UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 28th day of May, two thousand fourteen.

PRESENT: 

JON O. NEWMAN,

JOSÉ A. CABRANES,

ROSEMARY S. POOLER,

Circuit Judges.

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THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,

SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, 

AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs-Appellants,

v. Docket Nos. 13-422(L), 13-445(Con)

UNITED STATES DEPARTMENT OF JUSTICE, UNITED

STATES DEPARTMENT OF DEFENSE, CENTRAL

INTELLIGENCE AGENCY,

Defendants-Appellees.

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ORDER

Pending before the Court is a motion by the DefendantsAppellees (“the Government”) filed May 27, 2014, to file ex

parte and in camera a motion to seek panel rehearing and in

banc rehearing of this Court’s April 21, 2014, decision. See

The New York Times Co. v. United States Department of Justice,

No. 13-422L, 2014 WL 1569514 (2d Cir. April 21, 2014). In a

supporting affidavit the Government contends that it “cannot

address . . . classified and privileged information in a

public filing without mooting its arguments.” Affidavit of

Sarah S. Normand ¶ 5. The Government also asserts that, if

the pending motion is granted, the petition for rehearing will

be lodged with the Department of Justice’s Court Security
Office on or before June 5, 2014, for transmission to the

Court. Id. ¶ 7. June 5 is the deadline for the Government to

file a petition for rehearing or rehearing in banc. See

Federal Rules of Appellate Procedure 35(c), 40(a)(1). The

Government also asserts that it “intends to prepare and to

provide for public filing a version of the OLC-DOD Memorandum

that includes the redactions in the Court-redacted version of

the OLC-DOD Memorandum and the additional redactions that will

be at issue in the petition for rehearing.” Normand Affidavit

¶ 8.

Background

The background of this proceeding, relevant to disposition

of the pending motion, is as follows. 

1. On February 10, 2014, the Court provided the

Government, ex parte and in camera, a redacted version of the

Court’s proposed public opinion and a partially redacted

version of the OLC-DOD Memorandum to afford the Government an

opportunity to advise the Court whether the filing of the

opinion and the partially redacted Memorandum would

inadvertently disclose material entitled to be kept secret. 

2. The Government responded to the Court’s February 10

communication in a motion, filed ex parte and in camera, on

March 13, 2014. That response framed two issues.

(a) The first issue concerns redactions in the public

opinion. The public opinion, filed April 21, 2014, made a

number of redactions that the Government requested in order to

preserve its opportunity for further appellate review. The

opinion explained that these redactions are to be restored in

the event that the opinion is not altered upon any further

appellate review. See New York Times, typescript copy of

opinion from Second Circuit website (“typescript copy”) at 2,

n.1; 2014 WL 1569514, at *17 n.1. The Government’s March 13

motion identified (by blacking out words) four redactions in

the proposed public opinion that it contended should remain

redacted to protect classified information, even under the

standards governing disclosure set forth in the public

opinion. The first three appear at page 40, lines 4-6, of the

typescript copy; see New York Times, 2014 WL 1569514, at *13. 

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We thought our language on page 40, lines 4-5, made it clear

that we agreed with the Government that these three redactions

should be made. To eliminate any doubt, we now clarify that

these three redactions are permanent, i.e., they will not be

restored even if no further appellate review occurs. The

fourth redaction appears at page 49, line 11, of the

typescript copy; see New York Times, 2014 WL 1569514, at *16. 

We agree with the Government that this redaction should also

be permanent. As a consequence of making that redaction

permanent, we will amend the public opinion on page 50, line

2, and on page 52, line 2, to add numbers 252-54 and 268 to

the list of documents on OLC’s classified Vaughn index whose

number, title, and description need not be disclosed.

(b) The second issue raised by the Government’s March 13

motion concerns redactions in the OLC-DOD Memorandum. The

public opinion redacted the entire OLC-DOD Memorandum in order

to preserve the Government’s opportunity for further appellate

review, and also made several specific redactions in the OLCDOD Memorandum that are to be permanent, i.e., not restored

even if no further appellate review occurs. In its March 13

motion, the Government represented that the OLC-DOD Memorandum

“even with the redactions made by the Court, appears

inadvertently to leave unredacted some information that

remains classified or privileged after applying the Court’s

own analysis.” March 13 Motion at 3. Although we had

requested the Government to identify any passages that we had

inadvertently failed to redact, the Government’s March 13

motion identified such passages only in the public opinion,

but did not identify any such passages in the already redacted

version of the OLC-DOD Memorandum.

3. On April 21, 2014, this Court issued a public opinion

that made several redactions at the request of the Government. 

The reason for the redactions and the circumstances under

which the redacted material would be restored were explained

in that opinion as follows:

The redactions in the text of this opinion, most of

which refer to the content of the OLC-DOD Memorandum,

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disclosure of which is the primary subject of this

appeal, are being made at the request of the

Government to preserve its opportunities for further

appellate review of our ruling requiring disclosure of

a redacted version of that Memorandum. In the event

that our ruling requiring disclosure of a redacted

version of the Memorandum is not altered in the course

of any further appellate review, an unredacted version

of this opinion, together with a redacted version of

the OLC-DOD Memorandum, will be filed.

New York Times, typescript copy at 2, n.1; 2014 WL 1569514, at

*17 n.1.

The Court also filed a sealed opinion, with redactions

from the public opinion double-underlined to facilitate any

further appellate review. The sealed opinion also contained,

as Appendix A, a redacted version of the OLC-DOD Memorandum.

Discussion

The Government’s pending motion raises two issues.

1. The first issue concerns the requested relief to file

a petition for rehearing ex parte and in camera. The

Government contends that this type of filing is necessary to

protect classified information and that it follows two

previous instances where the Court permitted the Government to

make ex parte and in camera submissions. See Norman Affidavit

¶¶ 5, 6. However, neither of the two previous ex parte and in

camera submissions concerned secrecy for an entire motion. On

August 27, 2013, the Court permitted the Government to file ex

parte and in camera classified inserts to its appellate brief. 

On October 18, 2013, the Court permitted the Government to

file ex parte and in camera a supplemental submission to

respond to questions posed at oral argument.

We see no reason why the Government cannot prepare and

serve its petition for rehearing in the normal course,

redacting any particular portions that require secrecy and

submitting only those redacted portions to the Court ex parte

and in camera.

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2. The second issue concerns the Government’s assertion

that it “intends to prepare and to provide for public filing

a version of the OLC-DOD Memorandum that includes . . . the

additional redactions that will be at issue in the petition

for rehearing.” Normand Affidavit § 8. No date is specified

for this presentation of a version of the OLC-DOD Memorandum

with additional redactions beyond those already made by the

Court. Perhaps the Government intends to specify those

additional redactions in its rehearing petition, but clarity

on this point is needed. 

Accordingly, it is hereby ORDERED that

(1) The Government’s motion to file a petition for

rehearing ex parte and in camera is DENIED, provided, however,

that the Government may file ex parte and in camera those

portions of its petition for rehearing (including supporting

documents) that it believes in good faith require secrecy.

(2) The Government shall provide the Court ex parte and in

camera by June 5, 2014, those additional passages of the OLCDOD Memorandum that it believes, with justification, should be

permanently redacted under the standards set forth in the

Court’s public opinion. These additional passages should be

identified with precision by reference to the redacted version

of the OLC-DOD Memorandum filed as Exhibit A to the Court’s

sealed opinion.

The parties should be prepared for oral argument on the

petition for rehearing on Monday, June 9, 2014, at 2 p.m. The

Court will advise the parties by 5 p.m. on Friday, June 6,

2014, whether oral argument will be necessary.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk

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