Lawyers' Committee v. Garland ( 2022 )

21-1338-cv
Lawyers’ Committee v. Garland
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2021
ARGUED: JANUARY 21, 2022
DECIDED: AUGUST 5, 2022
No. 21-1338-cv
Lawyers’ Committee for 9/11 Inquiry, Inc., Richard Gage,
Christopher Gioia, Diana Hetzel, Architects & Engineers for 9/11
Truth, Michael O’Kelly, Jeanne Evans, Robert McIlvaine,
Plaintiffs-Appellants,
v.
Merrick B. Garland, Attorney General of the United States, Damian
Williams, United States Attorney for the Southern District of New
York, United States Department of Justice,
Defendants-Appellees. ∗
________
Appeal from the United States District Court
for the Southern District of New York.
________
Before: WALKER, SULLIVAN, and LEE, Circuit Judges.
________
∗
The Clerk of Court is directed to amend the caption as set forth above.
2 No. 21-1338-cv
Plaintiffs submitted a petition to the United States Attorney’s
Office for the Southern District of New York that contained
information related to the September 11, 2001 attacks and requested
that the Office present the petition to a grand jury. Over a year later,
plaintiffs filed this lawsuit, requesting (1) disclosure of grand jury
records related to the petition and (2) a court order compelling
defendants to present their petition to a grand jury if they have not
yet done so. The district court dismissed the lawsuit for lack of
standing and for failure to state a claim. On appeal, plaintiffs
challenge those findings. Because we find no merit to plaintiffs’
challenges, we AFFIRM.
________
MICK G. HARRISON, Bloomington, IN, for Plaintiffs-
Appellants.
ALEXANDER J. HOGAN (Benjamin H. Torrance, on
the brief), Assistant United States Attorneys, for
Damian Williams, United States Attorney for the
Southern District of New York, New York, NY, for
Defendants-Appellees.
________
JOHN M. WALKER, JR., Circuit Judge:
Plaintiffs submitted a petition to the United States Attorney’s
Office for the Southern District of New York that contained
information related to the September 11, 2001 attacks and requested
that the Office present the petition to a grand jury. Over a year later,
plaintiffs filed this lawsuit, requesting (1) disclosure of grand jury
records related to the petition and (2) a court order compelling
defendants to present their petition to a grand jury if they have not
yet done so. The district court dismissed the lawsuit for lack of
standing and for failure to state a claim. On appeal, plaintiffs
3 No. 21-1338-cv
challenge those findings. Because we find no merit to plaintiffs’
challenges, we AFFIRM.
BACKGROUND
Plaintiffs believe that the collapse of the World Trade Center’s
twin towers on September 11, 2001 was caused not by the impact of
terrorist-flown airplanes or burning jet fuel, but by explosives planted
in the basements or lobbies of the towers. And they want a grand jury
to investigate the event under that theory. Plaintiffs include a non-
profit corporation, Lawyers’ Committee for 9/11 Inquiry, Inc., as well
as an architect, his non-profit Architects & Engineers for 9/11 Truth
(“AE”), a firefighter who was involved in the recovery efforts at the
World Trade Center, and family members of those who died because
of the September 11 attacks.
On April 10, 2018, the Lawyers’ Committee delivered to the
United States Attorney’s Office for the Southern District of New York
a “Petition [t]o Report Federal Crimes Concerning 9/11 [t]o Special
Grand Jury or in the Alternative to Grand Jury Pursuant to the United
States Constitution and 18 U.S.C. § 3332(a).” 1 The petition included
“extensive scientific and eye-witness testimony” concerning the
events of September 11. 2 On July 30, the Lawyers’ Committee
delivered its First Amended Petition to the U.S. Attorney’s Office
(“the Petition”) and requested that the U.S. Attorney present the
information contained in the Petition to a special federal grand jury.
