United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2005 Decided July 22, 2005

No. 01-3103

UNITED STATES OF AMERICA,

APPELLEE

v.

JONATHAN JAY POLLARD,

APPELLANT

Consolidated with

01-3127, 03-3145

Appeals from the United States District Court

for the District of Columbia

(No. 86cr00207-01)

Eliot Lauer and Jacques Semmelman argued the cause and

filed the briefs for appellant. 

Arthur B. Spitzer and G. Brian Busey were on the brief for

amici curiae American Civil Liberties Union of the National

Capital Area, et al. supporting reversal.

Mary B. McCord, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney, and John R. Fisher, Roy W. McLeese, III, Robert
2

D. Okun, Steven W. Pelak, and David B. Goodhand, Assistant

U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney,

entered an appearance.

Before: SENTELLE, HENDERSON and ROGERS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in part and dissenting in part filed by

Circuit Judge ROGERS.

SENTELLE, Circuit Judge: Appellant Jonathan J. Pollard

appeals from the dismissal of a second 28 U.S.C. § 2255 motion,

collaterally attacking his 1987 life sentence on ineffectiveassistance-of-counsel grounds, as requiring appellate

certification under the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”), or, in the alternative, as untimely

under that Act. Pollard also appeals from the district court’s

denial of his present counsel’s petition for access to classified

documents in his sentencing file for the purpose of filing a

clemency petition with the President of the United States. 

We find that no “jurist of reason” could dispute the district

court’s conclusion that Pollard’s successive § 2255 motion is

untimely, because he actually knew the necessary facts

supporting his ineffective-assistance-of-counsel claims before

2000, and decline to grant a certificate of appealability (“COA”)

in his case. In light of this decision, we need not reach the issue

of whether the district court was correct in ruling that Pollard

should have sought certification from this Court before filing his

second § 2255 motion.

Further, because we conclude that the federal courts lack

jurisdiction to review claims for access to documents predicate
3

to Article II clemency petitions, we vacate the district court’s

denial of Pollard’s motion to grant his current lawyers access to

classified documents for the purposes of his clemency petition,

and remand the motion for dismissal.

I. Background

A. Habeas Petition

In 1986, Pollard pleaded guilty to conspiracy to deliver

national defense information to a foreign government, in

violation of 18 U.S.C. § 794(c), pursuant to a plea agreement in

which the Government agreed not to ask for a life sentence, and

to limit its allocution to the facts and circumstances of Pollard’s

offenses. Nonetheless, Chief Judge Robinson of the U.S. District

Court for the District of Columbia sentenced Pollard to life in

prison on March 4, 1987. After sentencing, Pollard’s sentencing

counsel, Richard Hibey, did not file a Notice of Appeal. 

Subsequently, Pollard obtained new counsel, Hamilton Fox

III. Working with Fox, Pollard filed a 28 U.S.C. § 2255 motion

for the first time on March 12, 1990, that sought to withdraw his

guilty plea on the grounds that the Government allegedly

violated the terms of the plea agreement, by in effect seeking life

imprisonment, attacking Pollard’s character, and soft-pedaling

the significance of his cooperation, through supplemental

declarations and during its allocution. In that first habeas

petition, Fox did not allege that Hibey had been ineffective in

failing to file a Notice of Appeal, or object to the Government’s

alleged breaches at sentencing. 

Chief Judge Robinson denied Pollard’s petition on

September 11, 1990, holding that the Government did not

breach the plea agreement at sentencing. United States v.

Pollard, 747 F. Supp. 797, 802-06 (D.D.C. 1990) (“Pollard I”).
4

This Court affirmed that denial, holding that Pollard had failed

to show a fundamental defect in the sentencing proceedings

resulting in a complete miscarriage of justice, as required for

Pollard to succeed with his collateral attack. United States v.

Pollard, 959 F.2d 1011, 1032 (D.C. Cir. 1992) (“Pollard II”).

Represented by a third set of counsel, Eliot Lauer and

Jacques Semmelman, Pollard filed a second § 2255 motion on

September 20, 2000, collaterally attacking his sentence on the

basis that Hibey rendered ineffective assistance of counsel at the

sentencing stage. This renewed effort, according to Pollard, was

occasioned by a chance conversation with a fellow inmate, who

“expressed surprise that apparently no appeal had been taken

from [Pollard’s] sentence.” According to Pollard, this encounter

led him to engage Lauer and Semmelman, who, he alleges,

“advised [him], for the first time, of . . . material and prejudicial

deficiencies in Mr. Hibey’s representation . . . .”

Before the district court, Pollard urged that Hibey rendered

ineffective assistance of counsel by (1) failing to file a Notice of

Appeal, (2) failing to argue that the government breached the

terms of its plea agreement, (3) failing to request that sentencing

proceedings be adjourned after the government submitted a

supplemental declaration by Caspar Weinberger (that allegedly

amounted to an “indirect but unambiguous” request for a life

sentence), (4) failing to request a hearing to address the

allegations in the supplemental declaration, (5) failing to inform

the sentencing court that Pollard had been authorized to give a

jailhouse interview to CNN journalist Wolf Blitzer (which

apparently figured into his sentencing), (6) failing to demand a

hearing in which the Government would have to prove that

Pollard disclosed classified information during that interview,

and (7) by breaching attorney-client privilege to tell the

sentencing court that Pollard had given the CNN interview

against his advice. On August 7, 2001, the district court
5

dismissed on two alternative grounds. United States v. Pollard,

161 F. Supp. 2d 1 (D.D.C. 2001) (“Pollard III”). 

First, Judge Johnson held that Pollard’s second § 2255

motion was subject to the AEDPA requirement that 

“[a] second or successive motion . . . be certified as

provided in section 2244 by a panel of the appropriate court

of appeals to contain – (1) newly discovered evidence that,

if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found

the movant guilty of the offense; or (2) a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable.”

