Latest / Beyond The Horizon / DOJ Moves to End Katie Phang’s Epstein Files Lawsuit (Part 2) (10/5/26)

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DOJ Moves to End Katie Phang’s Epstein Files Lawsuit (Part 2) (10/5/26) · Beyond The Horizon

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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 we left off with the memo filed by Todd
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  Speaker 1: Blanche in support of his argument in the lawsuit against
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  Speaker 1: Katie Blanche. Argument 1. Plaintiff lacks authority to demand the
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  Speaker 1: relief she seeks under the EFTA. Plaintiff cannot privately enforce
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  Speaker 1: the EFTA. She lacks Article 3 standing and she certainly
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  Speaker 1: lacks a cause of action, indeed of a private right
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  Speaker 1: of action, clear absence from the plain statutory text were
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  Speaker 1: not evidence enough, the fact that Congress is considering amending
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  Speaker 1: the EFTA specifically to add the private right of action
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  Speaker 1: surely provides the missing link. A. The EFTA does not
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  Speaker 1: provide plaintiff with a private right of action. Congress did
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  Speaker 1: not provide a private right of action to enforce the
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  Speaker 1: EFTA in the EFTA itself or via any other statute,
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  Speaker 1: and the EFTA's various accountability mechanisms requiring congressional reporting and
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  Speaker 1: publication in the Federal Register, strongly suggests that Congress did
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  Speaker 1: not intend to enable every private citizen to supervise the
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  Speaker 1: Department's compliance. For these reasons, the APA does not provide
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  Speaker 1: private citizens with a right to enforce the EFTA themselves.
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  Speaker 1: Under U.S. Code 5, Section 701A1, the APA does not
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  Speaker 1: apply when statutes preclude judicial review, when a statutory scheme
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  Speaker 1: omits a right to review, and when there is good
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  Speaker 1: reason to think that omission is is not an uninformative
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  Speaker 1: consequence of the limited scope of the statute, but rather
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  Speaker 1: a manifestation of a considered congressional judgment, the omission means
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  Speaker 1: that Congress, deliberately intended to foreclose, review such claims. The
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  Speaker 1: EFTA's express language, the structure of the statutory scheme, its objectives,
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  Speaker 1: its legislative history, and the nature of the administrative action
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  Speaker 1: involved all support the conclusion that this statutory scheme precludes
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  Speaker 1: judicial review. As a general matter, FOIA serves as a
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  Speaker 1: vehicle for citizens who want to know what their government
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  Speaker 1: is up to. But the EFTA omits any private right
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  Speaker 1: of action while including other accountability and transparency measures, such
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  Speaker 1: as reporting to Congress and in the Federal Register. This
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  Speaker 1: comprehensive scheme indicates that the omission of a private right
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  Speaker 1: of action was intentional. When enacting the EFTA, Congress legislated
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  Speaker 1: against the backdrop of of the detailed system of FOIA,
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  Speaker 1: which provides private litigants with the ability to secure judiciously
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  Speaker 1: compelled access to records. The EFTA, by contrast, imposed additional
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  Speaker 1: public disclosure duties on the department while layering congressional and
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  Speaker 1: federal oversight reporting requirements, which suggests that Congress sought to
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  Speaker 1: expand the department's disclosure obligations without expanding the ability of
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  Speaker 1: private litigants to enforce such obligations. In other words, Congress
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  Speaker 1: carefully considered disclosure in this context, and the intentional omission
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  Speaker 1: of a right of action in this specialized scheme therefore
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  Speaker 1: precludes judicial review of plaintiffs' claims. Allowing private judicial enforcement
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  Speaker 1: would be a significant policy decision that fundamentally alters the
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  Speaker 1: relationship between private parties, the courts, and the executive branch
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  Speaker 1: when it comes to disclosure. Congress, after all, does not
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  Speaker 1: hide elephants in mouseholes. But even if the EFTA and
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  Speaker 1: the FOIA could not be read together to affirmatively foreclose
