Mr. Guarnieri was happy to accept a clear rule and Judge Barrett considered the tender.
“So your first order of preference would be the kind of formalistic line I just described,” she says. “And then your saving argument would be, if the court were not comfortable with the possibility of avoiding the obligations of the FOIA by, for example, the ‘draft’ stamping on the top, that we let’s go with the most type of multifactorial, fact-specific test. “
M. Guarnieri agreed. “It illustrates how we think the case should be resolved,” he said.
Judge Barrett later lobbied Sanjay Narayan, a Sierra Club lawyer, after arguing that the documents should be released if they had “appreciable legal consequences.”
She said she could see how the draft documents could have practical consequences, but said she doubted they could have legal documents.
Prior to the argument in US Fish and Wildlife Service v. Sierra Club, No.19-547, the court issued two unsigned decisions, ruling for a Black Lives Matter activist and a prisoner on abusive terms. Judge Barrett was not involved in the decisions.
In the first, he overturned an appeals court ruling against DeRay Mckesson, a Black Lives Matter activist who helped organize a protest in Baton Rouge, Louisiana in the summer of 2016 after the shooting death of ‘a black man, Alton B. Sterling, by two policemen. The protest began peacefully but turned violent.
An unknown protester threw a stone or something similar at a police officer identified in court documents as John Doe, seriously injuring him. The officer sued Mckesson, arguing that he was indirectly responsible for the assault given his role in organizing the protest.
The United States Court of Appeals for the Fifth Circuit in New Orleans allowed the case to proceed, rejecting Mr. Mckesson’s argument that his role in organizing the protest was protected by the first amendment.