Pollard III, 161 F. Supp. 2d at 3-4, 5 (quoting 28 U.S.C. §

2255). This Judge Johnson held to be the case, despite the fact

that Pollard was sentenced prior to AEDPA’s passage. She

relied upon and followed United States v. Ortiz, 136 F.3d 161,

166 (D.C. Cir. 1998), in which this Court held that applying

AEDPA’s standards and procedures for filing § 2255 motions

retroactively is not improper unless a defendant can show that

“he would have met the former cause-and-prejudice standard

under McCleskey [v. Zant, 499 U.S. 467, 493 (1991)] and

previously would have been allowed to file a second § 2255

motion, but could not file a second motion under AEDPA.”

Pollard III, 161 F. Supp. 2d at 4. Rejecting Pollard’s argument

that his second counsel, Fox, concealed Hibey’s alleged

deficiencies from Pollard out of “self-imposed restraint,” Judge

Johnson held that Pollard could not show cause for his failure to

file the ineffective-assistance-of-counsel claim in his first §

2255 motion. Id. at 7. Nor could Pollard meet the alternative

fundamental-miscarriage-of-justice standard. Id. Judge Johnson
6

therefore held that AEDPA’s certification requirement did apply

and that “[Pollard] must first move in the appropriate Court of

Appeals for an order authorizing the district court to consider the

second § 2255 motion.” Id. at 8 (citing 28 U.S.C. § 2244(b)(3)).

Second, Judge Johnson held that Pollard’s second § 2255

motion was time-barred because Pollard could not show that he

qualified for a codified exception to AEDPA’s statute of

limitations (which in his case would have cut off the possibility

of filing a § 2255 motion after April 24, 1997). Id. Judge

Johnson rejected Pollard’s argument that his § 2255 motion fell

under the exception for prisoners whose appeals were based on

“newly discovered facts,” on the basis that “the discovery of the

prevailing professional norms [does not] constitute[] the

discovery of ‘facts,’” and further, the facts underlying such a

contention were either known or could have been discovered

“through the exercise of due diligence” well before 2000. Id. at

9-10; 28 U.S.C. § 2255(4). 

On October 5, 2001, Pollard applied to the district court for

reconsideration of his § 2255 motion or, in the alternative, a

COA. On November 12, 2003, Chief Judge Hogan denied

reconsideration, affirming Judge Johnson’s ruling substantially

on the same grounds Judge Johnson had stated. See United

States v. Pollard, 290 F. Supp. 2d 153, 163 (D.D.C. 2003)

(“Pollard IV”). Chief Judge Hogan denied Pollard a COA,

holding that “a reasonable jurist could not conclude either that

the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id. at 164

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 

Pollard now appeals from the original district court

decision, Pollard III, and seeks a COA from this court. He

argues that the district court erred in holding that AEDPA’s

certification requirement applied to his case because he had
7

failed to show cause for his failure to assert Hibey’s alleged

ineffective assistance on direct appeal. Pollard reasserts the

argument that Fox was constrained by an undisclosed conflict of

interest–a factor external to the defense that Pollard argues

should not be imputed to him–that kept Fox from raising an

ineffective-assistance-of-counsel claim in Pollard’s first § 2255

motion, and asks that this Court reverse and remand for an

evidentiary hearing as to Fox’s actions. Pollard also argues that

the district court erred in holding that his new § 2255 motion

was barred by AEDPA’s statute of limitations because the facts

upon which his claim was based were not, or should not have

been, “newly discovered,” asserting that “[t]he unusual

circumstances of this case–in which the Government’s

misrepresentation about Hibey’s performance, and Fox’s

whitewash [of that performance], affirmatively misled Pollard

away from a meritorious claim of ineffective assistance–warrant

an evidentiary hearing on the issue of Pollard’s diligence” in

discovering those supporting facts. Appellant’s Br. at 40.

Pollard asks that this Court reverse and remand for an

evidentiary hearing to determine why Pollard did not discover

the “facts” supporting his new claim until 2000. Id. at 39.

 

B. Access to Classified Documents

While Pollard’s second § 2255 motion was pending, one of

his new attorneys, Elliot Lauer, sought a court order granting

him access to classified pre-sentencing materials in Pollard’s file

for the purpose of filing a clemency petition with the President

of the United States. By way of background, relevant Justice

Department regulations provide that 

[n]o person may be given access to classified information

or material originated by, in the custody, or under the

control of the Department, unless the person (1) [h]as been

determined to be eligible for access in accordance with
8

sections 3.1-3.3 of Executive Order 12968; (2) [h]as a

demonstrated need-to-know; and (3) [h]as signed an

approved nondisclosure agreement.