On August 30, 2019, the Lawyers’ Committee submitted the same
information to the U.S. State Department’s “Rewards for Justice”
1 Joint App’x 16a.
2 Joint App’x 16a.
4 No. 21-1338-cv
program, which “offers rewards or bounties for information leading
to the arrest of persons engaged in terrorism.” 3
In September 2019, plaintiffs filed this lawsuit in district court
against the U.S. Attorney General and the U.S. Attorney for the
Southern District of New York. Plaintiffs sought to compel
defendants to disclose what information from the Petition, if any, they
have shown to a grand jury (Count 1); they also sought to compel
defendants, if they had not already done so, to present the Petition to
a grand jury, arguing that defendants’ failure to do so was a violation
of the First Amendment (Count 2) and that plaintiffs were entitled to
the above court order pursuant to the Federal Mandamus Statute 4
(Count 3) and the Administrative Procedure Act 5 (“APA”) (Count 4).
On March 24, 2021, the district court (Gardephe, J.) granted
defendants’ motion to dismiss the complaint. The district court held
that plaintiffs did not have standing to compel defendants to present
their Petition to a grand jury and that plaintiffs failed to state a claim
when seeking to force defendants to release information presented to
a grand jury. This appeal followed.
DISCUSSION
On appeal, plaintiffs argue that (1) they have standing to
pursue an order compelling defendants to submit their Petition to a
grand jury and (2) the district court erred in denying their request that
certain grand jury records be released. Neither argument has merit.
3 Joint App’x 32a–33a.
4 28 U.S.C. § 1361.
5 5 U.S.C. §§ 702, 706(1).
5 No. 21-1338-cv
I. Plaintiffs lack standing to seek an order compelling
defendants to submit their Petition to a grand jury.
We review de novo the dismissal of a complaint under Federal
Rule of Civil Procedure 12(b)(1) for lack of standing. 6
A. The Federal Mandamus Statute and the APA
Plaintiffs allege that then-U.S. Attorney Audrey Strauss
unlawfully denied their request to deliver the Petition to a grand jury
in violation of her duty pursuant to 18 U.S.C. § 3332(a). Section
3332(a) states:
It shall be the duty of each such grand jury impaneled
within any such judicial district to inquire into offenses
against the criminal laws of the United States . . . . Such
alleged offenses may be brought to the attention of the
grand jury by the court or by any attorney appearing on
behalf of the United States for the presentation of
evidence. Any such attorney receiving information
concerning such an alleged offense from any other
person shall, if requested by such other person, inform
the grand jury of such alleged offense, the identity of
such other person, and such attorney’s action or
recommendation.
Counts 3 and 4 of the complaint request mandamus relief
pursuant to the Federal Mandamus Statute and to compel agency
action under the APA, respectively. 7 But we need not reach whether
6Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist.
Comm’n, 768 F.3d 183, 191 (2d Cir. 2014).
7 The mandamus statute provides judicial relief to compel an officer of
the United States “to perform a duty owed to a plaintiff,” Binder & Binder
PC v. Barnhart, 399 F.3d 128, 133 (2d Cir. 2005) (quoting 28 U.S.C. § 1361)
(emphasis omitted); the APA similarly empowers a court to “compel
6 No. 21-1338-cv
such provisions provide relief because plaintiffs lack constitutional
standing.
To demonstrate Article III standing, a plaintiff must show that
he suffered an “injury in fact”—“an invasion of a legally protected
interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical.” 8 We have previously held
that a plaintiff lacked standing because he suffered no injury in fact
based on the purported withholding of information from a grand jury
under § 3332(a) by a U.S. Attorney. In Zaleski v. Burns, a petitioner
sought to present allegations to a grand jury pursuant to § 3332(a) that
there existed a conspiracy to deny criminal defendants their
constitutional rights. 9 We noted that, while it was not clear from the
record whether the petitioner made a request to the U.S. Attorney’s
Office to present his information to a grand jury, even if he had done
so, there was no standing given the absence of injury, because
“[w]ithout more, the denial of his § 3332(a) right [was] insufficient”
to confer standing. 10 And as other circuits have held, the denial of
one’s ability to “giv[e] information” to a grand jury is not an injury
for standing purposes. 11 Accordingly, plaintiffs have not alleged an
injury sufficient to support standing based on the U.S. Attorney’s
agency action unlawfully withheld,” Sharkey v. Quarantillo, 541 F.3d 75, 83
(2d Cir. 2008) (quoting 5 U.S.C. § 706(1)).
