[00:00:01] Speaker 00:
Case number 16-5263, Howard Blumgarten, appellant versus the United States Department of Justice.

[00:00:10] Speaker 00:
Mr. Lewis for the appellant, Ms.

[00:00:12] Speaker 00:
Lilly for the appellee.

[00:00:42] Speaker 03:
Mr. Lewis.

[00:00:43] Speaker 03:
Good morning.

[00:00:43] Speaker 03:
Torrance Lewis, your honors, for plaintiff Pellenhauer-Bloomgarden.

[00:00:48] Speaker 03:
The question here is whether the district court erred and whether the government lawfully withheld a termination letter of a former AUSA in the Eastern District of New York, who'd been allowed to remain in his employment capacity while the government procured and- You call it a termination letter.

[00:01:09] Speaker 01:
But you're not suggesting it's a final decision of the Justice Department.

[00:01:15] Speaker 01:
It was a proposed termination.

[00:01:17] Speaker 03:
That's right, Your Honor.

[00:01:19] Speaker 01:
Does that have any significance?

[00:01:21] Speaker 03:
Well, I think it does have the underlying... No, no, is there a distinction between a termination letter and a proposed termination letter?

[00:01:30] Speaker 03:
Well, in this case, the proposed termination letter, we've got record evidence here that it was actually adjudicated by a final decision maker.

[00:01:38] Speaker 01:
Adjudicated?

[00:01:40] Speaker 03:
Well, or a final decision was rendered by the final decision maker in the case.

[00:01:44] Speaker 03:
Who?

[00:01:45] Speaker 03:
His name was Dennis Corrigan.

[00:01:47] Speaker 01:
You mean the counsel to the Deputy Attorney General?

[00:01:50] Speaker 03:
That's right.

[00:01:50] Speaker 01:
And that's at... All he did was say, the case is over.

[00:01:56] Speaker 01:
The matter's over, right?

[00:01:58] Speaker 01:
Well, in the original... There's no reference in his opinion as to whether or not the proposed termination letter is correct or not correct.

[00:02:08] Speaker 03:
In the response that we received originally from the National Archives, the individual who was reviewing whether to disclose those documents to us sent us an email indicating that one of the documents was the final decision.

[00:02:27] Speaker 01:
But I'm asking, was it?

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It was the final decision in the sense that's the end of the matter.

[00:02:32] Speaker 01:
But there's no adjudication as to whether the proposed termination

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allegations were correct or not correct.

[00:02:40] Speaker 03:
So there were three letters that were hallowed.

[00:02:43] Speaker 01:
Is that correct?

[00:02:45] Speaker 01:
There's no final decision by an MSPB or the Justice Department as to whether the allegations in the proposed termination letter

[00:02:56] Speaker 01:
We're all correct or not correct?

[00:02:57] Speaker 03:
Well, I think that it's right.

[00:02:59] Speaker 03:
We don't have a final decision on the second appeal if there was one.

[00:03:04] Speaker 01:
We don't know.

[00:03:05] Speaker 03:
That's right.

[00:03:06] Speaker 03:
But I'm just to go back to the point about the National Archives.

[00:03:11] Speaker 03:
The original response that we received from them indicated that there were three letters.

[00:03:17] Speaker 03:
The only one that was ever disclosed was the one that you're talking about, where Mr. Corrigan said, since this matter is finished, I'm no longer exercising jurisdiction.

[00:03:29] Speaker 05:
Right.

[00:03:29] Speaker 05:
I think the question or one issue that

[00:03:33] Speaker 05:
that may be relevant as we think about this is whether what is said in this letter has been tested in any way and if it's being released as a kind of this is what happened and if the government of your position is the public has a right to know what happened

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Is it really fair to treat this as what happened when it's a proposal on one side?

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And I would say that given that this is being decided on summary judgment, there's enough inference in the record that it was, that it did proceed up for first a final decision and then an appeal.