28 C.F.R. § 17.41(a). Executive Order 12,968, in turn, defines

“need to know” as “a determination made by an authorized

holder of classified information that a prospective recipient

requires access to specific classified information in order to

perform or assist in a lawful and authorized governmental

function.” 60 Fed. Reg. 19,825 § 4.1(c) (Apr. 17, 1995). 

Before the district court, Pollard argued that Lauer had a

“need to know” the contents of the documents in Pollard’s presentencing materials “so that . . . [counsel] may address and

respond to arguments by those who oppose executive relief [for

Pollard] on the basis of what is set forth in the sealed materials.”

The district court denied his motion on January 12, 2001,

finding that Lauer did not have a need to know, because: (1) the

President has access to the materials, (2) there is no evidence

that the President has asked about (or needs to know about)

information contained therein to make his clemency decision,

and (3) the President has memoranda available to him from

Pollard’s previous attorney that make arguments based on the

facts contained in those materials. See Memorandum Order of

January 12, 2001. 

Pollard appeals from this decision, as well, arguing before

this Court that his new counsel demonstrated a “need to know”

what was in those materials in order to prepare his clemency

petition. Clemency, Pollard urges, “is a lawful and authorized

governmental function” as contemplated by the definition of

“need to know” in Executive Order 12,968. Lauer requires

access, Pollard argues, “to rebut insinuations by opponents of

clemency as to what the Materials contain, and to defuse the

campaign of disinformation” he alleges has been mounted by his
9

opponents. Appellant’s Br. at 31. 

II. Discussion

A. COA

As enumerated above, Chief Judge Johnson denied

Pollard’s second § 2255 motion on two alternative procedural

grounds: that (a) he lacked the certification required under 28

U.S.C. § 2244(b)(3) for filing a second successive § 2255

motion; and (b) that motion was untimely, regardless, because

he could not show that he qualified for a codified exception to

AEDPA’s statute of limitations. Chief Judge Hogan, having

taken over the case, denied reconsideration, and denied a COA.

 

Habeas petitioners cannot appeal a district court’s final

order in a proceeding under § 2255 without a COA. See 28

U.S.C. § 2253(c)(1). Under Slack v. McDaniel, 529 U.S. 473,

484 (2000), where the district court dismisses the § 2255 motion

on procedural grounds, a COA should issue only where (a)

“jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right,” and

(b) “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” 

Thus, to gain a COA, Pollard must show that a “jurist of

reason” would find it debatable that both (1) the § 2244(b)(3)

certification requirement does not apply in his case; and (2) the

district court was incorrect in denying his § 2255 motion as

untimely. Because we find that no jurist of reason could

disagree with the district court that Pollard’s second § 2255

motion is time-barred, we need not reach the issue of whether

the 28 U.S.C. § 2244(b)(3) certification requirement applies in

his case. 
10

AEDPA’s statute of limitations gives prisoners one year to

file a habeas petition, with certain enumerated exceptions. See

28 U.S.C. § 2255. Pollard argues that he qualifies for the

exception for newly discovered facts, which tolls the deadline to

one year from “the date on which the facts supporting the claim

or claims presented could have been discovered through the

exercise of due diligence,” 28 U.S.C. § 2255(4), on the theory

that he was unaware until 2000 of the possible ways in which he

now alleges Hibey’s assistance at sentencing was ineffective. 

It could not have escaped Pollard’s notice during the

sentencing proceedings, at which he was present, that Hibey did

not argue that the Government breached the terms of the plea

agreement, request that sentencing proceedings be adjourned

after the Government submitted the Weinberger declaration,

inform the sentencing court that Pollard had authorization to

give the Blitzer interview, or request a hearing to address the

allegations in the supplemental declaration. Pollard’s own

declaration to the district court indicates that he knew that Hibey

informed the sentencing court that Pollard had given the CNN

interview against Hibey’s advice. Knowing that, Pollard would

have been aware that at sentencing Hibey did not demand a

hearing for the Government to prove that Pollard disclosed

classified information during that interview. See Pollard III,

161 F. Supp. 2d at 9 n.5. Finally, Pollard’s first § 2255 motion,

filed in 1990, indicates that he knew then that Hibey had not

filed a Notice of Appeal. Id.

Nonetheless, Pollard argues that he still had no knowledge

of those facts on the logic that “[i]f the defendant is unaware that

the attorney should have performed a particular task, the

defendant will not know of the attorney’s omission[.]”

Appellant’s Br. at 49 (emphasis omitted). Going further, Pollard

asserts that the logical follow-on of this is true–that “[t]he

prevailing norms of the legal profession . . . are facts.” Id. at 50
11

(emphasis in original). 

This is simply nonsensical: Whether an attorney should

have performed a particular task drives the legal inquiry into the

existence of an ineffective-assistance-of-counsel claim. See

Florida v. Nixon, 125 S.Ct. 560-63 (2004) (naming as “the

inquiry generally applicable to ineffective-assistance-of-counsel

claims: Did counsel’s representation fall below an objective

standard of reasonableness?”) (quotation omitted). What the

lawyer did or did not do in his representation of a prisoner is a

“fact,” defined for legal purposes as: “An actual or alleged event

or circumstance, as distinguished from its legal effect,

consequence, or interpretation[.]” BLACK’S LAW DICTIONARY

7th Ed. at 610. Pollard knew the facts; what he now claims not

to have known is the legal significance of these facts.

