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Judge won't allow Holder appeal now in contempt case

A federal judge has refused Attorney General Eric Holder's request that he be allowed to proceed now with an appeal in a case where the House of Representatives is seeking to enforce subpoenas for documents related to the controversial Operation Fast and Furious gun investigation.

In a ruling Monday afternoon, U.S. District Court Judge Amy Berman Jackson said her September 30 ruling rejecting Holder's request to dismiss the lawsuit was not such a close call that it deserved immediate review from the U.S. Court of Appeals for the D.C. Circuit.

"While the Court agrees with defendant’s characterization of the matter as significant, that is not the test," Jackson wrote in her new four-page decision (posted here). "

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Jackson's latest ruling means it is likely the Justice Department will have to produce a detailed log of what was withheld from the House Oversight and Government Reform Committee and why. Rounds of protracted litigation over the legitimacy of the withholdings seem all but certain, unless the sides come to an agreement which has heretofore eluded them.

"The Court is not of the opinion that its denial of the motion to dismiss involves a controlling question of law as to which there is a substantial ground for difference of opinion," she wrote in her Monday order, issued just one business day after Holder's lawyers asked for the immediate appeal. "The ruling was based upon Supreme Court precedent and Circuit precedent, and it was decided in accordance with an opinion issued by another judge of this court in a substantially similar matter.... Defendant has not pointed to any precedent that would supply the grounds for a difference of opinion."

Jackson noted that while she was turning down Holder's request for an immediate appeal, she has yet to rule on whether any documents have been improperly withheld from the House Oversight and Government Reform Committee under a claim of executive privilege from President Barack Obama. If she makes such a finding, an appeal would be open at the conclusion of the case.

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"If the Court ultimately orders defendant to do anything, he will have an opportunity to ask both this Court and the Court of Appeals to stay the execution of that order if the conditions for a stay – which are different than the conditions for an interlocutory appeal – are present. The Court expresses no opinion at this time as to how that motion would be resolved," wrote Jackson, an Obama appointee.

A Justice Department spokesman and a spokeswoman for the committee did not immediately respond to requests for comment on the ruling.

Former House Counsel Stan Brand said it was not a major loss for the Justice Department, though he understood why lawyers their hope to head off the dispute now and send it directly to the appeals court. However, he said there was no plausible avenue for that to happen in the wake of Jackson's ruling Monday.

Brand said the next step would be detail-oriented litigation in the district court over what documents have been withheld and why.

"They still have all their claims on the merits which could take months," Brand said. "There's still not order saying they must produce a single document. We're six months or more from that final decision and it will be appealed then."

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