[00:04:11] Speaker 05:
Well, we know it preceded a final decision, but that doesn't mean, I mean, this is someone who.

[00:04:17] Speaker 03:
No, and again, that it went further and was litigated at the merits.

[00:04:21] Speaker 01:
No, there was an appeal, but it looks like it was withdrawn.

[00:04:25] Speaker 01:
There's no record of the MSPB decision.

[00:04:28] Speaker 01:
If you had an MSPB decision, we'd have an entirely different case.

[00:04:32] Speaker 03:
Yes, so we have the original.

[00:04:33] Speaker 03:
He was originally terminated.

[00:04:35] Speaker 03:
They tried to terminate him as probationary employee.

[00:04:39] Speaker 03:
He appealed that at a certain point, then the government withdrew

[00:04:44] Speaker 03:
Right.

[00:04:44] Speaker 03:
He prevailed in that appeal.

[00:04:46] Speaker 03:
That's right.

[00:04:46] Speaker 03:
That was the first merit services, MSPB, I'm sorry.

[00:04:51] Speaker 05:
And it was the only, I mean, it was the only that was followed through.

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There wasn't ever an adjudication on this, on these allegations.

[00:04:57] Speaker 03:
That we're aware of.

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But there are two pieces, there are two pieces of evidence in the record.

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The first is from the government itself indicating that there is evidence that this case was appealed to the MSPB.

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And that's...

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which have recognized if a matter is appealed, the public interest prevails over privacy, are all cases where when a case is appealed, there's a decision.

[00:05:29] Speaker 01:
But we don't have any case where there's an appeal and then the case is withdrawn.

[00:05:35] Speaker 01:
Why should that be in the public interest?

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In other words, why is that even relevant if there's an appeal and it's withdrawn?

[00:05:42] Speaker 03:
Well, if the employee publicly challenged the allegations... Let's assume he challenged, but it was true.

[00:05:51] Speaker 01:
In the past cases where we've said, okay, now there's a public interest, there are cases which are public, like a public decision of the D.C.

[00:06:00] Speaker 01:
Circuit.

[00:06:00] Speaker 03:
So we have two pieces of evidence in the record.

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Again, you're right, we do not have a final adjudication on the second appeal, if there was one.

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But we do have the statements in the record from the government.

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And we also have in the record, and this is

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But the government can only release documents that exist.

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They can't create documents.

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In a FOIA case, they say there's nothing in the records of the Justice Department concerning the possible appeal.

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They do say there was an appeal.

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filed.

[00:06:45] Speaker 05:
Can I ask you to focus on the public interest, which really seems like that's, you know, the make or break point for your case.

[00:06:53] Speaker 05:
What is the public interest in having this particular document revealed?

[00:07:01] Speaker 03:
Well, I think that, you know, the public interest would be that first of all, I mean, I think that

[00:07:10] Speaker 03:
This is a United States prosecutor who's prosecuting cases in the government's name.

[00:07:14] Speaker 01:
This is a United States government lawyer.

[00:07:17] Speaker 01:
It doesn't matter whether he's a prosecutor or she is a civil rights lawyer or a lawyer in OLC or in the Solicitor General's office, right?

[00:07:28] Speaker 01:
The fact that it's a prosecutor is not particularly relevant, is it?

[00:07:32] Speaker 03:
I think it might be.

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Why?

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Well, just because they're bringing criminal cases that impact life, death,

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should be treated differently than a civil rights lawyer who brings civil cases and sometimes I would argue that that's that's that's arguable that they should based on okay the impact they can have

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on people's lives and the control they have over people in terms of charging decisions.

[00:08:00] Speaker 05:
As you see, there's a slippery slope on all personnel actions dealing with all people who are in some way bearers of governmental authority, which arguably could also be awesome when the lawyers are acting in other capacities.

[00:08:13] Speaker 05:
But so more about something that happened 25 years ago with respect to one individual.

[00:08:20] Speaker 05:
What's the public going to learn about what?