Having been a witness to his own sentencing proceedings

and aware that Hibey did not file a Notice of Appeal, Pollard at

most may not have realized the potential legal significance of

those facts until 2000. Given that the vast majority of prisoners

could, like Pollard does before us, allege ignorance of the law

until an illuminating conversation with an attorney or fellow

prisoner, Pollard’s alternative construction–that legal norms

constitute “facts” for the purposes of § 2255(4)–would in effect

write the statute of limitations out of AEDPA, rendering it a

nullity. This we will not do. See, e.g., United States v. Barnes,

295 F.3d 1355, 1364 (D.C. Cir. 2002) (rejecting an

interpretation of text that would render the law a nullity, on the

logic that a “statute should ordinarily be read to effectuate its

purposes rather than frustrate them.”) (quoting Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. Ruckelshaus, 719 F.2d 1159, 1165

(D.C. Cir. 1983)). As the Seventh Circuit puts it, for the

purposes of § 2255(4), “[t]ime begins when the prisoner knows

(or through diligence could discover) the important facts, not

when the prisoner recognizes their legal significance.” Owens v.
12

Boyd, 235 F.3d 356, 359 (7th Cir. 2000). 

For these reasons, we conclude that no jurist of reason could

dispute the district court’s conclusion that Pollard, as a

participant in his own sentencing proceedings, knew the

underlying facts that support his habeas claims. This conclusion

alone prevents us from granting Pollard a COA under Slack v.

McDaniel, see 529 U.S. at 484. We hasten to add, however, it

is not at all clear that Pollard has made out a debatably valid

claim of the denial of a constitutional right in this second § 2255

motion. 

In particular, we find no indication that Hibey’s decision

not to file a Notice of Appeal from a sentence imposed after a

guilty plea was not the norm among the defense bar at the

time–which is, of course, the relevant time period, see Strickland

v. Washington, 466 U.S. 668, 690 (1984) (instructing courts in

ineffective-assistance cases to “judge the reasonableness of

counsel’s conduct on the facts of the particular case, viewed as

of the time of counsel’s conduct[.]”) (emphasis added). In fact,

it was not until twelve years after Pollard’s sentencing that the

Supreme Court addressed the question of whether defense

lawyers had a duty to file a Notice of Appeal for the first time,

stopping short of holding that such a duty existed. Doe v.

Flores-Ortega, 528 U.S. 470, 480 (2000). Certiorari was

granted in Flores-Ortega to resolve a split among the circuits on

that issue that did not arise until 1991–four years after Pollard’s

sentencing–when the First Circuit became the first federal

appeals court to rule that such a duty existed, in United States v.

Tajeddini, 945 F.2d 458, 468 (1st Cir. 1991)–a case that was, of

course, overturned by Flores-Ortega itself. We further note that

in pre-guideline cases such as Pollard’s successful appeals after

guilty pleas were rare indeed. 

Moreover, Pollard’s second § 2255 motion is untimely even
13

1 Eleven circuits have concluded that, under certain

circumstances, equitable tolling of the statute of limitations in either

§ 2255 for federal prisoners and/or § 2244(d)(1) for state prisoners is

possible. See Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir.

2004); Baldayaque v. United States, 338 F.3d 145, 150-51 (2d Cir.

2003); Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir.

2001); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000);

Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000); Taliani

v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999); Sandvik v. United

States, 177 F.3d 1269, 1271-72 (11th Cir. 1999) (per curiam); Fisher

v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999); Miller v. N.J. State

Dep’t of Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998); Miller v.

Marr, 141 F.3d 976, 978 (10th Cir. 1998); Calderon v. United States

Dist. Court, 128 F.3d 1283, 1288-89 (9th Cir. 1997). This circuit has

yet to decide the question, see United States v. Cicero, 214 F.3d 199,

203 (D.C. Cir. 2000), and there is no need to do so here. 

assuming, as he contends, equitable tolling is available under

AEDPA,1for he cannot demonstrate that “extraordinary

circumstances beyond [his] control [made] it impossible to file

a petition on time.” Cicero, 214 F.3d at 203 (quoting Calderon,

128 F.3d at 1288) (internal quotation marks omitted). Pointing

to caselaw holding that equitable tolling is available where “the

[government’s] conduct has somehow lulled the petitioner into

inaction,” Curtiss v. Mt. Pleasant Correctional Facility, 338

F.3d 851, 855 (8th Cir. 2003), where a petitioner was “actively

misled,” Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001), or

where “an attorney’s behavior may be so outrageous or so

incompetent as to render it extraordinary,” Baldayaque, 338

F.3d at 152 (2d Cir.), Pollard maintains that his initial habeas

counsel’s alleged ethical breaches, combined with the

government’s alleged misrepresentations of his trial counsel’s

performance, require an evidentiary hearing to determine if

equitable tolling is warranted. Pollard’s allegations, however,

do not rise to the level of unethical and outrageous behavior

addressed in the cited cases, and there is no indication that the
14

actions of either his initial habeas counsel or the Government

made it impossible for him to file his second § 2255 motion

within AEDPA’s statute of limitations, as required. See Cicero,

214 F.3d at 203. As the district court noted, equitable tolling

has been denied in far more grievous circumstances, as in

Cicero, where the prisoner was unable to finish his legal

research before the statute of limitations expired after being

stabbed by another inmate, hospitalized, placed in protective

segregation with highly limited access to a law library, and

separated from his legal papers. Id. at 201, 203-04.

