Latest / The Epstein Chronicles / DOJ Moves to End Katie Phang’s Epstein Files Lawsuit (Part 3) (10/4/26)

Transcript

DOJ Moves to End Katie Phang’s Epstein Files Lawsuit (Part 3) (10/4/26) · The Epstein Chronicles

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  Speaker 1: What's up everyone and welcome to another episode of the
• 0:02
  Speaker 1: Epstein Chronicles. In this episode, we're going to jump right
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  Speaker 1: back in to the memo in support that was filed
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  Speaker 1: by Todd Blanch in the lawsuit against Katie Fang. In addition,
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  Speaker 1: in concluding that the plaintiff failed to identify a particularized injury,
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  Speaker 1: the court recognized that the result of its decision might
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  Speaker 1: be that no plaintiff could litigate the issue. Richardson, 418 U.S.
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  Speaker 1: at 179. But the court explained, The absence of any
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  Speaker 1: particular individual or class to litigate these claims gives support
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  Speaker 1: to the argument that the subject matter is committed to
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  Speaker 1: the surveillance of Congress and ultimately to the political process.
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  Speaker 1: Any other conclusion, the court continued, would undermine the founders'
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  Speaker 1: determination that the courts are not intended as general forums
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  Speaker 1: to oversee the conduct of the national government by means
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  Speaker 1: of lawsuits. Federal courts do not exercise general legal oversight
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  Speaker 1: over the legislative and executive branches. Instead, even though the
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  Speaker 1: court has accepted new categories of judicially cognizable injury, that
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  Speaker 1: acceptance has not eliminated the basic principle that to invoke
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  Speaker 1: the judicial power, the claimant must have a personal stake
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  Speaker 1: in the outcome. That constitutes something more than a generalized grievance. Thus,
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  Speaker 1: the Supreme Court has made clear that the asserted violation
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  Speaker 1: of an obligation to publicly disclose information does not, by itself,
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  Speaker 1: generate a particularized injury allowing any plaintiff who wishes to
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  Speaker 1: obtain or use the information to sue. The asserted violation
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  Speaker 1: of such an obligation imposed through statute can no more
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  Speaker 1: give rise to a particularized injury than would the violation
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  Speaker 1: of the constitutional obligation at issue in Richardson. CF TransUnion,
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  Speaker 1: 594 U.S. at 426, making clear that Article III standing
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  Speaker 1: requires a concrete injury even in the context of a
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  Speaker 1: statutory violation. The D.C. Circuit has thus properly applied similar
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  Speaker 1: principles in the statutory context when evaluating whether a particular
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  Speaker 1: plaintiff has standing to seek to compel an agency to
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  Speaker 1: disclose particular information. For example, as the D.C. Circuit has explained,
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  Speaker 1: some portions of FOIA reflect Congress' determination to vest members
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  Speaker 1: of the public who follow the statute procedures for requesting
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  Speaker 1: records with an individualized right to the records requested. See Prisology, Inc. v.
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  Speaker 1: Federal Bureau of Prisons, D.C. Circuit 2017, explaining that FOIA
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  Speaker 1: requires an agency to make non-exempt records available to any
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  Speaker 1: person upon that person's request. That rights-creating scheme vests each
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  Speaker 1: individual who requests information with particularized right to receive it,
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  Speaker 1: such that the requester has Article III standing to challenge
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  Speaker 1: an agency's failure to provide the requested records. By contrast,
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  Speaker 1: other provisions of FOIA generally direct federal agencies to make
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  Speaker 1: certain records electronically available to the public. And as to
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  Speaker 1: those provisions, the court has explained that the alleged failure
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  Speaker 1: to publish information that an agency is required by the
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  Speaker 1: statute to disclose does not, in the absence of some
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  Speaker 1: particularized right to receive the information, generate Article III standing.
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  Speaker 1: See Campaign for Accountability v. U.S. Department of Justice, D.C.
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  Speaker 1: 2025 explaining that a plaintiff may have Article 3 standing
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  Speaker 1: to seek disclosure under these provisions only if the plaintiff
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  Speaker 1: expressly requested and was denied access to the records. Such
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  Speaker 1: a plaintiff does not differentiate herself from the public at large.
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  Speaker 1: As a result, all she may establish is a harm
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  Speaker 1: common to everyone that does not state an Article 3
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  Speaker 1: case or controversy. See also, ID at 116, plaintiff alleging
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  Speaker 1: harm common to every citizen interest and proper application of
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  Speaker 1: the Constitution and laws, and seeking relief that no more
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  Speaker 1: directly and tangibly benefits him than it does the public
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  Speaker 1: at large, does not state an Article III case or controversy.
