AMENDED PER ORDER FILED NOVEMBER 3, 2005
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed November 2, 2005
No. 04-5301
WEN HO LEE,
APPELLEE
v.
DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
JEFF GERTH,
APPELLANT
Consolidated with
04-5302, 04-5321, 04-5322, 04-5323
Appeals from the United States District Court
for the District of Columbia
(No. 99cv03380)
On Petitions for Rehearing En Banc
______
Before: GINSBURG, Chief Judge, EDWARDS,** SENTELLE,
HENDERSON, RANDOLPH, ROGERS,** TATEL,** GARLAND,**
BROWN* AND GRIFFITH,* Circuit Judges.
2
ORDER
Appellants’ petitions for rehearing en banc in Nos. 04-
5302, 04-5321, 04-5322, and 04-5323, and the response
thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges of the court in
regular, active service did not vote in favor of the petitions.
Upon consideration of the foregoing, it is
ORDERED that the petitions be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Michael C. McGrail
Deputy Clerk
* Circuit Judges Brown and Griffith did not participate in this
matter.
** Circuit Judges Edwards, Rogers, Tatel, and Garland would
grant the petitions for rehearing en banc.
** A separate statement by Circuit Judge Rogers, dissenting
from the denial of rehearing en banc, is attached.
** A separate statement by Circuit Judge Tatel, with whom
Circuit Judge Garland joins, dissenting from the denial of
3
rehearing en banc, is attached.
** A separate statement by Circuit Judge Garland, with whom
Circuit Judge Tatel joins, dissenting from the denial of
rehearing en banc, is attached.
ROGERS, Circuit Judge, dissenting from the denial of rehearing
en banc:
The important First Amendment protections implicated in
these cases are obvious. Our decision in Zerilli v. Smith, 656
F.2d 705 (D.C. Cir. 1981), acknowledges as much. Until very
recently, in this case, Lee v. Department of Justice, 413 F.3d 53
(D.C. Cir. June 28, 2005), the court has not had occasion to
define the contours and describe with precision the standards
illustrated by Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir.
1974), and Zerilli, 656 F.2d at 711, in particular as they apply in
discovery disputes arising from Privacy Act claims. Carey
provides no unambiguous guidance because it did not encounter
a claim under the Privacy Act, 5 U.S.C. § 552(a) (2000), which
was first enacted in late 1974, Pub. L. No. 93-579, 88 Stat. 1896
(Dec. 31, 1974). Although Zerilli addressed both Privacy Act
and Fourth Amendment-based claims, 656 F.2d at 715, Zerilli
may be characterized as a decision resting upon the failure of the
appellants to meet the exhaustion requirement. See id. at 714;
see also id. at 718 (concurring opinion). That there are different
views regarding the proper application of Zerilli in Privacy Act
cases is evident. Compare, e.g., Petition for Panel Rehearing
and/or Rehearing En Banc of Appellant James Risen at 6; infra
Statement of Judge Tatel dissenting from denial of rehearing en
banc (“the panel never balanced the public and private
interests”) with Response of Appellee Wen Ho Lee to Petitions
for Panel Rehearing and/or Rehearing En Banc at 13; Lee, 413
F.3d at 56 (“Zerilli set out two guidelines to determine when a
plaintiff may compel a non-party journalist to testify to the
identity of his confidential sources.”). Regardless, the Petitions
for Rehearing now present significant issues, which meet the
applicable threshold for rehearing en banc, Fed. R. App. P.
35(a)(2), regarding both the standard for appellate review and
comprehensiveness of the necessary balancing analysis.
Therefore, I would grant the petitions for rehearing en banc.
