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New York Times Co. v. United States Department of Justice

United States Court of Appeals, Second Circuit

May 28, 2014

THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees

For The New York Times Company, Charlie Savage, Scott Shane, Plaintiffs - Appellants (13-422): David Edward McCraw, Esq., The New York Times, New York, NY.

For American Civil Liberties Union, American Civil Liberties Union Foundation (13-422, 13-445), Plaintiffs - Appellants: Jameel Jaffer, Brett Max Kaufman, Esq., Hina Shamsi, Esq., American Civil Liberties Union, New York, NY; Joshua Colangelo-Bryan, Senior Litigating Attorney, Dorsey & Whitney LLP, New York, NY; Eric A. O. Ruzicka, Esq., Colin Wicker, Esq., Dorsey & Whitney LLP, Minneapolis, MN.

For United States Department of Justice, Defendant - Appellee (13-422): Sarah Sheive Normand, Assistant United States Attorney, United States Attorney's Office for the Southern District of New York, New York, NY; Matthew M. Collette, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC; Sharon Swingle, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC.

For Reporters Committee for Freedom of the Press (13-422, 13-445), Amicus Curiae : Bruce D. Brown, Esq., Reporters Committee for Freedom of the Press, Arlington, VA.

For Electronic Privacy Information Center(13-422, 13-445), Amicus Curiae: Marc Rotenberg, Attorney, The Electronic Privacy Information Center, Washington, DC.

For United States Department of Justice, United States Department of Defense, Central Intelligence Agency, Defendant - Appellee (13-445): Matthew M. Collette, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC; Sarah Sheive Normand, Assistant United States Attorney, United States Attorney's Office for the Southern District of New York, New York, NY; Sharon Swingle, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC.

PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, ROSEMARY S. POOLER, Circuit Judges.

Page 94

ORDER

Pending before the Court is a motion by the Defendants-Appellees (" the Government" ) filed May 27, 2014, to file ex parte and in camera a motion to seek panel rehearing and in banc rehearing of this Court's April 21, 2014, decision. See The New York Times Co. v. United States Department of Justice, No. 13-422L, 752 F.3d 123, 2014 WL 1569514 (2d Cir. April 21, 2014). In a supporting affidavit the Government contends that it " cannot address . . . classified and privileged information in a public filing without mooting its arguments." Affidavit of Sarah S. Normand ¶ 5. The Government also asserts that, if the pending motion is granted, the petition for rehearing will be lodged with the Department of Justice's Court Security Office on or before June 5, 2014, for transmission to the Court. Id. ¶ 7. June 5 is the deadline for the Government to file a petition for rehearing or rehearing in banc. See Federal Rules of Appellate Procedure 35(c), 40(a)(1). The Government also asserts that it " intends to prepare and to provide for public filing a version of the OLC-DOD Memorandum that includes the redactions in the Court-redacted version of the OLC-DOD Memorandum and the additional redactions that will be at issue in the petition for rehearing." Normand Affidavit ¶ 8.

Background

The background of this proceeding, relevant to disposition of the pending motion, is as follows.

1. On February 10, 2014, the Court provided the Government, ex parte and in camera, a redacted version of the Court's proposed public opinion and a partially redacted version of the OLC-DOD Memorandum to afford the Government an opportunity to advise the Court whether the filing of the opinion and the partially redacted Memorandum would inadvertently disclose material entitled to be kept secret.

2. The Government responded to the Court's February 10 communication in a motion, filed ex parte and in camera, on March 13, 2014. That response framed two issues.

(a) The first issue concerns redactions in the public opinion. The public opinion, filed April 21, 2014, made a number of redactions that the Government requested in order to preserve its opportunity for further appellate review. The opinion explained that these redactions are to be restored in the event that the opinion is not altered upon any further appellate review. See New York Times, typescript copy of opinion from Second Circuit website (" typescript copy" ) at 2, n.1; 752 F.3d 123, 2014 WL 1569514, at *17 n.1. The Government's March 13 motion identified (by blacking out words) four redactions in the proposed public opinion that it contended should remain redacted to protect classified information, even ...


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