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  Speaker 1: In short, to satisfy the particularized injury requirement, a plaintiff
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  Speaker 1: seeking to compel an agency to obey an information disclosure
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  Speaker 1: law must identify not merely a statute that imposes a
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  Speaker 1: general obligation on the agency, but instead a statute that
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  Speaker 1: confers a particular right on the plaintiff. See Medina v.
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  Speaker 1: Planned Parenthood 2025, describing the difference between statutes that create
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  Speaker 1: individual rights and those that simply provide a benefit or
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  Speaker 1: protect an interest. In the similar context of determining whether
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  Speaker 1: a spending clause statute creates enforceable individual rights, the Supreme
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  Speaker 1: Court has recently explained that courts should focus on whether
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  Speaker 1: the law in question clearly and unambiguously uses rights-creating terms,
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  Speaker 1: and whether it displays an unmistakable focus on individuals like plaintiff. Here,
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  Speaker 1: plaintiff cannot identify any particularized right to information given to
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  Speaker 1: her by the EFTA. Nothing in the EFTA evinces any
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  Speaker 1: desire by Congress to create private, enforceable rights. Indeed, the
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  Speaker 1: relevant section contained no rights-creating language, providing only that the
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  Speaker 1: Department shall make publicly available covered documents, not that any
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  Speaker 1: party has a specific right to receive the information. EFTA
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  Speaker 1: Section 2A. Unlike other information disclosure statutes such as FOIA,
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  Speaker 1: the EFTA does not provide any mechanism for a private
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  Speaker 1: party to seek information that it believes ought to be
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  Speaker 1: made available. Nor does the EFTA provide a cause of
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  Speaker 1: action specifically permitting private parties to bring suit over any
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  Speaker 1: failure to provide such information. Instead, to the extent the
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  Speaker 1: EFTA reflects a concern with any particular recipient of the information,
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  Speaker 1: the EFTA is concerned with Congress and the public writ large,
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  Speaker 1: not private parties. The EFTA requires the Department to submit
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  Speaker 1: a report to Congress listing all categories of records released
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  Speaker 1: and withheld and a summary of redactions made and to
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  Speaker 1: publish a redaction log in the Federal Register. These accountability
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  Speaker 1: measures underscore that any dispute regarding compliance with Congress' direction
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  Speaker 1: is properly resolved among the political branches rather than in
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  Speaker 1: Article III courts at the behest of private parties. Thus
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  Speaker 1: the EFTA and the constitutional provision at issue in Richardson.
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  Speaker 1: It reflects an obligation on the executive branch to make
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  Speaker 1: information available, but it does not provide plaintiff with a
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  Speaker 1: right to that information. And without such a particularized right,
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  Speaker 1: plaintiffs cannot, like the plaintiff in Richardson, bring suit. This
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  Speaker 1: conclusion is reinforced by plaintiff's own descriptions of her interest
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  Speaker 1: in the suit, which confirm her attempt to enlist the
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  Speaker 1: judiciary to enforce a general public's interest in compliance with
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  Speaker 1: the law. Plaintiff has never claimed to have specifically sought
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  Speaker 1: the documents at issue for herself prior to bringing the suit. Instead,
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  Speaker 1: plaintiff has stated that she seeks complete truth for survivors
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  Speaker 1: and maximum possible level of transparency. This court appeared to
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  Speaker 1: adopt plaintiff's approach by citing concerns with any potential judicial
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  Speaker 1: redress for victims. And the high level of interest in
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  Speaker 1: the Epstein files combined the upcoming midterm elections, but standing
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  Speaker 1: is not measured by the intensity of litigants' interests. See
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  Speaker 1: National Park Service at 5. And as all these descriptions
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  Speaker 1: make clear, Fang does not seek to vindicate any particularized
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  Speaker 1: right given to her by the EFTA. Instead, she seeks
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  Speaker 1: to vindicate the public's generalized interest in the department's compliance.
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  Speaker 1: That interest does not give rise to Article 3's standing,
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  Speaker 1: nor can plaintiff remove this barrier to standing by asserting
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  Speaker 1: that she would use the information, to which she has
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  Speaker 1: no right, in particular ways to derive specific economic benefits
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  Speaker 1: from it. In this respect, plaintiff is no different from
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  Speaker 1: the plaintiff in Richardson, who also detailed in ways in
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  Speaker 1: which he would have used the information in question. 418 U.S. 176. Indeed,
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  Speaker 1: setting aside the immaterial distinction between constitutional and statutory provision,
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  Speaker 1: the lack of standing here follows from Richardson, because it
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  Speaker 1: was generalized grievance where an individual challenged an agency's failure
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  Speaker 1: to disclose its spending. It is necessarily a generalized grievance
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  Speaker 1: where plaintiff challenges a department's purported failure to disclose foreign
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  Speaker 1: language documents. Thus, plaintiff's speculative claims of potential future economic
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  Speaker 1: harm fail because while not receiving something or other from
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  Speaker 1: the government may cause downstream economic challenges. This is the
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  Speaker 1: kind of uncertain and unspecific prediction of the future harm
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  Speaker 1: that is inadequate to establish Article 3's standing. And plaintiff's
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  Speaker 1: claims of harm rest on this very kind of future uncertainty.
