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Case number 16-5296, Center for the Studies of Services, DEA Consumers Checkbook versus the United States Department of Health and Human Services and L Appellant.

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Ms.

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Schoen for the Appellant, Ms.

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Jennings for the Appellate.

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Morning.

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Good morning.

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May it please the court, Karen Schoen on behalf of the government.

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And if I may, I'd like to reserve two minutes for rebuttal.

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As we explained in our briefs, we're not challenging the merits of the district court's exemption for ruling.

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But after declaring that the government had violated FOIA by withholding the requested benefits data after the final data submission deadline, the district court went further and took the extraordinary step of issuing a prospective injunction

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that requires the government going forward to release the benefits data each year immediately after the final data submission deadline.

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To the world?

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Well, to plaintiffs.

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But, you know, once you release it to one plaintiff, it then is released publicly.

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But it requires the government to do that every year, indefinitely.

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I don't know what the district court meant by release.

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Under FOIA, it's the individual requester that's entitled to the documents, not the world.

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Right.

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So I guess we understand that it means we have to release it to the plaintiff.

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At a minimum.

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At a minimum.

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And the district court offered no justification for that extraordinary relief.

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There was simply no basis for it.

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I think this court has made- Well, what kind of basis would it have to have?

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Well, this court has made clear that only a rare instance of agency delinquency in meeting its duties under FOIA- Is that what was required in our crew decision?

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That's exactly what I was quoting from crew.

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And there are very few cases where this court has even entertained the possibility of prospective injunctive relief.

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One of those cases was pain.

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And there, I mean, there was clearly bad behavior on the part of the agency.

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You know, even after, on administrative appeal, the Secretary of the Air Force had said that documents can't be withheld.

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Air Force officers continued to withhold them.

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Well, in crew, I mean, look, we have little trouble concluding a district court possesses authority to grant a prospective injunction with an affirmative duty to disclose.

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And there was no finding of bad behavior

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by the government in that case, was there?

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Well, I think the Court then went on to say on page 1246 that only a rare instance of agency delinquency in meeting its duties under FOIA will warrant a prospective injunction.

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And at that point it was going on to talk about, that was where it was addressing why you don't have an APA.

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You go under FOIA and not the APA.

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But as to the authority of courts, the power of courts, they said you can have a prospective injunction in this case.

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And there was no such finding that that rarity standard was met in that case, right?

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But I thought the entire case was about what sort of remedy might exist and whether

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you just had a remedy under FOIA or under the APA, but I may be misremembering the case, but I don't think there was any grant of a remedy in that particular case or any finding of bad faith or any assessment of whether there would be an appropriate remedy there, but more what

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whether you seek relief under the APA or under FOIA.

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I thought that was the whole point of the case.

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The outcome of the case, as I understand it, was that the crew gets these disclosures.

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Yes?

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That that aspect of the injunction was upheld, as long as the disclosures were to crew and not to the world, as Judge Randolph was talking about.

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I apologize, Your Honor, I have to go back.

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Or at least the authority to do it.

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But the court made very clear in summing up in its opinion that it was only a very rare instance of

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delinquency in meeting its duties.

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Well, it's this delinquency that you're focusing on and yet crew didn't focus on, and that's all we're getting at.

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And I get your argument about why you want to distinguish crew.

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But to the extent the district court was acting pursuant to its equitable powers, here given the public interest at stake and the need for timely release, why would this be an abuse of discretion?

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I think once the court held that the agency had violated FOIA by relying on exemption 4 to withhold the data, that really should have been sufficient.

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We believe that holding has a preclusive effect.

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must act in good faith and comply with that ruling.

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And we've so held, notably in an opinion by then-Judge Scalia back in the early 1980s, that you don't need an injunction when you have government officers in front of you because the declaratory judgment will suffice.

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That's exactly right, Your Honor.

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And so there was no reason to think that after the district court resolved that dispute about exemption four, that the government wouldn't then comply in future years upon receipt of future FOIA requests and release the data after the lockdown date.

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So the government's whole argument here, though, is, well, circumstances might change, and the government ought to be able to raise other objections.

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And the district court's argument was the plaintiff's need is fulfilling a public interest in a critical area and time is of the essence.

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the plaintiffs have come around to the government's position about when these plans are virtually final, although an insurer could still withdraw its proposal.

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But nevertheless, for purposes of informing the public, there would be a database that could be meaningfully used.

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I think there's no reason to doubt that the government wouldn't release this in a timely manner.

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under FOIA.

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I mean, the district court seemed to be trying to anticipate future problems and resolve future disputes before they even exist, but that's not what's done.

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But you know, most of our cases involving FOIA are cases where people have asked for things under FOIA, and either the agency hasn't responded in a timely manner, and they've repeatedly requested, and then finally they file a lawsuit, and the agency starts to respond.