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  Speaker 1: any judicial review, the APA is still not the source
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  Speaker 1: of plaintiff's right of action here. Under U.S. Code 5,
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  Speaker 1: Section 704, Judicial Review, under the APA is available only
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  Speaker 1: as to final agency action for which there is no
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  Speaker 1: other adequate remedy in accord. This limitation reflects Congress' judgment
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  Speaker 1: that the general grant of review in the APA ought
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  Speaker 1: not to be duplicate existing procedure for review of agency
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  Speaker 1: action or provide additional judicial remedies in situations where Congress
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  Speaker 1: has provided special and adequate review procedure. Here, the Freedom
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  Speaker 1: of Information Act provides FANG adequate remedy, as Congress was
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  Speaker 1: well aware when it admitted a right of action from
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  Speaker 1: the EFTA. See Private Info Center v. IRS, D.C. Circuit 2018, concluding,
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  Speaker 1: in a variety of circumstances, that the FOIA offers an
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  Speaker 1: adequate remedy within the meaning of the APA. Indeed, the
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  Speaker 1: courts have held time and time again that FOIA is
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  Speaker 1: the exclusive remedy for obtaining purportedly improperly withheld agency records,
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  Speaker 1: citing Johnson v. Executive Office for U.S. Attorneys, D.C. Circuit, 2002,
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  Speaker 1: concluding that FOIA provides an adequate remedy such that review
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  Speaker 1: under the APA is barred. See Harvey v. Lynch, DDC, 2015.
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  Speaker 1: Courts in this circuit have uniformly concluded that they lack
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  Speaker 1: jurisdiction over APA claims that seek remedies available under FOIA,
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  Speaker 1: Shavara v. Imaging and Immigration and Customs Enforcement, JEB, 2018, DDC,
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  Speaker 1: October 2, 2018. Internal citations and quotations omitted. There is
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  Speaker 1: little doubt that the FOIA offers an adequate remedy within
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  Speaker 1: the meaning of Section 704. When litigants seek to gain
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  Speaker 1: access to records. Alterations in original. Greenpeace versus the Department
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  Speaker 1: of Homeland Security, DDC 2018. Dismissing APA claim for failure
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  Speaker 1: to state a claim because FOIA offers an adequate remedy.
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  Speaker 1: Cause of Action Institute versus Eggleston, DDC 2016. Courts in
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  Speaker 1: this circuit have uniformly declined jurisdiction over APA claims that
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  Speaker 1: sought remedies made available by FOIA. At the prelim injunction stage,
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  Speaker 1: the court held otherwise based on its conclusion that plaintiff
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  Speaker 1: likely would not be able to obtain the unredacted documents
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  Speaker 1: she seeks because they would likely be subject to FOIA
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  Speaker 1: exemptions on disclosure, ECF No. 16 at 30. According to
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  Speaker 1: the court, the EFTA mandates broad disclosure that would be
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  Speaker 1: exempted under FOIA. So FOIA is not an adequate remedy. Respectfully,
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  Speaker 1: that rationale misunderstands what courts as an adequate remedy. Instead,
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  Speaker 1: Chief Judge Boasberg has rejected this exact sort of reasoning.
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  Speaker 1: It does not matter that FOIA exemptions might apply because
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  Speaker 1: it's well settled that the alternate remedy must be only
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  Speaker 1: of the same genre. It need not be identical. See
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  Speaker 1: also Rio, Santa Cruz Neighborhood, Health Center vs. U.S. Department
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  Speaker 1: of Health and Human Services. DDC Circuit 2005. The relevant
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  Speaker 1: genre here is easy to identify. The disclosure of documents, ID,
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  Speaker 1: that is what plaintiff seeks and that is what FOIA provides,
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  Speaker 1: even if plaintiff is not entitled to disclosure under FOIA.
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  Speaker 1: Simply put, the possibility that plaintiff, might fair worse, under FOIA,
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  Speaker 1: does not entitle her to bring a claim under the APA.
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  Speaker 1: First is demonstrated through the ex parte in camera production.
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  Speaker 1: Plaintiff cannot obtain the information she seeks because it's protected.
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  Speaker 1: Victim identifying information or otherwise prohibited from disclosure. The fact
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  Speaker 1: that the EFTA is a disclosure law makes no difference.