8 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations
and quotation marks omitted).
9 606 F.3d 51, 52 (2d Cir. 2010) (per curiam).
10 Id.11 Sargeant v. Dixon, 130 F.3d 1067, 1070 (D.C. Cir. 1997) (holding that a
plaintiff lacked standing to enforce § 3332(a) because he failed to identify a
cognizable injury). In addition to the D.C. Circuit, the Eleventh and Third
Circuits have also held that private plaintiffs lack standing to force a
presentation of their evidence to a grand jury under § 3332(a). See Morales
v. U.S. Dist. Ct. for the S. Dist. of Fla., 580 F. App’x 881, 886 (11th Cir. 2014);
Banks v. Buchanan, 336 F. App’x 122, 123–24 (3d Cir. 2009).
7 No. 21-1338-cv
alleged failure to deliver the Petition to a grand jury in violation of
§ 3332(a). 12
Plaintiffs assert various other theories to support standing.
None have merit. To start, they posit that they are injured because
they are unable to get the reward promised by the State Department’s
Rewards for Justice Program: presumably, plaintiffs believe if their
Petition were provided to a grand jury, the jury would return an
indictment and they would then be entitled to the reward for
information leading to the arrest of persons engaged in terrorism. But
“a claimant needs more than an interest in the bounty he will receive
if the suit is successful” to demonstrate standing. 13
Next, plaintiffs contend that the Lawyers’ Committee and AE
have organizational standing. An organization can demonstrate
standing if it shows that a defendant’s actions have caused a “concrete
and demonstrable injury to [its] activities—with the consequent drain
on [its] resources.” 14 The Lawyers’ Committee’s mission is “to
promote transparency and accountability regarding the tragic events
of September 11,” 15 and the mission of AE is to “establish the truth
about the events of” September 11. 16 Plaintiffs argue that if
12 In re Grand Jury Application, 617 F. Supp. 199 (S.D.N.Y. 1985), which
found that § 3332(a) could confer standing on a private party to seek its
enforcement in that case, is a district court opinion not binding on this court
and, in any event, has been subsequently abrogated by Zaleski.
13 Donoghue v. Bulldog Invs. Gen. P’ship, 696 F.3d 170, 178 (2d Cir. 2012)
(internal quotation marks omitted); see also Vermont Agency of Nat. Res. v.
United States, 529 U.S. 765, 772–73 (2000) (noting that the bounty a qui tam
relator would receive if a suit was successful was merely a “byproduct of
the suit itself,” which could not “give rise to a cognizable injury for Article
III standing purposes” (internal quotation marks omitted)).
14 Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
15 Joint App’x 15a.
16 Appellants’ Br. at 47 (internal quotation marks omitted).
8 No. 21-1338-cv
defendants had submitted their Petition to a grand jury, they “would
not have had to expend thousands of hours and tens of thousands of
dollars in on-going investigations and litigation.” 17 But because the
very mission of the plaintiff organizations is to investigate the
September 11 attacks and it is likely that they had completed that
investigation at the time they requested that the evidence be turned
over to the grand jury, they have not identified how defendants
imposed additional costs on that activity. We also recently rejected
plaintiffs’ theory based on litigation costs, noting that “an
organization’s decision to embark on categorically new activities in
response to action by a putative defendant will not ordinarily suffice
to show an injury for standing purposes.” 18 Thus plaintiffs cannot
allege that the money they spent on litigation after submitting their
Petition confers standing.
Finally, plaintiffs cannot demonstrate standing by asserting
that they seek to get the federal government to investigate and
prosecute the crimes alleged in their Petition. It is well settled that “a
private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.” 19 In addition, the “prospect that
prosecution will, at least in the future, result in [what plaintiffs want]
17Appellants’ Br. at 49.
18 Conn. Parents Union v. Russell-Tucker, 8 F.4th 167, 174 (2d Cir. 2021)
(emphasis added).
