U.S. government appeals decision granting public access to military court proceedings

 The U.S. government filed a notice of appeal to the Ninth Circuit in ProPublica v. Butler, case number 22-cv-01455-BTM-KSC (S.D. Cal.).

The decision appealed from is the amended judgment by district court judge Ted Moskowitz, ECF No. 151. It says:

Plaintiff is granted the following declaratory judgment on count one of its second amended complaint: 

Defendants’ policies violated Plaintiff’s First Amendment right of access in Article 32 preliminary hearings and full court-martial proceedings. 

Plaintiff is entitled to notice of Article 32 preliminary hearings that is reasonably suited to facilitate attendance. The Navy shall provide at least ten (10) days’ advance notice to the public of all Article 32 preliminary hearings. The Navy must provide the full first and last name of the charged service member and the charge sheets, at least ten (10) days before the scheduled hearing, unless a compelling reason legally justifies redaction. 

The First Amendment requires the Navy to provide the public access to the documentary evidence, transcripts, filings, reports, and related papers submitted during Navy Article 32 preliminary hearings and court-martial proceedings, including those resulting in an acquittal, subject to redactions and/or withholdings required by statute or based on national security concerns or other valid and compelling reasons. The Navy must provide such access in all cases including Article 32 hearings that do not result in a court-martial and a court-martial ending in an acquittal. Any redactions or withholdings must be consistent with the First Amendment and must further a compelling government interest. The Navy may only redact or withhold such records from the public where a military judge or Article 32 hearing officer finds that the denial of access furthers a compelling government interest, the redaction or withholding is narrowly tailored to further that interest, and there are no less restrictive means available to serve that interest. The Navy must also comply with the procedural requirements of the First Amendment (notice, an opportunity to be heard and specific findings on the record). 

The Navy must provide the public right of access set forth in this judgment as soon as reasonably practicable but no later than sixty (60) days after receipt of a request, except that the Navy shall make the transcripts of public proceedings available as soon as reasonably practicable but no later than thirty (30) days following receipt of a request. Requests must be made to the appropriate office, which the Navy will publish. The person requesting the documents or transcripts shall pay the direct costs of transcription or duplication. 

Withholdings or redactions under FOIA or any statute must be consistent with the First Amendment. 

Plaintiff is otherwise denied judgment on its claim for contemporaneous access to filings and papers in Article 32 hearings and court-martial proceedings. 

Plaintiff is granted judgment in part on count two of its second amended complaint. Defendants are hereby permanently enjoined from denying Plaintiff’s First Amendment right of access in Article 32 hearings and court-martial proceedings. 

The Navy must publicly release, no later than April 30, 2026, the court records from United States v. Mays, consistent with the First Amendment. 

Defendants are granted judgment on count three of Plaintiff’s second amended complaint. 

Nothing in this judgment requires the Navy to create or release transcripts or documents that were not submitted or prepared in the course of Article 32 or courtmartial proceedings. 

The Navy is required to provide Article 32 reports to Plaintiff.

The district court had also denied the government's emergency motion to stay release of Article 32 hearing records. ECF No. 152. The standard for such a stay comes from Nken v. Holder, 556 U.S. 418, 427 (2009). Judge Moskowitz wrote: 

[T]he Government has made no showing—let alone a strong one—that it will likely succeed on appeal. Indeed, the Government does not even claim that the Court erred nor that the Government will in fact appeal. The mere possibility of an appeal— with no showing that the Court may have erred—is insufficient to satisfy the first Nken factor.

The Government also equivocates under the second Nken factor. The immediate release of the Mays records, the Government says, “could cause irreparable injury.” But the mere “possibility of irreparable injury fails to satisfy the second factor.” Nken, 556 U.S. at 427 (citation and quotation marks omitted); see also Plaquemines Par. v. Chevron United States, Inc., 84 F.4th 362, 376-77 (5th Cir. 2023) (ruling that the “defendants have fallen well short of showing that the second Nken factor weighs heavily in their favor” because they showed no “more than a mere possibility of irreparable injury”