[00:08:26] Speaker 03:
Well, I mean, I think that it would be the same thing you would be learning if you uncovered evidence of misconduct in decades-old cases, where you had someone who was prosecuting multiple criminal defendants, and those people might still be in jail.

[00:08:43] Speaker 03:
They might still be impacted by those prosecutions.

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And people want to know.

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I mean, people have an interest in whether people have been wrongfully accused, prosecuted,

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And whether or not the government is planning fair.

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I was going to reserve some time for rebuttal, if I might.

[00:09:06] Speaker 05:
OK.

[00:09:07] Speaker 05:
Thank you.

[00:09:07] Speaker 05:
We'll hear from Lily.

[00:09:20] Speaker 04:
Good morning, Your Honors.

[00:09:23] Speaker 04:
I'm Janie Lily for the Department of Justice.

[00:09:26] Speaker 04:
The district court correctly balanced the public interest, which it found to be minimal, in this 20-year-old proposed disciplinary letter against the significant privacy interests of the former prosecutor whose work performance was evaluated in the proposed disciplinary action.

[00:09:47] Speaker 05:
And you're not asserting the privacy interests of other people involved and mentioned in the letter?

[00:09:54] Speaker 04:
We did in district court, but the district court, the basis for its decision was on the privacy interest of the former AUSA, whose work performance was evaluated in the proposed letter.

[00:10:08] Speaker 01:
Is that a concern?

[00:10:09] Speaker 01:
Are we supposed to give any deference to the district judge's balancing?

[00:10:13] Speaker 01:
of the public interest against the clearly unwarranted invasion of privacy, or is that strictly de novo?

[00:10:21] Speaker 01:
We give no deference at all to the district judge.

[00:10:25] Speaker 01:
This is balancing.

[00:10:26] Speaker 01:
Well, Your Honor... That's sort of puzzling to me.

[00:10:29] Speaker 01:
What's the answer?

[00:10:30] Speaker 04:
Here, the strict standard review is de novo, but here where the district court in fact reviewed the document in camera,

[00:10:37] Speaker 04:
and determined that there was no, there was only a minimal public interest in the contents of the order.

[00:10:45] Speaker 01:
Do we give any deference to the district judge?

[00:10:47] Speaker 01:
Yes or no?

[00:10:48] Speaker 04:
It would be appropriate to do so, Your Honor, but this is for you.

[00:10:52] Speaker 05:
We also reviewed the document in camera, and so I'm not sure what we're deferring to.

[00:10:57] Speaker 04:
Yeah, that's right.

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possible for this court to review it.

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And therefore, no difference would be necessary.

[00:11:04] Speaker 04:
But where the district court has engaged in that.

[00:11:06] Speaker 01:
I was trying to puzzle under the statute whether we're entitled, even allowed to give any difference to the district judge.

[00:11:13] Speaker 01:
That's a separate question.

[00:11:15] Speaker 05:
So what about the public interest?

[00:11:17] Speaker 05:
There's a question been raised here.

[00:11:24] Speaker 05:
Here was somebody who apparently

[00:11:29] Speaker 05:
failed to perform in a way that allowed him to remain in the job as an individual who was prosecuted directly by him.

[00:11:38] Speaker 05:
And there is a grave liberty interest of the highest order when we're talking about putting people in prison.

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prison.

[00:11:50] Speaker 05:
So why isn't it in the public interest that public should know about what happened here?

[00:11:56] Speaker 04:
Certainly, Mr. Billingarton's own personal interest isn't relevant under the FOIA calculus for public interest.

[00:12:02] Speaker 04:
Did I say it was?

[00:12:03] Speaker 05:
I'm saying that, you know, the notion that

[00:12:08] Speaker 05:
that Mr. Lewis has has posed is this is something that the public cares about?

[00:12:12] Speaker 05:
How do prosecutors do their job when somebody's, you know, facing charges and they're, as you know, very strict guidelines and rules that constrain and guide prosecutors?