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I think that's another story, and if we got to that point in this case, you know, that would be then something for the district court to consider.

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But they've been to that point a couple times in this case.

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They were not getting the information in a timely manner, and exemptions were popping in and dropping out, and it wasn't until a district court ruled that they got anything on time.

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except for the very first FOIA request, which is what prompted this litigation, all the other FOIA requests were made while the litigation was pending and before the district court actually ruled on the merits of Exemption 4.

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And so during the pendency of the litigation, the government continued to rely in good faith on its belief that Exemption 4 allowed it to withhold the data.

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And remember, it was only until

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Our final summary, our renewed summary judgment motion in opposition to that, the plaintiffs narrowed their request to ask for the data after the lockdown or final data submission deadline.

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Up until that point, they were asking for the data at a much earlier time.

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And the district court acknowledged that.

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And the district court acknowledged that.

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You know, looking at what happened during the pendency of the litigation just isn't really relevant.

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I think the question is, once the district court resolved that exemption for dispute, whether there was any basis to then take the extraordinary step and go further and issue prospective injunctive relief.

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You're probably familiar with the case, I think it's Maddox, where we have said the government has to invoke all the exemptions on which it wishes to rely when it's before the district court.

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It can't come up in the Court of Appeals and invoke a new exemption.

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So here, the government invoked exemptions four and five.

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And the district court ruled on four.

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And the government's whole argument is it wants to be able, as these requests come in annually, to look to see whether there are other exemptions, whether there are other issues that would necessitate the government taking the position that it should not release this data at the lockdown period.

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I think under the circumstances they currently exist, we don't anticipate withholding the data or invoking some other exemption.

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But the point is that this injunction extends indefinitely into the future.

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And we don't know what will happen in the future.

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So the plaintiff told the district court and tells us that it intended to file annual requests and argues therefore that the district courts

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should be viewed in that context, so that if no request is filed, then there's nothing for the government to do.

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What's your response?

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Well, you know, when we read the district court's injunction, we didn't read it that way.

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We thought it basically provided automatic access, that we would have to provide it even.

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But what I'm getting at is the district court ruled in the context of the matter that was before it, correct?

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And the plaintiff had told the district court it intended to file annually.

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Right.

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And so if the court and plaintiffs are reading into that, the requirement that they file a FOIA request, I mean, we think that is helpful.

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But it still doesn't solve the problem in that it still requires the government indefinitely into the future to continue to release the data.

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And there's another point here.

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I have my doubts about pain and crew, but there's a circuit precedent that says that you could go beyond FOIA because there's this inherent equitable power of the court.

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But if we're going to go down that road, then it seems to me that doctrines of equity come into play.

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And one doctrine that has been

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held by the Supreme Court over and over in our court is that the scope of the violation determines the scope of the injunction.

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The only thing that was violated here was invoking exemption four.

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This injunction, though, is not confined to that holding.

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It's no matter what.

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No matter what possible exemption the government could have put forward, you can't do it.

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You've got to automatically disclose.

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Now, I don't know that there's any law in our circuit that says that in a particular case when the government asserts exemption four and they lose, or any, and they lose, that the next time a request comes in, the government is barred from invoking any other exemption.

[00:12:02] Speaker 05:
I don't know of any case.

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That's not what I was getting at.

[00:12:07] Speaker 01:
Yeah, I understand that.

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But I think that's exactly the problem that's raised by this case.

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So we just don't know what's going to happen.

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Does raised judicata not apply?

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We're talking here about a request by the same party, so the exact same parties, to the litigation.

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And they're asking, as I read the district court's injunction, for functionally same materials, different dates.

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It's a new year, but there's no substantive content differentiation.

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If there were, the injunction would cover it.

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Really, next year you could just say, well, this time we're going to try this exemption.

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Does race judicata not apply?

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I mean, I think, as we said, under the current circumstances, we don't.

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I mean, we.

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We think we are precluded to withhold the data under Exemption 4.

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We don't.

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I'm not doing collateral stop on this.

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I can raise Judicata here.

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And so you had your shot to raise your relevant exemptions.

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But with this party, I don't have to address whether it would apply to a different party filing a FOIA request.

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But this party raised it, asked for this material.

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If they come and ask for functionally the same material again, there's no legally relevant difference in the content of the material.

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You don't believe Raise Judicata applies?

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I think it does.

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I mean, there's not... So you wouldn't be able to invoke other exemptions unless the content of the material changes.

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or the nature of the program changes or something like that.

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Exactly.

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But then the injunction wouldn't apply.

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Well, but that's not what the injunction says.

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Well, the injunction says the requested data.

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And the requested data is what was requested in that order.

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But part of this issue is that the data changes over time.

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And that was what the dispute was about, because the data may look different when it's first received.

