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Judicial Watch • Alexander v FBI Appellant Rep Brief 04072011

Alexander v FBI Appellant Rep Brief 04072011

Alexander v FBI Appellant Rep Brief 04072011

Page 1: Alexander v FBI Appellant Rep Brief 04072011

Category:General

Number of Pages:18

Date Created:April 7, 2011

Date Uploaded to the Library:February 20, 2014

Tags:definition, Sunshine, legislative, Appellants, statute, History, privacy, table, house, Plaintiffs, EXECUTIVE, AGENCY, Congress, White, government, president, FBI, White House, office, states, united, court, EPA, IRS, ICE, CIA


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Oral Argument Not Yet Scheduled] 
APPEAL NO. 10-5140 THE
 UNITED STATES COURT APPEALS
 FOR THE DISTRICT COLUMBIA CIRCUIT
 
CARA LESLIE ALEXANDER, al., 
Plaintiffs-Appellants, 
vs. 
FEDERAL BUREAU INVESTIGATION, al., 
Defendants-Appellees. 
REPLY BRIEF APPELLANTS APPEAL FROM THE U.S. DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
Paul Orfanedes
 James Peterson
 Dale Wilcox
 JUDICIAL WATCH, INC.
 Suite 800
 425 3rd Street, S.W.
 Washington, D.C.  20024
 (202) 646-5172
 
Counsel for Plaintiffs-Appellants 
TABLE CONTENTS
 

 TABLE CONTENTS ............................................
 
TABLE AUTHORITIES..........................................ii
 
GLOSSARY .....................................................
 
SUMMARY THE ARGUMENT ...................................1
 
ARGUMENT......................................................2 
The Privacy Act Unambiguously Defines the Term Agency Include the EOP, and the EOP Presents Compelling 
Reason Why the Court Should Disregard the Plain Language the Act..............................................
 
CONCLUSION ...................................................10
 
CERTIFICATE COMPLIANCE PURSUANT 
F.R.A.P. 
32(a)(7)(c) AND CIRCUIT RULE 32(a)(2) 
CERTIFICATE SERVICE 
TABLE AUTHORITIES
 
Cases Page 
Bank Am. Natl Trust Sav. Assn 203 LaSalle St. Pship, 
526 U.S. 434 (1999) .........................................2,
 Common Cause Nuclear Regulatory Com., 

674 F.2d 921 (D.C. Cir. 1982) ...................................8
 *Connecticut Natl Bank Germain, 503 U.S. 249 (1992)................2,
 Dept the Air Force Rose, 425 U.S. 352 (1976) .......................5
 Dong Smithsonian, 125 F.3d 877 (D.C. Cir. 1997).......................
 Erlenbaugh United States, 409 U.S. 239 (1972)........................10 Executive Office the President, 215 F.3d (D.C. Cir. 2000) .........9
 Rushforth Council Economic Advisers, 

762 1038 (D.C. Cir. 1985) ................................7,
 Staples United States, 511 U.S. 600 (1994) ..........................2,
 Stern FBI, 737 F.2d (D.C. Cir. 1984)...............................
 *United States Espy, 145 1369 (D.C. Cir. 1998)................3,
 United States Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008)...........
 Wisconsin Project United States Doc, 317 F.3d 275 (D.C. Cir. 2003)........
 
*Authorities upon which Plaintiffs-Appellants chiefly rely are marked with asterisks. 
Constitution, Statutes, Rules and Regulations 
U.S.C.  552 .....................................................1 
U.S.C.  552(e) ...................................................3 U.S.C.  552(f) ..................................................3 
U.S.C.  552a ....................................................3 U.S.C.  552a(a)(1) ..............................................3 
U.S.C.  552a(e)(1)................................................ 
U.S.C.  552b ....................................................8
 
Privacy Act 1974, Pub. No. 93-579,  2(a)(4), Stat. 1896 (1974) ................................................5
 
D.C. Cir. Rule 32.1 .................................................9
 
Other Authorities Norman Singer, SUTHERLAND STATUTORY CONSTRUCTION
 
 51:3 (6th ed. 2000 Supp. 2007-2008) ..........................8
 
H.R.CONF.REP.NO.93-1380 (1974).................................4,
 

GLOSSARY
 
Executive Office the President  EOP  
Freedom Information Act  FOIA  
Government the Sunshine Act  Sunshine Act  

