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Case number 18-5347, Howard Bloomgarden, Appellant for the Central Archives and Director of the Administration.

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Mr. Lewis for the Appellant, Mr. Kudak for the Appellate.

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May I please the court?

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My name is Torrance Lewis.

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I'm here on behalf of Appellant Howard Blungarden.

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Mr. Blungarden is asking his court to reverse, remand with instructions to grant his motion for summary judgment, and order the National Archives and Record Administration to release the final termination letter of former Assistant United States Attorney Raymond Granger.

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And I'm going to begin with

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Bloom Garden 1, what I'll refer to as this court's prior opinion in Bloom Garden, because we're not writing on an empty slate here.

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But I did want to make three preliminary points.

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First is, since it seems to be on the fresh in everyone's mind, this is de novo review.

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Number two, unlike a lot of the cases that both the government and the district court relied on,

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This case involves Exemption 6 to the FOIA, where the presumption in favor of disclosure is as strong as anywhere that can be found in the Act.

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This court in Stern said that in contrast with 7C, Exemption 6 requires a balance tilted emphatically in favor of disclosure.

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And the third preliminary point I'd just like to make is a broad one.

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And I think it's this, that the FOIA calculus is not static.

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So a lot of the cases we're looking at here, they predate the sort of unprecedented expansion of federal criminal law.

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I think that at this point in time, the public interest in prosecutors, it's different in this day and age, and I think the FOIA should count.

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for that temporal distinction in terms of the public interest.

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Why is that?

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Excuse me?

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For low level prosecutors like him?

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Like Granger?

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I thank any prosecutors, Your Honor.

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Again, the distinction between a high ranking and a low ranking has been discussed.

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I don't think it was ever dispositive in terms of the balancing.

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Certainly, you could account for it.

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The public interest might be slightly lessened.

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The privacy interest might be a little greater because of the less responsibility.

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But I think that the unique function of the prosecutor, federal prosecutor, in today's environment is of such importance that drawing these distinctions is less critical.

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Finally, and I'm going to now go to room garden one,

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which is where we sought a proposed disciplinary letter, which was supported by thousands of pages of documentary evidence.

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And this court held that the balance in that case shifted, was greater on the privacy side, and so they affirmed the district court.

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Unlike Bloom Garden 1,

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This is a final termination.

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And that was a critical point in this court's prior opinion.

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The court said what concerns us the most was the fact that this was a draft and it was untested and it was not endorsed by the Deputy Attorney General's office.

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We have what the court envisioned there, here, which is a final action of an agency

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terminating a prosecutor, which is, frankly, an incredibly rare event, I think.

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I've never seen a case.

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So it's true that in Blumgarten 1, we emphasized that there were allegations and they were untested.

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And I appreciate that that is your principal ground for distinguishing it.

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But we also said approving of what the district judge

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the district judge's characterization, it's a single staff level attorney, and there is little public interest in a single, largely unremarkable disciplinary matter regarding a former AUSA who left government service two decades ago.

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And that, it would seem, is equally opposite today.

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And I just, what's your best case that there's a public interest in knowing what's in this

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disciplinary letter?

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Well, first of all, I think we have to, again, it's critical the distinction, right?

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Because if we're looking at all these prior cases from the court, almost all of them involved in co-it sort of determinations.

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They weren't final determinations.

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So I understand you moving past that.

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But I do think that in terms of distinguishing the cases that are out there, we're talking Stern, Carter, Kimberlin, the cases relied on by the district court.

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and by the government on appeal.

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Those cases, they were all so stern, you've got their involvement was inadvertent.

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They weren't directly responsible.

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Again, that's 7C.

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Carter was exception six, but the misconduct charges in that case were dismissed.

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Here we actually have a final termination.

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So again, I just think they're factual distinctions.

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I think the other issue... What's your distinction in Kimberlin, from Kimberlin?

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I'm sorry.

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Well, Kimberlin is 7C.

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Right.

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The discipline was short of misconduct.

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A bigger deal nationally.

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Again, 7C, but yes, there was some national interest in that.

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But it was, again, untested, and I think that's, you know, I keep coming back to that, but let me go into the public interest in this specific attorney, because I think, again- As you do, I want to follow up on some of what Judge Pillott, I think, was asking.

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We have made a determination in the first case with respect to the weighing of the public and private interest.

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And I don't know how, I mean, I went back and looked at it again this morning.

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It is very strongly against you.

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Very strongly.

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I can't ignore that in the next case.

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Same party, same issue.

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And it is very clear, it is not just the first point you raise, which was the right one to raise.

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It's a very strong determination by that first panel as to how you, in this case, how you weigh the public-private interests.

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And you came out on a very, your client came out on a very short end of that.

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I agree, obviously, and I'm not here to sort of re-argue that case, but I do think it's a different case for the reason I've already stated, which is we have final agency action, and that I think increases the public interest.

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But we also have two other items that I want to refer to.

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The first is that the government in this further litigation has made no effort

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at any stage to redact or to seek any privacy protection for this AUSA, Raymond Granger.

