A federal appeals court has vacated a contempt order lodged against former USA Today reporter Toni Locy, who refused to give up confidential sources in reporting on the anthrax investigation, but left in place the possibility that lawyers for one-time “person of interest” Dr. Steven Hatfill will try to squeeze attorney fees from Locy.
Judges Douglas Ginsburg, Judith Rogers, and Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit noted in a two-page order Monday that since Hatfill’s underlying case against the Justice Department had been settled, the need for Locy to divulge sources was moot. The judges in a per curiam order said the case posed “close questions” under the First Amendment. Hatfill sought information from Locy and other reporters in his suit against the government.
The D.C. Circuit in March stayed a contempt order lodged against Locy that would have ultimately fined her $5,000 a day for her continued refusal to reveal the identity of any confidential source related to the Amerithrax investigation. In the contempt order, U.S. District Judge Reggie Walton also ordered Locy to pay Hatfill's attorney fees related to the litigation of her refusal to identify sources.
The three-judge panel yesterday vacated the contempt order on grounds the appeal is moot since Hatfill settled with the government in June. Locy's Nixon Peabody lawyers argued the appeal is not moot because, among other things, there exists a "significant" financial dispute between Hatfill and Locy.
“I am grateful that the appeals court vacated the contempt order against me. But I am concerned that this matter may not be over, given statements made by Dr. Hatfill's lawyers that they intend to ask Judge Walton to force me to pay Dr. Hatfill's legal bills,” Locy, a journalism professor at Washington and Lee University, said in a statement to The BLT. “The Circuit Court did not deal with that issue, and I could face a legal bill that far exceeds the fines that Judge Walton initially tried to levy against me.”
Harris, Wiltshire & Grannis partner Mark Grannis, representing Hatfill, said in a statement to The BLT: “Despite Ms. Locy’s opposition to our motion to dismiss, the dismissal of her appeal is unsurprising in light of Dr. Hatfill’s settlement with the Department of Justice last June. It is now up to Ms. Locy to decide whether she will seek rehearing.”
Grannis told The BLT in September that the pursuit of attorney fees would begin if the district court regained jurisdiction. "In response to hysterical complaints about a constitutional crisis, I would just say that it is quite often the case that the party who goes to the extra trouble gets attorney fees," Grannis said in September.
A federal district judge Monday ordered the release of search warrant documents in the Hatfill case—over the objection of Justice Department lawyers who argued that Hatfill, the former Army scientist and one-time “person of interest” in the 2001 anthrax attacks, has a privacy interest and wants to get on with his life.
But Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia rejected the “get on with life” defense in ordering the authorities to release the information to the public. The government, Lambert said, “does not provide any specifics as to why Hatfill objected to disclosure of the materials, other than to state that he wants to ‘get on with his life.’ The government also does not cite any decisions that have recognized the right to ‘get on with one’s life’ as a legally cognizable privacy interest.”
The D.C. Circuit has not weighed in on whether there is a qualified First Amendment right to access warrant materials after an investigation is closed. Noting the issue before the court is one of first impression, Lamberth called the court’s opinion narrow in scope. “Public access to warrant materials serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police,” Lamberth wrote in the 15-page opinion.
Levine Sullivan Koch & Schulz partner Jeanette Melendez Bead represented two newspapers, The New York Times and The Los Angeles Times, in their push to get search warrant documents—including warrant applications and supporting affidavits—stemming from the search of Hatfill’s property. Hatfill, who was never charged, settled a Privacy Act lawsuit against the government for $5.8 million. “We’re gratified that the court has recognized the important public interest in understanding how the Amerithrax investigation was conducted,” Bead said in an interview.
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