SUMMARY THE ARGUMENT
 
Courts must presume that, when legislature enacts statute, the legislature says what means and means what says.  While the Privacy Act adopts the definition the term agency from the Freedom Information Act (FOIA), U.S.C.  552, the plain language that definition expressly and unambiguously includes the Executive Office the President (EOP). only when statute ambiguous that court may look beyond the text the statute.  Because the definition the word agency unambiguous, resort legislative history and congressional intent with respect the Privacy Act, advocated the EOP, unnecessary and improper. 
Even assuming, arguendo, that the Court were look beyond the text the statute, the EOPs arguments fall short.  First, there nothing the legislative history the Privacy Act that gives any indication that the plain and ordinary meaning the term agency, which expressly includes the EOP, should not apply.  Second, FOIAs legislative history has bearing interpretation the Privacy Act because the two statutes serve very different, not completely opposite, functions and purposes.  
Finally, there simply basis conclude that application the Privacy Act the EOP, or, more particularly, the two subordinate units within the EOP that maintained the records issue, would chill discussions between close presidential advisors.  There such chilling effect, and, consequently, there reason define the term agency any way other than has been expressly defined the statute. 

ARGUMENT	 The Privacy Act Unambiguously Defines the Term Agency Include the EOP, and the EOP Presents Compelling Reason Why the Court Should Disregard the Plain Language the Act. Plaintiffs Cara Leslie Alexander and Joseph Duggan (Plaintiffs) argued their opening brief, in interpreting statute court should always turn first one, cardinal canon before all others [C]ourts must presume that legislature says statute what means and means statute what says there.  Connecticut Natl Bank Germain, 503 U.S. 249, 253-54 (1992).  Only the language ambiguous may court look beyond the text statute.  See Staples United States, 511 U.S. 600, 605 (1994).  When the words statute are unambiguous, then, this first canon also the last:  judicial inquiry complete. Connecticut Natl Bank, 503 U.S. 254 (internal quotation omitted). addition, [a] mere disagreement among litigants over the meaning statute does not prove ambiguity; usually means that one the litigants simply 
wrong.  Bank Am. Natl Trust Sav. Assn 203 LaSalle St. Pship, 526 
U.S. 434, 461 (1999) (Thomas and Scalia J., concurring the judgment). 
The Privacy Act 1974, U.S.C.  552a, defines the term agency any executive department, military department, Government corporation, Government controlled corporation, other establishment the executive branch Government (including the Executive Office the President), any independent regulatory agency. U.S.C.  552a(a)(1) and 552(f) (emphasis added).1   Consequently, any plain reading this definition, the Privacy Act applies the EOP.  Since neither the term agency nor the phrase Executive Office the President are the least bit ambiguous, the Court has no need employ, nor any legitimate purpose employing, canons construction designed reconcile confusing language. United States Espy, 145 F.3d 1369, 1371 
(D.C. Cir. 1998); see also Staples, 511 U.S. 605 (noting that court may look beyond the text statute only its language ambiguous). order avoid the plain meaning the Privacy Act, the EOP would have the Court look the legislative history another statute FOIA.  The EOPs 
Until 1986, the definition the term agency was codified U.S.C.  552(e).  With the enactment the Anti-Drug Abuse Act 1986, this definition was recodified U.S.C.  552(f).  There was substantive change the definition, and technical conforming amendment was made the Privacy Act. 
argument falls short.  The Privacy Act plainly means what says the EOP subject the protections the statute.  The unambiguous language the statute makes resort its legislative history any other external indicia congressional intent unnecessary and improper.  The Courts inquiry regarding the plain meaning the Privacy Act should end here.  Connecticut Natl Bank, 503 
U.S. 254. 
Even assuming, arguendo, that the Court were look beyond the unambiguous text the statute, the EOPs argument still falls short.  There nothing the legislative history the Privacy Act indicating that the unambiguous definition the term agency should given anything other than its express meaning.  Unlike with FOIA, the legislative history the Privacy Act contains indication that Congress did not intend the statute apply the Presidents immediate personal staff units the Executive Office whose sole function advise and assist the President. CONF. REP. NO. 93-1380, (1974) (legislative history FOIA). 
Nonetheless, the EOP would have this Court create exception the Privacy Act, even though exception can found the text the statute, based the assumption that Congress wanted the legislative history FOIA apply the Privacy Act well.  This because the Privacy Act borrows the definition the term agency from FOIA.  While might reasonable construe the Privacy Act and FOIA the same way the two statutes served the same similar purposes, they plainly not. result, Defendants syllogism must fail. Plaintiffs demonstrated their opening brief, Congress intent enacting FOIA was open the records the federal government the light public scrutiny. See Wisconsin Project United States Doc, 317 F.3d 275, 279 (D.C. Cir. 2003), quoting, Dept the Air Force Rose, 425 U.S. 352, 361 (1976) (stating purpose FOIA to pierce the veil administrative secrecy and open agency action the light public scrutiny ). contrast, Congress intent enacting the Privacy Act was protect against the disclosure records the federal government that contain information about individuals. See Privacy Act 1974, Pub. No. 93-579,  2(a)(4), Stat. 1896 (1974) (noting the Privacy Acts purpose provide certain safeguards for individual against invasion personal privacy).  The Privacy Act the opposite FOIA. 
