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The DOJ Moves To Dismiss The Epstein Related Lawsuit Filed By New Mexico (Part 2) (10/18/26) · The Vault: The Epstein Files

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  Speaker 1: What's up everyone and welcome to another episode of the
• 0:03
  Speaker 1: Epstein Chronicles. In this episode, we're going to pick up
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  Speaker 1: where he left off with the DOJ and their move
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  Speaker 1: to dismiss the lawsuit brought against them by New Mexico.
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  Speaker 1: Legal Standard Under Rule 12b-1, the plaintiff bears the burden
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  Speaker 1: of establishing the court's subject matter jurisdiction. If the plaintiff
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  Speaker 1: is unable to do so, the court must dismiss the action.
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  Speaker 1: Under Rule 12b-1 motion, a court may consider material beyond
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  Speaker 1: the allegations in the complaint. Jerome Stevens, Pharmacy, D.C. Circuit, 2005.
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  Speaker 1: Where both standing and the subject matter jurisdiction are at issue,
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  Speaker 1: the court may inquire into either and find it lacking,
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  Speaker 1: dismiss the matter without reaching the other. Moms Against Mercury vs. FDA, D.C. Circuit, 2007.
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  Speaker 1: When a defendant files a motion to dismiss a complaint,
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  Speaker 1: For lack of subject matter jurisdiction, the plaintiff bears the
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  Speaker 1: burden of establishing jurisdiction by a preponderance of the evidence.
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  Speaker 1: In considering a motion to dismiss for lack of subject
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  Speaker 1: matter jurisdiction under Rule 12b-1, the court is not confined
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  Speaker 1: to the letter of the complaint and may consider such
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  Speaker 1: material outside the pleadings as it deems appropriate to resolve
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  Speaker 1: the question of whether it has jurisdiction to hear the case.
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  Speaker 1: Scalero v. District of Columbia Elections and Ethics DDC 2000.
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  Speaker 1: This is tied to the court's independent duty to assure
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  Speaker 1: itself that the petitioners and their claims satisfy the requirements
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  Speaker 1: of Article 3. Summary judgment is appropriate when the pleading
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  Speaker 1: and evidence show that there is no genuine dispute as
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  Speaker 1: to any material fact and the movement is entitled to
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  Speaker 1: judgment as a matter of law. A genuine issue of
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  Speaker 1: material fact is one that might affect the outcome of
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  Speaker 1: the suit under the governing law. The party seeking summary
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  Speaker 1: judgment must demonstrate the absence of a genuine issue of
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  Speaker 1: material fact. Once the moving party has met its burden,
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  Speaker 1: the non-moving party may not rest upon the mere allegations
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  Speaker 1: of denial of their pleading, but must instead establish more
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  Speaker 1: than a mere existence of a chantilla of evidence in
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  Speaker 1: support of their position. Thus, summary judgment is appropriate if
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  Speaker 1: the non-moving party fails to offer evidence on which the
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  Speaker 1: jury could reasonably find for the non-moving. When determining whether
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  Speaker 1: a genuine issue of material fact exists, the trier of
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  Speaker 1: fact must view all the facts and reasonable inferences drawn
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  Speaker 1: therefrom in the light most favorable to the non-moving party. Argument.
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  Speaker 1: The court should dismiss New Mexico's complaint. The court cannot
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  Speaker 1: consider New Mexico's claims because the decision to deny New
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  Speaker 1: Mexico's TUI request is committed to agency discretion by law.
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  Speaker 1: In the alternative, should the court turn to the merits,
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  Speaker 1: which it should not, It should grant summary judgment in
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  Speaker 1: DOJ's favor because New Mexico's complaint shows DOJ properly considered
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  Speaker 1: and rejected the request under its TUI regulations. Finally, the
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  Speaker 1: court should reject New Mexico's alternative argument that DOJ has
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  Speaker 1: unlawfully withheld acting for the same reasons. 1. The court
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  Speaker 1: should dismiss New Mexico's complaint under Rule 12b-1 because denying
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  Speaker 1: New Mexico's TUI request is committed to agency discretion by law.
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  Speaker 1: Although the APA creates a strong presumption of favoring judicial
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  Speaker 1: review of administrative action, it explicitly excludes from judicial review
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  Speaker 1: those agency actions that are committed to agency discretion by law. U.S.