19 In re Att’y Disciplinary Appeal, 650 F.3d 202, 204 (2d Cir. 2011) (per
curiam) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
9 No. 21-1338-cv
can, at best, be termed only speculative” and thus insufficient to
establish standing. 20
Accordingly, plaintiffs fail to establish standing to pursue an
order compelling defendants to deliver their Petition to a grand jury
under the Federal Mandamus Statute or the APA.
B. First Amendment
Plaintiffs claim, in Count 2 of the complaint, that defendants
violated plaintiffs’ First Amendment right to petition by refusing to
submit their Petition to a grand jury. The district court also dismissed
this claim for lack of constitutional standing. The First Amendment
prevents the government from prohibiting “the right of the
people . . . to petition the government for a redress of grievances.” 21
Plaintiffs contend that they have the right “to have their petition for
redress delivered to the government entity from which they seek
redress.” 22 They argue that “[i]n situations such as here, where
agency officials blatantly obstruct the exercise of First Amendment
rights, the citizen whose right to petition was obstructed will always
have standing to sue to enforce their First Amendment right.” 23
It is not the case, however, that any person who claims a
violation of his constitutional right may pursue a case against the
violator. Rather, he must still demonstrate Article III standing,
including that he suffered an actual injury. 24 Plaintiffs here fail to
establish that they have been constitutionally injured. The “First
Amendment right to petition the Government for a redress of
grievances does not inherently include a right to communicate
20 Linda R.S., 410 U.S. at 618.
21 U.S. Const. amend. I.
22 Joint App’x 41a.
23 Appellants’ Br. at 34.
24 Lewis v. Casey, 518 U.S. 343, 349 (1996).
10 No. 21-1338-cv
directly with the grand jury.” 25 That is so because the presentation of
evidence to a grand jury to initiate a federal prosecution “is an
executive function within the exclusive prerogative of the Attorney
General” and the U.S. Attorneys. 26 These prosecutors have wide
discretion as to how to carry out the prosecutorial function. 27
Therefore, whether evidence is submitted to a grand jury is at the
discretion of the prosecuting attorney. To hold otherwise would
allow every person who submits any information to a U.S. Attorney’s
office the ability to bring an action to force the U.S. Attorney to submit
his materials to a grand jury. “The danger in permitting private
persons to use the grand jury for their own purposes is obvious
enough.” 28 Such an outcome would defeat the role of the U.S.
Attorney as the exclusive source of federal prosecutions.
Unsurprisingly, plaintiffs have identified no caselaw in support of
this result. Moreover, to the extent that plaintiffs assert a general right
to be heard, the Supreme Court has made clear that the First
25Sibley v. Obama, 866 F. Supp. 2d 17, 22 (D.D.C. 2012) (internal citation
and quotation marks omitted), summarily aff’d, No. 12-5198, 2012 WL
6603088 (D.C. Cir. Dec. 6, 2012); see also In re New Haven Grand Jury, 604 F.
Supp. 453, 457 n.8 (D. Conn. 1985) (Cabranes, J.) (“[T]he court simply does
not find in the First Amendment or elsewhere a requirement that direct
access to a grand jury must be provided to a member of the public . . . .”);
Gratton v. Cochran, Nos. 19-5176/5555, 2020 WL 2765775, at *2 (6th Cir. Jan.
2, 2020) (noting that petitioner “fail[ed] to cite any authority supporting a
First Amendment right to present evidence to a grand jury” in a case in
which the petitioner sought to compel an Assistant U.S. Attorney to initiate
a grand jury investigation).
26 In re Persico, 522 F.2d 41, 54 (2d Cir. 1975) (internal quotation marks
omitted).
27 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“In our system, so long
as the prosecutor has probable cause to believe that the accused committed
an offense defined by statute, the decision whether or not to prosecute, and
what charge to file or bring before a grand jury, generally rests entirely in
his discretion.”).
28 In re Persico, 522 F.2d at 58–59.
11 No. 21-1338-cv
Amendment “does not impose any affirmative obligation on the
government to listen [or] to respond” to a citizen’s speech. 29
Plaintiffs’ attempt to analogize their case to Morello v. James 30 is
unavailing. That case concerned the unconstitutional denial of a
prisoner’s right of access to the courts, which is well-established as
grounded in the First Amendment. 31 Franco v. Kelly, 32 another case
upon which they rely, similarly held that a prisoner had a First
Amendment right to submit his complaints to a state administrative
agency. 33 In neither Morello nor Franco, however, did plaintiffs seek
to compel the government entity receiving the complaining
document to do something further. Here, the First Amendment right
was satisfied when plaintiffs presented their Petition to the U.S.