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from the issuers, there's back and forth.

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They may change their plans, correct errors.

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There's a lot of back and forth, right, until we get to the final data submission deadline, after which there are very few changes that can continue to be made until we get to open enrollment.

[00:14:02] Speaker 02:
Well, then now this sounds like the government actually wants to be able to litigate other things next year and the year after and keep fighting these things.

[00:14:08] Speaker 04:
That's not our anticipation.

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And right now we don't anticipate that there would be other exemptions that would apply.

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But the point is that this isn't just one year, two years, three years into the future.

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This is indefinitely.

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And it puts an inappropriate burden on the government to go back to court under a risk of contempt to modify the injunction should circumstances change.

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And remember, these are benefit plans.

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Do you have an affirmative duty at this point to disclose this information under a reading room provision anyhow?

[00:14:33] Speaker 02:
I don't think so, Your Honor.

[00:14:35] Speaker 04:
I'm not sure what provision would mandate that.

[00:14:37] Speaker 02:
D. Copies of all records, regardless of form or format, that have been released to any person under paragraph 3, and that because of the nature of the subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantial dissent records, or that have been requested several more times.

[00:14:56] Speaker 04:
Right, and we don't think that applies because it's not, remember, we don't view it as a category of data, but each year's data.

[00:15:04] Speaker 04:
So if, I guess, three or more times, if there were three different plaintiffs, or we thought there would be three different parties seeking 2018 data.

[00:15:13] Speaker 02:
It's released any time and has been requested three or more times, doesn't say by a different party, and it doesn't have to be the same data.

[00:15:19] Speaker 04:
But I mean, I think it has to be the same records.

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Substantially the same records.

[00:15:23] Speaker 04:
Substantially the same, but I think it's all the insurance plans that are going to be offered during this open season.

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Right, and those are all on the healthcare.gov website, the federal exchange.

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So come open enrollment, which I think was November 1st.

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No, no, Council, you know where I'm going and that's not where I'm going.

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I apologize, Your Honor.

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They want the information early enough so they can

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put out information for the public to help them understand these plans, which are complex.

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And all of us struggle to figure out what's covered, what's not covered, how much it's going to cost, not cost, et cetera.

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And that's what this plaintiff is all about, public information, public education.

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So they need to get the data when it's virtually final, unless an insurance company decides to withdraw

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the plan, in time for them to have a moment to look at it, put out this educational material.

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This window, not getting the information until then, virtually defeats their purpose.

[00:16:34] Speaker 04:
I'm sorry, when you say the window, I mean, right now- The open enrollment period.

[00:16:38] Speaker 05:
Right, in between the final- When I'm trying to figure out what plan I want to sign up for, they want to help me make that decision.

[00:16:48] Speaker 04:
Right, and we're not disputing their entitlement to it, and under the, you know, the declarative part of the district court's order where it said that the government had previously violated FOIA by withholding the data after the lockdown date or final data submission deadline, under that we think that means that the agency will have to abide by that and release the data after

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this final data submission deadline going forward.

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And we did that just this past year.

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The final data submission deadline was the 16th or the 17th, and we released the data a few days later, early the following week.

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And so, and we anticipate that, you know,

[00:17:24] Speaker 04:
Well, I want to get this in.

[00:17:26] Speaker 02:
You keep saying we anticipate, and then when we push on it, your whole argument is, though, is that we actually think there's other things that are going to come up, and it's going to change, and all of this.

[00:17:35] Speaker 02:
So I'm trying to pin you down on one.

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When you say we anticipate, that we'll keep doing the same thing, I assume you mean unless the law changes or the content of these materials changes in some substantively relevant way.

[00:17:50] Speaker 04:
Is that what you mean?

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Or until the nature of the agency's application and review process changes.

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You know, right now there are very few changes that issuers can make after this final data submission deadline.

[00:18:02] Speaker 02:
Well, that would be the law changing.

[00:18:03] Speaker 02:
I mean, the law or regulations.

[00:18:04] Speaker 02:
Oh, I'm sorry.

[00:18:04] Speaker 02:
Yes, exactly.

[00:18:05] Speaker 02:
Law or regulations, okay?

[00:18:06] Speaker 04:
And we just don't know.

[00:18:06] Speaker 02:
I mean, we don't know.

[00:18:08] Speaker 02:
Nothing may change.

[00:18:08] Speaker 02:
But if those change, then it's...

[00:18:11] Speaker 02:
something that is materially different information is what you would say between these things and so if we read the district court decision is not applying if either the legal regime including regulatory processes or the content of materials changes in a relevant legally relevant way then

[00:18:32] Speaker 02:
Do you have any problem with the order at that point?

[00:18:34] Speaker 04:
I mean, I think then it would just, it would really render a prospective injunction.

