V

FOIA Cases and Statutes

When you read legal briefs and Court opinions they always have those cryptic references to other cases.

The reason is stare decisis.

The full phrase is stare decisis et non quieta movere. You will see it translated in various ways. My favorite is, “stand by the decision and do not disturb what is settled.”

This is from American Law and the Legal System: Equal Justice Under the Law (Second Edition) by Thomas R. Dervort, published by Delmar 2000. Page 74. Here is a link to it on Google Books.

Dervort explains:

The common law tradition of stare decisis means that like cases should be decided alike. It is often expressed as the doctrine of following precedent, or the principle of equal treatment under the law. The Latin phrase from which the term is derived is stare decisis et non quieta movere: “stand by the decision and do not disturb what is settled.” The spirit of this doctrine is that it would be unfair to change rules that have been previously applied to others.

However, an even more fundamental principle is that the rules must be essentially fair, and a previously applied rule that does injustice in light of changed circumstances must be altered. Therefore, a more essential principle than stare decisis is that experience must teach us to do justice in the individual case.

Where do you go to get the cited cases?

1. Court opinions are public documents. You can go to each Court and read the decisions. For a fee you can get a copy.

2. By now, most (maybe all) Federal Courts have their own Web sites and you can download their decisions. They haven’t been doing it for very long so you won’t find cases more than a few years old. (In my limited experience with County Courts, they don’t make the documents available through their Web site, even when they have a Web site.)

3. There is Pacer (http://dockets.justia.com/) Anyone can register to use it but it costs $0.08 per page to download documents. They don’t have really old cases.

4. The Courts never got together to publish their cases to make them widely available. They left that up to private industry, particularly West Publishing (now owned by Thompson Corporation). http://en.wikipedia.org/wiki/Westlaw. They published the cases in their book (and now database) the Federal Reporter (http://en.wikipedia.org/wiki/Federal_Reporter) In doing this they came up with their own case numbering system, which has nothing to do with the actual Court case number. Although the cases are all public domain information, West adds value by analyzing and characterizing the case. Adding this value (and using their own formatting) makes it a derivative work and eligible for copyright protection even though they start with public domain information.

One of the values they add is to constantly update the case as new cases cite it and, especially, if the case is overturned.

A close competitor is Lexis Nexis.

Westlaw and Lexis Nexis subscription fees are very high. Attorneys don’t have a problem with that because attorneys don’t pay fees; they collect them from their clients.

Many law libraries have West Law terminals that you can use for free. However, the terminals are locked down tight. There is no way to get a digital copy. You can print out the information for a fee.

The Nevada Supreme Court Law Library in Carson City (http://lawlibrary.nvsupremecourt.us/) charges $0.10 per page, which is very reasonable. The Washoe County Law Library http://www.co.washoe.nv.us/lawlib/) charges $0.25 per page, which is not.

The Nevada Supreme Court Law Library also has free parking. The Washoe County Law Library does not, except on Saturday.

The Nevada Supreme Court Library has a Lexis Nexis terminal that allows you to email the cases to yourself. That doesn’t mean you can post the commentary with the cases. You shouldn’t, because the commentary is protected by copyright.

The Nevada Supreme Court Law Library is in the Nevada Supreme Court building. It’s a great building and a great library. And, the librarians are helpful and beautiful. (I’ve always had a weakness for Librarians, starting with my first real girlfriend, Sally the Librarian in college.)

5. There are at least two free Web sites where you can download opinions: www.openjurist.org and www.altlaw.org.

There is also www.findlaw.com/casecode/fed_register.html but I have not found it useful for old cases.

I have recently found another online source for the Federal Reporter: Decisions of the Federal Courts of Appeals :

F2d: http://ftp.resource.org/courts.gov/c/F2/

F3d: http://ftp.resource.org/courts.gov/c/F3/

This is who they are: http://public.resource.org/case_law_announcement.html

Since I first wrote this, I have discovered that Google Scholar also has cases. In fact, they are pretty good.

Go to http://scholar.google.com

Click on "Advanced Scholar Search."

If you want to search all of the Federal Circuits check "Search only U.S. Federal Court Opinions."

If you put the citation in quotes you should get the actual case first, instead of all the cases that have cited it. You will also get only the full case number highlighted instead of individual search terms.

Things to note:

1. The U.S. District Court for the District of Nevada requires that you cite cases using the Federal Reporter citation number.

2. The free online services contain only the cases. They do not have commentary that explains the importance of the case.

3. Unpublished cases are generally not available from the free online services. For example, Hardy v. Daniels, 2006 WL 176531 (D. Or. 2006) is an unpublished case not available in www.openjurist.org, www.altlaw.org, or www.findlaw.com/casecode/fed_register.html

The designation “2006 WL 176531” means it is a Westlaw-specific citation.

Fortunately, I was able to find the case in Pacer: (http://dockets.justia.com/) where I found the Court’s decision and downloaded it after logging on. http://dockets.justia.com/docket/court-ordce/case_no-3:2005cv00955/case_id-74155/

I am posting the following cases either because they have been cited in my FOIA case or because I have found them useful or interesting. Most of them are from www.openjurist.org and they contain active links to the openjurist site.

Jed Margolin

Virginia City Highlands, NV

September 26, 2009

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Access Reports v. Department of Justice, (926 F.2d 1192, 1196 (D.C. Cir. 1991))

Anastasoff v. United States 223 F.3d 898 (8^th Cir. 2000)

Baptist Health v. Tommy G. Thompson, in his official capacity as Secretary, United States Department of Health and Human Services, 458 F.3d 768 (8^th Cir. 2006)

Burka v. United States Department of Health and Human Services, 87 F3d 508

Casad v. HHS, 301 F.3d 1247, 1252 (10th Cir. 2002)

City of Virginia Beach Virginia v. United States Department of Commerce, 995 F2d 1247

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)

Department of the Interior v. Klamath Water Users Protective Ass'n. 532 U.S. 1 (2001)