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Saturday, October 15, 2011

Federal judge denies FOIA request for Kagan involvement in health care reform
Julia Zebley at 1:19 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Friday rejected [opinion text, PDF] a request [complaint, PDF] by Judicial Watch and the Media Research Center (MRC) [advocacy websites] for documents pertaining to Supreme Court Justice Elena Kagan's involvement with the Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST Feature] as solicitor general. A Freedom of Information Act (FOIA) [5 USC § 552] request for documents disclosing Kagan's involvement in PPACA was already fulfilled [text, PDF] to a division of the MRC, CNSNews [official website] in May 2010. Various agency documents detailing Kagan's involvement in health care reform were released, which amounted to 45 out of a potential 1,400 pages matching the initial request. This included then-solicitor general Kagan assigning a deputy, Neal Katyal, to defend PPACA in court. Judicial Watch and MRC then requested further records and correspondence, which the Department of Justice (DOJ) [official website] did not provide due to exemptions and declaring many of the requested documents as non-agency records. Judge Huvelle agreed, rejecting the groups' requests on several grounds, finding the DOJ's first search adequate, and declaring that the e-mails the groups sought were, "not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective." Huvelle also upheld the attorney work-product privilege of FOIA to allow the government to withhold documents that "discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge." A spokesperson for Judicial Watch said he is unsure if they will pursue further litigation [BLT report] but said the judgment called into question parts of Kagan's senate testimony.

It is becoming increasingly likely that the US Supreme Court [official website] will review the health care law this term. Liberty University [official website] last week petitioned [JURIST report] the court to review its case against PPACA, making it the sixth writ of certiorari on the issue. The DOJ asked the high court to rule last month [JURIST report], appealing an August ruling by the US Court of Appeals for the Eleventh Circuit [official website], which struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. Virginia Attorney General Ken Cuccinelli [official website] has also asked the Supreme Court to weigh in [JURIST report] on PPACA, appealing a Fourth Circuit ruling. The US Court of Appeals for the Sixth Circuit [official website] upheld the law in June, and that ruling was appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center [advocacy website]. Also in August, the US Court of Appeals for the Third Circuit [official website] dismissed a lawsuit [JURIST report] brought by a physician organization for lack of standing.

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