Similarly, and this Court recognized Espy, the definition the term agency was limited under FOIA because was believed that Congress would not have intended chill discussion between close presidential advisors requiring that records such discussions subject possible disclosure.  Espy, 145 F.3d 1373; CONF. REP. NO. 93-1380 (1974).  There such concern with respect the Privacy Act, however, and, consequently, there corresponding need construe the term agency any way other than has been expressly defined Congress.  Because the Privacy Act operates safeguard the disclosure government records, does not have the potential chill candid discussion between close presidential advisors.  
The EOP did not even attempt show otherwise, except make the unsupported, speculative claim that Congress could have rationally concluded that the same chilling effect and separation powers concerns might apply the Privacy Act.  See Brief for the Appellees 17-18.  Certainly, something more than unsupported, speculative assertion required ignore express, unambiguous term statute.  This especially the case considering the lack any ambiguity the definition the term agency and the additional lack any discussion the legislative history the Privacy Act about alleged chilling effect close presidential advisors.  Moreover, the EOP has never claimed that application the Privacy Act the White House Office Personnel Security and the White House Office Records Management, the two subordinate units within the EOP that maintained the records issue, would have chilling effect discussion between close presidential advisors that the sole function staffers these subordinate units is advise and assist the President. has not because cannot. 
Nor would application the Privacy Act the EOP the two subordinate units issue limit, much less prevent, the President from making executive decisions.  Among other things, the Privacy Act requires that agency maintain its records only such information about individual relevant and necessary accomplish purpose the agency required accomplished statute executive order the President. U.S.C.  552a(e)(1).  If, fact, Plaintiffs had required continued access the White House, the EOP initially but falsely claimed, the EOP easily could have justified maintaining the records issue under the Privacy Act.  Id.  Also, simply inconceivable that requiring the White House Office Personnel Security and the White House Office Records Management adhere the protections the Privacy Act would harm presidential decision making. arguing that the legislative history FOIA should applied the Privacy Act, the EOP relies heavily Rushforth Council Economic Advisers, 762 F.2d 1038 (D.C. Cir. 1985).  Rushforth easily distinguishable, however, concerns the Courts application FOIAs legislative history the Government the Sunshine Act (the Sunshine Act), U.S.C.  552b, another open records statute that serves purpose very similar the purpose FOIA. Congress enacted FOIA and the Sunshine Act open the workings government public scrutiny through the disclosure government records. Stern FBI, 737 F.2d 84, (D.C. Cir. 1984) (internal quotation omitted) (discussing FOIA); see also Common Cause Nuclear Regulatory Com., 674 F.2d 921, 928 (D.C. Cir. 1982) (discussing the Sunshine Act).  Reliance FOIAs legislative history construe the Sunshine Act inoffensive because the two statutes are pari materia, i.e., they should considered together because they serve the same purpose.  See United States Villanueva-Sotelo, 515 F.3d 1234, 1248 (D.C. Cir. 2008) (statutes should not construed pari materia unless they are obviously designed serve the same purpose and objective), quoting, Norman Singer, SUTHERLAND STATUTORY CONSTRUCTION  51:3 (6th ed. 2000 Supp. 2007-2008).  Because the Privacy Act serves entirely different purpose, and, thus, not pari materia with either FOIA the Sunshine Act, Rushforth inapposite. 
The EOP also cites footnote, passing, and without discussion -several district court decisions, including unpublished decision that not entitled any precedential weight whatsoever.  See Brief for the Appellees 10, n.4; D.C. Cir. Rule 32.1. this Court has declared, District court decisions not establish the law the circuit, nor, indeed, they even establish the law the district. Executive Office the President, 215 F.3d 20, (D.C. Cir. 2000) (internal citations and quotations omitted).  Consequently, these decisions are effect.  
Equally ineffective the EOPs heavy reliance Dong Smithsonian, 125 F.3d 877 (D.C. Cir. 1997).  Dong assistance EOP because the Courts decision that the Privacy Act does not apply the Smithsonian Institution rested upon finding that the educational and research institute and museum complex was not agency under the plain meaning that term defined the statute.  Dong, 125 F.3d 879. contrast, the EOPs argument this case looks beyond the express definition the term agency, and indeed seeks contradict that express definition, relying the legislative history and judicial interpretations different statute FOIA. 
Finally, the EOP argues that the Court should create exception the Privacy Act, even though none included the text the statute, because the Privacy Act became law forty days after certain amendments were made FOIA 1974.  See Brief for the Appellees 13.  Defendant appears reason that Congress must have been aware the legislative history the 1974 FOIA amendments when crafted the Privacy Act and that intended the same limitation identified that legislative history apply the Privacy Act.  The EOPs argument unpersuasive.  While may true that, general rule statutory construction, when Congress passes new statute, can assumed that Congress was aware previous statutes concerning the same subjects and intended give particular word the same meaning used prior similar statutes, this rule only applies when the two statutes serve the same functions and purposes.  See, e.g., Erlenbaugh United States, 409 U.S. 239, 244 (1972).  When two statutes serve different functions and purposes, however, the rule does not apply.  Id. 244-45 (declining create exception statute, based companion statute, because the two statutes did not serve the same function).  This especially the case here, where, not only the two statutes have demonstrably different functions and purposes, but the rule being used contradict the express language the statute and create exception where none was expressly included Congress, based not the text either statute, but the legislative history only one them.  