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  Speaker 1: Because the EFTA lacks a cause of action, plaintiff must
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  Speaker 1: find one somewhere. She cannot do so in the APA
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  Speaker 1: because FOIA itself strikes the balance between statutory duties and
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  Speaker 1: judicial enforcement that Congress desired. That congressional choice is especially
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  Speaker 1: stark here. Congress created all sorts of accountability mechanisms in
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  Speaker 1: the EFTA, but did not include a private right of action. Indeed,
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  Speaker 1: on July 15, 2026, in response to allegations that the
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  Speaker 1: department has not fulfilled its obligation under the EFTA, Representative Massey, Khanna,
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  Speaker 1: and Leger-Fernandez introduced a proposed bill called the Epstein-Files Transparency
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  Speaker 1: Act II. The proposed EFTA II would amend the EFTA
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  Speaker 1: to authorized state and local government officials and victims to
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  Speaker 1: bring action against the Attorney General of the U.S. alleging
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  Speaker 1: an unlawful withholding, redaction, delay, removal, concealment, failure to publish,
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  Speaker 1: failure to produce, or failure to justify a withholding or
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  Speaker 1: redaction of a record, document, communication, or investigative material described
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  Speaker 1: in Section 2A of the EFTA. ID Section 4A1. A
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  Speaker 1: victim alleging an unlawful withholding, redaction, delay, removal, concealment, failure
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  Speaker 1: to produce, failure to respond, or failure to justify a
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  Speaker 1: withholding or redaction of a record required to be provided
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  Speaker 1: shall have standing to bring an action in the United
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  Speaker 1: States District Court, for the District Court of Columbia, or
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  Speaker 1: in any United States District Court located in the state
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  Speaker 1: in which the victim resides. ID at Section 4B3A. The
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  Speaker 1: press release describing the EFTA to indicates that the primary
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  Speaker 1: purpose of the proposal is to create a private right
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  Speaker 1: of action. In other words, Congress is considering enacting an
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  Speaker 1: EFTA II that would make the EFTA privately enforceable. There
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  Speaker 1: would be no need for such a consideration if private
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  Speaker 1: parties could simply enforce the EFTA through the APA, and
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  Speaker 1: Congress has not enacted EFTA II. That strongly suggests that
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  Speaker 1: the EFTA is not privately enforceable. Ignoring the congressional choice
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  Speaker 1: would have problematic consequences. If others took the same erroneous approach,
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  Speaker 1: they would soon be flooded with piecemeal litigation over an
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  Speaker 1: untold number of files in the library, while disincentivizing Congress
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  Speaker 1: from acting to address any lingering concerns. As in other instances,
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  Speaker 1: the better approach for members of Congress to view the
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  Speaker 1: unredacted material and engage with the department, which would respond accordingly,
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  Speaker 1: the productive exchange would better serve B. Plaintiff lacks Article
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  Speaker 1: III standing because she has no individualized or particularized injury
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  Speaker 1: differentiating her from any member of the general public. plaintiff
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  Speaker 1: has not asserted, nor can she assert, a particularized injury
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  Speaker 1: that differentiates her from the general public. The law of
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  Speaker 1: Article III standing is built on a single basic idea,
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  Speaker 1: the idea of separation of powers, TransUnion LLC v. Ramirez 595, 2021.