[00:18:38] Speaker 04:
Then I'm not sure what the point of a prospective injunction is.

[00:18:40] Speaker 02:
I mean, I think that... But if you have to disclose it under the reading room provision anyhow, then what's the problem?

[00:18:48] Speaker 04:
I guess we don't think we need to disclose it under the reading room provision, but I think that the sort of what I'll call the declaration part of the district court's order, where it just held that we had previously violated FOIA, I think that's sufficient.

[00:18:59] Speaker 04:
That's all the district court needed to do.

[00:19:00] Speaker 04:
And there's just no basis for going forward and issuing a prospective injunction that's just not done in FOIA, and there's no basis for doing it here.

[00:19:08] Speaker 01:
I think that's a very... Before you sit down,

[00:19:12] Speaker 01:
The procedure that requires a submission by May and then a review and then amendments and then so-called lockdown and then enlisting, is that by regulation or is that just by a series of letters?

[00:19:30] Speaker 04:
It's, I guess, self-regulatory guidance.

[00:19:33] Speaker 04:
The agency issues a letter to the insurers each year describing the process and what they need to do, setting forth the dates.

[00:19:42] Speaker 04:
There's not formal regulations.

[00:19:44] Speaker 01:
It's not by the statute.

[00:19:45] Speaker 04:
No, Your Honor.

[00:19:46] Speaker 01:
And it's not by, so far as I could tell, I couldn't find any regulations dealing with it.

[00:19:51] Speaker 01:
All I found is a series of letters.

[00:19:53] Speaker 01:
I mean, that's pretty fluid, it seems to me.

[00:19:57] Speaker 01:
particularly when you have a new administration trying to come to grips with the process.

[00:20:04] Speaker 04:
That's exactly right, Your Honor.

[00:20:06] Speaker 02:
Can I ask you just one technical thing?

[00:20:08] Speaker 02:
Why, if you were concerned about how the district court articulated its order, why didn't you file a Rule 59 motion to get clarification from the district court first?

[00:20:17] Speaker 02:
Wouldn't that have been helpful?

[00:20:19] Speaker 04:
It might have been.

[00:20:19] Speaker 04:
I don't know the answer to that, Your Honor.

[00:20:21] Speaker 04:
I know the immediate concern was seeking a stay pending appeal, and obviously the government was trying to figure out what it was going to do going forward.

[00:20:29] Speaker 04:
I don't know.

[00:20:30] Speaker 04:
I can't give you any insight into why we didn't ask for the consideration.

[00:20:34] Speaker 01:
Judge Kessler did issue a stay, didn't she?

[00:20:36] Speaker 04:
She did issue a stay pending appeal, yes.

[00:20:41] Speaker 04:
Anything further?

[00:20:42] Speaker 04:
No.

[00:20:43] Speaker 04:
All right, thank you.

[00:20:55] Speaker 03:
Good morning.

[00:20:56] Speaker 03:
Good morning, Your Honors.

[00:20:58] Speaker 03:
May it please the Court?

[00:21:00] Speaker 03:
I'd like to start by talking on a point that I believe Judge Rogers raised, which is that this case really boils down to timing.

[00:21:08] Speaker 03:
the annual window in which the data that Checkbook has been requesting is finalized and the time period by which Checkbook would need to receive that data in order to be able to use it to inform the public is extremely short.

[00:21:21] Speaker 03:
And we have emphasized that from the outset of this litigation.

[00:21:24] Speaker 03:
So the timing and the need to get the data within a discrete period of time precludes us from re-litigating this every year.

[00:21:34] Speaker 03:
And I think without a prospective

[00:21:37] Speaker 03:
without some prospective relief, we believe we would have essentially no relief at all.

[00:21:42] Speaker 01:
What finding did Judge Kessler make that in any way suggested or indicated that once the exemption four decision came down, the government would, and which involved timing, would not comply?

[00:21:58] Speaker 03:
Well, the government had stated to Judge Kessler that it intended to impose the same policy going forward.

[00:22:06] Speaker 03:
In fact, when we briefed this before Judge Kessler, the summary judgment motions that were filed were filed.

[00:22:13] Speaker 01:
I'm talking about after Judge Kessler ruled that they couldn't use exemption four to withhold data after the lockdown date.

[00:22:22] Speaker 01:
What finding did Judge Kessler make that the government would not comply with that and therefore an injunction was necessary?

[00:22:29] Speaker 03:
She referred back to the government's statement that they intended to continue to invoke the exemption going forward, because that is what the government had told her.

[00:22:38] Speaker 01:
After the ruling?

[00:22:40] Speaker 03:
The government never suggested what it would do after the ruling.

[00:22:43] Speaker 01:
That was not something.

[00:22:43] Speaker 01:
But the purpose of an injunction is to ensure compliance.

