Kagan’s Office Delays FOIA Response Because It Doesn't Know What the Meaning of ‘The Administration’s Health-Care Reform Plan’ Is

By Terence P. Jeffrey | June 28, 2010 | 6:41 PM EDT

Supreme Court nominee Elena Kagan smiles as she arrives on Capitol Hill in Washington, Monday, June 28,2010, for her confirmation hearing before the Senate Judiciary Committee. (AP Photo/Alex Brandon)

(CNSNews.com) - The office of Solicitor General Elena Kagan has delayed responding to a Freedom of Information Act (FOIA) request submitted by CNSNews.com that seeks records that might shed light on whether Kagan would need to recuse herself from certain cases if she is confirmed as a Supreme Court justice.

Under 28 U.S.C. § 455, a former government employee who becomes a Supreme Court justice is required to recuse himself or herself from any case he or she expressed an opinion about while in government service.

The law says: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: … (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Given Kagan’s service as solicitor general, there could be a good number of cases she would need to recuse herself from if confirmed to the Supreme Court because she had “expressed an opinion concerning the merits of the particular case in controversy” while in office.
These could include, for example, those cases challenging the constitutionality of the health-care law that President Barack Obama signed in March. (Florida has been joined by 19 other states in a lawsuit that challenges not only the constitutionality of the law’s provision that forces individuals to buy health insurance but also provisions that impose mandates on state governments. Virginia, meanwhile, has filed a separate suit challenging the individual mandate.)
In a letter delivered to CNSNews.com via email on Friday afternoon, Office of the Solicitor General (OSG) Executive Officer Valerie H. Hall gave two reasons for the OSG delaying its response to CNSNews.com’s FOIA request. The first was that the OSG did not understand what was meant in the FOIA request by the term “the administration’s health-care reform plan.” The second was that it did not understand whether the term “any particular case” in the FOIA request actually meant “any particular case” or only referred to cases focusing on health care. 
Initially, the OSG had declined to provide any materials at all in response to the CNSNews.com FOIA request, claiming an exemption under the law.
CNSNews.com sent its FOIA request to the OSG on May 25. The request asked for three categories of records:
--“Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which the administration’s health-care reform plan was a topic.”
--“Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which legal challenges to the health-care reform bill signed by President Barack Obama was a topic.”
--“Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which the question of whether Solicitor General Elena Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general due to the prospect that it might later come before her were she to be confirmed to a seat on a federal court was discussed.”
Under the terms of the Freedom of Information Act, OSG had twenty business days—or until June 23—to respond to this request. On June 22, OSG’s Hall posted a letter to CNSNews.com—via ordinary U.S. Mail--stating that OSG would not provide the records requested by CNSNews.com, citing section (b)(5) of the act.
“We have determined,” said the letter, “that any documents you seek are exempt from disclosure for the following reason: 5 U.S.C. 552 (b)(5): Information consists of inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
In this initial June 22 letter, OSG did not claim that it did not understand what was meant in the FOIA request by the term “the administration’s health-care reform plan.” Nor did the OSG say in this initial letter that it did not understand that “any particular case” in fact meant “any particular case” as opposed to only those focusing on “health care.”
This initial June 22 OSG letter, in fact, fairly summarized CNSNews.com’s FOIA request. The second sentence of the letter said: “You requested records of communications to or from Solicitor General Elena Kagan (and notations of meetings attended by Kagan) on the following topics: the Obama Administration’s health-care reform plan, legal challenges to the health-care bill signed by the President, and recusal of Solicitor General Kagan from involvement in any particular case (in her role as Solicitor General).”

However, on Friday, June 25, OSG’s Hall sent a second letter to CNSNews.com via email. This letter stated that the June 22 letter “was sent in error.” The new letter explained that OSG was not claiming it was exempt under the law from providing materials in response to CNSNews.com FOIA request.  
“Previously, a letter dated June 22, 2010 was sent to you over my signature in response to your May 25, 2010 request, stating that the records you seek are exempt under 5 U.S.C. 552 (b)(2),” said the new letter. “That letter was sent in error.”

[In fact, the initial letter had claimed an exemption under section (b)(5), not (b)(2). Section (b)(2) exempts matters that are “related solely to the internal personnel rules and practices of an agency.”]