CONCLUSION 
For the foregoing reasons, and for the reasons set forth Plaintiffs opening brief, Plaintiffs respectfully request that this Court vacate the District 
Courts March 2010 Memorandum Opinion and Order dismissing this case and 
remand the case for further proceedings. Dated:  April 2011 
Respectfully submitted, 
/s/ Paul Orfanedes James. Peterson Dale Wilcox JUDICIAL WATCH, INC. Suite 800 425 3rd Street, S.W. Washington, D.C.  20024 
(202) 646-5172 

Counsel for Plaintiffs-Appellants 
CERTIFICATE COMPLIANCE PURSUANT 

F.R.A.P. 32(a)(7)(c) AND CIRCUIT RULE 32(a)(2) certify that pursuant F.R.App.P. 32(a)(7)(c) and District Columbia Circuit Rule 32(a)(2), the attached Reply Brief Appellants proportionally spaced, has typeface points and contains 2,975 words. Dated:  April 2011 /s/ Paul Orfanedes 

CERTIFICATE SERVICE hereby certify that this 7th day April 2011, filed the foregoing 
REPLY BRIEF APPELLANTS with the Court via the CM/ECF system and 
hand (the original and eight copies of) and served the foregoing REPLY BRIEF APPELLANTS the following counsel record via the CM/ECF system 
and first-class U.S. mail (two copies): 
Tony West Assistant Attorney General 
Ronald Machen, Jr. United States Attorney 
Mark Stern Michael Raab Elizabeth Shapiro Lindsey Powell Attorneys Civil Division 
U.S. DEPARTMENT JUSTICE Room 7237 950 Pennsylvania Avenue, N.W. Washington,  20530-0001 
/s/ David Rothstein



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