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Hatfill v. Mukasey

March 7, 2008


The opinion of the court was delivered by: Reggie B. Walton United States District Judge



Left unresolved at the conclusion of the February 19, 2008 hearing on the plaintiff's motion to find Toni Locy in contempt of court were the following questions: (1) whether the Court's contempt citation against Ms. Locy and the monetary sanction imposed should be stayed pending Ms. Locy's appeal to the District of Columbia Circuit and (2) whether Ms. Locy should be personally required to pay the monetary sanction.*fn2 This opinion resolves these two remaining matters.*fn3

Ms. Locy is not a party in this litigation. However, while employed as a reporter for the USA Today newspaper, Ms. Locy received information concerning Dr. Steven J. Hatfill and a federal anthrax criminal investigation from sources at either or both the Federal Bureau of Investigation ("FBI") and Department of Justice ("DOJ").*fn4 Thereafter, several articles written by Ms. Locy appeared in USA Today on two separate dates. During discovery in this civil action brought by Dr. Hatfill following the publication of the articles, Ms. Locy admitted remembering the identities of the sources who provided her information about anthrax, and acknowledged that one or more of those sources would have provided her information about Dr. Hatfill. Memorandum of Points and Authorities of Toni Locy In Support of Motion for Reconsideration and In Opposition to Plaintiff's Motion for Civil Contempt ("Locy's Mem."), Exhibit ("Ex.") B (Deposition of Toni Locy) ("Locy Dep. II") [D.E. # 212] at 185, 210-211; see also Memorandum of Points and Authorities of Toni Locy Opposing Plaintiff's Motion to Compel Further Testimony ("Locy Opp'n"), Ex. B (Deposition of Toni Locy) ("Locy Dep. I") [D.E. # 169] at 46-61, 104-109. She claimed, however, not to remember the identity of those who disclosed to her information specifically about Dr. Hatfill. Locy's Dep. II at 211. Moreover, relying on claims of a "reporter's privilege" under the First Amendment to the Constitution and federal common law, Ms. Locy refused to reveal the identity of any of her sources. Id. at 185-216.

In ruling on Dr. Hatfill's motion to compel Ms. Locy to reveal the identity of her anthrax sources, the Court rejected her argument that her refusal to disclose the identity of her sources was sanctioned by the First Amendment and a common law privilege she requested the Court recognize. Hatfill v. Gonzales, 505 F. Supp.2d 33 (D.D.C. 2007). Specifically, as to Ms. Locy's First Amendment argument, the Court found that Dr. Hatfill had satisfied the "two Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) guidelines" for compelling a non-party journalist to reveal the identity of her confidential sources. Id. at 36-44. First, the Court found that although Ms. Locy had revealed that her sources were FBI and DOJ officials, the actual identity of the sources "goes to the heart of" Dr. Hatfill's Privacy Act claims. See id. at 43; see also 5 U.S.C. § 552a(g)(4)(2000) (requiring proof of agency willfulness and intent to establish a claim under the Privacy Act). Second, the Court concluded that Dr. Hatfill had exhausted all reasonable alternatives for acquiring the identities of the sources who leaked the information. Hatfill, 505 F. Supp.2d at 43. Finally, the Court rejected Ms. Locy's argument that non-disclosure of the identities was countenanced by federal common law. Id. at 43-48. Specifically, the Court rejected Ms. Locy's invitation to recognize a federal common law reporter's privilege and further concluded that to the extent a federal common law privilege existed, it would not be absolute, and should not be recognized in the context of a case involving a "viable" Privacy Act claim. Id. at 45. Consequently, the Court ordered Ms. Locy (and several other reporters) "to comply with the subpoenas issued to them by Dr. Hatfill and to produce full and truthful responses to questions propounded to them by Dr. Hatfill's attorneys." August 13, 2007 Order ("August 13 Order") at 1.

