13-422-cv
The New York Times Company v. United States

                          UNITED STATES COURT OF APPEALS

                                 FOR THE SECOND CIRCUIT

                                       August Term 2013

Submitted: June 5, 2014                              Decided: June 23, 2014

                       Docket Nos. 13-422(L), 13-445(Con)
- - - - - - - - - - - - - - - - - - - - - -
THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,
SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
     Plaintiffs-Appellants,

                        v.


UNITED STATES DEPARTMENT OF JUSTICE, UNITED
STATES DEPARTMENT OF DEFENSE, CENTRAL
INTELLIGENCE AGENCY,
     Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - - -

Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

        On petition for rehearing.

        With respect to request for additional redactions to OLC-

DOD Memorandum and correction of Court’s April 21, 2014,

opinion, petition granted and revised public opinion filed

with redacted version of OLC-DOD Memorandum; with respect to

relief requested concerning Vaughn index, issues bifurcated

and adjudication of Vaughn index issues deferred.



                                              1
                              Sharon Swingle, Atty., Appellate
                               Staff, Civil Division, U.S.
                               Dept. of Justice, Washington,
                               D.C.;   Preet   Bharara,   U.S.
                               Atty., Sarah S. Normand, Asst.
                               U.S. Atty., New York, N.Y.,
                               Stuart F. Delery, Asst. U.S.
                               Atty.    General,    Beth    S.
                               Brinkman, Deputy Asst. U.S.
                               Atty.   General,   Douglas   N.
                               Letter,    and    Matthew    M.
                               Collette,   Attys.,   Appellate
                               Staff, Civil Division, U.S.
                               Dept. of Justice, Washington,
                               D.C., on the petition, for
                               Defendants-Appellees.

                              No opposition papers requested at
                                this time.



JON O. NEWMAN, Circuit Judge:

    The Government has filed a petition for rehearing1 with

respect to our decision in The New York Times v. United States

Department of Justice, Nos. 13-422(L), 13-455(Con), 2014 WL

1569514 (2d Cir. April 21, 2014), which primarily concerned a

request under the Freedom of Information Act (“FOIA”) for

disclosure of a memorandum prepared by the Office of Legal

Counsel for the Department of Defense (“OLC-DOD Memorandum”).



     1
      A public version of the petition, filed on our docket,
makes redactions to protect the secrecy of material in the OLC-
DOD Memorandum that the Government contends warrant secrecy. A
sealed version of the petition included the material redacted
from the public version.

                                2
Our   decision   was   reflected      in   two    documents    –     a   public

document and a sealed document.

      The public document set forth the Court’s reasons for

ordering disclosure of the OLC-DOD Memorandum, but made a

number of redactions, at the Government’s request, to preserve

the Government’s opportunity to seek further appellate review

of our decision.       The public document totally redacted the

text of the OLC-DOD Memorandum. The sealed document set forth

the unredacted text of the Court’s public document with the

redacted portions identified by double-underlining for ease of

identification    by    judges   in    the       course   of   any       further

appellate review.      We explained that in the event our opinion

was not altered in the course of further appellate review, the

redactions in the public document would be restored.

      The sealed document contained as Appendix A a redacted

version of the OLC-DOD Memorandum.                 The Court made these

redactions to maintain the secrecy of those portions of the

OLC-DOD Memorandum that appeared to warrant permanent secrecy

for reasons set forth by the Government in submissions to the

Court filed ex parte and in camera.               Further explanation of

the public and sealed documents is set forth in the Court’s

Order filed May 28, 2014.



                                   3
    The   petition   for   rehearing   essentially   presents   two

challenges to our April 21 decision.      The first is a request

to make further redactions from the OLC-DOD Memorandum.         The

second is a request to withdraw that portion of the April 21

decision that required disclosure of the number, title, or

description of several documents listed in a classified Vaughn

index, See New York Times, typescript copy of opinion from

Second Circuit website (“typescript copy”) at 48-49, 51-52;

2014 WL 1569514, at *16-*17.

    Because of the four-year delay that has ensued between

the filing of the Plaintiffs’ FOIA requests in June 2010 and

today, with even a redacted version of the OLC-DOD Memorandum

not yet disclosed, we will bifurcate the issues presented by

the petition for rehearing, see Coastal States Marketing, Inc.

v. New England Petroleum Corp., 604 F.2d 179, 182-86 (2d Cir.

1979) (bifurcating issues on appeal); cf. Fed. R. Civ. P.

42(b) (authorizing separate trials for separate issues), and

adjudicate in this opinion the request for further redactions

to the OLC-DOD Memorandum (along with related challenges to

specific passages in the sealed opinion that the Government

contends are either inaccurate or warrant permanent secrecy).

To the extent that the petition for rehearing requests relief


                                4
with respect to the Vaughn index, we will defer decision to a

later date.

    The petition for rehearing identifies several passages in

the redacted version of the OLC-DOD Memorandum we submitted to

the Government ex parte and in camera that the Government

contends   warrant    additional        redaction.   Petition   9-10.

Understandably, the Government has redacted from the public

version of its petition for rehearing the specifics of those

passages, but has fully identified them to the Court in a

sealed version of the petition, submitted ex parte and in

camera.    The Government has also submitted ex parte and in

camera two versions of the OLC-DOD Memorandum            One version

identifies the passages in the OLC-DOD Memorandum requested

for further redaction, with citations to claimed bases for

FOIA exemption; the other version of the OLC-DOD Memorandum

makes the additional redactions now sought by the Government

We will make all of the redactions in the OLC-DOD Memorandum

requested by the Government.

    In our April 21 opinion we stated that we were making

redactions    to   preserve   the   Government’s     opportunity   for

further appellate review.      We also stated that if our opinion

was not altered upon further appellate review, the redacted


                                    5
portions of our opinion would be restored.                        Because the

Government’s       petition    makes     no    request    that    any    of   the

redacted portions of our April 21 opinion not be restored and

gives no indication that any further appellate review of

issues   concerning          disclosure       of    the   redacted       OLC-DOD

Memorandum is being sought, we will today file a revised

version of our April 21 opinion, restoring all of the redacted

material, except for items that we stated in our May 28 order

would remain redacted.           In addition we will delete from our

April 21 sealed opinion a phrase, stated in error, that

appeared on the last two lines of page 44 of that opinion.                     We

will also modify the April 21 public opinion with respect to

disclosure of the titles and descriptions of certain numbered

documents in a classified Vaughn index to implement our order

of May 28.

    With respect to the OLC-DOD Memorandum, the Government

states   in    its    petition    that     “[i]f    the   Court    grants     the

petition for rehearing, this version of the OLC-DOD Memorandum

[i.e.,   the       version    with   the      additional    redactions        now

requested     by     the   Government]        is   appropriate     for   public

filing.” Petition 6. Because, after bifurcation of the issues

concerning     the     OLC-DOD    Memorandum,        we   are    granting     the



                                       6
Government’s petition to the extent that it requests relief

concerning the OLC-DOD Memorandum, the revised version of our

April 21 opinion filed today will include in Appendix A the

OLC-DOD Memorandum as redacted by both our original redactions

and the additional redactions now sought by the Government.2




     2
      This opinion and the revised public opinion to be filed
have been submitted to the Government ex parte and in camera to
be sure that no inadvertent disclosure has been made.

                                7
