Metropolitan News-Enterprise


Thursday, May 2, 2019


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Ninth Circuit:

Yagman’s Action Seeking CIA Records On Torture Must Be Reinstated


By a MetNews Staff Writer


Disbarred attorney Stephen Yagman, once a prominent civil rights practitioner, yesterday prevailed in the Ninth U.S. Circuit Court of Appeal in a case in which he is self-represented, with the judges holding that the District Court abused its discretion in dismissing with prejudice his action seeking records from the Central Intelligence Agency on use of torture.

His action was filed under the Freedom of Information Act (“FOIA”). The Ninth Circuit in 2017, in Yagman v. Pompeo, reversed a dismissal of his action by U.S. District Court Judge Philip S. Gutierrez of the Central District of California.

Circuit Judge Richard Paez said in the 2017 opinion:

“We conclude that the district court erred when it dismissed the case for lack of subject matter jurisdiction, and we reverse the district court’s judgment. But we agree with the district court that Yagman failed to ‘reasonably describe’ the records he sought. Nonetheless, we remand to the district court with instructions to allow Yagman to reframe his request for documents in light of our holding and the CIA’s repeated offers to assist him in formulating a reasonably specific request.”

On remand, Gutierrez found that Yagman had broadened, rather than narrowed his request, closed the case, and denied motions to re-open.

In his revamped request, Yagman sought records relating to those persons who participated in an interrogation program “described in the December 13, 2012 ‘The [Senate] Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,’ ” and requested information relating to specified persons, places and dates, and provided a definition of “torture.”

A three-judge panel said yesterday, in a memorandum opinion:

“Not only does this revised request follow our instructions for increasing specificity, but it also cites the very report that the CIA suggested Yagman use as his reference point. Thus, a CIA professional familiar with this topic should be able to locate records responsive to Yagman’s revised FOIA request.”

The opinion continues:

“In denying Yagman’s motions to re-open, the district court did not acknowledge many of Yagman’s changes, in particular his reliance on the 2012 Senate Committee Study. Rather, the district court emphasized that Yagman’s revisions had broadened, rather than narrowed, the scope of his FOIA request. That Yagman may have broadened the scope of his request to encompass more documents is irrelevant to the reasonable description inquiry at issue here. however….By ignoring Yagman’s specifications and focusing instead on the scope of his request, the district court abused its discretion in denying Yagman’ motion to re-open the case.”

The judges also found that Gutierrez abused his discretion in denying Yagman his costs in connection with his successful appeal in 2017. However, they declared, there was no error in another District Court judge denying Yagman’s motion to disqualify Gutierrez for bias.

The case is Yagman v. Haspel, 18-55784.


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