Notwithstanding Pollard’s claims that his habeas counsel failed

to tell him about his trial counsel’s allegedly deficient behavior

and that the government advocated that his trial counsel was

effective, there is nothing that prevented Pollard, a highly

educated person who served as an Intelligence Research

Specialist with the United States Navy prior to his arrest, from

researching or further analyzing the facts that he knew to

determine if they presented a valid claim.

B. Counsel Access to Classified Documents

The final aspect of Pollard’s appeal, unrelated to his § 2255

motion, is whether the district court erred in declining to grant

Pollard’s current counsel access to classified materials in his

pre-sentencing documents. Because we lack the authority to

compel the executive branch to disclose any documents for the

purposes of a clemency petition, we need not even reach the

issue of whether Pollard’s counsel has a need to know the

contents of Pollard’s classified pre-sentencing memoranda in

order to submit an effective clemency petition. 

As a practical matter, granting Pollard or his counsel access

to these materials would almost surely open a floodgate of

similar requests. It may be unusual for documents relating to a

prisoner’s clemency petition to be classified. But surely, most
15

2The dissent’s dismissal of the problem on the basis that the

District Court has issued a protective order heretofore does nothing to

forestall the actual possibility of such a floodgate breach. Even in the

present case, the existence of the protective order does not change the

custody of classified documents from the Executive to the Judiciary.

Nor is there any principled way to limit the perceived right of access

to documents needed for clemency to those that are under such a

protective order. On the facts of this case, as we discuss in the text,

appellant’s only claim of access is based on the possibility of a

clemency petition. For the reasons set forth in the text, that is

insufficient. 

federal prisoners who have run out of other avenues of appeal

could, with some thought, conceive of something they could

seek to discover from the Executive Branch that might be

plausibly relevant to a clemency petition.2 The undue burden

such requests would impose on the Executive Branch alone

cautions restraint. As the Supreme Court instructs, “[e]ven

when a branch does not arrogate power to itself . . . the

separation-of-powers doctrine requires that a branch not impair

another in the performance of its constitutional duties.” Loving

v. United States, 517 U.S. 748, 757 (1996). 

If due consideration for our co-equal branch counsels

judicial restraint in this case, more fundamental constitutional

principles absolutely dictate it. The Constitution entrusts

clemency decisions to the President’s sole discretion. U.S.

CONST. art. II, § 2, cl. 1 (the President “shall have Power to

grant Reprieves and Pardons for Offenses against the United

States . . .”). Even when governed by legislation, such actions

as regulatory enforcement and criminal prosecution, which are

the “special province of the Executive Branch,” are

presumptively off-limits to the courts. Heckler v. Chaney, 470

U.S. 821, 832 (1985). Clemency, over which neither Congress

nor the courts share any constitutional authority, is more

properly the exclusive province of the Executive. As stated by
16

3Our dissenting colleague correctly notes that the parties have

not raised the jurisdictional question; however, we must nonetheless

address it sua sponte. “Subject-matter delineations must be policed by

the courts on their initiative even at the highest level.” Ruhrgas AG

v. American Oil Co., 526 U.S. 574, 583 (1999) (citing and following

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95

(1998) (“Whenever it appears . . . that the court lacks jurisdiction of

the subject matter, the court shall dismiss the action.”)).

Judge Learned Hand, “[i]t is a matter of grace, over which

courts have no review[.]” United States ex. rel. Kaloudis v.

Shaugnessy, 180 F.2d 489, 491 (2d Cir. 1950). Thus, it is

entirely out of our power to compel discovery of or access to

documents for the sake of a clemency petition. We therefore

remand this final claim for dismissal for lack of jurisdiction.3

III. Conclusion

For the reasons stated above, we deny Pollard’s motion for

a COA. Further, we vacate the district court’s denial of

Pollard’s motion that his current counsel be granted access to

classified documents among his presentencing materials for lack

of jurisdiction, and remand the motion for dismissal.
ROGERS, Circuit Judge, concurring in part and dissenting in

part: I am in agreement with the court’s denial of a certificate

of appealability in No. 01-3127 to Jonathan Jay Pollard to

contest the district court’s dismissal of his second motion under

28 U.S.C. § 2255, and I therefore join Part II.A of the court’s

opinion. However, the court erects a jurisdictional bar in Nos.

