Author Archives: Bernard Bell

Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part III)

by Bernard Bell — Tuesday, May 21, 2019

Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, which affirmed dismissal of a suit to require publication of all Office of Legal Counsel (“OLC”) opinions.  This final post offers tentative thoughts on the applicability of FOIA’s affirmative disclosure requirements to OLC opinions. Some Thoughts on Whether […]

Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part II)

by Bernard Bell — Thursday, May 16, 2019

Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, a recent D.C. Circuit opinion affirming dismissal of a suit seeking to require publication of all Office of Legal Counsel (“OLC”) opinions.  This post critiques the decision. In Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t […]

Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part I)

by Bernard Bell — Monday, May 13, 2019

Summary: This three-part series discusses a recent D.C. Circuit opinion affirming dismissal of a claim that FOIA mandates publication of all Office of Legal Counsel (“OLC”) opinions.  This post summarized OLC’s publication practices and the D.C. Circuit case — Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice.  Succeeding posts will critique […]

Retreating on Affirmative Disclosure: The Case of APHIS’s Publicly-Available Enforcement Databases

by Bernard Bell — Wednesday, Apr. 24, 2019

Summary:  This post chronicles a story of enforcement failure, shaming remedies, and replacement of proactive disclosure with reactive disclosure.  In February 2017, the Animal and Plant Health Inspection Service (“APHIS”) “took down” publicly-available databases and re-populated them with significant redactions.  The D.C. Circuit recently opined on APHIS’s action in PETA v. U.S. Department of Agriculture. […]

Chevron and FOIA Exemption 3 Statutes

by Bernard Bell — Saturday, Apr. 20, 2019

Summary:  Recently, in Wolk Law Firm v. U.S., — F.Supp.3d —, 2019 WL 1528433 (E.D. Pa. April 9, 2019), a federal district judge held that a passenger cell phone recording of a cockpit was a “cockpit voice and video recorder recording” that the NTSB could withhold from a FOIA requester.  In doing so, the judge […]

Unblocking the Path for Abused, Neglected, and Abandoned Juvenile Immigrants: R.F.M. v. Nielsen

by Bernard Bell — Tuesday, Mar. 26, 2019

Immigration law provides a path to lawful permanent residence for abused, neglected, or abandoned juveniles, see 8 U.S.C. §§ 1101(a)(27)(J),[1] who are accorded Special Immigrant Juvenile (SIJ) status, see R.F.M. v. Nielsen, 2019 WL 1219425 *1 (S.D.N.Y. March 15, 2019).  To establish eligibility, the juvenile must secure a state court special finding order specifying that […]

“Equal Pay for Equal Work” & Overturning Close to “Midnight” Actions

by Bernard Bell — Sunday, Mar. 10, 2019

Summary: In National Women’s Law Center v. OMB, 2019 WL 1025867 (D.D.C. March 4, 2019), a District Judge overturned the Trump Administration’s effort to stay a reporting requirement, approved by the outgoing Obama Administration, designed to uncover pay disparities based on gender, race, and ethnicity.  OMB had invoked the Paperwork Reduction Act to stay the […]

The Collateral Order Doctrine and Interlocutory Review of Agency Decisions

by Bernard Bell — Tuesday, Mar. 5, 2019

Summary: Last week a Fifth Circuit panel held the collateral order doctrine inapplicable to interlocutory appellate review of Federal Trade Commission decisions.  As a result state professional board’s petition to review of the FTC’s denial of its antitrust immunity defense was dismissed for lack of appellate jurisdiction, and will be reviewable only after the FTC […]

Temporal Changes in Informational Privacy Rights

by Bernard Bell — Wednesday, Feb. 20, 2019

Summary: California’s SB 1421 withdrew peace officers’ right of informational privacy in government files relating to officer-involved shootings and other alleged officer misconduct.  Does a presumption against retroactivity apply to the withdrawal of informational privacy rights such that SB 1421 presumptively applies only to investigative files regarding future alleged officer misconduct?  This post discusses the […]

Attorney’s Fees When Private Entities Intervene: Detention Watch Network v. ICE

by Bernard Bell — Monday, Feb. 11, 2019

Summary: Last week, a judge held the Government responsible for FOIA plaintiffs’ attorneys’ fees incurred after the Government declined to appeal an adverse judgment and a business entity intervened to pursue the appeal.  Detention Watch Network v. ICE, 2019 WL 442453 (S.D.N.Y. February 5, 2019).  In this post I analyze the decision and discusses its […]