Attorney. The First Amendment does not encompass the right to
force a U.S. Attorney to present whatever materials a member of the
public chooses to a grand jury. Accordingly, plaintiffs have failed to
show a cognizable injury under the First Amendment to establish
standing to pursue Count 2.
II. The district court did not abuse its discretion in refusing
to order the release of any materials that may have been
submitted to a grand jury in connection with the Petition.
The complaint also requested that the district court unseal “all
substantive and ministerial records of any federal grand jury with
which the U.S. Attorney has communicated regarding [p]laintiffs’
[Petitions],” or any subset of those records that the district court
Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465 (1979)
29
(per curiam).
30 810 F.2d 344 (2d Cir. 1987).
31 Id. at 346.
32 854 F.2d 584 (2d Cir. 1988).
33 Id. at 589–90.
12 No. 21-1338-cv
deemed appropriate to disclose 34 In the alternative, plaintiffs
requested the release of “all ministerial records” regarding any grand
jury that had received information related to plaintiffs’ Petitions. 35
The district court denied both requests. A district court’s decision as
to whether disclosure of grand jury materials is appropriate will be
overturned only if the court has abused its discretion. 36
Plaintiffs first argue that they have the right to request
disclosure of any grand jury records pursuant to Federal Rule of
Criminal Procedure 6(e)(3). That rule delineates certain
circumstances when disclosure of grand jury materials is appropriate,
such as at the request of the government, at the request of a criminal
defendant, or “preliminarily to or in connection with a judicial
proceeding.” 37 Because plaintiffs’ requests plainly do not fall into any
of these exceptions, they cannot seek the documents under Rule
6(e)(3).
Plaintiffs nevertheless rely upon prior cases in which this court
“has recognized that there are certain special circumstances in which
release of grand jury records is appropriate even outside of the
boundaries of [Rule 6(e)].” 38 To determine whether such “special
circumstances” exist courts consider a non-exhaustive list of factors,
including:
(i) the identity of the party seeking disclosure; (ii)
whether the defendant to the grand jury proceeding or
the government opposes the disclosure; (iii) why
disclosure is being sought in the particular case; (iv) what
Joint App’x 36a.
34
Joint App’x 37a.
35
36 In re Grand Jury Subpoena, 103 F.3d 234, 239 (2d Cir. 1996).
37 Fed. R. Crim. P. 6(e)(3)(E).
38 In re Petition of Craig, 131 F.3d 99, 103 (2d Cir. 1997) (internal quotation
marks omitted).
13 No. 21-1338-cv
specific information is being sought for disclosure; (v)
how long ago the grand jury proceedings took place; (vi)
the current status of the principals of the grand jury
proceedings and that of their families; (vii) the extent to
which the desired material—either permissibly or
impermissibly—has been previously made public; (viii)
whether witnesses to the grand jury proceedings who
might be affected by disclosure are still alive; and (ix) the
additional need for maintaining secrecy in the particular
case in question. 39
The burden is on the requester to demonstrate that disclosure is
appropriate, and “the baseline presumption [is] against disclosure.” 40
The district court did not abuse its discretion in finding that
these factors weighed against disclosure here. First, “the
government’s position should be paid considerable heed,” 41 and the
government opposes release here. Next, the timing of the requests
weighs in favor of non-disclosure. “[T]he continued existence and
vulnerability of” the “principal parties involved in the investigations,
as well as that of their immediate families,” is a “factor that a court
should consider.” 42 Here, a significant number of people involved in
or related to someone involved in the September 11 attacks are still
alive, and, as the events occurred just twenty years ago, it is likely that
witnesses are still alive, too. 43 In this case, therefore, secrecy is still a
concern. “[T]he passage of time erodes many of the justifications for
39Id. at 106.