On December 19, 2007, during Ms. Locy's second deposition, she defied the Court's order by refusing to answer the plaintiff's questions about "the names of [her] sources at the DOJ [and the FBI] regarding [her] anthrax investigation reporting," in order to test, on appeal, "whether [she] must reveal confidential sources who may not have provided the information at issue in this case," Locy's Mem. at 4, 17 (citation and emphasis omitted; emphasis added). After further attempts during the deposition to acquire the information from Ms. Locy proved fruitless, Dr. Hatfill moved to hold her in contempt. The Court granted Dr. Hatfill's motion and imposed a graduated fine as the initial sanction for Ms. Locy's continued defiance*fn5 , but, as noted, the Court left unresolved and took under advisement (1) whether the Court's monetary sanction should be stayed pending resolution of the appeal of this Court's contempt order that Ms. Locy represents she intends to file and (2) whether Ms. Locy should be personally ordered to pay the monetary sanction, thus precluding her from accepting contributions to satisfy any monetary obligations that accrue. For the reasons set forth below, the Court denies Ms. Locy's request for a stay and orders that she abstain from accepting any contribution to satisfy the Court's monetary sanction.



In deciding whether a stay of an order pending appeal is warranted, a court must assess the following: "(1) whether the petitioner is likely to prevail on the merits of [her] appeal, (2) whether, without a stay, the petitioner will be irreparably injured, (3) whether issuance of a stay will substantially harm other parties interested in the proceeding, and (4) wherein lies the public interest." McSurely v. McClellan, 697 F.2d 309, 317 (D.C. Cir. 1982). Upon examination of these factors, the Court concludes that Ms. Locy has failed to demonstrate her entitlement to a stay.

(A). Likelihood of Success on Merits

Ms. Locy has failed to satisfy this first prong of McSurely. This conclusion is called for by the District of Columbia Circuit's ruling in Lee v. DOJ, 413 F.3d 53 (D.C. Cir. 2005). There, the Circuit Court affirmed the District Court's contempt citations against several reporters, concluding that Wen Ho Lee, the plaintiff in that Privacy Act case, had defeated the reporters' First Amendment qualified privilege by showing that the information sought from the reporters went to "the heart" of his Privacy Act claims against the government and that he had "exhausted every reasonable alternative source [for acquiring the] information." Id. at 57, 58-61; see also In Re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005). Ms. Locy seeks to distinguish her situation from Lee in several respects.

First, Ms. Locy contends that she satisfied the Court's August 13th Order by revealing to Dr. Hatfill the agencies that employed "some of her confidential sources. . . ." Locy's Mem. at 17. Ms. Locy also argues as to the first prong of the McSurely test that she "is unaware of any court [that has] compell[ed] reporters to reveal their confidential sources [under] circumstances like those here." Locy's Mem. at 15-16. According to Ms. Locy, her case presents unique circumstances resulting from her purported inability to "recall the names of her confidential sources who provided the information at issue in this case." Id. at 16. Thus, to comply with the Court's order, Ms. Locy emphasizes that she would have to "reveal her sources for all of her anthrax-related, non-Hatfill related reporting, despite the fact that this would result in the disclosure of numerous individuals who provided information under a promise of confidentiality about articles not at issue in this case." Id. (emphasis in original). Thus, Ms. Locy asserts, on its merits, her situation presents a '"substantial case'" worthy of a stay. Id. at 18.

As an initial matter, the Court notes that it is not insignificant that, according to Ms. Locy's attorney and Ms. Locy, the reason she is unable to now reconstruct who leaked information to her about Dr. Hatfill is the result of her own decision to dispose of her notes. Locy Opp'n., Locy Dep. I at 13-14. To permit Ms. Locy to distinguish her situation from the reporters' whose contempt citations were upheld in Lee solely because of her own doing, albeit before Lee was decided, would permit her to escape the impact of the Lee holding absent a rational basis for doing so.

Additionally, in furtherance of her argument that her case presents unique circumstances, Ms. Locy would have the Court believe that, "in certain respects," her situation is like reporter Jeff Gerth's in Lee, 413 F.3d at 63-64, because, although she remembers the names of her confidential anthrax sources, she now claims to be unable to remember the identities of those who supplied her with information specific to Dr. Hatfill. Locy's Mem. at 16-17 (citing Lee, 413 F.3d at 53). "Compelling [her] to identify all of her sources [, she argues,] would trounce the constitutional interest in protecting . . . the identities of all of them, based ...

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