UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
RORY WALSH, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2214 (RWR)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Rory Walsh, on his own behalf and as the
natural guardian of minor S.J.W., brought claims under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq.,
against the Federal Bureau of Investigation (“FBI”).1 The FBI
has filed a motion for summary judgment, while Walsh has filed,
among other things, a motion for recusal. Because Walsh offers
no evidence that recusal is warranted, his motion for recusal
will be denied. Because there are no genuine issues in dispute
and the FBI is entitled to judgment as a matter of law regarding
Walsh’s request for surveillance information and one
investigating agent’s identity, judgment will be entered for the
FBI on those portions of Walsh’s claim. However, because the FBI
1
He also sued the Department of Veteran Affairs (“VA”), Director
James R. Clapper of the Office of the Director of National
Intelligence (“ODNI”) in his official capacity, and the Foreign
Intelligence Surveillance Court (“FISC”). However, a previous
opinion dismissed the claim against the FISC and entered judgment
in favor of the ODNI and the VA.
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has not carried its burden to justify withholding the names of
the agents in charge of the Harrisburg Resident Agency, that
portion of the FBI’s motion will be denied.
BACKGROUND
The background of this case is discussed more fully in Walsh
v. F.B.I., 905 F. Supp. 2d 80 (D.D.C. 2012). Briefly, Walsh is a
former Marine Corps officer who believes that a former Marine
Commandant has been harassing him and got the FBI to make
warrantless entries into his Pennsylvania home between 2005
and 2009. Walsh’s complaint asserts that Walsh sent a FOIA
request to the FBI seeking records related to his alleged
harassment, and that the FBI did not adequately respond to his
request. Compl. ¶¶ 22, 25, 27, 58.
In September 2011, the FBI received a letter from a
Congressman asking about the status of an attached letter
referred to as Walsh’s “unanswered FOIA request” which sought
“the name and FBI agent number of the Special Agent in Charge of
the Harrisburg office,” from November 2006 to the present date.
Walsh, 905 F. Supp. 2d at 86. The FBI Chief of the
Record/Information Dissemination Section (“RIDS”), David Hardy,
said in a declaration filed in this case that after receiving
Walsh’s “unanswered FOIA request,” the FBI sent a letter to Walsh
on September 14, 2011 stating “that the Harrisburg Resident
Agency falls under the Philadelphia Field Office” and providing
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Walsh with the office contact information and the name of the
Special Agent in Charge of the Philadelphia office,
George C. Venizelos. FBI Mot. to Dis. or for Summ. J. [16], Ex.
2 (“First Hardy Decl.”), ¶ 7. Walsh stated in his own
declaration that he responded by sending to the FBI’s Office of
Information Policy (“OIP”) an “appeal” letter dated September 27,
2011, requesting “[t]he name of each FBI agent in charge of the
Harrisburg Resident Agency from May 2005 to the present date,”
the name of an agent who interviewed Walsh in April 2011, and
three more requests related to information about the alleged FBI
surveillance and questioning of Walsh. Walsh, 905 F. Supp. 2d at
86.
The FBI interpreted the three new requests as requests
for “any and all information on Rory M. Walsh.”
According to Hardy, the FBI responded to these three
new requests by sending to Walsh a letter dated
October 12, 2011, stating that “[Walsh’s] request did
not contain sufficient information to conduct an
adequate search of the Central Records System” and
seeking additional information from Walsh to assist the
FBI in locating the information Walsh sought, including
Walsh's full name, address, date of birth, and
telephone number. . . . Hardy states that the letter
advised Walsh that the FBI would close his request if
it did not receive a response within 30 days, and that
he could appeal the FBI’s denials within 60 days.
. . . Hardy claims that the FBI has no record of
receiving a response from Walsh . . . [but] Walsh
disputes that the FBI ever sent such a letter.
Id. (internal citations omitted). The FBI sent Walsh a letter on
December 9, 2011, telling him that the names of the agents in
charge of the Harrisburg Resident Agency would be withheld under
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FOIA Exemptions (b)(6) and (b)(7)(C), and telling him that he had
60 days to appeal. Id. Walsh responded that he filed an
administrative appeal, but the FBI’s OIP was not able to find
such an appeal in its system. Id. at 86-87.
The FBI initially filed a motion to dismiss or for summary
judgment based on Walsh’s purported failure to exhaust his
administrative remedies. A November 2012 opinion denied that
motion, stating in relevant part:
The FBI argues . . . that Walsh failed to properly file
an administrative appeal of the FBI’s responses to his
FOIA request and to exhaust his available
administrative remedies. However, the FBI does not
provide factual detail to show that its searches for
Walsh’s responses were reasonably calculated to find
his response, nor does the FBI provide any evidence,
such as a return receipt, that would resolve the
factual dispute about whether it mailed Walsh the
October 12 letter. Therefore, the FBI’s motion for
summary judgment will be denied.