[00:22:49] Speaker 01:
And at least the case law in our circuit says that at declaratory judgment, when government officers in front of you ensures compliance now,

[00:22:57] Speaker 01:
If you're going to start issuing prospective injunctions, it seems to me that one of the questions is, what evidence is there of recalcitrance with the government refusing to obey a declaratory judgment?

[00:23:12] Speaker 01:
And number one, I don't know of any such evidence in this case.

[00:23:16] Speaker 01:
And number two, Judge Kessler made no such finding.

[00:23:20] Speaker 03:
Your Honor, I think first, although government officials are presumed to comply with the law, the government never suggested here what it intended to do after relief was entered, and it never suggested that it would comply timely with the need to disclose the data.

[00:23:37] Speaker 03:
And in fact, even before this court, the assurances that the government has made in its briefs do not assure that they will comply timely.

[00:23:44] Speaker 03:
They merely assert that they will not attempt to

[00:23:47] Speaker 03:
invoke the same arguments that the district court rejected under Exemption 4.

[00:23:52] Speaker 01:
So we don't... But as you said, the whole essence of the case was timing.

[00:23:56] Speaker 01:
The government never maintained that it didn't have to disclose the state.

[00:24:00] Speaker 01:
The only question was when.

[00:24:02] Speaker 03:
Correct, Your Honor, and that's why we felt that, and I think why Judge Kessler concluded that an injunction was necessary to ensure that they disclose it at the appropriate time.

[00:24:12] Speaker 01:
We don't know why Judge Kessler so concluded, because she made no findings and there's no discussion of the need for that kind of a relief.

[00:24:20] Speaker 03:
I think that it was in the context of the case and the record.

[00:24:23] Speaker 03:
And she had made a number of statements during status conferences where she had said she was very concerned about the need to get this information out to the public in a timely fashion and that she wanted to be sure that the public had access to the data.

[00:24:38] Speaker 03:
She also referred back to her first summary judgment opinion in which she had discussed the very compressed time period and the fact that if Checkbook had to relitigate this every year,

[00:24:49] Speaker 03:
It would really not have a remedy, your honor.

[00:24:53] Speaker 01:
That assumes the government won't comply with her decision.

[00:24:57] Speaker 01:
Yes, your honor.

[00:24:58] Speaker 01:
And the governor hasn't appealed that.

[00:25:00] Speaker 01:
So I come back to the same question.

[00:25:03] Speaker 01:
What evidence is there?

[00:25:04] Speaker 01:
What finding is there that the government wouldn't comply?

[00:25:07] Speaker 01:
And there's none.

[00:25:09] Speaker 03:
Your honor, I would say that the standard is we would

[00:25:16] Speaker 03:
put forth that the standard is not that the government will not comply.

[00:25:19] Speaker 03:
Is there some reasonable likelihood of a recurring situation?

[00:25:24] Speaker 03:
and she can look at several factors to determine that.

[00:25:28] Speaker 02:
What do you mean by recurring situation?

[00:25:30] Speaker 02:
Do you mean recurring situation in that you'll ask for the information again and they'll have to make a decision, or you'll ask and they won't make a timely decision?

[00:25:37] Speaker 03:
That they won't make a timely decision, Your Honor.

[00:25:40] Speaker 03:
That there's some recurring risk of us not being able to get relief again in the time.

[00:25:45] Speaker 02:
And what's the factual basis for that recurring risk of untimely action by the government?

[00:25:53] Speaker 03:
If I understand your honor's question, the factual basis from the record.

[00:25:56] Speaker 02:
What factual basis did the district court have to conclude that the government would not act timely once the district court explained the rules of FOIA to us?

[00:26:05] Speaker 03:
Yes, your honor.

[00:26:07] Speaker 03:
The government had steadfastly delayed disclosure each year.

[00:26:11] Speaker 03:
under exemption for?

[00:26:13] Speaker 02:
Well, that's because they had, at that point, they thought they had a legal right not to disclose it.

[00:26:18] Speaker 02:
So that's what parties tend to do while they're still litigating things.

[00:26:21] Speaker 03:
They did, although in response to our first request, they delayed release of the data by eight months and never invoked any exemption.

[00:26:28] Speaker 03:
There was just a long delay before we got the first round of data without any exemption being invoked.

[00:26:34] Speaker 03:
More than that, I think we had attempted throughout the litigation to

[00:26:39] Speaker 03:
come to agreement with the government on some earlier date, later than we wanted it, before they wanted to give it, the government was never willing to compromise on that.

[00:26:49] Speaker 02:
Because they thought the law required, or not required, but authorized withholding, and that there were policy reasons within this program to withhold it.

[00:26:59] Speaker 02:
The argument you're making sounds to me like one that's going to exist in every FOIA case.