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  Speaker 1: Code 5, Section 701A2. Action is committed to agency discretion
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  Speaker 1: if the statute is drawn so that a court would
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  Speaker 1: have no meaningful standard against which to judge the agency's
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  Speaker 1: exercise of discretion. To determine whether a matter has been
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  Speaker 1: committed solely to agency discretion, courts consider both the nature
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  Speaker 1: of the administrative action at issue and the language and
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  Speaker 1: structure of the statute that supplies the applicable legal standards
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  Speaker 1: for reviewing the actions. Here, DOJ's TUI Regulations, the Privacy Act,
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  Speaker 1: and the EFTA all show DOJ's denial of the TUI
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  Speaker 1: request is committed to agency discretion. A. DOJ's TUI Regulations
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  Speaker 1: commit New Mexico's TUI request to agency discretion here. DOJ's
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  Speaker 1: TUI regulations reflect that, absent an underlying criminal proceeding, decisions
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  Speaker 1: about law enforcement information sharing are committed to the agency's discretion.
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  Speaker 1: The regulations are triggered by a request for official information
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  Speaker 1: out of federal and state proceedings. A proceeding includes all
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  Speaker 1: acts and events between the time and the commencement of
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  Speaker 1: of a lawsuit and the entry of a judgment. Here,
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  Speaker 1: New Mexico seeks unredacted Epstein files to investigate potential felony
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  Speaker 1: offenses under New Mexico's criminal code. But an investigation is
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  Speaker 1: distinct from a proceeding. New Mexico's investigation is not a
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  Speaker 1: proceeding because it occurs before the commencement of a lawsuit.
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  Speaker 1: The distinction has teeth. In the administrative context, the D.C.
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  Speaker 1: Circuit has held for an investigation to be considered a
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  Speaker 1: proceeding The action must be more than a mere police investigation.
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  Speaker 1: United States v. Kelly, D.C. Circuit, 1994. Crucial to the D.C.
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  Speaker 1: Circuit's analysis was that proceeding necessarily exercises coercive power, usually
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  Speaker 1: by issuing subpoenas or warrants, neither of which have been
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  Speaker 1: properly issued here, as there is no criminal proceeding. See
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  Speaker 1: also Watts, S.E.C., D.C. Circuit, 2007. Explaining subpoenas are normally
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  Speaker 1: the proper mechanism for requesting agency information in a civil
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  Speaker 1: or criminal case. The Ninth Circuit has similarly opined that
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  Speaker 1: the term official proceeding, as defined in U.S. Code 18,
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  Speaker 1: Section 1512C, tampering with a witness, victim, or an informant,
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  Speaker 1: does not include an FBI investigation because its plain meaning
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  Speaker 1: in broader statutory context pointed to a more narrow decision.
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  Speaker 1: Same here. DOJ's TUI regulation apply in proceedings in which
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  Speaker 1: the United States is not a party. They further specify
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  Speaker 1: DOJ may share information outside the formal administrative process, ID
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  Speaker 1: section 1621.c. These distinctions connote that proceeding as used in
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  Speaker 1: DOJ's TUI regulation means formal judicial proceedings, not criminal investigations. Accordingly,
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  Speaker 1: DOJ's TUI regulation are not implicated here in the first instance. Nevertheless,
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  Speaker 1: the TUI regulations permit appropriate disclosure to state law enforcement
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  Speaker 1: even in the absence of a formal proceeding. CFR 28
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  Speaker 1: Section 1621C What qualifies as appropriate, however, lies solely within
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  Speaker 1: DOJ's discretion, as the term appropriate clearly denotes discretion. New
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  Speaker 1: Mexico likewise acknowledges that disclosure under this provision is voluntary.
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  Speaker 1: The APA cannot compel voluntary action It authorizes courts to
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  Speaker 1: require agency action that is legally required. New Mexico, therefore,
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  Speaker 1: cannot use the APA to compel the DOJ to exercise
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  Speaker 1: a disclosure authority that the regulations make purely discretionary. New
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  Speaker 1: Mexico's cases support this conclusion in the wider law enforcement
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  Speaker 1: information sharing context. In ACI, Construction LLC v. U.S., the
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  Speaker 1: court opined the executive branch has the authority to implement
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  Speaker 1: and enforce obligations relating to to intergovernment authorities, and the
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  Speaker 1: court cannot add requirements that neither the Constitution nor Congress
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  Speaker 1: have required. At best, New Mexico's complaint alleges DOJ may
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  Speaker 1: exercise its discretion to grant the TUI request, but it
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  Speaker 1: ignores that arguments corollary that DOJ may use the discretion
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  Speaker 1: to deny the request. Thus, New Mexico cannot invoke the
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  Speaker 1: APA to force DOJ to exercise a discretionary disclosure authority. B.