01-3103 and 03-3145 to considering the request of Pollard’s

counsel for access to classified documents, which were filed

with the district court during his sentencing and were sealed

pursuant to a Protective Order, for use in preparing a clemency

petition. Although the United States acknowledges that the

documents are “subject to a court-issued Protective Order,” Br.

of Appellee at 42, and it therefore makes no jurisdictional

challenge, see id. at 44 n.25, the court nevertheless hypothesizes

a conflict with the President’s clemency power under the

Constitution, see Op. at 14-16. Neither Pollard’s counsel’s

request to the district court nor the court’s potential granting of

it, however, poses interference with the President’s clemency

power. Whatever documents compiled for Pollard’s sentencing

that the district court might make accessible to his counsel for

purposes of preparing a clemency petition, the President’s

process for considering clemency petitions and any decision he

might make remain unimpaired; indeed, he can ignore the

petition altogether. Rather than posing a jurisdictional bar, the

President’s clemency power affects the merits of counsel’s

request because, as the district court ruled, counsel has not

shown a “need to know” under Executive Order 12,958, as

amended, which has been incorporated into the Protective Order.

Hence, under the “unusual circumstances of this case” where the

Protective Order governs the requested documents, Br. of

Appellee at 42, I would hold that the district court had

jurisdiction to address the merits of the access motion and that

the court did not err in denying the motion. I therefore

respectfully dissent from Part II.B of the court’s opinion. 
2

I.

For purposes of preparing a clemency petition, Pollard’s

counsel seeks access to classified documents that were created

for his sentencing, filed with the district court, and sealed

pursuant to a Protective Order. The sealed documents include

a Declaration of then-Secretary of Defense Caspar Weinberger,

a memorandum personally prepared by Pollard, a memorandum

prepared by Pollard’s trial counsel, and the United States’s

reply. Pursuant to the Protective Order, persons not identified

therein, such as Pollard’s current counsel, may obtain access to

the classified portions of the sentencing documents only after

being granted the appropriate security clearance by the

Department of Justice through the Court Security Officer,

executing a Memorandum of Understanding prohibiting

disclosure of such information, and obtaining the permission of

the district court. The parties agree that as part of the security

clearance process, a person must have a “need to know” the

information contained in the classified documents as that phrase

is defined in Executive Order 12,958, as amended, to mean “a

determination made by an authorized holder of classified

information that a prospective recipient requires access to

specific classified information in order to perform or assist in a

lawful and authorized governmental function.” Exec. Order

13,292, 68 Fed. Reg. 15,315, 15,332 (Mar. 25, 2003).

In holding that the district court lacked jurisdiction to

consider Pollard’s counsel’s motion for access to the classified

documents under the Protective Order, the court concludes that

counsel’s expressed desire to use the documents for a clemency

petition is determinative of the jurisdictional inquiry because the

court “lack[s] the authority to compel the executive branch to

disclose any documents for the purposes of a clemency

petition.” Op. at 14. The United States, however, did not urge

this restrictive interpretation of the district court’s jurisdiction

and thus neither party briefed it. In fact, the United States
3

expressly stated on appeal that it “did not contest the district

court’s jurisdiction over the access issue in this case because the

terms of the Protective Order reserve that role for the court.” Br.

of Appellee at 44 n.25. The court nevertheless proceeds sua

sponte to resolve this dispute on novel jurisdictional grounds,

and, in so doing, ignores the fact, undisputed by the parties and

the record, that the documents at issue were created as part of a

judicial process and are governed by the Protective Order. Cf.

18 U.S.C. app. III, § 3 (2000). 

This case, therefore, does not involve the traditional request

for access to classified documents that are within the Executive

Branch’s possession, and hence, the court’s concern that

exercising jurisdiction over the access motion could open the

floodgates to similar motions, see Op. at 14-15, is misplaced.

Further, as the United States acknowledged at oral argument,

protective orders now are drafted “more carefully . . . to

circumscribe their use more directly to the . . . criminal case, and

not for other purposes,” Tr. of Proceedings (Mar. 15, 2005), and,

thus, it is quite unlikely that courts will be confronted with even

a trickle, much less a flood, of similar requests. Although the

documents are nominally in the custody of the Justice

Department’s Security and Emergency Planning Staff, the

district court, as the United States acknowledges, has continuing

control over them on account of the perpetual Protective Order

that it may still enforce through its contempt power. See Public

Citizen v. Liggett Group, Inc., 858 F.2d 775, 781-82 (1st Cir.

1988); cf.Nixon v. Warner Communications, Inc.,435U.S.589,

598 (1978). “[A] protective order, like any ongoing injunction,

is always subject to the inherent power of the district court,”

Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993),

and “[s]o long as [the court’s records and files] remain under the

aegis of the court, they are superintended by judges who have

dominion over the court,” Gambale v. Deutsche Bank AG, 377

F.3d 133, 141 (2d Cir. 2004). Thus, in the absence of legitimate
4

separation-of-powers concerns, the district court, under these

circumstances, had jurisdiction to adjudicate the access motion,

for otherwise it would be in the untenable position of lacking

jurisdiction over motions that relate to documents that were filed

with it and over which it has continuing control. Although the

court professes to be unable to find a “principled way” to limit

the potential right of access to documents filed pursuant to a

Protective Order, Op. at 15 n.1, as is clear from the above cases,

the principle is that the Protective Order results in the district

court’s retention of control, and thus jurisdiction, over the

documents at issue so long as there is no violation of the

separation of powers. 