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So, and they've also discussed, you know, the terms of what's gone on.

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So it's, in a sense, the cat's out of the bag.

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I don't know what additional... What do you mean when you say they've discussed the terms of what's gone on?

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That it was a termination.

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This prosecutor was ultimately fired.

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Number one.

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Number two, it was misfeasance over a long period of time.

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Has the government admitted to that?

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I thought that was a characterization.

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No, I'm talking about the court.

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I'm sorry.

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So you've got the court, but you have no evidence.

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Appellant argues that it was misfeasance over a relatively long period of time.

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Well, I think that there was a recognition in Bloom Garden 1.

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I'm just saying that that was reciting the appellant arguments on page 759 to 760.

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Appellant argues.

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I guess what I'm talking about is the connection now, excuse me, between the fact that they've made no effort to redact this information in the record.

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So that, again, I think that to a large extent,

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It's in the public arena, and I think the court could take judicial notice of that.

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One other item, and this is brought up in my 28-J letter, and it's also in the opening brief at page 19, note 5.

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Raymond Granger is now joined as a signatory to public letters.

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First, opposing the president's travel ban

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the second asking for the Attorney General of the United States to resign.

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In both of those instances now, he's placed himself and his employment into the public record, affirmatively, deliberately.

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And I think, at a minimum, the public has a further interest, and this is a distinction from Bloom Garden 1,

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in judging his tenure, judging his credibility, if he's going to hold himself out to the public in that way.

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I see my time is up.

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Thank you.

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Thank you very much.

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Good morning.

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May it please the Court, Ryan Hudak from the U.S.

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Attorney's Office on behalf of the National Archives and Records Administration.

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In a prior case brought by Bloom Garden, a panel of this court decided that a proposal to remove a former AUSA who was assigned briefly to prosecute Bloom Garden was exempt under FOIA Exemption 6.

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Specifically in Bloom Garden 1, the court held that the former AUSA's substantial privacy interest in this case outweighs the rather modest public interest in the proposal to remove, such that the release of the proposal to remove would represent a clearly unwarranted invasion of personal privacy.

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And what about that privacy interest?

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I mean, it's, the Bloomgarten I seems to actually have drawn a mistaken conclusion from the record that saying it would appear that the assistance request was for resignation rather than termination, but we can't be certain.

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And then two pages later it appears there was some sort of settlement leading to the assistance resignation.

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We can't determine how many of the allegations were endorsed.

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And now we have the answer, no.

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So this is actually an inaccurate depiction of what happened.

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It's now publicly known, I guess from the California case and other sources that he was fired.

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What is his privacy interest in this case?

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I think it's the same that it was at President Kimberlin.

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There, the AUSA suffered, or suffered, it was disciplined for leaking information to the press regarding an investigation of the Vice President.

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and that he made public comments to a media outlet regarding his sanction.

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And yet the court still held in Kimberlin that he still has a privacy interest, however, in avoiding disclosure of the details of the investigation and of his misconduct.

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So it's not just the fact that he was terminated.

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He's continuing to be a practicing attorney in New York and disclosing the details of what this court has described as garden variety,

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transgressions is not something that I think that he would be pleased to see.

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In fact, I think this court noted in Bowman Garden 1 that he would be quite embarrassed by this disclosure as one of the reasons why he has a privacy interest in his disciplinary file from over two decades ago.

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Although, as opposing counsel said, in Kimberlin there was

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No final conclusion, I think he said.

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The discipline was short of misconduct.

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There was no intentional misstatement there.

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I mean, the AUSA basically thought, like, people are raking Dan Quill over the coals.

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I just think people should know what the facts are, that they don't support these vicious rumors.

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And it was a misjudgment.

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But it doesn't draw the prosecutorial power

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into question in the same way that Mr. Granger's lying to judges, lying to his supervisor, unauthorized signing off on things as if he were his supervisor.

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I mean, this is a very different picture one gets of internal supervisory checks and the evasion thereof.

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So arguably more in the public interest to know.

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And yes, it involves a line,

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level attorney, but it also involves a lot of people in the supervisory chain allowing us to go on for years.

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It's actually fascinating.

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I mean, without kind of putting the actual record and the details of the record that is being withheld into this court's record, I would say that the prior characterizations of not only this court, but the district court on two different occasions that has reviewed the allegations and the findings that led to the sanctions have all described them

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garden variety, unremarkable, things that a junior attorney might commonly do through inexperience or misjudgment.

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These aren't the type of things that affect the integrity of any judicial process that has been identified.

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Right.

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And I take that distinction, that the clear point is this is not a situation where Brady material, two-glow material was withheld.

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This is not a situation where, you know, obviously, given the particular requester here, this is not a situation where the district judge believed there was going to be any effect on this requester's

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you know, case and ability to seek relief.

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That's absolutely, I accept that that's the case.

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But then when you look at cases like Stern, there all that was being withheld was the individual's names.

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The actual disciplinary records were out, even as to the low-level agents.

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And then they said that the supervisory, the agent in charge,

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name was associated also.

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So it's just hard to find a case that feels convincingly like this one in terms of both the public interest and the privacy interest.