[00:27:05] Speaker 02:
that the government didn't turn it over, they didn't turn it over when we wanted it, until the court resolved the dispute about what the law requires.

[00:27:13] Speaker 02:
But if that were true, then every case would be grounds for a prospective injunction, would it not?

[00:27:18] Speaker 03:
I think there are several distinctions for this case.

[00:27:21] Speaker 03:
First, Your Honor, this is a case in which the government has consistently conceded that Checkbook is entitled to expedited processing under the law.

[00:27:30] Speaker 03:
So there's no dispute that there's an urgency to inform the public the government has conceded that.

[00:27:36] Speaker 03:
Two, I'm not aware of any other situation and the government hasn't put forth any other situation where there's such a time-limited period

[00:27:44] Speaker 03:
in which the government releases the information and we can use it, or the requester can use it.

[00:27:51] Speaker 03:
And third, this was something that we have litigated for three years before the district court.

[00:27:57] Speaker 03:
The government very strenuously invoked exemption four, although it now abandons that argument on appeal, which I think sort of raises questions about

[00:28:08] Speaker 03:
why it so long held that position.

[00:28:11] Speaker 03:
But, you know, a plaintiff couldn't just come in, I think, at the outset and request this sort of relief.

[00:28:16] Speaker 03:
So I think several factors distinguish it.

[00:28:19] Speaker 02:
Do you do you interpret the district court's order is requiring you to make a FOIA request each year?

[00:28:28] Speaker 03:
Your Honor, we think that's the most reasonable reading of the court's order.

[00:28:31] Speaker 03:
First, the court stated that the government has to request the requested records, which suggests there has to be a request.

[00:28:40] Speaker 03:
She also stated in her opinion that we would be requesting the record every year.

[00:28:50] Speaker 02:
Do you think the reading room provision applies to this information?

[00:28:54] Speaker 03:
Your Honor, I'm not certain about that.

[00:28:55] Speaker 03:
I'm not prepared to answer that here.

[00:29:02] Speaker 03:
I think I'd like to touch on the government's assurances before the court in terms of whether or not they will be complying going forward.

[00:29:11] Speaker 03:
We do have concerns about the assurances they've made.

[00:29:14] Speaker 03:
First of all, I think Payne suggests that this court would require something more than statements in a brief.

[00:29:22] Speaker 03:
In Payne, for example, the court considered whether the government was likely to resume a practice that it had had in the past, and the government submitted affidavits from agency

[00:29:31] Speaker 03:
employees, which the court here found insufficient, even with affidavits, that they weren't from the correct employees, they didn't address the supervisors.

[00:29:39] Speaker 03:
So we have some concern about that.

[00:29:42] Speaker 03:
Also, the assurances the government has made do not address timing, which again is really the central issue here.

[00:29:50] Speaker 03:
They also state that they leave open the possibility that they could invoke exemption four again, but on other grounds.

[00:29:58] Speaker 03:
They leave open the possibility they could invoke other exemptions.

[00:30:02] Speaker 03:
And we think that unless there has been, if there is some change in circumstances, change in facts, change in the law, the appropriate remedy at this point would be for the government to move for a modification or clarification of the order.

[00:30:18] Speaker 03:
So we think that can be easily addressed.

[00:30:24] Speaker 02:
Just to be clear, I assume you have already made a request.

[00:30:28] Speaker 02:
You already got 2017 and you do have a pending request for 2018?

[00:30:34] Speaker 03:
Your Honor, apologies.

[00:30:35] Speaker 03:
We filed a request in early August and the government has released that data.

[00:30:39] Speaker 02:
For 2017.

[00:30:40] Speaker 03:
Or 2018.

[00:30:42] Speaker 01:
Your FOIA requests, at least up in, I guess, 2016, it wasn't just a request for the material.

[00:30:54] Speaker 01:
It was a request for the material at a particular time.

[00:30:58] Speaker 01:
Right?

[00:30:59] Speaker 03:
Yes, Your Honor.

[00:31:01] Speaker 01:
And the government, in its reply brief, says that we will comply if you make similar requests.

[00:31:11] Speaker 01:
So that statement, that representation to the court does, in fact, include the timing question, because your requests were on the basis that we want the information at a particular time.

[00:31:26] Speaker 03:
Your Honor, I don't read the government's assurances in that way.

[00:31:29] Speaker 03:
The government repeatedly says it would not seek to withhold the data

[00:31:34] Speaker 03:
on the grounds of the same arguments that the district court rejected.

[00:31:39] Speaker 01:
In a case such as this, where the plaintiff may make some substantially similar requests in the future, this is the government's representation, the district court's adjudication ensures that the government will not rely on the theory rejected and the exemption for ruling has preclusive effect.

[00:31:58] Speaker 01:
I don't know how to read that any other way.

