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Office, Inc. v. FCC. No. 75-1280 (D.C. Cir., March 25, 1977),

(slip op. at 91, 84-100), petition for cert. filed, 46 U.S.L.W. 3001 (U.S. June 23, 1977) (Nos. 76-1841 and 76-1842); cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 419420 (1971).

This case thus presents in stark detail all of the problems which this Court sought to remedy in Vaughn. Beyond that, however, the potential for bias presented by the aura of secrecy which permeated the decision and all of the procedures utilized below cannot be dispelled on remand. In short, this is a case where "there are bound to be strains in a second trial, conscious or unconscious, irrelevant to the issues, and hence disruptive." Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 808 (1st Cir.), cert. denied, 379 U.S. 931 (1964). In such situations, courts have often directed that further proceedings be conducted before another judge, not as a reflection on the first, but to avoid asking the initial judge to compartmentalize his or her mind between the in court and ex parte evidence. dental Petroleum Corp. v. Chandler, 303 F.2d 55, 57 (10th Cir. 1962), cert. denied 372 U.S. 915 (1963), where, inter alia, the fact that a court held "hearings, meetings and discussions" without all parties being present in matters "materially affecting not only those present but those excluded there from," supported a decision to remove the judge from the case on remand.

Id. See Occi

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In a similar context, Judge Gesell aptly recognized that "our whole jurisprudence since the Magna Carta and the abolition of the Star Chamber proceedings requires that the judiciary in fact and appearance. remain neutral, independent of Executive or legislative influence."

Military Audit Project v. Bush, 418

F. Supp. 876, 878 (D.D.C. 1976). In that case, involving documents relating to the CIA's financing of the Glomar Explorer, Judge Gesell's efforts to conduct the proceedings in public ultimately gave way to the government's insistence that the national security would be harmed by disclosure of any of the evidence it intended to present in support of its claim for withholding. While the appeal was pending, however, the government asserted that it would release some of the requested records and provide a public showing to support its position as to the remainder; accordingly, the case was sent back to the district court. No. 76-2037 (D.C. Cir., June 17, 1977). On remand, however, Judge Gesell recused himself from further consideration of the case, stating that he could not proceed to impartially judge the contested issues which remained, since he had already made findings as to these issues on the basis of ex parte testimony. Transcript of Hearing of June 28, 1977 (attached as an Addendum to this brief).

See

Plaintiffs suggest that in order to dispel the effect on

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these proceedings of the district court's consideration of ex parte testimony and use of secret procedures in contravention of the letter and spirit of the FOIA, this case should be remanded to the Chief Judge of the District Court for reassignment to a new judge.

CONCLUSION

For the reasons stated above, the decision below should be reversed and remanded to the Chief Judge of the District Court for reassignment to a new judge and for resolution of plaintiffs' claim in conformity with the decisions of this Court.

I hereby certify that copies of the foregoing brief and the accompanying appendix were served by hand upon Paul Blankenstein,

Esq., Department of Justice

this 22nd day of July 1977.

20530,

The above-entitled cause came on for Hearing before

the IONORABLE GERHARD A. GESELL, United States District Judge,

THE CLERK: Civil Action No. 75-2103, Military

Audit Project, et al., v. Bush, et al. Mr. William Dobrovir for the Plaintiffs. Mr. Jeffrey Axelrad and Mr. Paul Figley

for the Defendants.

THE COURT: When I learned that the mandate had come

down from the Court of Appeals, I thought I had better have you gentlemen in to see what lies ahead in connection with this

case.

Is it still a viable case or is it all over?

MR. AXELRAD: May it please the Court, the current status of the matter is that a re-review of the material is being conducted.

In all candor, I think I should represent to

Your Honor that I am virtually certain that as a result of the re-review substantial portions if not all of the material at

issue will remain at issue.

THE COURT: Well, if that is the case, I have got some very serious problems, Ir. Axelrad that I want to talk about. I took your representations to me in good faith and

I have made, after ex parte hearings, decisive findings on

many issues that I guess are still going to be litigated.

i a

in a position where i doubt very much that I should continge

in dhe case.

I heard witnesses. I reviewed documents, at your