To reach its jurisdictional conclusion, the court imagines a

conflict between that President’s clemency power and the

district court’s exercise of jurisdiction over the request for

access to documents. It is undeniable that the President’s

constitutional power to grant clemency is robust, U.S. CONST.

art. II, § 2, cl. 1, and that courts long have been loathe to review

the President’s clemency decisions, see, e.g., Schick v. Reed, 419

U.S. 256, 260 (1974); United States v. Klein, 80 U.S. 128, 147-

48 (1871); cf. Ohio Adult Parole Auth. v. Woodard, 523 U.S.

272, 284 (1998) (plurality); id. at 289 (O’Connor, J., joined by

Souter, Ginsburg, and Breyer, JJ., concurring in part and

concurring in the judgment). The President’s clemency power,

however, is not absolute; rather, it is limited by other

constitutional provisions. Schick , 419 U.S. at 266-67. In

reviewing clemency decisions to ensure that they comport with

other constitutional protections, the Supreme Court has never

suggested that federal courts lack jurisdiction over such matters,

let alone over matters where a prisoner’s counsel seeks access

to documents filed with the district court for use in petitioning

for executive clemency. See, e.g., id; Hart v. United States, 118

U.S. 62, 67 (1886); Knote v. United States, 95 U.S. 149, 154

(1877); Ex parte Garland, 71 U.S. 333, 381 (1866); Ex parte
5

Wells, 59 U.S. 307, 312 (1855). 

At the same time, the Supreme Court has cautioned courts

“to avoid interference with the . . . clemency powers vested in

the Executive Branch,”Affronti v. United States, 350 U.S. 79, 83

(1955) (emphasis added), and has stated that “pardon and

commutation decisions . . . are rarely, if ever, appropriate

subjects for judicial review.” Conn. Bd. of Pardons v.

Dumshcat, 452 U.S. 458, 464 (1981) (emphasis added). While

“the separation-of-powers doctrine requires that a branch not

impair another in the performance of its constitutional duties,”

Loving v. United States, 517 U.S. 748, 757 (1996) (emphasis

added), the court today never explains how the district court’s

exercise of jurisdiction over the access motion impairs or

interferes with the President’s clemency power, and, indeed, it

cannot because the motion does not involve the President’s

constitutional prerogative to grant clemency or even the process

by which the President decides whether or not to grant

clemency, cf. Affronti, 350 U.S. at 83; United States v.

Moussaoui, 382 F.3d 453, 468-69 (4th Cir. 2004). Nor did the

United States suggest to the contrary in response to the court’s

jurisdictional observation during oral argument. The access

motion does not relate to the President’s decision regarding

clemency, as he remains free to review, ignore, act on, or fail to

act on any petition for clemency that Pollard’s counsel might

file, regardless of whether a court determines that his counsel

may have access to classified documents to prepare such a

petition. Thus, the President’s constitutional duty is not only

unimpaired by the access motion, it is wholly unaffected by it.

Cf. Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 376 (D.C.

Cir. 2000). 

Neither of the two cases relied on by the court for its novel

jurisdictional holding have force in this context, for at most they

support an undisputed proposition that the President’s clemency
6

power is fulsome, subject to few limits. Judge Learned Hand’s

statement about the clemency power in United States ex rel.

Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950), is

not as unqualified as the court suggests, for the judge

acknowledged some limits, and, in any event, it is dictum in a

case concerning the Attorney General’s discretionary power to

suspend deportation. Heckler v. Chaney, 470 U.S. 821 (1985),

with its discussion of regulatory enforcement actions, is plainly

distinguishable, for while the Supreme Court held that decisions

not to initiate enforcement actions are presumptively

unreviewable under the Administrative Procedure Act because

they are “committed to agency discretion,” id. at 832 (quoting

5 U.S.C. § 701(a)(2)), the Court went on to hold that “the

presumption may be rebutted where the substantive statute has

provided guidelines for the agency to follow in exercising its

enforcement powers,” id. at 832-33. In erecting a jurisdictional

bar that precludes federal court review of access motions to

classified documents when the asserted reason for access is to

assist in the preparation of a clemency petition, the court, unlike

the Supreme Court in Chaney, fails to look to the underlying

legal regime in the Protective Order to determine whether relief

is available.

If the requested documents were not subject to the

Protective Order, then the United States maintains Pollard would

be required to proceed under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2000). Caselaw under FOIA fails to

reveal any suggestion that it is beyond the power of the federal

courts to entertain requests for Executive Branch documents

related to clemency proceedings. In fact, courts have analyzed

requests for the Executive Branch to release documents related

to individual clemency applications under FOIA, relying on the

statutory exemptions to deny release of certain documents, but

never raising any jurisdictional concerns. See, e.g., Binion v.

U.S. Dep’t of Justice, 695 F.2d 1189, 1193-94 (9th Cir. 1983);
7

Crooker v. Office of Pardon Attorney, 614 F.2d 825, 828 (2d

Cir. 1980). While no case has expressly addressed the

jurisdictional issue, as with analogous FOIA requests for

information related to clemency proceedings, the request by

Pollard’s counsel for access should be viewed under the

regulatory regime in place to address those requests. The

inconsistency between the federal courts exercising their power

to adjudicate FOIA requests for information generated or

compiled by the Executive Branch during the clemency process

and federal courts lacking the power to adjudicate requests for

access to documents filed with the district court that may be

used in preparing a clemency petition is self-evident. 

