I can’t give you super clear answers on most of those questions, both from a lack of expertise and a lack of clear case law standard, but I’ll try to dig up the bones.

Typically, in a common law court, things are done according to the rules “at law.” This would mean first statutory law, and secondarily – if there is no statute on point, according to pretty rigid case law precedence. However, in our old common law tradition, there was another option at time available for aggrieved parties who were not likely to win their case “at law.”

Let’s say you had a contract to build a brick wall just across the front of a yard. You’re the builder. Your contract says it can only be modified by a writing, signed by you and owner. The owner discusses things with you part way through and asks you to run the wall up the sides and back to the house. You’ve got your crew there and enough supplies and you go ahead and do it. No one heard this other than you and the owner.

The owner then pays for the front wall at the contract price but refuses to pay for the side walls. Are you plain and simply out of luck, because “at law” (your *legal* recourse) your contract is limited to the front wall and there is no modification signed by both of you?

These kinds of things happened before this country was born, and originally it was handled by the evolution in England of courts of the Chancellor (Chancery Courts) which had the right to fashion remedies in extreme cases based on fairness and equity. These weren’t easy to get, though. You usually had to show that the other guy did something more than just successfully yank your chain. So if you couldn’t prove up your conversation and the owner had left right after it and was gone during the whole time you were putting up the side walls, you might not have the kind of extraordinary circumstances that would give you a right to an “equitable” (chancery court) remedy.

Otoh, let’s say that even though you couldn’t prove the conversation, you could prove that the owner was there the whole time your guys were working on the side walls, went out and talked to various workers from time to time, and hung around for 8 hours giving “tsk tsks” about too much mortar and things like that while the side walls were being built. Then wouldn’t pay. Well, your contract still hasn’t changed, but the CIRCUMSTANCES are now a lot more egregious. Even if the owner didn’t have the conversation with you (the one you can’t prove, at law, or rely on even if you could prove it bc of the terms of your contract) it is extraordinarily egregious for him to sit around supervising the installation of the side walls and then refust to pay for the labor and materials.

Enter the Chancery Court. It had a number of equitable doctrines it could use to try to make things, if not “right” then at least, less wrong. IN a case like the walls, you might able to argue a number of equitable arguments – “unjust enrichment” or “quantum meruit” or “estoppel” from relying on the contract, for example, as a grounds for the court to give you a judgment against the owner.

But there is no set standard for when a court would think things were “extraordinary” enough for giving an equitable remedy. But Equity isn’t for the Everyday. It isn’t for just plan bad stuff. It’s for really face slapping bad stuff. And you used to have to go to a separate court for equity and if you thought you could win “at law” and lost, then you no longer had a right to seek equity from the Chancery Court.

Fast forward (historically speaking) to the birth of our nation and setting up our courts (remember, I’m also not a historical expert, so I may have some of this a bit skewed). Setting up federal courts (a job left to Congress, but for the Supreme Court) one thing you had to figure out was what kind of powers those courts would have. Would our newly created courts be simply courts that operated at law, or would they have equitable powers (since we had no Lord Chancellor and no courts set up under such a figurehead).

Over time it became decided that our Federal Courts do have equitable powers, but there are some huge hurdles you have to leap through to get equity in even a fully empowered State Court, much less the Federal Courts. What makes it easiest is if Congress, in statutes, confer equitable powers. I don’t know if there is anything like that in the FOIA. If there is, say something like, “and in addition to the remedies listed above, the court on review shall have the right to enter any orders at law or in equity as might be necessary or prudent to provide full and fair relief….” then you’ve got a statutory recoginition of equitable powers. YOu might even have something more direct at times, “any court having jurisdiction over such subject matter shall have all powers conferred by equity to dispose of same …”

Absent a statutory recognition of, or grant of, equitable powers, it’s a bit more tangential. To grant equity, the court has to have “jurisdiction” that would extend as far as an equitable order might take it. Again, you get into some complex areas, as jurisdiction doesn’t always mean what you think it might mean.

Here’s a write up on an relatively recent case, from the 1st Circuit, where the Supreme Court refused cert (wouldn’t take the case for review) but where they talk about something that might seem “fair” to you or I and where the Circuit Courts are split.

http://www.law.suffolk.edu/highlights/stuorgs/lawreview/documents/Thornton_Comment_Final.pdf

In the case of US v. Coloian, an attorney and Mayor’s Chief of Staff was indicted by a federal Grand Jury. After trial, he was acquitted and he moved to have the court expunge his criminal record because of the impact that would have on him as a lawyer and in politics. The First Circuit said – no, we don’t really have the kind of jurisdiction that allows us to do that, give you the equitable relief of expungement.

It said it had jurisdiction to expunge as a remedy if the arrest or prosecution had violated law. But this was a case where no one was provign the prosecution was illegal, just that the defendant was acquitted. The First noted the other Circuits that agreed with it and those that disagreed, a pretty fair split. It’s an interesting case bc they discuss the fact that, if a statute doesn’t recognize or confer the equitable power, then that equitable power has to exist under “ancillary jurisdiction” and the First then discusses Justice Scalia’s discussion of ancillary jurisdiction in the Sup Ct case of Kokkonen v. Guardian Life

Insurance Co. of America (a 1994 unanimous decision).

Usually, the “jurisdiction” used for a court to grant equitable relief is the power that Scalia recognized was inherent to: “enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.”

I’m thinking there’s nothing more central to enabling a court of function successfully, manage its proceedings, vindicate its authority and effectuate its decrees than the power to smack the snot out of parties before it who hide behind the protections of their institutional/agency fronts in order to personally violate the courts orders and achieve personal benefit from those acts.

OTOH, what Hellerstein has before him IIRC (and I may not, I’ve never paid the kind of attention I should have to comment on these cases) is a FOIA request. Can he enter an order that would toll statutes for other actions, not before him? I’m sure that DOJ has Memorandized themselves to protect their rights facilitate evidence destruction and misreps to the court. I mean – the Sup Ct itself has never seen fit to take issue with the Clement misreps to it on torture in a very specific case on point, so it’s not likely that a District Court is going to go where the Sup Ct itself has not gone. When there’s no institutional response whatsoever by the SUp Ct to Clement saying we don’t do things like torture; to Comey asserting that the facts on the Maher Arar case are being covered up by the DOJ for interests of National Security; to the same assertions with respect to Germans with the wrong name (el-Masri) and even Americans on American soil (Padilla) then it’s a bit much to expect a District Court to have to step up and on its own lift up the bench and bar.

At least back in the days when a Judge like Damon Keith did that kind of thing, you didn’t have a Sup Ct that had already refused to speak on Exec Branch torture being discussed worldwide, based solely on the simpering invocations of an implicated Dept. of Justice.

You have to figure that Hellerstein in the end is going to grouse some, but when it comes to real consequences, he’s going to figure that if the SUp Ct doesn’t care when it gets fibbed to about torture – even when that fib is exposed worldwide – what can he realistically do?

I just hope someone makes the record – because one day, eventually, in the end, equity outs. It has to, because the law can’t breath without the heartbeat of equity at its core.

I just don’t think we are going to live to see it. Not here, not now, not with the players on the field.