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  Speaker 1: Neither the Privacy Act nor the EFTA contain manageable standards
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  Speaker 1: by which to judge DOJ's use of discretion. The Privacy
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  Speaker 1: Act and the EFTA confirm that New Mexico's TUI request
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  Speaker 1: is committed to agency discretion by law. Start with the
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  Speaker 1: Privacy Act. It prohibits disclosing records without the written permission
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  Speaker 1: of the individual to whom the record pertains subject to
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  Speaker 1: certain exceptions. It contains no language mandating disclosure should an
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  Speaker 1: exception apply or Office of Monetary Budget, OMB, regulations separately
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  Speaker 1: state that the Privacy Act's exceptions permit but do not
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  Speaker 1: mandate disclosure, thus giving agencies discretion when considering a request.
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  Speaker 1: This discretion extends to New Mexico's identified exception, information sharing
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  Speaker 1: between law enforcement agencies. The Privacy Act grant of discretion
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  Speaker 1: permitting but not mandating disclosure means the Act does not
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  Speaker 1: contain meaningful standards by which to judge, DOJ's decision to
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  Speaker 1: refuse New Mexico's to a request. New Mexico's argument that
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  Speaker 1: the Privacy Act allows for routine uses does not change
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  Speaker 1: this analysis. New Mexico identified routine allow officials to use
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  Speaker 1: their discretion when disclosing certain material, but they do not
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  Speaker 1: mandate disclosure. See Privacy Act of 1974, Systems of Records,
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  Speaker 1: 52 Federal Regulation, Dissemination of any record may be made
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  Speaker 1: to State Agency. Emphasis added, Privacy Act of 1974. Thus,
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  Speaker 1: the Privacy Act contains no mechanisms by which to judge
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  Speaker 1: DOJ's use of discretion. Move on to the EFTA, which
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  Speaker 1: similarly does not contain any manageable standards. First, it does
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  Speaker 1: not contemplate information sharing for law enforcement purposes. Second, though
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  Speaker 1: the EFTA required DOJ to produce documentation relating to Epstein
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  Speaker 1: and Maxwell, It simultaneously granted DOJ discretion to redact material
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  Speaker 1: so long as redactions were accompanied by a written judgment.
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  Speaker 1: or a summary and were not withheld to prevent embarrassment,
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  Speaker 1: reputational harm, or political sensitivity to any government official, public figure,
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  Speaker 1: or foreign dignitary. The Attorney General may withhold or redact
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  Speaker 1: several portions of records. Third, the AFTA included two public
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  Speaker 1: reporting requirements upon completion of the process. First, the Attorney
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  Speaker 1: General was required within 14 days of completion 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, including legal basis. Second,
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  Speaker 1: he was required to publish a notice in the Federal Register,
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  Speaker 1: which he did on August 2, 2026, report under public law.
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  Speaker 1: Courts have held similar language creates an exclusive retention of
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  Speaker 1: a remedy vested solely in Congress. see Armstrong v. Exceptional
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  Speaker 1: Child Centers, 2015, that Representatives Merkley and Lujan have introduced
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  Speaker 1: a second Epstein Files Transparency Act to give states standing
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  Speaker 1: to sue for the release of the Epstein Files, reinforces
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  Speaker 1: the argument that the EFTA limited any remedy exclusively to Congress.
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  Speaker 1: The grant of agency discretion, along with the implicit exclusive
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  Speaker 1: remedy show that Congress did not intend to limit DOJ's
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  Speaker 1: discretion when considering a request for unredacted Epstein files. In sum,
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  Speaker 1: New Mexico's APA claims fail since the decision to grant
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  Speaker 1: or withhold information in the absence of a proceeding is
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  Speaker 1: committed to agency discretion by law. All right, we're going
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  Speaker 1: to wrap up right here, and in the next episode,
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  Speaker 1: we're going to pick up with part two. All the
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  Speaker 1: information that goes with this episode can be found in
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  Speaker 1: the description box.