[00:12:24] Speaker 05:
And here's somebody who apparently didn't follow those in some unknown way.

[00:12:27] Speaker 05:
Doesn't the public want to know?

[00:12:29] Speaker 04:
Well, Your Honor, this court has held in cases involving more serious allegations of misconduct, like the Kimberlin case, that the public has a minimal interest in.

[00:12:38] Speaker 05:
But Kimberlin was under Section 7, wasn't it?

[00:12:40] Speaker 04:
It was under Section 7C.

[00:12:41] Speaker 04:
But there, the court was engaged in a similar balancing of the public interest and the privacy interest and found that the public interest, where there had been admissions of misconduct in an OPR investigation, that the details of that investigation, that there was a limited public interest

[00:12:57] Speaker 04:
in the details of the investigation, Your Honor.

[00:13:00] Speaker 05:
You said a similar balancing, but it's not quite a similar balancing.

[00:13:03] Speaker 04:
It's not exactly the same.

[00:13:04] Speaker 05:
There's a stronger tilt toward disclosure under Section 7.

[00:13:08] Speaker 04:
You're absolutely correct.

[00:13:10] Speaker 04:
But the court's analysis of the public interest there, and its characterization of the public interest, where you were talking about Negose, who had admitted the misconduct, admitted that he was, in fact, disciplined, that the public's interest in the investigation

[00:13:26] Speaker 04:
The investigation materials in those cases was limited, given the attorney's role in the type of misconduct alleged.

[00:13:34] Speaker 04:
Here is the district court is characterized that this is sort of garden variety in subordination and not even the same magnitude of misconduct.

[00:13:44] Speaker 01:
Could it be argued that there's a public interest in knowing how hard it is to fire lawyers in the Justice Department who don't do a good job, which could run across all the whole Justice Department?

[00:13:55] Speaker 04:
Your Honor, that would eviscerate the application of Exemption 6 to most personnel files, and there would be a limited public interest even in understanding how the Justice Department went about its disciplinary proceedings 20 years ago as the district- 22, 23 years ago.

[00:14:16] Speaker 01:
Is there anybody in the Justice Department still around there?

[00:14:19] Speaker 01:
Is there any indication

[00:14:21] Speaker 01:
that this case, if there was a case, is reflective of what the present policy is?

[00:14:28] Speaker 04:
Your Honor, I can't speak to the ins and outs of every disciplinary proceeding, but I don't think that there have been any allegations that this would shed any light on current practices.

[00:14:39] Speaker 04:
And in fact, the district court held to the contrary, that there was a limited public interest in

[00:14:44] Speaker 04:
unearthing details about how the U.S.

[00:14:47] Speaker 04:
Attorney's Office many, many years ago engaged in disciplinary proceedings.

[00:14:53] Speaker 02:
But you're not contending that just because it may show past practices

[00:15:00] Speaker 02:
that the public has no interest in learning what past practices were.

[00:15:05] Speaker 02:
You're not arguing that, are you?

[00:15:07] Speaker 04:
I'm not making a general argument about past practices or any historical value, but just in this case, the district court found that there's nothing to be gleaned for the public about the way discipline was conducted in a particular case.

[00:15:21] Speaker 02:
What if it were allegations that he was

[00:15:28] Speaker 02:
trying to get witnesses to provide false testimony.

[00:15:32] Speaker 02:
And that that had, you know, gone on for several years and it took, you know, several years for there to be a proposed termination.

[00:15:41] Speaker 02:
Would the public have interest in that?

[00:15:42] Speaker 04:
Well, we know that that was not the case here because the the the district court reviewed the documents and found that I said suppose

[00:15:52] Speaker 04:
Then maybe there would be, depending on the facts of the case and the type of misconduct alleged, there might be a public interest along those lines here where the district court... What if it were Brady violations, repeated Brady violations over the course of many years?

[00:16:09] Speaker 02:
Would there be a strong public interest there?

