CommunityMy FDL

Pre-emptive Mootness

Bloomberg News sued the Federal Reserve to get information about a series of emergency loans made to Too Big To Fail banks in 2008. The suit, brought under the Freedom of Information Act (FIOA) sought  “the names of the banks that received loans from the Fed’s Discount Window in April and May 2008, along with the amounts they received and the collateral they promised”.

The Fed rejected the request. The suit then moved on to federal district court where Judge Preska ruled in favor of releasing the information. On appeal, the Second Circuit upheld that decision. The Clearing House Association, a group of banks trying to keep this information secret, filed a petition for a writ of certiorari to the Supreme Court of the United States.

Up to this point, the Department of Justice and the Board of Governors of the Federal Reserve had been fighting this litigation on the side of the banks. However, on February 18th, DOJ submitted its brief to SCOTUS and abruptly changed position. DOJ continues to assert that the 2nd Circuit erred in its decision, but essentially says “never mind”.

The reason for this? The Dodd-Frank Act set forth a standard that calls for a release of the very type of information that is the subject of the lawsuit, but only prospectively. This lawsuit is not literally moot. However the government has chosen to treat it as preemptively or prospectively moot.

Through the intervening enactment of the Dodd-Frank Act, Congress has resolved the question of whether and when the type of information at issue in the case must be disclosed on a forward going basis, for post-enactment loans.

.               .               .               .               .               .

Although the case is not moot because the Dodd-frank Act does not apply to the remaining pre-enactment discount window information at issue, the Act’s prospective standards ensure that the issue will not recur for post enactment loans covered by the Act.

.               .               .               .               .               .

Congress struck a balance between the government’s interest in preserving the confidentiality of the Board’s discount-window and emergency-loan related information and the public interest in disclosure of such information. The Act protects such information from disclosure under FIOA for a set period of time (one or two years), after which point the information must be released. [internal citations omitted] The Act governs precisely the type of information sought in this case. That means any holding as to Exemptions 4’s applicability to this information will have no impact on future FIOA requests for such information.

Think about this. The Act does NOT apply to this case, but if the government were to prevail on this case it would reach a result that is the opposite of a current act of Congress and would look absurd and hyper technical. So, the Solicitor General is taking a practical non-bureaucratic approach and saying that the government will go along and comply with Dodd-Frank before it is legally required to do so. This could be the genesis of a new legal doctrine, Pre-emptive or Prospective Mootness.

That doctrine would appear to apply with equal force to currently active prosecutions under Don’t’ Ask Don’t Tell. The Department of Defense currently finds itself in the logically untenable position of prosecuting service members under a law that Congress has already voted to repeal and the President has signed into law. Like the Clearing House case above, those prosecutions are not literally moot, because the repeal of DADT has not become effective or “gone live” yet. However, they hold the danger of reaching an absurd result.

DOD invests a lot of time and money training its service members and officers. Those members who are currently subject to separation prosecutions solely because of their sexual orientation, represent a total loss to their service branch of that investment. This is a hardship the Department should not have to bear. Likewise, loss of a career mere months, weeks or even days before the DADT becomes effective would be a brutal, ugly irony for the individual service members affected. The inherent unfairness of such a result would erode the credibility of the Department in the eyes of any practitioner of logic.

By adopting this pre-emptive or prospective mootness precedent, so helpfully set by the Solicitor General’s Office, the DOD could: 1) preserve its investment in its personnel, 2) do the right thing for the individual service members currently the subject of separation prosecutions, 3) provide peace of mind for service members worried about become the subject of such prosecutions during the remaining interregnum before full implementation of DADT repeal, 4) avoid an absurd result and concurrent loss of departmental credibility with the American public and the world at large.

Shorter version: jumping on this idea solves a whole bunch of uncomfortable problems and takes away embarrassment and injustice and clears a lot of messy stuff off the plates of DOD higher ups and lower downs. It’s a win/win.

Previous post

Flashback: Paul Broun (R-GA) Compared Obama to Hitler Shortly after 2008 Election

Next post

New White House Social Secretary: First Man in the Role, First Gay Man Too

Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.