TATEL, Circuit Judge, with whom GARLAND, Circuit Judge,
joins, dissenting from the denial of rehearing en banc:
Over two decades ago, in Zerilli v. Smith, 656 F.2d 705, 711
(D.C. Cir. 1981), this circuit recognized that because “journalists
frequently depend on informants to gather news, and
confidentiality is often essential to establishing a relationship
with an informant,” “[c]ompelling a reporter to disclose the
identity of a source may significantly interfere with [the press’s]
news gathering ability.” Joining the overwhelming majority of
our sister circuits,* we therefore held that “a qualified reporter’s
privilege under the First Amendment should be readily available
in civil cases.” Id. at 712. That said, we recognized that even
the manifest interest in an unfettered press must sometimes give
way to the important interest in affording a litigant a fair
opportunity to right legal wrongs. Accordingly, we enunciated
a “balancing approach”: “[T]o determine whether the privilege
applies courts should look to the facts of each case, weighing the
public interest in protecting the reporter’s sources against the
private interest in compelling disclosure.” Id. But given the
First Amendment values at stake, we emphasized that “in all but
the most exceptional cases,” “the civil litigant’s interest in
disclosure should yield to the journalist’s privilege.” Id.
*
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d
583, 593-99 (1st Cir. 1980); Baker v. F & F Inv., 470 F.2d 778, 783
(2d Cir. 1972); Riley v. City of Chester, 612 F.2d 708, 715-16 (3d
Cir. 1979); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th
Cir. 1986); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725
(5th Cir. 1980); Cervantes v. Time, Inc., 464 F.2d 986, 992-93 (8th
Cir. 1972); Shoen v. Shoen, 48 F.3d 412, 415-16 (9th Cir. 1995);
Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir.
1977); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir.
1986). But see Storer Commc’ns, Inc. v. Giovan (In re Grand Jury
Proceedings), 810 F.2d 580, 584-85 (6th Cir. 1987); McKevitt v.
Pallasch, 339 F.3d 530, 533 (7th Cir. 2003).
2
In this case, the panel never balanced the public and private
interests. Instead, it considered just two of what Zerilli calls the
“number of more precise guidelines [that] can be applied to
determine how the balance should be struck in a particular
case,” id. at 713—namely, whether the sources’ identities go “to
the heart of” the plaintiff’s claim and whether the plaintiff has
exhausted “every reasonable alternative source of information,”
Lee v. U.S. Dep’t of Justice, No. 04-5301, slip op. at 11 (D.C.
Cir. June 28, 2005) (quoting Zerilli, 656 F.2d at 713). Because
the panel’s arid two-factor test allows the exigencies of even the
most trivial litigation to trump core First Amendment values, I
believe this case is of “exceptional importance” and merits the
full court’s attention. Fed. R. App. P. 35(a)(2).
Normally, when a litigant seeks to discover the fruits of a
journalist’s work, a privilege analysis limited to need and
exhaustion protects both the private interest in disclosure and the
public interest in newsgathering. By utilizing the traditional
tools of discovery to exhaust “every reasonable alternative
source of information,” the civil litigant seeking information that
goes “to the heart of the matter” can usually discover the same
facts that the journalist unearthed.
The situation is very different where the identity of a leaker
is itself “the heart of the matter”—as it is here; as it will be in
any Privacy Act case, see sep. op. (Garland, J., dissenting from
the denial of rehearing en banc); and as it was in In re Grand
Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005),
where the grand jury was attempting to determine whether the
leaker had committed a felony. In such cases, a litigant’s
efforts, however exhaustive, are unlikely to identify the
reporter’s source. Lee’s unsuccessful attempt to uncover the
source (or sources) of the leaks in this case illustrates why:
Because the confidential exchange of information leaves neither
paper trail nor smoking gun, the great majority of leaks will
3
likely be unprovable without evidence from either leaker or
leakee. A test focused only on need and exhaustion will
therefore almost always be satisfied, leaving the reporter’s
source unprotected regardless of the information’s importance
to the public. See id. at 997 (Tatel, J., concurring). The panel’s
failure to “balance . . . [Lee’s] interest in compelled disclosure
[against] the public interest in protecting a newspaper’s
confidential sources” thus converts this rather ordinary Privacy
Act case—and any run-of-the-mill leak case like it—into a
“most exceptional case[]” in which, contrary to Zerilli, the
reporter’s interest must give way. Zerilli, 656 F.2d at 712.