[00:16:11] Speaker 01:
There might in fact be... There was such a case a few years ago involving a United States Senator where the Justice Department lawyer plus the FBI agent declined to turn over to the defense counsel.

[00:16:31] Speaker 01:
Shockingly relevant Brady material and as I recall

[00:16:35] Speaker 01:
a district judge actually had to direct an investigation of that.

[00:16:41] Speaker 01:
And what the Justice Department ended up doing is giving these two individuals one a 40-day suspension and another

[00:16:52] Speaker 01:
the argument could have been, which exactly the hypothetical that Judge Wilkins is referring to.

[00:16:59] Speaker 04:
I don't know if in that case, whether if a FOIA.

[00:17:02] Speaker 01:
It's all public, so everything's public because there was both the Office of Public Professional Responsibility issued the decision and of course the district judge had someone, an independent authority investigated.

[00:17:21] Speaker 01:
But

[00:17:22] Speaker 01:
That was a case involving exactly awful failure to comply with Brady that Judge Wilkins referred to.

[00:17:31] Speaker 01:
That's not this case.

[00:17:35] Speaker 01:
Certainly not this case, sir.

[00:17:36] Speaker 01:
This lawyer was pretty lackadaisical and incompetent, but with the exception of promising a defendant that he might get some benefit that he didn't get, this lawyer did not do

[00:17:52] Speaker 01:
a series of actions designed to interfere with defendants' rights.

[00:17:58] Speaker 05:
The thing I find hard to assess about the public interest is the cases talk about it.

[00:18:04] Speaker 05:
The public has an interest in knowing whether there has been misconduct.

[00:18:08] Speaker 05:
But I take the government's position to be if a judge has looked at it and said there isn't misconduct here, then the public doesn't have an interest.

[00:18:17] Speaker 05:
But doesn't the public also have an interest in knowing when things are going well?

[00:18:22] Speaker 05:
In dispelling the suspicion, and this isn't just personal to Mr. Blumgarten, but in dispelling the suspicion that something more nefarious took place.

[00:18:35] Speaker 05:
But obviously if one were to go down that road, then everything would have to be open.

[00:18:40] Speaker 05:
So where,

[00:18:46] Speaker 05:
So you're basically asking the public to rely on the in-camera kind of gatekeeping judgments of someone in the position of either us or the district judge here.

[00:18:58] Speaker 04:
In this case, yes, Your Honor, where the district court has reviewed it and determined that there is no public interest in this material.

[00:19:03] Speaker 04:
There's not misconduct by senior level official of the type that this court has found would satisfy the public interest and would outweigh the privacy interest in this type of document.

[00:19:14] Speaker 05:
What about a situation in which there wasn't misconduct, but there was a lot of neglect?

[00:19:20] Speaker 05:
Would that satisfy the public interest standard?

[00:19:25] Speaker 05:
There's big power being used by a lot of people, and there's just neglect, let's say, hypothetically, of constraints on that.

[00:19:36] Speaker 04:
Without more, Your Honor, I'm not sure that I can speculate about the nature of the neglect or the type of neglect, but under this court's case law, the court looks to the nature of the allegations of misconduct and the official that, and the rank of the official who was implicated in the disciplinary action here.

[00:19:57] Speaker 04:
We don't have an adjudication on the proposed discipline, and we don't have the type of misconduct that this court has found to be sufficient in similar cases.

[00:20:06] Speaker 05:
And on the privacy interest, do we know anything about what Granger thinks about whether this is a privacy problem?

[00:20:11] Speaker 05:
And so when you're asserting a privacy interest, you're asserting it on behalf of kind of a category of people similarly situated to him, and kind of the records holder's interest in the privacy of the people whose records it holds?

[00:20:24] Speaker 04:
Yes, Your Honor.

[00:20:25] Speaker 04:
We're asserting on behalf of the former AUSA.

[00:20:30] Speaker 01:
But you do know that he is a practicing lawyer in New York.

