June 2010

Yesterday, I posted about the Supreme Court taking a FOIA case from the Ninth Circuit, here. I have received the Petition for Certiorari from counsel and it is available here.

Mr. Milner requested an EQSD map for the Naval Magazine at Indian Island.  The EQSD is a map which shows the blast radius for explosives and shows how far an explosion will “expand” should one of the munitions detonate.

At issue is an exemption from the Freedom of Information Act which protects from disclosure documents relating to internal personnel rules and practices of an agency.

5 U.S.C. § 552(b) of the Freedom of Information Act (“Exemption 2”) provides in pertinent part:

(b) This section [providing for public access to government documents] does not apply to matters that are:

(2) related solely to the internal personnel rules and practices of an agency.

Courts have created two categories of documents using this exemption:  “High 2” and “Low 2”.  The Supreme Court upheld the use of this exemption for documents that were trivial in nature.  Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976).  The Ninth Circuit (and other courts of appeal) have created a “High 2” exemption for FOIA that allows documents that could circumvent an “agency regulation” to be withheld.

This petition seeks to undo the High 2 exemption from FOIA. 

This will be very interesting in terms of the balance between national security and transparent democratic government.  We shall also see the balancing of a textual approach to statutory interpretation and national security interests of the nation.

News Flash – the Supreme Court is going to review a Ninth Circuit FOIA case relating to the Naval Magazine at Indian Island in Puget Sound.  FOIA cases at the Supreme Court are few and far between, so this is pretty big (for us FOIA wonks anyway).  My post on the Ninth Circuit's decision here.

The Question Presented is:

Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others.

Briefly summarizing the Ninth Circuit decision:

The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound.  The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act.

Plaintiff brought suit and the Navy obtained summary judgment from the trial court.  The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.”)

This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive).

The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there.  The Court found that to disclose the records posed a risk that the records would be used to circumvent the law.  Therefore, the records were not required to be disclosed under FOIA.

I have asked plaintiff's counsel for a copy of the Petition for Certiorari and will post if received.  The government's brief in opposition is here.  The government's question presented was a little different:

Whether Exemption 2 of the Freedom of Information Act, 5 U.S.C. 552(b)(2), exempts from disclosure technical explosive and ammunition safety maps used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.

The U.S. Supreme Court handed down its decision in McDonald v. City of Chicago today.  The opinion is here (it is a whopper, so don't reflexively print) and my resource page with briefs, news and analysis is here. 

Most important element first:  Slaughterhouse was NOT overruled.  Justice Alito, writing for the majority said:

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’claims at the Court of Appeals level. Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Fear of the unknown.  Reversing Slaughterhouse, despite its ill conceived rationale, would thrust constitutional law into a state of flux.  Better the devil you know? [That being said, this is why we have courts].  More to follow after I've read.

 

The Ninth Circuit just issued an unpublished decision in a Jones Act case.  Not precedential, and pretty sparse analysis, but it does set out the standards for surviving summary judgment motions for Jones Act seamen.  The case is Ili v. American Seafoods Co., LLC and can be found  here.

Facts:  seaman on a fishing vessel is injured near the end of his sixteen hour shift.  He claims unseaworthiness under common law and Jones Act negligence.

Issue:  were there issues of disputed fact warranting a jury trial on the seaman’s claims?  As is the case in all civil litigation in federal courts, claims cannot be summarily decided upon disputed facts.  Facts are found by juries (or judges) after a trial.

Jones Act Claim

Ili’s Jones Act claim has four elements: (1) the employer’s duty to provide a safe work environment to its seaman employee; (2) breach of that duty; (3) the employer’s awareness of the unsafe condition; and (4) a causal link, however slight, between the breach and the seaman’s injury.

The parties did not dispute that Ili was a Jones Act seaman and that we was injured after working sixteen hour shifts, seven days a week for months on end, rather seaman’s employer challenged whether shift length can be a condition amounting to unseaworthiness and whether the long shift caused seaman’s injury.

Employer put on evidence that fishing industry custom is 12, 14 and 16 hour shifts.  Custom, citing to the great Learned Hand, does not show a LACK of negligence and the court found that such long shifts could be negligence.  As such, the issue needed to be tried, not summarily disposed.

Unseaworthiness Claim

Ili’s unseaworthiness claim has four elements: (1) seaman status triggering the warranty of seaworthiness; (2) an injury arising from the condition of the ship or its crew; (3) the unseaworthiness of that condition; and (4) proximate causation between the unseaworthy condition and the injury.

The court stated that lack of adequate crew can give rise to an unseaworthiness claim.  Unseaworthiness has a higher standard for claimants to show causation, but the court found that the same facts (long shift) that defeated employer’s summary judgment motion on the Jones Act claim applied to the unseaworthiness claim.

Let a trial be had.

New developments in the antitrust, class action lawsuit pending in Seattle:  an Amended Complaint was filed. (My earlier post on why the court dismissed the original complaint).  The Amended Complaint is available for download here.  (H/T to Joe the Plumber for the tip).

This case stems from the criminal convictions of several officials of a shipping …