Recently, the Second Circuit issued a significant Freedom of Information Act (“FOIA”) decision construing the FOIA exemption covering law enforcement records that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the […]

New Jersey sought to withdraw from the interstate compact that established the Waterfront Commission of New York Harbor, an interstate compact entity.  The Waterfront Commission sued to enjoin New Jersey’s Governor from moving forward to terminate the Compact. The Third Circuit refused to allow the suit, holding that it was barred by sovereign immunity. In […]

Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]

Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]

Summary: This post summarizes a report adopted by the FOIA Advisory Committee on March 10, 2022, regarding the use of a Glomar response to neither confirm nor deny the existence of records responsive to a FOIA request. Perhaps Howard Hughes is somewhere grimacing right about now. In 1968, at the height of the Cold War, […]

Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]

This is the second part of a two-part blogpost previewing United States v. Zubaydah, one of two cases this Supreme Court term in which the Court will take up the rarely-discussed state secrets privilege.  Part I of this series laid out the state secrets privilege (largely focusing on United States v. Reynolds, 345 U.S. 1 […]

The state secrets privilege allows the government to prevent the disclosure of military and diplomatic secrets in litigation.  There is little Supreme Court precedent regarding the privilege — the seminal case being United States v. Reynolds, 345 U.S. 1 (1953). However, the Court has granted certiorari in two state secrets cases — U.S. v. Zubaydah, […]

The Trump Administration displayed profound disdain for long-standing policies and norms, as well as the career federal employees who often serve as their guardians.  Those career officials, formerly disparaged as “bureaucrats,” but more recently collectively cast as “the deep state,” resisted, sometimes by speaking out publicly. This pattern was particularly pronounced in the field of […]

Many municipalities offer time-limited free parking in municipally-owned public lots.  Parking authorities enforce those time limits by having parking enforcement officers make periodic visits to the lot.  During each visit the officers chalk the tires of all cars present in the parking lot.  If any car remains when the next periodic visit occurs, the chalk […]

Can Congress enact a general statute and impose upon future Congress’ an obligation to either (1) expressly acknowledge the general statute before abrogating it or (2) expressly state their desire to depart from it?  This series, prompted by Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, 2020), takes […]

Can Congress enact a general statute and impose upon future Congress’ the obligation to either expressly acknowledge the general statute before abrogating it or expressly state their desire to depart from it?  This question has reemerged recently primarily due to Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, […]

Congress enacts a statute, and includes within it a provision requiring that any future law enacted to limit the statute’s scope expressly refer to the statute. Is such a provision unconstitutional, and thus void ab initio?  The argument, which has some support in Supreme Court precedent, has recently been deployed by Ninth Circuit Judge Patrick […]

“From tragedy we draw knowledge to protect the safety of us all.”[1] When an aviation accident or a significant highway, marine, railroad, pipeline, or hazardous-materials accident occurs, the National Transportation Safety Board (“NTSB”) springs into action.  See, 49 U.S.C. § 1131 (listing types of accidents within the NTSB’s jurisdiction). The NTSB investigates the accident’s causes, […]

Is a memorandum or communication encompassing several distinct subjects one “record” or multiple “records”? Thus, in response to a Freedom of Information Act (“FOIA”) request, can an agency redact as non-responsive the portions of the memorandum/communication involving subjects outside the scope of a FOIA request? I. The Concept of “Scoping” Imagine, a State Department cable […]