40Id. at 104; see also Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218
(1979) (noting that “the proper functioning of our grand jury system
depends upon the secrecy of grand jury proceedings”).
41 In re Petition of Craig, 131 F.3d at 106.
42 Id. at 107.
43 Id. (noting that a district court did not abuse its discretion in declining
to disclose grand jury records involving witnesses who were still alive).
14 No. 21-1338-cv
continued secrecy,” 44 but the passage of time in this case is not so
extended as to weigh in favor of releasing any records. Moreover, the
fact that plaintiffs are not a party to the grand jury proceeding weighs
against disclosure. 45 Finally, “the extent to which the grand jury
material in a particular case has been made public is clearly relevant
because even partial previous disclosure often undercuts many of the
reasons for secrecy.” 46 Here, the materials desired by plaintiffs
(showing whether a grand jury proceeding has been convened and, if
so, what has transpired) have never been made public, further
weighing against disclosure. 47 In sum, the district court’s finding that
no special circumstances existed to justify the disclosure of the
requested records was well within its discretion.
Plaintiffs argue lastly that “the law should make a distinction
between ministerial records and records of substantive grand jury
proceedings in terms of [the level of] secrecy” required, and that the
records they request are ministerial. 48 The Ninth Circuit has adopted
a more relaxed disclosure rule for what it termed as “ministerial”
grand jury materials, including orders authorizing the extension of a
grand jury, roll sheets reflecting composition and attendance of a
grand jury, and the manner in which a grand jury was empaneled. 49
Id.44
45Accordingly, contrary to plaintiffs’ argument, the disclosure that
plaintiffs asked for is different in kind from the disclosure allowed under
Rule 6(e) for the release of grand jury witnesses’ own testimony.
46 In re Petition of Craig, 131 F.3d at 107.
47 Plaintiffs obviously are not just requesting that the U.S. Attorney give
back to them the Petition that they themselves sent in, the contents of which
they are clearly familiar with, and which plaintiffs have already publicly
posted. Appellants’ Reply Br. at 18.
48 Appellants’ Br. at 52–53.
49 In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778, 781–82 (9th
Cir. 1982).
15 No. 21-1338-cv
This court has not recognized such a ministerial-record exception to
the rules surrounding disclosure of grand jury materials.50
We need not decide here whether there can ever be a relaxed
standard under which courts evaluate whether to disclose
“ministerial” grand jury records because it is clear that what plaintiffs
have requested here is not in any sense “ministerial.” We have
previously found that “[t]he plain language of [Fed. R. Crim. P. 6(e)]
shows that Congress intended for its confidentiality provisions to
cover matters beyond those actually occurring before the grand jury:
Rule 6(e)(6) provides that all records, orders, and subpoenas relating
to grand jury proceedings be sealed, not only actual grand jury
materials; similarly, Rule 6(e)(5) refers to matters affecting a grand jury
proceeding, not simply the proceedings themselves.” 51 Plaintiffs here
request “records showing whether [their] Petition was submitted to
the grand jury, or not.” 52 But the evidence presented to a grand jury
is one of the most substantive aspects of a grand jury proceeding. 53
Whether a grand jury is convened and, if so, what it has seen, certainly
“relat[e] to” grand jury proceedings and thus are not subject to
disclosure. 54 Plaintiffs are therefore not entitled to the information
they request. If the court were to find otherwise, any private person
submitting evidence to a U.S. Attorney’s Office hoping for a grand
jury investigation could demand updates on the progress of the
Office’s investigation and decision on whether to convene a grand
50See, e.g., United States v. Chambers, No. 3:18-cr-00079, 2019 WL 1014850,
at *2 (D. Conn. Mar. 4, 2019).
51 In re Grand Jury Subpoena, 103 F.3d at 237.
52 Appellants’ Br. at 27.
53 See In re Grand Jury Subpoena, 103 F.3d at 239 (noting that when
“disclosure of the confidential information might disclose matters occurring
before the grand jury, the information should be protected by Rule 6(e)”
(emphasis added)).
54 Id. at 237.
16 No. 21-1338-cv
jury. There is no support for such a result in any statute or the
caselaw.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.