Moreover, when the court addressed the application of

FOIA to general information about the clemency process, there

was no hint of any jurisdictional obstacles. In Judicial Watch,

Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004),

the court refused to apply the presidential communications

privilege, which is derived from separation-of-powers concerns

and anchored in FOIA Exemption 5, 5 U.S.C. § 552(b)(5), to

protect all documents authored by Executive Branch employees

that are generated in the course of preparing clemency

recommendations for the President. The court reasoned that the

documents that were prepared in the Office of the Pardon

Attorney were not in close proximity to the President and the

exercise of his clemency power to warrant protection under the

presidential communications privilege. 365 F.3d at 1114-15,

1120. The documents here are even farther removed from the

President and the exercise of his clemency power, as they were

generated in the course of a judicial proceeding and their use by

Executive Branch employees in the clemency process is

speculative at best. It is curious that the court relies on

separation-of-power principles to preclude federal court review,

ignoring the logical implications of our precedent. Because I

conclude there is no jurisdictional bar to the court’s
8

consideration of the access motion, I turn to the merits. 

II.

The district court ruled that Pollard’s counsel did not have

a “need to know” because the President has access to the

classified documents and can review them without assistance,

there is no evidence that the President has asked Pollard’s

counsel questions about the contents of the classified

documents, and the President has access to memoranda from

Pollard’s previous counsel that comments on the classified

documents. The district court denied Pollard’s motion for

reconsideration, as well as his subsequent motion for

modification. On appeal, the parties agree that the only issue as

to the access motion is whether Pollard’s counsel has a “need to

know” the contents of the classified documents. Whether the

district court’s denial of access is reviewed de novo as a legal

determination, as Pollard argues, cf. Phillips ex rel. Estates of

Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir.

2002); United States v. Idaho, 210 F.3d 1067, 1072 (9th Cir.

2000), or for abuse of discretion, as the United States argues, cf.

United States v. Rezaq, 134 F.3d 1121, 1142-43 (D.C. Cir.

1998), Pollard fails to show that the district court erred.

Although the President’s “quintessential and non-delegable”

power to grant clemency does not affect the court’s jurisdiction

in this instance, Judicial Watch, 365 F.3d at 1119, it

significantly affects Pollard’s contention that his counsel has a

“need to know” the contents of the classified documents filed

with the district court. The “need-to-know” standard, which the

parties agree is implicitly incorporated into the Protective Order,

authorizes access to specified classified information only where

one “requires access . . . in order to perform or assist in a lawful

and authorized governmental function.” Exec. Order 13,292, 68

Fed. Reg. 15,315, 15,322. The President’s decision to grant or

to deny clemency is such a function. See U.S. CONST. art. II, §
9

2, cl. 1; Biddle v. Perovich, 274 U.S. 480, 486 (1927). In

seeking to justify access as necessary “[t]o submit an effective

clemency petition,” Br. of Appellant at 31, Pollard, however,

conflates his petition for clemency with the President’s decision

to grant or to deny clemency, much as the court does in erecting

a jurisdictional bar; it is only the President’s decisionmaking

process that is “a lawful and authorized governmental function.”

Therefore, to come within the “need-to-know” standard,

Pollard’s counsel must require access to assist the President’s

determination and not simply to assist his client, which, by

contrast, would be in the nature of a private act. 

Simply asserting that one’s assistance is needed does not

make it so, especially since executive clemency is a matter of

grace, Woodard, 523 U.S. at 280-81 (plurality), such that the

President controls the process by which such decisions are

made. The Justice Department’s pardon regulations, 28 C.F.R.

§§ 1.1, 1.11 (2005), do not afford Pollard’s counsel a right to

assist the President in making his clemency decision, let alone,

as Pollard seems to seek, an opportunity to present an “effective

petition” in response to the claimed unyielding opposition of

Executive Branch officials to granting him clemency. Similarly,

Executive Order 12,958, as amended, does not provide his

counsel a right of access equal to that of attorneys within the

Justice Department or an enforceable right to access classified

documents under the Protective Order. See Exec. Order 13,292,

68 Fed. Reg. 15,315, 15,333. Further, absent the Protective

Order, his counsel could not gain access to classified documents

under FOIA, regardless of the status of counsel’s security

clearance. See 5 U.S.C. § 552(b)(1). Thus, if Pollard’s counsel

desires to assist the President’s clemency determination, then

under the “need-to-know” standard, the President must seek his

assistance and thereby involve counsel in the “lawful and

authorized governmental function.” The record, however, does

not reveal that either the President, who himself has access to
10

the classified information, or his designee has sought the

assistance of Pollard’s counsel in considering the request for

executive clemency. 

Consequently, although the district court’s adjudication of

the access motion, even if it would have ordered access, does

not itself infringe on the separation of powers, the nature of

executive clemency as a matter of Presidential grace means that

under the “need-to-know” standard governing access to

classified information under the Protective Order, it cannot be

said that counsel requires access to assist the President.

Whatever bias may exist against his cause, Pollard can point to

no authority that would enable his counsel, under these

circumstances, to have access to the classified documents he

would require to present an “effective petition.” Accordingly,

I would affirm the judgment denying the access motion based on

the district court’s determination that Pollard’s counsel does not

have a “need to know.”