Evans v. U.S. Department of Labor

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: Feb. 3, 2021

Update: On May 12, 2022, the U.S. Court of Appeals for the Ninth Circuit dismissed the case for lack of appellate jurisdiction in light of Synopsys, Inc.’s untimely appeal. It also dismissed CIR’s and the Department of Labor’s cross-appeals as moot.

Background: In April 2019, the Center for Investigative Reporting and its reporter Will Evans filed a Freedom of Information Act lawsuit against the U.S. Department of Labor seeking access to certain federal contractors’ annual employee demographic reports. The government argued it could withhold the requested reports because they were commercial records under FOIA Exemption 4.

In December 2019, a federal district court sided with Evans and the Center for Investigative Reporting, ruling that the records were not commercial in nature and therefore could not be withheld. The Department of Labor did not appeal the court’s decision.

Nearly two months after the district court’s ruling, and before the records were released, Synopsys, Inc. — a company whose reports were sought in Evans’ records request — filed motions to intervene both to seek reconsideration of the court order and to appeal. The district court denied the motion to intervene for the purpose of reconsideration, but approved the motion to intervene for the purpose of appealing the ruling to the U.S. Court of Appeals for the Ninth Circuit.

Synopsys, the Center for Investigative Reporting and the Department of Labor each appealed to the Ninth Circuit.

Our Position: The appeals court should affirm the district court’s decision to deny Synopsys’s motion to intervene for the purpose of reconsideration and reverse its order allowing Synopsys to intervene and appeal.

• Late intervention, including post-judgment intervention, contravenes FOIA’s purpose of providing timely access to public records.
• Third-party intervention in FOIA cases, when allowed at all, ordinarily occurs as early as possible in the litigation process. Synopsys waited nearly two months after the district court’s ruling before filing a motion to intervene.
• Members of the news media often face significant delays in obtaining records under FOIA. Allowing for late third-party intervention only furthers excessive delays and harms the public’s right to know.

Quote: “All too familiar with the injurious delays that often accompany the process of obtaining records under the Act, amici are deeply concerned that those delays will only increase if courts permit untimely intervention by third parties in FOIA litigation. Eleventh-hour intervention — like Synopsys, Inc. has attempted in this case — derails efforts to obtain agency records in a timely manner, and infringes the public’s right to know about the activities of government.”

Related: This is the second friend-of-the-court brief the Reporters Committee has filed in this case. In September 2019, the Reporters Committee urged the U.S. District Court for the Northern District of California to ensure proper interpretation of FOIA’s foreseeable harm standard when reviewing the Labor Department’s argument for nondisclosure under Exemption 4.

In December 2019, the district court ordered the U.S. Department of Labor to produce the requested employment diversity reports without redactions.