Filed January 12, 2015
Because Public Resource has identified and articulated the First Amendment interests at stake and the harms that Plaintiffs threaten, the burden shifts to Plaintiffs to show that their need for the information is compelling, that their requests are narrowly tailored, and that they have no alternative path to obtain the information sought. Am. Fed’n of Labor, 333 F.3d at 176; Perry, 591 F.3d at 1161 (“The request must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be otherwise unavailable.”).
Filed June 6, 2008
AFL-CIO is even more removed: In that case, the Commission had subpoenaed polling data, campaign planning documents, and other strategic 28 Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 36 of 71 information from organizations that had been charged with — but ultimately cleared of — wrongdoing. See 333 F.3d at 171. The D.C. Circuit held that a regulation under which the Commission intended to make the information public after the conclusion of the investigation was constitutionally invalid in light of the organizations’ evidence that “disclosing detailed descriptions of training programs, member mobilization campaigns, polling data, and state-by- state strategies [would] directly frustrate the organizations’ ability to pursue their political goals by revealing to their opponents activities, strategies and tactics.”
Filed June 6, 2008
AFL-CIO is even more removed: In that case, the Commission had subpoenaed polling data, campaign planning documents, and other strategic 28 Case 1:07-cv-02240-RCL-RWR Document 56 Filed 06/06/2008 Page 35 of 70 information from organizations that had been charged with — but ultimately cleared of — wrongdoing. See 333 F.3d at 171. The D.C. Circuit held that a regulation under which the Commission intended to make the information public after the conclusion of the investigation was constitutionally invalid in light of the organizations’ evidence that “disclosing detailed descriptions of training programs, member mobilization campaigns, polling data, and state-by- state strategies [would] directly frustrate the organizations’ ability to pursue their political goals by revealing to their opponents activities, strategies and tactics.”
Filed April 6, 2016
Orgs. v. FEC, 177 F. Supp. 2d 48, 60 (D.D.C. 2001) (striking down FEC’s construction of its regulation that “contradict[ed] the plain language” of the regulation), aff’d, 333 F.3d 168 (D.C. Cir. 2003). The FEC’s interpretation is also inconsistent with the structure of § 110.
Filed October 30, 2015
Courts likewise “do not accord [an agency] deference when its regulations create ‘serious constitutional difficulties.’” AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003). Case 1:15-cv-01590-APM Document 21 Filed 10/30/15 Page 29 of 60 18 ARGUMENT I. THE SECOND SE DIRECTIVE EXCEEDS FDA’S AUTHORITY UNDER THE TOBACCO CONTROL ACT.
Filed September 28, 2015
Accordingly, as several circuits have held, it is unnecessary to show that an association’s members may be subjected to violence, economic reprisals, or harassment, although such evidence, if it exists, “speaks to the strength of the First Amendment issues asserted.” AFL-CIO, 333 F.3d at 176; Perry, 591 F.3d at 1143. Indeed, reprisal is only one of several ways that a chilling effect can be shown.
Filed February 25, 2011
And no deference is due when “regulations create ‘serious constitutional difficulties.’” AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003). Agency action must also be set aside if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Filed May 16, 2008
at 343. In 2003, the D.C. Circuit accepted affidavits from labor organizations stating “that releasing the names of hundreds of volunteers, members, and employees will make it more difficult for the organization to recruit future personnel” against the FEC assertion that this was “specula- tive,” AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003), applied strict scrutiny, id., and stopped release of this (and other) information by striking down an FEC rule requiring public release of all investigation materials upon conclusion of an investigation. Id.
Filed May 5, 2008
In weighing this balance, “an agency must exempt from disclosure the names of and identifying information about private individuals appearing in an agency’s law enforcement files unless that information is necessary to confirm or refute compelling evidence that the agency is engaged in illegal activity.” AFL-CIO v. Fed. Election Comm’n, 177 F. Supp. 2d 48, 61 (D.D.C. 2001) (emphasis in original), aff’d 333 F.3d 168 (D.C. Cir. 2003); see also Mack v. Dept. of Navy, 259 F. Supp. 2d 99, 106 (D.D.C. 2003) (“our court of appeals has categorically held that the names and addresses of private individuals appearing in law enforcement files are exempt from disclosure unless they are necessary to confirm or refute compelling evidence of illegal agency activity”); Schiffer v. FBI, 78 F. 3d 1405, 1410 (9th Cir. 1996) (recognizing “little to no” public interest in disclosure of persons in FBI file where no evidence of FBI wrongdoing). Here, the information withheld by the various components was contained in the official files of these components and consisted of the names of private individuals and Department and other government agency staff as well as other information relating to these individuals such as their addresses (including email addresses), telephone numbers, and cellular phone numbers.
Filed March 24, 2008
Orgs. v. Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 19 of 27 14 Fed. Election Comm’n, 333 F.3d 168, 181 (D.C. Cir. 2003) (Henderson, J., concurring) (citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotations omitted)); Russello v. United States, 464 U.S. 16, 23 (1983) (“We refrain from concluding . . . that the differing language in the two subsections has the same meaning in each.”)