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Well, I would, on that last point, I would say Bloomberg 1 is a good example of one that's nearly on all fours, especially with the second letter.

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The second letter is not the final decision.

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It is a response letter asking for information regarding the termination.

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So I think

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Blumgarten I is pretty much on all fours with regard to what we've characterized as the response letter.

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For the termination letter, the only difference is that it's the final decision versus the allegations.

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That's a big difference.

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And that is a big difference.

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That's a big difference.

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As we characterize in Blumgarten I, the main area of concern for us was you don't put allegations out there that have never been resolved.

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That's just not fair.

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I agree, Your Honor, and that made that case even more kind of a slam dunk, if you will, in our minds.

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But again, I think turning back to Bloomberg once text, the court in discussing the privacy interest of the former AUSA didn't lead with the allegations.

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It led with the fact that we think the privacy interest is quite substantial.

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We think so not just because the assistant is now a practicing lawyer who would undoubtedly be quite embarrassed by disclosure of a proposed discipline letter from many years ago.

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That's the first privacy and paramount privacy interest that the court identified in Blue Garden 1.

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And we think that it still holds here today.

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How is it that the AUSA's name got out into the public arena?

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Otherwise, it would be open to us to do what was done in Stern, which is keep the name withheld.

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And these cases kind of are on two sides of the coin.

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If someone asks for the disciplinary files of the US Attorney's Office for the District of Columbia without asking for Brian Hudak's personal disciplinary file, then there is a possibility of redacting the information.

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So you don't know what discipline was assigned to which AUSA.

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their FOIA request in this case that was specific to the former AUSA.

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So give me Brian Hudak's disciplinary file.

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So at that point in time, you can't unring that bell, right?

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So it depends on what the request is and how Exemption 6 plays into the request.

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If the request itself is asking for the person's identifiable information,

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then there's no redaction possible in giving the letter, saying this is the responsive letter to your request.

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And so in Stern, it was widely publicized what the misconduct was of the FBI field office in New York.

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And that conduct was publicized, and it was released, and the only portions that were redacted were the low level employees in that case.

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And just going through the different factors that this court has reviewed in the past, the rank of the employee is a staff-level, low-ranking employee of the Department of Justice.

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The seriousness of the misconduct, again, Bloom Garden 1 addressed this.

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It was garden variety.

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It didn't affect the integrity of the judicial process.

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Status as government employee.

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The former AUSA is not a government employee, so revealing information wouldn't necessarily be revealing what the government is up to.

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In his recent forays into the public debate on some issues, has he identified himself as a former AUSA?

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I think him along with, I don't know if it's hundreds or thousands, I haven't reviewed the petitions myself, I clicked on the link, but the signature list

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kind of scrolls off the bottom.

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So I don't know exactly how many people.

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It's my understanding that he did sign those two petitions that the appellant has identified.

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But I think that that factor isn't any more telling.

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I mean, Kimberly, the AUSA talked about the very misconduct that led to his termination in the court held that

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still revealing the details of the misconduct, the investigation, exactly what was alleged, he still had a substantial privacy interest in.

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So I don't believe that signing a petition along with thousands of other former employees of the Department of Justice, where that's the only thing that's being identified, really shifts the balance at all, Your Honor.

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Factors recency, again, from two decades ago, importance to government functions.

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They don't reveal a systematic failure like the court discussed in Bartko where it did authorize or compel the release of disciplinary information regarding a supervisory official at a U.S.

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attorney's office.

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The status of the implicated individual, he's still a practicing attorney.

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So we believe that the factors the court has

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identified in prior cases, all tilt in favor of nondisclosure in this case.

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And we ask that the judgment of the district court be affirmed.

[00:20:43] Speaker 01:
Thank you.

[00:20:44] Speaker 01:
Did Mr. Lewis have anything to add?

[00:20:47] Speaker 01:
Okay, you can take a minute.

[00:20:49] Speaker 03:
Thank you.

[00:20:50] Speaker 03:
I'd just like to say a couple things.

[00:20:54] Speaker 01:
You can take a minute.

[00:20:55] Speaker 03:
What's that?

[00:20:56] Speaker 01:
A minute.

[00:20:56] Speaker 01:
A minute, yes.

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There's this constant refrain here of garden variety misconduct.

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negligence, etc.

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And it's hard for me to reconcile that with the fact that this person was removed from service in the government.

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And I think the public has a separate interest in that as well.

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the agency action here.

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They terminated somebody.

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It always has rung hollow to me because I think a prosecutor, if they're willing to disavow, I think that the public knows that's probably indicative of other misfeasance.

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And so there's an interest in reconciling those two items.

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The second thing is... The district court looked at this in camera, right?

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What's that?

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The district court looked at this in camera.

[00:21:48] Speaker 03:
The district court did look at it in camera.

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And one other point just on this question of the name being out in the public domain now.

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The government could have redacted.

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They could have asked for redaction at the very beginning, just like Mr. Blumgarten did to protect sensitive information.

[00:22:06] Speaker 03:
Thank you, Your Honors.