[00:32:01] Speaker 03:
Your Honor, I believe that they've said they wouldn't rely on the arguments rejected.

[00:32:05] Speaker 03:
So, for example, the government has not conceded before this court that the district court rejected its exemption for public benefit prong.

[00:32:17] Speaker 02:
Well, the Senate's got preclusive effect.

[00:32:19] Speaker 02:
I don't know how

[00:32:21] Speaker 02:
I don't know what doctrine, it's been a while since I had federal courts, but I don't know what doctrine of preclusion it would be that would just preclude the same arguments as opposed to the claim.

[00:32:32] Speaker 03:
And I don't think the government makes that clear, Your Honor.

[00:32:34] Speaker 03:
I think that is a question for the government.

[00:32:37] Speaker 03:
What do they mean exactly by that?

[00:32:39] Speaker 02:
What else would preclusive effect mean?

[00:32:40] Speaker 02:
I mean, that's a legal term of art.

[00:32:43] Speaker 03:
Yes.

[00:32:44] Speaker 03:
I don't think it's clear exactly what the preclusive effect would be.

[00:32:50] Speaker 03:
if they would be able to raise new arguments.

[00:32:53] Speaker 03:
But they certainly have tried to leave open that possibility, I think, in their assurances.

[00:32:58] Speaker 03:
And they don't state that they would request or release the information after any particular time or within any particular time.

[00:33:12] Speaker 03:
I think it's also important to note that the government never contested the district court's ability to or authority to enter prospective relief when this was being briefed before the district court.

[00:33:25] Speaker 03:
The government suggests that all we needed to do was obtain a ruling on our underlying FOIA request and that that should have been sufficient.

[00:33:34] Speaker 03:
The whole problem with this litigation was that each time we got to the point of getting ready to brief summary judgment, our FOIA request had been fulfilled.

[00:33:43] Speaker 02:
So their summary judgment motion has Roman numeral three, perspective relief covering future plan years is inappropriate in this case.

[00:33:52] Speaker 02:
So how is that not raising the argument?

[00:33:54] Speaker 03:
Your honor, the government argued that we were not entitled to the relief.

[00:34:00] Speaker 02:
It never argued that the relief was unavailable, and it made sort of a passing... Boy, that sure looks... I'm looking at 41 to 42 of their summary judgment papers, and they're talking about paying and the rules on when you can have prospective relief or not, so I just don't understand.

[00:34:17] Speaker 02:
this argument.

[00:34:18] Speaker 02:
Maybe I'm just not reading it carefully enough, but that sure looks to me like they're raising the same argument they're raising here.

[00:34:27] Speaker 03:
Your Honor, I think they argued that we did not suffer a sufficient continuing injury to qualify for relief under pain.

[00:34:34] Speaker 03:
I do think they raised that argument, but their opening brief before this court focused solely on whether injunctive relief was available at all, whether the district court had any authority to grant that.

[00:34:46] Speaker 03:
And I think it's clear that the district court does.

[00:34:50] Speaker 03:
But what's more is that I think the whole posture of the case when summary judgment was briefed was to resolve the perspective issue, because we did not have a FOIA request pending at that time.

[00:35:04] Speaker 03:
So the court could not have ruled on our prior FOIA request.

[00:35:09] Speaker 03:
did not have authority to rule in our prior FOIA request.

[00:35:11] Speaker 03:
So the whole point of briefing this, and this was a briefing schedule that the parties jointly proposed, knowing that the data would have been requested by then, was to resolve that prospective issue.

[00:35:21] Speaker 03:
And the government, in its motion for summary judgment, repeatedly refers to its practice of withholding this data each year.

[00:35:29] Speaker 03:
So the government seemed to be asking the court to resolve the question of its prospective ability to do this.

[00:35:38] Speaker 03:
We think it's the government has been on notice that the district report was going to consider that and that many of these issues should have been raised earlier.

[00:35:47] Speaker 02:
Have you.

[00:35:52] Speaker 02:
Just to be clear, your representations to the district court about what you plan to request in the years going forward, were you specific to the district court that you didn't want anything other than the functionally identical data each year, that you don't expect any change to the scope of your request?

[00:36:10] Speaker 03:
Yes, Your Honor.

[00:36:10] Speaker 02:
For example, if their letters change and their process changes, your requests are going to look exactly the same?

[00:36:16] Speaker 03:
Your Honor, we consistently said that we intended to request substantially the same information, the benefits offered by the plans and nothing more.

[00:36:29] Speaker 05:
All right, anything further?

[00:36:31] Speaker 05:
Thank you.

[00:36:32] Speaker 05:
Thank you.

[00:36:47] Speaker 04:
I'd just like to emphasize one quick point.

[00:36:49] Speaker 04:
I mean, I think plaintiff seems to still be concerned about the government's compliance in the future.