Walsh, 905 F. Supp. 2d at 87. The memorandum opinion also denied
motions filed by Walsh for partial summary judgment against the
FBI, for expeditious treatment of his motion for partial summary
judgment against the FBI, for a writ of mandamus, and for default
judgment against all defendants.
The FBI has filed a new summary judgment motion, claiming
that Walsh’s request for surveillance information is now moot
because the FBI has conducted a more rigorous search, and has
found nothing responsive to Walsh’s request for any documents
pertaining to warrants or surveillance, and that the names of FBI
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agents can be withheld under Exemptions 6 and 7(C) of the FOIA.
Def.’s Mem. of Law in Supp. of Mot. to Dismiss or for Summ. J.
[31] (“Def.’s Second Mem.”) at 1, 6-8. Walsh opposes the FBI’s
motion, arguing that the FBI’s search was not sufficient and that
Exemptions 6 and 7(C) do not justify withholding the names of the
agents. Pl.’s Opp’n at 9-10, 12-16. Walsh also has filed, among
other things, a motion to recuse the undersigned, asserting that
the November 2012 opinion demonstrated bias.2
DISCUSSION
I. RECUSAL
Walsh has moved to recuse the undersigned under 28 U.S.C.
§ 455(a), and 28 U.S.C. § 144. According to Walsh, recusal is
warranted because the November 2012 opinion “brought forward [the
undersigned’s] open animosity and mishandling of [a related case
filed by Walsh] . . . and [the undersigned] has denied five (5)
un-opposed motions, has made no effort to uphold the law, and
openly provided advise [sic] to the FBI for their next motion
which is not only brazen collusion with the FBI but clearly
prohibited.” Pl.’s Ex Parte Mot. for the Recusal of
Richard W. Roberts (“Pl.’s Mot.”) at 1-2.
2
Walsh has also moved to compel the FBI to respond to discovery
requests, for summary judgment against the FBI, and for a stay
while an interlocutory appeal of the November 2012 opinion is
decided.
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Under 28 U.S.C. § 455(a), any judge “of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). Likewise, under 28 U.S.C. § 144, a judge should recuse
himself when a party “makes and files a timely and sufficient
affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any
adverse party[.]” 28 U.S.C. § 144. Thus, a judge is
disqualified from presiding over any proceeding in which he or
she has a personal bias or prejudice concerning a party, or where
his or her impartiality might reasonably be questioned. See
Ramirez v. U.S. Dept. of Justice, 680 F. Supp. 2d 208, 211
(D.D.C. 2010).
The substantive standard for recusal based on alleged bias
under 28 U.S.C. § 455(a) and 28 U.S.C. § 144 “is largely the
same.” Klayman v. Judicial Watch, Inc, 744 F. Supp. 2d 264, 275
n.4 (D.D.C. 2010). “To the extent the standard[s] under the
sections differ, it is that section 144 requires proof of actual
bias whereas section 455(a) requires only the reasonable
appearance of bias.” Id. The standard for disqualification “is
an objective one: whether a reasonable and informed observer
would question the judge’s impartiality.” Ramirez, 680 F. Supp.
2d at 211 (citing In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir.
2004); United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C.
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Cir. 2001). “There is a presumption against disqualification and
the moving party must demonstrate by clear and convincing
evidence that disqualification is required by Section 455(a).”
Ramirez, 680 F. Supp. 2d at 211 (citing Cobell v. Norton, 237 F.
Supp. 2d 71, 78 (D.D.C. 2003)). Judicial rulings “almost never
constitute a valid basis for a bias or partiality motion” seeking
recusal. Murchison v. Inter-City Mortg. Corp. Profit Sharing &
Pension Plans, 503 F. Supp. 2d 184, 187 (D.D.C. 2007) (citing
Liteky v. United States, 510 U.S. 540, 555-56 (1994)); see also
Cotton v. Washington Metro. Area Transit Auth., 264 F. Supp. 2d
39, 42 (D.D.C. 2003) (denying recusal where “claim of bias is
predicated entirely upon the [magistrate judge’s] rulings with
respect to the conduct of discovery in the instant action, and
rulings regarding discovery and other issues in three other
actions filed by Plaintiffs’ counsel”).
Walsh bases his recusal motion upon judicial rulings, and
his complaints about the denial of his motions miss the mark.