The June 25 letter said the OSG had questions about the first and third categories in CNSNews.com’s FOIA request.
“It is unclear from your request what you mean by the phrase, ‘the administration’s health-care reform plan,’ in your request for the first category of records,” said the letter. “We would appreciate clarification of this phrase so that we can conduct an appropriate search.
“Additionally,” said the OSG letter, “it is unclear from your request whether the third category of records, like the other two, focuses on health-care, and whether the particular cases referred to in that third category thus are cases concerning the health-care legislation. We would appreciate clarification of the scope of your request on this point.”
The June 25 OSG letter said that once the office received the clarification it would “promptly process” the request.
CNSNews.com sent a response letter to the OSG later on Friday, June 25, stating that the term “the administration’s health-care reform plan” in the first category of its request should be construed to mean “then-pending legislative health-care proposals,” and that the words “any particular case” in the third category of the request should in fact be understood to mean “any particular case” and not just health-care related ones.
As reported by The Blog of the Legal Times, Kagan has in fact temporarily recused herself from her duties as solicitor general.

On May 17, she sent a letter to the clerk of the Supreme Court asking that the court deal with her deputy as the acting solicitor general from the date of her nomination onward. “In light of my nomination to serve as Associate Justice of the Supreme Court of the United States, the Principal Deputy Solicitor General, Neal Kurnar Katyal, will serve as Acting Solicitor General in all filings after the date of my nomination involving the United States Government,” Kagan wrote in the letter. “I ask that you please address future correspondence from the Court to him, and that the Court’s docket sheets reflect his designation as Counsel of Record.”
Obama sent Kagan's nomination to the Senate on May 10, a week before Kagan's letter to the clerk of the Court.
In a questionnaire she completed for the Senate Judiciary Committee, Kagan said that the White House had first contacted her about the possibility she would be nominated to the Supreme Court on March 5. Justice John Paul Stevens publicly announced he would be retiring from the court a month later on April 9.
“I was contacted by Bob Bauer, White House Counsel, and Susan Davies, Deputy White House Counsel, on March 5, 2010, to inform me that the President wished to consider me for a possible Supreme Court vacancy,” said Kagan in the questionnaire. “Between that date and the day of my nomination, I had frequent contact with Mr. Bauer and Ms. Davies. On April 7, 2010, Ron Klain, Chief of Staff to the Vice President, contacted me about meeting with the Vice President. Also that day, I met with David Axelrod, Senior Advisor to the President; Cynthia Hogan, Counsel to the Vice President; and Lisa Brown, Staff Secretary to the President.”

“President Obama informed me on May 9, 2010 that he wished to nominate me to the Supreme Court,” said Kagan.

The Judiciary Committee questionnaire also asked Kagan about the issue of recusal. The questionnaire said: “Explain the procedure you will follow in determining whether to recuse yourself from matters coming before the Court, if confirmed.”
Kagan answered: “If confirmed, I would recuse in all matters for which I was counsel of record. I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case where recusal might be advisable.”
Prof. Ronald Rotunda of the Chapman University School of Law--who is the co-author of Problems and Materials on Professional Responsibility, a legal-ethics textbook, and also Legal Ethics: The Lawyer's Deskbook on Professional Responsibility--believes that if Kagan does look to the letter and spirit of 28 U.S.C. 455 she will need to recuse herself from all cases she has expressed even a verbal opinion on as solicitor general.

Asked by email whether Kagan should recuse herself from any case coming before the Supreme Court that she has already expressed so much as a verbal opinion about to colleagues in the administration, Rotunda said:
“Of course. That is what 28 U.S.C.A. § 455(b)(3) requires. It is much stricter than the ABA Model Code of Judicial Conduct. The statute specifically requires that the justice disqualify herself if she has ‘expressed an opinion concerning the merits of the particular case in controversy.’ It does not require that the opinion be written, or formal or public. The legislative history shows the Congress wanted to require disqualification even of lawyers in the Office of Legal Counsel, who do not argue before the Supreme Court. It surely covers the lawyers who do argue before the Supreme Court.”
Rotunda is scheduled to testify about Kagan and the recusal issue in the Senate Judiciary Committee on Thursday.
Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, believes that the Senate Judiciary Committee should question Kagan about the issues she has advised President Obama about, and that she should recuse herself from cases related to advice she gave Obama.
“I think she needs to be asked during the confirmation hearings not about the substance of any advice she gave the president, but about what she gave him advice on,” said Severino. “Since as solicitor general her client is the U.S. government, the president is essentially her client. So if she gave him advice on, for example, the constitutionality of the health care mandate, she would need to recuse herself on that.”