[00:36:55] Speaker 04:
But there's no basis, as you pointed out.

[00:36:58] Speaker 04:
There's no basis in the record and the district court.

[00:37:00] Speaker 02:
What assurance can you give us standing here, not only as to your intention not to invoke exemptions, unless something changes?

[00:37:11] Speaker 02:
and specifically as to the timeliness with which future releases, responses to their FOIA requests would occur absent material change in circumstances.

[00:37:26] Speaker 02:
What assurance can you give us that absent a material change in the nature of their request or the nature of the program or the nature of the information?

[00:37:35] Speaker 02:
Absent that, assuming everything looks the same, the dates just change.

[00:37:39] Speaker 02:
that the government will neither invoke new exemptions nor delay in responding to a FOIA request that they file, given their timeliness concerns.

[00:37:55] Speaker 04:
Well, I think we understand the district court's ruling regarding exemption four to have preclusive effect.

[00:38:01] Speaker 04:
And I think the government is presumed to comply with that sort of order.

[00:38:06] Speaker 04:
There's no reason to think that the government wouldn't.

[00:38:09] Speaker 04:
And I mean, absent some basis for thinking that the government wouldn't, we don't generally ask this question.

[00:38:16] Speaker 04:
I mean, I think until there's some demonstrated need, right now there's no problem.

[00:38:21] Speaker 04:
We just produced the data this past year.

[00:38:24] Speaker 04:
a few weeks ago.

[00:38:25] Speaker 02:
There's no basis.

[00:38:27] Speaker 02:
Well, that's for pending litigation and appeal and that kind of stuff.

[00:38:30] Speaker 02:
I'm very serious.

[00:38:33] Speaker 02:
If they say this is all about timeliness, at the end of the day, I'm not sure why this can't be worked out between the two of you, if you agree that absent material change, and maybe there'll be a fight about material changes in a new case, but absent that, and we can assume the government will act in good faith in that regard, the response that you won't invoke exemptions, which

[00:38:53] Speaker 02:
you seem to be suggesting, and that you will respond in a timely manner given their timeliness concerns, i.e., that you'll respond to a FOIA request and disclose materials right after the lockdown date.

[00:39:08] Speaker 04:
As I said, I mean, I think the agency does have to act in good faith and comply with the order.

[00:39:13] Speaker 02:
Well, you're trying to overturn that order.

[00:39:16] Speaker 04:
I'm sorry, comply with the portion of the order that held that exemption for was not available.

[00:39:22] Speaker 04:
As to the arguments.

[00:39:23] Speaker 04:
Yes.

[00:39:24] Speaker 02:
But that's as to the exemptions.

[00:39:25] Speaker 02:
What about as to the timing?

[00:39:27] Speaker 02:
That's what the district court seemed to be concerned with.

[00:39:29] Speaker 04:
Again, there's no basis for thinking that the government's not going to timely comply.

[00:39:33] Speaker 04:
I mean, I think if in the future the government starts unduly delaying, then that's a very different story.

[00:39:38] Speaker 02:
I guess just the reality.

[00:39:39] Speaker 02:
I mean, the problem is that the government...

[00:39:41] Speaker 02:
I don't know how often I've ever seen the government actually meet, say, a statutory deadline for complying with a FOIA request, because I get lots of them.

[00:39:47] Speaker 04:
But the idea is that if the district court to say that no matter what other demands are on the agency in future years, that these plaintiffs automatically go to the front of the line, regardless of what the situation is, I mean, I think that's a very extraordinary proposition.

[00:40:03] Speaker 02:
So you can't make any promises about the timeliness of disclosure going forward?

[00:40:08] Speaker 04:
I can't make promises well into the future.

[00:40:10] Speaker 04:
I mean, this extends indefinitely into the future.

[00:40:12] Speaker 05:
What about next year?

[00:40:12] Speaker 05:
You don't have any statement that you can represent to this court, can you?

[00:40:20] Speaker 05:
I don't know that I'm authorized to make a formal representation.

[00:40:23] Speaker 05:
The arguments you made are those in your brief.

[00:40:25] Speaker 04:
I apologize, Your Honor.

[00:40:26] Speaker 04:
I didn't hear what you said.

[00:40:28] Speaker 05:
Basically, you're telling us that the arguments you made in your brief, you stand by them, period.

[00:40:35] Speaker 05:
Yes, Your Honor.

[00:40:36] Speaker 05:
All right.

[00:40:37] Speaker 05:
And that's as far as you can go.

[00:40:38] Speaker 05:
I think that's right.

[00:40:40] Speaker 05:
Anything further?

[00:40:44] Speaker 05:
All right.

[00:40:45] Speaker 05:
Thank you.

[00:40:45] Speaker 05:
Thank you.

[00:40:46] Speaker 05:
Take the case under advisement.