Regardless of whether it was opposed, Walsh’s motion for default
judgment was improper because it did not provide a basis for the
Clerk to calculate an amount certain,3 nor did Walsh first seek
entry of default under Rule 55(a). Walsh’s remaining motions
3
Walsh filed this action pro se, yet sought $40,000 in “legal
fees.”
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were mooted by the substance of the opinion.4 Finally, while
Walsh characterizes the portion of the opinion denying the FBI’s
motion as “openly providing [advice],” that characterization
proves too much, as that description could apply to every opinion
that explains an unsuccessful motion’s shortcomings. The
undersigned harbors no personal bias or prejudice toward any
party in this case, and Walsh has made no showing that a
reasonable and informed observer would question this court’s
impartiality. Walsh’s recusal motion will be denied.
II. FBI’S MOTION FOR SUMMARY JUDGMENT
The FBI has moved for summary judgment on Walsh’s FOIA
claim. The FBI argues that Walsh’s request for surveillance
information is now moot because the FBI has conducted a more
rigorous search, and has found nothing responsive to Walsh’s
request for any documents pertaining to warrants or surveillance.
Def.’s Second Mem. at 1. Specifically, Hardy states that after
the November 2012 opinion was issued, the FBI reviewed the
attachments to Walsh’s complaint to locate any identifying
information it could use to conduct a search into the FBI’s
4
For those reasons, Walsh’s request to certify an interlocutory
appeal of the order denying his motions will be denied. Walsh
has not shown that the order involves a controlling question of
law as to which there is substantial ground for a difference of
opinion or that an immediate appeal from the order would
materially advance the ultimate termination of the litigation.
Similarly, his motion to stay this action pending an
interlocutory appeal will be denied.
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Central Records System (“CRS”), the tool that the FBI uses to
conduct searches that are likely to yield documents responsive to
FOIA and Privacy Act requests. Def.’s Second Mem., Ex. 1
(“Second Hardy Decl.”) ¶¶ 8, 14. According to Hardy, the records
maintained in the CRS “consist of administrative, applicant,
criminal, personnel, and other files compiled for law enforcement
purposes,” the subject matter of a file maintained in the CRS may
relate to an individual, and the FBI can use a mechanism to
search the CRS called the “Automated Case Support System.” Id.
¶ 8. One of Walsh’s attachments contained Walsh’s birth date.
According to Hardy, the FBI used Walsh’s birth date and a “six-
way phonetic breakdown of ‘Rory Walsh’” to search the CRS to
identify any potentially responsive information. Id. ¶ 14.
Hardy states that the FBI did not locate any search or
surveillance warrants within its files that would be responsive
to Walsh’s request. Id. The FBI further argues that judgment
should be entered against Walsh on the request for the names of
the special agents because that information was properly withheld
under Exemptions 6 and 7(C) of the FOIA. Def.’s Second Mem. at
6-8. Walsh opposes, arguing that the FBI’s claim that it found
no responsive warrants is untruthful, and complaining that the
government has not provided him with discovery. Pl.’s Opp’n
at 3. Walsh also argues that Hardy’s assertion that the FBI
cannot find warrants or surveillance material regarding Walsh is
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inconsistent with “the harassment” Walsh purportedly suffers at
the FBI’s behest, and that the FBI incorrectly withheld the names
of the agents. Id. at 9-13.
In general, FOIA cases are appropriately decided on motions
for summary judgment.5 Defenders of Wildlife v. U.S. Border
Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). A motion for
summary judgment is appropriately granted when “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.
2009). The moving party bears the burden of providing a
“sufficient factual record that demonstrates the absence of a
genuine issue of material fact.” Peavey v. Holder, 657 F. Supp.
2d 180, 187 (D.D.C. 2009). In considering a motion for summary
judgment on a FOIA claim, a court may rely upon an agency’s
affidavits so long as they “contain sufficient detail” and “are
not ‘controverted by contrary evidence.’” Peavey, 657 F. Supp.
2d at 188 (quoting Schrecker v. U.S. Dep’t of Justice, 217 F.
Supp. 2d 29, 33 (D.D.C. 2002)). Agency declarations are afforded
a “presumption of good faith” and can be rebutted only with
evidence that the agency did not act in good faith. Defenders of
5
They also generally do not involve discovery. See Wolf v.
Central Intelligence Agency, 569 F. Supp. 2d 1, 9 (D.D.C. 2008)
(stating that “[d]iscovery is generally unavailable in FOIA
actions”) (internal quotation omitted). Walsh’s renewed motion
for discovery and for sanctions will be denied.
