Lawyers Committee For 9/11 Inquiry, Inc. v. Barr

Background

The plaintiffs included Lawyers Committee for 9/11 Inquiry, Architects and Engineers for 9/11 Truth, and several individuals. They alleged that the destruction of three World Trade Center buildings resulted from pre-placed explosives or incendiaries. In 2018, the Lawyers’ Committee submitted petitions to the United States Attorney’s Office for the Southern District of New York asking that the information be presented to a grand jury under 18 U.S.C. § 3332(a). The United States Attorney’s Office later cited grand-jury secrecy rules when it did not provide further information.

The amended complaint asserted four causes of action: disclosure of grand-jury records; an alleged violation of the First Amendment right to petition; mandamus relief requiring presentation of the petition to a grand jury; and relief under the Administrative Procedure Act requiring that presentation. The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction, and 12(b)(6), for failure to state a claim.

Standing and Grand-Jury Presentation Claims

The court dismissed the second, third, and fourth causes of action because the plaintiffs lacked Article III standing. Standing requires a concrete and particularized injury that is actual or imminent, traceable to the defendants’ conduct, and likely to be remedied by a court decision.

The court relied on the Second Circuit’s decision in Zaleski v. Burns, which held that denial of a right under 18 U.S.C. § 3332(a) does not itself give a private person standing to force a United States Attorney to present information to a grand jury. The court rejected the plaintiffs’ additional theories of injury. It found that their concerns about future terrorist attacks were speculative, any potential reward under the State Department’s Rewards for Justice program was too uncertain, and the alleged reputational and organizational harms from a police flyer were hypothetical. The court also found that McIlvaine’s interest in obtaining closure about his son’s death and Gage’s claimed interest in avoiding unnecessary building-related expenses did not establish standing.

Because the plaintiffs lacked standing, the court did not reach the defendants’ arguments that the First Amendment, mandamus, or Administrative Procedure Act claims failed on their merits.

Request for Grand-Jury Records

The first cause of action sought substantive and ministerial grand-jury records relating to the plaintiffs’ petitions. The court explained that grand-jury proceedings are generally secret and that disclosure under Federal Rule of Criminal Procedure 6(e) requires an applicable exception and, in relevant circumstances, a particularized need. The court concluded that none of Rule 6(e)’s listed exceptions applied: the government had not requested disclosure, the plaintiffs were not criminal defendants seeking dismissal of an indictment, and the records were not sought in connection with another judicial proceeding.

The court also rejected the plaintiffs’ argument that ministerial records should receive less protection than substantive grand-jury materials. It stated that the Second Circuit had not recognized such a rule and required a strong showing of particularized need for the requested materials.

The plaintiffs argued that the records were needed to support their standing in an earlier case involving their Rewards for Justice application. The court concluded that disclosure would not cure the speculative nature of that alleged reward. It also found that the relevant special-circumstances factors favored secrecy because the plaintiffs were not parties to the grand-jury proceedings, the government opposed disclosure, and the public interest in the September 11 attacks remained high.

Disposition

Judge Paul G. Gardephe granted the defendants’ motion to dismiss. The court dismissed all four causes of action, directed the clerk to terminate the motion, and ordered the case closed. The opinion does not state that the dismissal was with or without prejudice.