14] Speaker 01: What about a student who's just making a request on his or her own fellow course? [00:38:19] Speaker 01: Is that by an educational institution or is that not? [00:38:22] Speaker 00: Ideally, yes. [00:38:23] Speaker 00: But at the very least, it would be all other. [00:38:25] Speaker 00: It would not be commercial. [00:38:26] Speaker 00: And by all other, it would get two hours and 100 free pages. [00:38:30] Speaker 00: And they didn't even do that. [00:38:31] Speaker 00: They just did not want to process these requests. [00:38:34] Speaker 00: They did not make the decision until nine months after we'd already sued, almost two years after the request was filed. [00:38:41] Speaker 00: So, whatever you can draw from that. [00:38:44] Speaker 04: So, assuming it's okay with my two colleagues, could you tell us within five days, sites to the other records where we can find the letters from the other agencies accepting the Jenkins letter? [00:38:55] Speaker 00: Definitely. [00:38:56] Speaker 00: It may be another case, but I could definitely do that. [00:39:00] Speaker 04: Five days, okay? [00:39:01] Speaker 00: The only one I cannot do that for are the agencies that we did not refile. [00:39:07] Speaker 04: Whatever you have. [00:39:08] Speaker 04: Just whatever you have. [00:39:10] Speaker 00: I can just file copies of the letters with the quarters. [00:39:12] Speaker 04: That'd be fine. [00:39:13] Speaker 04: Just give us a letter. [00:39:13] Speaker 04: Whatever you want to do. [00:39:14] Speaker 00: I can do that. [00:39:15] Speaker 00: Thank you, Your Honor. [00:39:16] Speaker 04: Thank you. [00:39:17] Speaker 04: The case is submitted.