The outcome here illustrates the risk of limiting our inquiry
to only need and exhaustion. Without slighting Lee’s private
interest in receiving compensation for governmental
malfeasance, his claim pales in comparison to the public’s
interest in avoiding the chilling of disclosures about what the
government then believed to be nuclear espionage. This case is
thus very different from In re Grand Jury. Not only was that a
criminal case, but there we held that the grand jury’s interest in
securing the name of a source suspected of committing a felony
outweighed any applicable privilege. In re Grand Jury, 397
F.3d at 973. Lee’s private interest in this civil suit implicates no
similarly critical concerns, and it’s hard to imagine how his
interest could outweigh the public’s interest in protecting
journalists’ ability to report without reservation on sensitive
issues of national security. Instead of explaining why he
believes his private litigation interest is sufficiently weighty to
tip the scale in his favor, Lee asserts only that “[t]here is simply
no countervailing interest to ‘balance.’” Respondent’s Br. 14.
Lee is wrong. As Zerilli holds, the countervailing interest is the
value, rooted in the First Amendment, of an “unfettered press”
that ensures that citizens are “able to make informed political,
social, and economic choices.” Zerilli, 656 F.2d at 711.
GARLAND, Circuit Judge, with whom TATEL, Circuit Judge,
joins, dissenting from the denial of rehearing en banc:
The significance of the court’s decision in this case should
not be underestimated. In many cases involving leaks of
government information concerning identifiable individuals,
those individuals will have viable claims under the Privacy Act.
Moreover, the Act is not limited to private individuals. It is
equally available to public officials -- and to former public
officials -- whether they have been accused of corruption or
merely of incompetence. It would, for example, be available to
former officials seeking to learn who leaked the information that
forced them to resign in their administration’s own Watergate.
Barring an unexpected confession by the leaker, in most
such cases the subject of the leak will be able to satisfy the
centrality and exhaustion requirements cited in the court’s
opinion. Thus, if the reporter’s privilege is limited to those
requirements, it is effectively no privilege at all. Plaintiffs
wielding Privacy Act suits will routinely succeed in putting
reporters who receive whistleblower leaks to the choice of
testifying or going to jail. And bridled by nothing other than
plaintiffs’ private interests, the more such strategies succeed, the
more they will be employed. Indeed, where former officials
have themselves been indicted, they may find that issuing third-
party subpoenas to reporters in Privacy Act suits usefully
supplements criminal discovery.
All of this is inconsistent with the commitment we made in
Zerilli, where we promised that, “when striking the balance
between the civil litigant’s interest in compelled disclosure and
the public interest in protecting a newspaper’s confidential
sources, we will be mindful of the preferred position of the First
Amendment and the importance of a vigorous press.” Zerilli v.
Smith, 656 F.2d 705, 712 (D.C. Cir. 1981). As we explained:
“[I]f the privilege does not prevail in all but the most
exceptional cases, its value will be substantially diminished.
2
Unless potential sources are confident that compelled disclosure
is unlikely, they will be reluctant to disclose any confidential
information to reporters.” Id. And if our case law has that
consequence, it will undermine the Founders’ intention to
protect the press “so that it could bare the secrets of government
and inform the people.” New York Times Co. v. United States,
403 U.S. 713, 717 (Black, J., concurring).
The only way to render the reporter’s privilege effective in
the face of Privacy Act claims is to include the requirement,
adopted in Zerilli and detailed in Judge Tatel’s dissent, see sep.
op. at 2-3 (Tatel, J., dissenting from denial of rehearing en
banc), that the court “weigh[] the public interest in protecting
the reporter’s sources against the private interest in compelling
disclosure,” Zerilli, 656 F.2d at 712. Because that requirement
is absent from the court’s opinion, I would grant the petition for
rehearing en banc.