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  Speaker 1: Under Article II, federal courts do not adjudicate hypothetical or
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  Speaker 1: abstract disputes and do not exercise general or legal oversight
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  Speaker 1: of the legislative and executive branches. and courts may not
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  Speaker 1: exceed the bounds of their lawful authority simply because they
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  Speaker 1: may think another branch has exceeded its own. Instead, to
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  Speaker 1: establish standing, a plaintiff must prove 1. that it suffered
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  Speaker 1: an injury in fact, an invasion of a legally protected interest,
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  Speaker 1: which is a. concrete and particularized, and b. actual or imminent,
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  Speaker 1: not conjectural or hypothetical. 2. The injury is fairly traceable
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  Speaker 1: to the challenged action of the defendant, and not the
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  Speaker 1: result of the independent action of some third party not
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  Speaker 1: before the court. And three, that it's likely as opposed
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  Speaker 1: to merely speculative that the injury will be redressed by
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  Speaker 1: a favorable decision. Plaintiff seeks to enforce the statutory obligation
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  Speaker 1: to make certain information publicly available, but Congress has not
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  Speaker 1: provided plaintiff with any particularized right to the information in question. Instead,
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  Speaker 1: Congress has purported to create a general obligation to which
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  Speaker 1: the executive branch must adhere. plaintiff's suit thus impermissibly advances
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  Speaker 1: a generalized grievance that the government is not complying with
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  Speaker 1: the law. As the Supreme Court has explained to satisfy
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  Speaker 1: Article 3, a plaintiff must identify a particularized injury as
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  Speaker 1: contrasted with a generalized grievance that is undifferentiated and common
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  Speaker 1: to all members of the public. The requirement of a
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  Speaker 1: particularized injury ensures that courts remain limited to carrying out
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  Speaker 1: their proper constitutional functions. That requirement is especially important because
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  Speaker 1: vindicating the public interest, including the public interest in government
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  Speaker 1: observance of the law, is the function of Congress and
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  Speaker 1: the chief executive, not the function of private litigants seeking
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  Speaker 1: recourse in the courts and thereby usurping the prerogative of
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  Speaker 1: political branches to work out any disagreement in this area
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  Speaker 1: among themselves. Thus the generalized interest in the government following
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  Speaker 1: the law is an abstract injury that does not give
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  Speaker 1: rise to Article 3, Schlesinger vs. Reservists to Stop the War, 1974,
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  Speaker 1: explaining that it would violate Article 3 if, in the
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  Speaker 1: absence of any showing of concrete injury, courts were to
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  Speaker 1: entertain citizen suits to vindicate the public non-concrete interest in
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  Speaker 1: the proper administration of the laws. Time and time again,
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  Speaker 1: the Supreme Court has rejected the idea that generalized citizen
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  Speaker 1: interest is a sufficient basis for standing. For example, in Richardson,
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  Speaker 1: the plaintiff sought to enforce a provision of the Appropriations Clause,
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  Speaker 1: requiring that a regular statement, an account of receipts, and
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  Speaker 1: expenditures of all public money shall be published from time
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  Speaker 1: to time. The plaintiff contended that the Central Intelligence Agency
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  Speaker 1: was violating this provision by failing to provide adequate public disclosures,
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  Speaker 1: and that a statute authorizing the agency's more limited disclosures
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  Speaker 1: was unconstitutional. The Supreme Court held that the plaintiff lacked standing.
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  Speaker 1: At the outset, the court held that the plaintiff asserted
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  Speaker 1: injuries failed to meet the standards for taxpayers standing set
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  Speaker 1: forth in Flast and Cohen, 392 U.S. 83, Richardson, 418 U.S.
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  Speaker 1: at 175. Then, and more relevant here, the court turned
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  Speaker 1: to the plaintiff's contention that he had a personal stake
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  Speaker 1: in the case giving rise to a standing because his
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  Speaker 1: inability to obtain the information impaired his efforts to follow
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  Speaker 1: the actions of Congress and the Executives. end to properly
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  Speaker 1: fulfill his obligation as a member of the electorate in
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  Speaker 1: voting for candidates. As to the claimed injury, the court
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  Speaker 1: concluded that the plaintiff's suit reflected the kind of generalized
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  Speaker 1: grievance that does not satisfy Article III requirements because the
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  Speaker 1: impact on the plaintiff is plainly undifferentiated and common to
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  Speaker 1: all members of the public. And if that was true,
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  Speaker 1: the court concluded, even though the specific plaintiff had a
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  Speaker 1: genuine interest in the federal government spending, Idea 177 Indeed,
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  Speaker 1: had explained how he intended to use the specific information
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  Speaker 1: that he sought. ID at 176. 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: dealing with the topic, we're going to pick up where
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  Speaker 1: we left off. All the information that goes with this
• 14:52
  Speaker 1: episode can be found in the description box.