[00:20:33] Speaker 04:
That has been asserted by Plankton.

[00:20:36] Speaker 05:
But it wouldn't matter to you if he said, fine, clear my name, I'd rather this be released.

[00:20:40] Speaker 05:
That wouldn't matter.

[00:20:41] Speaker 05:
It's sort of like when the government asserts presidential privilege, even when the sitting president says, you know,

[00:20:48] Speaker 05:
took to his lawyer, hey, maybe it would be better for me if we let this out.

[00:20:52] Speaker 05:
There's an institutional interest in the privacy of a former AUSA in personnel matters?

[00:20:57] Speaker 04:
Well, there's an interest here where there's not been any such waiver.

[00:21:01] Speaker 04:
And there would be a privacy interest in those whose evaluations were given.

[00:21:06] Speaker 04:
We might be here asserting different privacy interests.

[00:21:10] Speaker 05:
If Granger came in and said, I don't have a privacy interest, what would your position be?

[00:21:15] Speaker 04:
Your Honor, then it'd be a very different case.

[00:21:18] Speaker 04:
I think we'd be looking at the nature of the documents and who else's privacy interests might be asserted.

[00:21:25] Speaker 04:
But it would stand to reason that even in that case, we could assert the privacy interest in the personnel records.

[00:21:34] Speaker 01:
Actually, if Granger wanted it disclosed, he could seek it under another statute.

[00:21:41] Speaker 04:
Yes, Your Honor.

[00:21:42] Speaker 01:
Yeah.

[00:21:48] Speaker 01:
There's no indication.

[00:21:50] Speaker 01:
I think he was seeking under the Privacy Act.

[00:21:53] Speaker 01:
That sounds right.

[00:21:55] Speaker 04:
Something along those lines, right?

[00:21:57] Speaker 02:
So I'm trying to understand the government's position.

[00:22:03] Speaker 02:
This is an exemption six case where there's more, it's tilted more towards disclosure than seven C where most of these cases come up.

[00:22:12] Speaker 04:
Requires issuing a clearly warranted privacy.

[00:22:17] Speaker 02:
where there is a balancing that has to take place where we have to find that the public interest clearly outweighs, not that it might, but that it does clearly outweigh the privacy interest.

[00:22:35] Speaker 02:
We don't have an assertion of a privacy interest by the individual involved that's in the record.

[00:22:42] Speaker 02:
So we're just kind of assuming that he has one.

[00:22:46] Speaker 02:
But the fact that there was a proposed termination and there was litigation over that before the MSPB and all of that is of public record.

[00:23:02] Speaker 04:
And to be clear, Your Honor, the litigation before the MSPB was on the initial termination that was

[00:23:11] Speaker 04:
When he was treated as a probationary employee, when it was determined that he was not a probationary employee, that's when the government proposed the letter that's at issue here.

[00:23:25] Speaker 02:
So there is no public MSPB decision that refers even vaguely to this proposed termination here.

[00:23:38] Speaker 02:
Is that what you're saying?

[00:23:39] Speaker 04:
No, Your Honor.

[00:23:40] Speaker 04:
We have no evidence of an MSP final decision.

[00:23:42] Speaker 01:
Your answer to that question should have been yes.

[00:23:45] Speaker 01:
You want to listen carefully.

[00:23:46] Speaker 04:
I know what you meant.

[00:23:51] Speaker 01:
You meant there is none.

[00:23:55] Speaker 01:
You're right, Your Honor.

[00:23:56] Speaker 04:
There is no evidence of a final MSPB decision.

[00:23:59] Speaker 04:
And so I apologize for the form of my answer, but I want to be clear that we have no evidence of a final MSPB decision on

[00:24:10] Speaker 04:
letter.

[00:24:11] Speaker 01:
Or a final decision by anybody.

[00:24:14] Speaker 04:
No, Your Honor, plaintiffs have pointed to a one sentence letter.