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Wildlife v. U.S. Dep’t of the Interior, 314 F. Supp. 2d 1, 8
(D.D.C. 2004).
A. Reasonable Search
In FOIA cases where agencies allege that they were unable to
find relevant information or plaintiffs’ requests for
information, the agencies must demonstrate that they conducted
searches reasonably calculated to uncover all relevant documents.
Peavey, 657 F. Supp. 2d at 187 (citing Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). “[A]n agency
could demonstrate appropriate, reasonable search methods by
demonstrating a ‘systematic approach to document location.’”
Nance v. U.S. Federal Bureau of Investigation, 845 F. Supp. 2d
197, 202 (D.D.C. 2012) (quoting Oglesby v. U.S. Dep’t of Army,
920 F.2d 57, 68 (D.C. Cir. 1990)). “A search does not have to be
exhaustive, and whether a search is adequate is determined by
methods, not results . . . [and an] agency’s failure to locate a
specific responsive document will not, on its own, render an
otherwise reasonable search inadequate.” Nance, 845 F. Supp. 2d
at 201 (citing Brown v. FBI, 675 F. Supp. 2d 122, 125-26 (D.D.C.
2009)).
Here, the FBI has demonstrated that it is entitled to
summary judgment on Walsh’s requests for warrants and other
surveillance records. Hardy’s declaration shows that despite the
FBI’s unsuccessful effort to get from Walsh more identifying
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information that would enable a reasonable search for responsive
records, the FBI resourcefully used information it gleaned from
Walsh’s submissions in this case to conduct an appropriate,
reasonable search to find the information Walsh sought. Hardy’s
declaration explains the system used to conduct the search, why
the relevant information would be in that system, and the scope
of the search. Walsh has not shown that the FBI’s search was
inadequate, and his bare allegation that Hardy was untruthful is
insufficient to overcome the presumption of good faith accorded
to agency declarations.
B. Exemptions 6 and 7(C)
Exemption 6 of the FOIA protects “personnel and medical
files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). Exemption 7(C) excludes “records of information
compiled for law enforcement purposes . . . to the extent that
production of such law enforcement records or information . . .
could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
“A record is considered to have been compiled for law enforcement
purposes if it was created or acquired in the course of an
investigation related to the enforcement of federal laws and the
nexus between the investigation and one of the agency’s law
enforcement duties is based on information sufficient to support
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at least a colorable claim of its rationality.” Quinon v. FBI,
86 F.3d 1222, 1228 (D.C. Cir. 1996) (internal quotation omitted).
Exemptions 6 and 7(C) direct that agencies and courts
“‘balance the privacy interests that would be compromised by
disclosure against the public interest in the release of the
requested information.’” Nat’l Whistleblower Ctr. v. U.S. Dep’t
of Health and Human Services, 849 F. Supp. 2d 13, 26 (D.D.C.
2012) (quoting Beck v. U.S. Dep’t of Justice, 997 F.2d 1489, 1491
(D.C. Cir. 1993) (internal quotation omitted)). “‘[B]ecause
Exemption 7(C) permits withholding of such records if disclosure
would constitute an unwarranted invasion of personal privacy,
while Exemption 6 requires a clearly unwarranted invasion to
justify nondisclosure, Exemption 7(C) is more protective of
privacy than Exemption 6 and thus establishes a lower bar for
withholding material.’” Charles v. Office of the Armed Forces
Medical Examiner, Civil Action No. 09-199 (RWR), 2013 WL 1224890,
at * 8 n.7 (D.D.C. March 27, 2013) (quoting Am. Civil Liberties
Union v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011)
(internal quotations omitted)). Despite the differences between
Exemptions 6 and 7(C), “the privacy inquiry for each is
‘essentially the same[,]’” with the difference being “‘the
magnitude of the public interest that is required to override the
respective privacy interests protected by the exemptions.’”
Seized Prop. Recovery, Corp. v. United States Customs & Border
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Prot., 502 F. Supp. 2d 50, 56 (D.D.C. 2007) (quoting FLRA v.
Dep’t of Veteran Affairs, 958 F.2d 503, 509 (2d Cir. 1992)). If
an agency meets its burden to justify withholding information
under Exemption 6, it has also met the “lighter burden” under
Exemption 7(C). Seized Prop. Recovery, Corp., 502 F. Supp. 2d at
60.