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  Speaker 1: She argues in her complaint that department's actions have hindered
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  Speaker 1: her mission as a journalist. and made it impossible for
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  Speaker 1: her to do her job. In support of this proposition,
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  Speaker 1: Plaintiff points to her YouTube channel, Substack, and other mediums
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  Speaker 1: in which she has published dozens of videos, interviews, and
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  Speaker 1: reports about the Epstein files. And therefore, the department's alleged
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  Speaker 1: lack of compliance with the EFTA has hampered her professional
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  Speaker 1: and economic interests as a journalist. But this alleged harm
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  Speaker 1: is entirely speculative. plaintiff theory appears to be that if
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  Speaker 1: the redactions and foreign language documents contain newsworthy information, she,
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  Speaker 1: along with other interested journalists, will report on those documents,
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  Speaker 1: and in doing so, she may enjoy more professional success
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  Speaker 1: than she otherwise would. That sort of speculative benefit would
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  Speaker 1: exist in virtually every case in which a member of
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  Speaker 1: the media seeks information from the government, and most importantly here,
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  Speaker 1: such speculation and hope for financial gain, based on what
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  Speaker 1: disclosed records might or might not contain. will not suffice
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  Speaker 1: to invoke federal judicial power. Diamond v. Charles, 66, 1986. 2.
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  Speaker 1: Plaintiff's claims fail as a matter of law because she
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  Speaker 1: does not meet the legal standard required to compel agency
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  Speaker 1: action under the MPA. Plaintiffs' arguments seeking to compel the
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  Speaker 1: department to unredact and produce documents, such as foreign language
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  Speaker 1: documents and handwritten notes, as well as those seeking to
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  Speaker 1: compel the department to provide additional information in the Federal Register,
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  Speaker 1: attempt to force the department to do something that plaintiff
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  Speaker 1: believes is required by law. But even to the extent
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  Speaker 1: the APA contemplates actions to compel agency action on lawfully
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  Speaker 1: withheld or unreasonably delayed U.S. Code 5 Section 706.1 plaintiff
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  Speaker 1: cannot meet the high bar to prevail on such a
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  Speaker 1: claim here. In fact, plaintiff did not purport to assert
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  Speaker 1: a claim under Section 706.1 because she cannot meet this
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  Speaker 1: high burden, nor would she have standing to do so.
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  Speaker 1: And plaintiff cannot seek to compel agency under the guise
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  Speaker 1: of a claim purporting to assert that some action is
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  Speaker 1: unlawful and a correspondingly diminished standard of review. The only
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  Speaker 1: agency action that can be compelled under the APA is
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  Speaker 1: action legally required. Norton v. Utah Wilderness Alliance, 2004. This
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  Speaker 1: refers to specific, unequivocal commands about which an official has
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  Speaker 1: no discretion whatsoever. Thus, when an agency is compelled by
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  Speaker 1: law to act within a certain time period, but the
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  Speaker 1: manner of its actions is left to the agency's discretion,
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  Speaker 1: a court can compel the agency to act, but has
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  Speaker 1: no power to specify what the action must be. Idea 65.
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  Speaker 1: One of the principal purposes of this limitation is to
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  Speaker 1: avoid judicial entanglement in abstract policy, disagreements which courts lack
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  Speaker 1: both expertise and information to resolve. If courts were empowered
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  Speaker 1: to enter general orders compelling compliance with broad statutory mandates,
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  Speaker 1: they would necessarily be empowered, as well, to determine whether
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  Speaker 1: compliance was achieved, which would mean that it would ultimately
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  Speaker 1: become the task of the supervising court, rather than the agency,
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  Speaker 1: to work out compliance with a broad statutory mandate, injecting
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  Speaker 1: the judge into day-to-day management. Courts may compel agency action
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  Speaker 1: only if a federal agency has a ministerial or non-discretionary
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  Speaker 1: duty amount to a specific, unequivocal command. Angler's Conservation Network v. Pritzker, D.C., 2016.
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  Speaker 1: This standard reflects the common law writ of mandamus, which
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  Speaker 1: the APA has carried forward in Section 706.1. Angler's 809 F. 3d
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  Speaker 1: at 671. plaintiff cannot satisfy this stringent standard for several reasons.
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  Speaker 1: Alright folks, we're going to wrap up right here, and
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  Speaker 1: in the next episode, we're going to pick up where
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  Speaker 1: we left off. All the information that goes with this
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  Speaker 1: episode can be found in the description box.