[00:24:20] Speaker 01:
No adjudication of the accuracy of the allegations.

[00:24:26] Speaker 04:
No, Your Honor, not in EOUSA.

[00:24:28] Speaker 05:
Just to circle back on that, I'm trying to understand the nature of the privacy interest and the posture in which the government asserts them.

[00:24:37] Speaker 05:
The government is asserting an interest in Granger's privacy and potentially also in the privacy of other individuals who might have been involved, let's say, in a supervisory role in this personnel action?

[00:24:50] Speaker 04:
Yes.

[00:24:50] Speaker 05:
The government is asserting those interests.

[00:24:52] Speaker 04:
That is, those were the interests that we asserted in the district court.

[00:24:56] Speaker 04:
The district courts.

[00:24:57] Speaker 05:
And you continue to rely on those, the interests of the AUSA involved and of other people who might or might not have taken various actions with respect to him or identified.

[00:25:11] Speaker 04:
Yes, Your Honor.

[00:25:12] Speaker 04:
Yes.

[00:25:13] Speaker 04:
Those continue to be privacy interests at issue in the letter.

[00:25:19] Speaker 02:
And how are we the way privacy interests asserted as to acts that were taken in the court of record, such as, you know, failing to, you know, file an indictment within the 30-day time period or failing to respond to a judge or, you know, inquiry or something of that nature?

[00:25:45] Speaker 02:
I mean, how are we to determine

[00:25:50] Speaker 02:
how strong that privacy interest is as opposed to something that doesn't happen on the record in court.

[00:26:02] Speaker 04:
So the privacy interests that are asserted here with respect to the proposed letter which evaluates the AUSA's performance and

[00:26:14] Speaker 04:
as described by the district court.

[00:26:17] Speaker 04:
There were various documents that were released by the government pursuant to the district court's order that were filings in

[00:26:29] Speaker 04:
The court for instance or those the the documents that you are those those documents are not an issue in this appeal The government was ordered to release those and has released attachments to the proposed letter that That would contain that contained filings in the courts and so your argument is then that that does not undermine

[00:26:55] Speaker 02:
The fact that doesn't undermine the decision by the district judge to not disclose the parts of the letter that discuss those it's precisely your honor.

[00:27:07] Speaker 04:
The evaluation of someone's performance.

[00:27:13] Speaker 04:
is at the heart of the privacy interest that's protected by Exemption 6 and personnel records.

[00:27:21] Speaker 04:
The supporting documents that may provide some support for that evaluation or the basis for the evaluation, the court ordered disclosed.

[00:27:33] Speaker 04:
And the two are distinct.

[00:27:35] Speaker 05:
Okay, Ms.

[00:27:35] Speaker 05:
Lilley, thank you.

[00:27:39] Speaker 03:
uh... mister louis we gave this week quite a bit of additional time and so we'll give you some rebuttal thank you three months i just uh... one point just quickly i i i i believe that the government has waved advocating on behalf for raising third-party interests here i think the only interest that privacy interest that they've alleged and arguing on appeal

[00:28:02] Speaker 03:
is for Mr. Granger.

[00:28:04] Speaker 03:
So that would be the first.

[00:28:05] Speaker 05:
That's not what I heard from the government.

[00:28:07] Speaker 03:
No, I'm just saying their papers contain no assertion of third party liability or privacy rights here or interests.

[00:28:19] Speaker 05:
So you're saying they forfeit them and the district court relied on them?

[00:28:23] Speaker 03:
Well, I'm not sure the district court did either, but they didn't raise it on appeal.

[00:28:30] Speaker 03:
I just wanted to get back to, and then one other item on the six versus seven C. We haven't seen the letter your honors have or can.

[00:28:42] Speaker 03:
The district court judge saw it and the government's seen it.

[00:28:45] Speaker 03:
So we don't know exactly what's in there.

[00:28:47] Speaker 03:
We've got what the judge has put on the record in terms of this was willful disobedience.