The FBI applies Exemptions 6 and 7(C) to withhold the names
of the FBI agents in charge of the Harrisburg Resident Agency
because the agents are “responsible for conducting, supervising
and/or maintaining investigative activities[,]” and because of
“the risk of harassment of these agents[.]” Def.’s Second Mem.
at 8. Hardy explained that the names were “not appropriate for
discretionary release as it is the FBI’s policy to redact special
agent’s [sic] names below the level of Supervisory Agent in
Charge.” First Hardy Decl. ¶ 15.
Here, the FBI has failed to meet its burden to justify
withholding the names of the agents in charge of the Harrisburg
Resident Agency. Even if FBI redaction policy rather than the
text of the FOIA and binding case law interpreting it set the
standard for measuring proper application of FOIA exemptions, the
FBI has not demonstrated that withholding the names of these
agents was even consistent with the FBI’s own policy. Hardy
implies, but does not forthrightly declare or show, that the
agents who were in charge of the Harrisburg office were agents
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below the level of Supervisory Agent in Charge. The FBI’s own
website declares that its “[r]esident agencies are managed by
supervisory special agents.” See http://www.fbi.gov/contact-us/
field (as of July 3, 2013). And the website does not conceal the
identities of all former supervisory agents in charge of the
Harrisburg office.6 Nor does the FBI assert or demonstrate that
it has no responsive document that merely identifies an agent as
the head of the Harrisburg office that is not a covered record
compiled for law enforcement purposes in the course of an
investigation. And it is not clear at all that the risk of
harassment of the head of an office elevates that agent’s privacy
interests above the public interest in disclosing his or her
identity. It is especially uncertain since the FBI presents no
evidence that it conceals the names of the agents who head its
resident agencies and field offices. Again, its website, for
example, not only names the head of the Philadelphia office, but
displays his photograph and lists the names of the five Assistant
Special Agents in Charge. See http://www.fbi.gov/philadelphia
(as of July 3, 2013). While it is true that law enforcement
investigators conducting investigations have a well-recognized
6
The very agent to whom the FBI directed Walsh, George C.
Venizelos, is identified on the FBI’s website as having “served
as supervisory senior resident agent for Philadelphia Division’s
Harrisburg Resident Agency.” See
http://www.fbi.gov/philadelphia/our-leadership (as of July 3,
2013).
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and substantial privacy interest in withholding information about
their identities, see e.g. Nat’l Whistleblower Ctr., 849 F. Supp.
2d at 28; Marshall v. FBI, 802 F. Supp. 2d 125, 134 (D.D.C.
2011),7 the FBI has not analyzed or explained how the balance of
privacy and public interests favors concealing the mere identity
of the managing head of a field office or resident agency. That
is information that would intuitively seem to be public anyway
and not shielded otherwise by FBI practices. The FBI’s motion
for summary judgment regarding Walsh’s request for the names of
the agents in charge of the Harrisburg Resident Agency will be
denied.8
CONCLUSION AND ORDER
Walsh has not shown that recusal is justified. In addition,
the FBI has demonstrated that it conducted a search reasonably
calculated to uncover all information relevant to Walsh’s FOIA
request through a reasonably detailed non-conclusory affidavit,
and that it properly withheld from Walsh the name of an
investigating agent. However, the FBI has not demonstrated that
it properly withheld under Exemptions 6 and 7(C) the names of the
7
Thus, withholding the name of the agent who interviewed Walsh
in 2011 was appropriate.
8
Walsh moves for summary judgment against the FBI in light of
its failure to respond to discovery requests or produce documents
in response to his FOIA requests. Since discovery has not been
ordered and the merits of the remaining FOIA disputes are
addressed in this opinion, his motion will be denied.
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agents who headed the Harrisburg Resident Agency. Therefore, it
is hereby
ORDERED that the plaintiff’s ex parte motion for recusal
[23] be, and hereby is, DENIED. It is further
ORDERED that the FBI’s motion [31] for summary judgment be,
and hereby is, GRANTED in part and DENIED in part. Judgment is
entered for the FBI regarding Walsh’s FOIA requests to the FBI
except the request for the names of the agents in charge of the
Harrisburg Resident Agency. The FBI shall have 30 days from the
entry of this order to either release those names and file a
notice of compliance, or seek an appealable adverse final order.
It is further
ORDERED that the plaintiff’s motions to compel [24], for
summary judgment against the FBI [25], to certify an
interlocutory appeal of the order entered November 21, 2012 [27],
and to stay pending appeal [29], be, and hereby are, DENIED. The
Clerk is directed to notify the Court of Appeals promptly of the
disposition of Walsh’s motion to certify an interlocutory appeal.
It is further
ORDERED that the FBI’s motion for an extension to file a
reply brief [36] be, and hereby is, DENIED as moot.
SIGNED this 3rd day of July, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge