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Judicial Watch • JW v DOJ Blagojevich motion to vacate 01888 5283

JW v DOJ Blagojevich motion to vacate 01888 5283

JW v DOJ Blagojevich motion to vacate 01888 5283

Page 1: JW v DOJ Blagojevich motion to vacate 01888 5283

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Number of Pages:7

Date Created:May 8, 2018

Date Uploaded to the Library:July 12, 2018

Tags:vacate, 5283, burke, 01888, Blagojevich, Appellee, Appellant, petition, Lauren, Judgment, Exemption, Supreme, motion, government, filed, document, FBI, DOJ, Supreme Court, FOIA, states, district, united


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USCA Case #17-5283
Document #1729992
Filed: 05/08/2018
[NOT YET SCHEDULED FOR ORAL ARGUMENT] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
JUDICIAL WATCH, INC.,
Plaintiff-Appellant,
U.S. DEPARTMENT JUSTICE,
Defendant-Appellee.
____________________________________)
No. 17-5283
APPELLANT MOTION VACATE BRIEFING SCHEDULE
AND JUDGMENT AND FOR REMAND
Appellant Judicial Watch, Inc., counsel and pursuant Rules and the Federal Rules Appellate Procedure, respectfully requests that the briefing
schedule vacated, that the judgment vacated, and that this matter
remanded the District Court for further proceedings. Appellee U.S. Department Justice concurs the request vacate the briefing schedule, but intends file response with respect the balance the motion. issue this Freedom Information Act FOIA appeal
whether three FBI 302s from the criminal investigation former Illinois Governor
Rod Blagojevich may withheld from Judicial Watch under FOIA Exemption
7(A). U.S.C. 552(b)(7)(A) records compiled for law enforcement
USCA Case #17-5283
Document #1729992
Filed: 05/08/2018
purposes [that] could reasonably expected interfere with enforcement
proceedings. The government argued the District Court that the 302s could withheld full under both FOIA Exemption and FOIA Exemption 7(A).
also asserted that certain portions the 302s were exempt from production under
FOIA Exemptions 7(C) and 7(E). October 20, 2017, the District Court granted summary judgment
the government favor Appellee Exemption 7(A) claim, citing then-pending
petition for writ certiorari the impeached former governor had filed the U.S.
Supreme Court. Blagojevich petition did not challenge his 2011 conviction separate corruption charges. The Supreme Court previously denied cert.
petition Blagojevich challenging that conviction. Rather, Blagojevich thenpending petition challenged his 168-month sentence. The District Court held,
Until the appeal fully exhausted, disclosure investigative materials could
reasonably expected interfere with whatever occurs going forward. See
Memorandum Opinion (ECF No. 22) The District Court did not undertake
separate analysis the government Exemption claim other claims
exemption the government had invoked over portions the 302s. Id. 6-7
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USCA Case #17-5283
Document #1729992
Filed: 05/08/2018 April 16, 2018, the Supreme Court denied Blagojevich second
cert. petition. Blagojevich United States, Case No. 17-658, Order (U.S. April
16, 2018).
For Exemption apply, law enforcement proceeding must
pending the time the court decision. Citizens for Responsibility Ethics
Wash. U.S. Dep Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014). Thus,
reliance Exemption 7(A) may become outdated when the proceeding issue
comes close. Id.
Because the Supreme Court denied Blagojevich cert. petition
challenging his sentencing, the law enforcement proceeding which the
government based its Exemption 7(A) claim has now concluded. There
pending law enforcement proceeding, and, result, the government Exemption
7(A) claim moot.
When case becomes moot appeal its journey through the
federal courts, the established practice that the judgment will reversed
vacated with instructions dismiss. United States Munsingwear, Inc., 340 U.S.
36, 39-40 (1950). This procedure clears the path for future relitigation the
issues between the parties and eliminates judgment, review which was
prevented through happenstance. Id. also preserves the rights the parties.
Munsingwear, Inc., 350 U.S. 40; see also Carlisle Tire Rubber Co. U.S.
-3-
USCA Case #17-5283
Document #1729992
Filed: 05/08/2018
Customs Serv., 663 F.2d 210, 214 (D.C. Cir. 1980) (vacating district court ruling FOIA Exemption after agency voluntarily produced requested records and
remanding with instructions dismiss that part the case).
The judgment this case did not become moot because any action
attributable Judicial Watch. United States Bancorp Mortg. Co. Bonner Mall ship, 513 U.S. 18, 22-23 (1994) party who seeks review the merits
adverse ruling, but frustrated the vagaries circumstance, ought not
fairness forced acquiesce the judgment. was only the happenstance
Blagojevich filing second cert. petition his nearly decade long criminal
case and the petition recent denial that caused the judgment become moot.
The equities weigh favor vacatur. Id. and 29.
Judicial Watch does not ask that the judgment reversed. only
asks that the judgment vacated and the case remanded the District Court
can consider the government claims that the 302s may lawfully withheld
full under FOIA Exemption part under FOIA Exemptions 7(C), and
7(E).
Judicial Watch opening brief and appendix are due May 24, 2018.
The government answer brief due June 25, 2018, and Judicial Watch reply
due July 2018. Vacatur the briefing schedule warranted avoid claim
lack prosecution while the Court considers the judgment mootness.
-4-
USCA Case #17-5283
Document #1729992
Filed: 05/08/2018
For the foregoing reasons, Judicial Watch respectfully requests that: (1) the
briefing schedule vacated; (2) the judgment vacated; and (3) this matter
remanded the District Court for resolution the government remaining claims exemption.
Dated: May 2018
Respectfully submitted,
/s/ Paul Orfanedes
Paul Orfanedes
/s/ Lauren Burke
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
porfanedes@judicialwatch.org
lburke@judicialwatch.org
Counsel for Appellant
-5-
USCA Case #17-5283
Document #1729992
Filed: 05/08/2018
CERTIFICATE COMPLIANCE hereby certify that this Motion complies with the type-volume limitations Fed. App. 27(d)(2)(A) and (d)(1)(E). This document contains 1,031 words
(using Microsoft Word 2010) and has been prepared proportional Times New
Roman, 14-point font.
/s/ Lauren Burke
-6-
USCA Case #17-5283
Document #1729992
Filed: 05/08/2018
CERTIFICATE SERVICE hereby certify that May 2018 filed via the CM/ECF system the
foregoing Motion with the Clerk the Court. Participants the case are
registered CM/ECF users and service will accomplished the Appellate
CM/ECF system. also certify that caused original and four (4) copies delivered
the Clerk Court via hand delivery.
/s/ Lauren Burke
-7-