[00:28:56] Speaker 03:
or garden variety misconduct, professional misconduct, or what have you.

[00:29:02] Speaker 03:
So, you know, I don't, we're kind of litigating a little bit blindly, but I would say that all of the cases that are being cited and that were cited by the district court are all under 7Z, save one district court case, which is Parker, and I believe that...

[00:29:22] Speaker 01:
for senior officials in the Justice Department to discharge government lawyers?

[00:29:28] Speaker 03:
I'm sorry, Your Honor?

[00:29:29] Speaker 01:
Would you think it's probably true that it's very difficult for senior officials in the Justice Department to discharge government lawyers?

[00:29:38] Speaker 03:
I think it absolutely is.

[00:29:41] Speaker 03:
And so, I mean, to me, this makes this case rarer than a lot of the other ones that are pointed to for support, such as Kimberly Parker, where there's, you know, a single incident of discipline where there might have been, you know, and they weren't related to the case work that that prosecutor or attorney was doing.

[00:30:03] Speaker 01:
So that's your public interest.

[00:30:04] Speaker 01:
You want to establish that it's too difficult

[00:30:08] Speaker 01:
to fire government lawyers and thereby Congress perhaps should consider legislation such as that was passed for the Veterans Administration twice in order to make it easier to fire government lawyers.

[00:30:22] Speaker 01:
That's your public interest?

[00:30:24] Speaker 03:
Well, that's not my public interest.

[00:30:26] Speaker 01:
Well, why isn't I mean, I think that I thought that's what you're getting at.

[00:30:30] Speaker 03:
No, I mean, I think that it is incredibly difficult and that makes this a rare case.

[00:30:34] Speaker 03:
And so it's a rare case because somebody was actually well and removed, which I think is was stipulated to ultimately, I mean, left left service under this cloud.

[00:30:45] Speaker 03:
So I think that was stipulated to below.

[00:30:47] Speaker 03:
So I think that's a rare case.

[00:30:49] Speaker 01:
Well, but I thought if you're talking about the public interest, you were talking about what is the pattern here.

[00:30:54] Speaker 01:
This is a case that reflects the pattern.

[00:30:57] Speaker 01:
And I suppose your argument is the pattern is it's too difficult.

[00:31:01] Speaker 01:
The public should know how difficult it is to fire a government lawyer.

[00:31:05] Speaker 01:
I think that's one aspect that sounds like the attorney general would be very interested in your interest.

[00:31:11] Speaker 05:
The rare case is a tough position to make, because if the public interest is in seeing what its government is up to, and this is an aberration, and it happened 25 years ago, what does it tell today's public about what its government is up to?

[00:31:31] Speaker 03:
You see it from soup to nuts.

[00:31:33] Speaker 03:
You see its inception till the very end.

[00:31:35] Speaker 03:
You don't see it half-cocked.

[00:31:37] Speaker 03:
You don't see, you know,

[00:31:40] Speaker 03:
some minor thing that's then retracted or dismissed, you actually would see it here, I think.

[00:31:48] Speaker 03:
I mean, I think there's an interest in the rare case because it shows it all.

[00:31:54] Speaker 03:
The process by which you have to terminate and for what reason you permit a prosecutor to do 3,700 pages worth of evidence of misconduct, however you want to describe that.

[00:32:10] Speaker 03:
I think that's in the public interest.

[00:32:14] Speaker 05:
Well, as you've seen from the disclosures, 3,700 is a lot of bulky pleadings that support various points.

[00:32:22] Speaker 03:
It's cases, though.

[00:32:24] Speaker 03:
Obviously, whatever misconduct was going on spilled over.

[00:32:30] Speaker 03:
I mean, I think it's a fair inference that if he was playing fast and loose with the government's rules, he was probably doing it with criminal defendants also, witnesses.

[00:32:42] Speaker 05:
Thank you, Mr. Lewis.

[00:32:43] Speaker 05:
The case is submitted.