Phang v. Blanche Document 48: DOJ’s Reply Seeking a Partial Stay of the Epstein Files Order
On September 21, 2026, the Department of Justice filed Document 48 in Phang v. Blanche, Case No. 1:26 cv 01417, in the United States District Court for the District of Columbia. The filing is the government’s reply supporting Attorney General Todd Blanche’s request to pause part of Judge Emmet G. Sullivan’s September 16 order while DOJ pursues an appeal.
The requested pause concerned the court’s command that DOJ begin reviewing and producing foreign language materials that may be covered by the Epstein Files Transparency Act. Document 48 does not decide the dispute. It presents DOJ’s arguments. Judge Sullivan denied the requested stay later that day in Document 49.
Snapshot
| Category | Details |
|---|---|
| Case | Katie Phang v. Todd Blanche, Case No. 1:26 cv 01417 EGS |
| Court | United States District Court for the District of Columbia |
| Judge | Emmet G. Sullivan |
| Filing | Document 48, Defendant’s Reply in Support of Motion for a Partial Stay Pending Appeal |
| Filed | September 21, 2026 |
| Plaintiff | Journalist and attorney Katie Phang |
| Defendant | Todd Blanche, in his official capacity as Attorney General of the United States |
| Underlying law | Epstein Files Transparency Act, commonly abbreviated EFTA |
| Immediate dispute | Whether DOJ must begin reviewing and producing potentially responsive foreign language Epstein materials while its appeal proceeds |
| DOJ’s request | A stay pending appeal, or at least a temporary pause allowing DOJ to request a stay from the United States Court of Appeals for the District of Columbia Circuit |
| DOJ’s central theory | Reviewing and releasing records could make its appeal meaningless because disclosed information cannot later be made undisclosed |
| Plaintiff’s position | Phang opposed the stay and argued that DOJ should comply with the existing court order |
| Result | Judge Sullivan denied the partial stay in Document 49 later on September 21, 2026 |
| Evidentiary significance | The filing confirms an active dispute over foreign language Epstein records that DOJ had not reviewed for production |
| Critical limit | Document 48 does not identify the number, languages, subjects, dates, custodians, or contents of those materials |
What Document 48 Says in Plain Language
DOJ asked Judge Sullivan to stop enforcement of one important part of his September 16 order while an appellate court considered whether Katie Phang had the legal right to bring and enforce this case.
The government’s position was essentially this:
- DOJ believed Phang could not privately enforce the Epstein Files Transparency Act.
- DOJ argued that Phang lacked constitutional standing and an available legal cause of action under the EFTA, the Administrative Procedure Act, or another theory.
- DOJ said that beginning the ordered review and production could defeat the purpose of its appeal.
- Once documents were released, DOJ argued, the disclosure could not be reversed.
- DOJ claimed that reviewing the foreign language materials would require staff, training, and agency resources.
- DOJ asked the district court to preserve the existing situation until the Court of Appeals decided whether the lower court had authority to require the work.
- If Judge Sullivan would not grant a full stay pending appeal, DOJ asked for a temporary pause so it could seek relief from the Court of Appeals.
In even plainer terms, DOJ was not arguing in this filing that it had completed the foreign language review. It was arguing that it should not be forced to begin or continue that work until appellate judges considered whether Phang could legally compel it.
What a Partial Stay Would Have Done
A stay temporarily suspends enforcement of a court order. DOJ did not ask Document 48 to erase the entire case or permanently authorize withholding every foreign language record. It asked to pause the portion of the September 16 order requiring DOJ to initiate review and production of foreign language materials that might fall within the EFTA.
The practical consequence would have been delay. If the stay had been granted, DOJ would not have been required to begin the ordered review by the September 24 deadline while the appeal proceeded.
The dispute was important because the underlying materials had never received a complete responsiveness review. Without translation and review, neither the court nor the public could know which records were covered by EFTA, which records were lawfully protected, or what information the collection contained.
The Foreign Language Records at the Center of the Dispute
The September 16 order arose from DOJ’s earlier representation that foreign language materials had not been reviewed or produced because a first level reviewer could not practically determine whether they were responsive.
Judge Sullivan rejected administrative inconvenience as a sufficient answer. He ordered DOJ to initiate review and production of foreign language materials that might be subject to EFTA and to notify the court and the parties that the review was underway by September 24, 2026.
Document 48 does not provide an inventory of that material. It does not disclose:
- How many documents or media files were involved.
- Which languages appeared in the collection.
- Which investigative files, devices, accounts, or evidence sources contained them.
- Whether they concerned victims, witnesses, employees, financial activity, travel, properties, communications, or foreign contacts.
- Whether machine translation, contract linguists, agency linguists, or another review method had been considered.
- How long a complete review would take.
- How many potentially responsive records might eventually be released.
The document therefore confirms a review dispute, not the contents or importance of any particular untranslated record.
DOJ’s Irreparable Harm Argument
DOJ argued that it would suffer severe and irreparable harm without a stay. Its strongest practical point was that public disclosure cannot be undone. If DOJ produced records and later won its appeal, the released information would already be public.
The government also described the review burden as more than routine administration. It cited the need to allocate resources and train new or existing personnel. It further characterized the order as judicial intrusion into Executive Branch operations.
This section combined two different claimed harms:
| Claimed harm | DOJ’s reasoning |
|---|---|
| Loss of meaningful appellate review | Production could make the appeal moot because documents cannot be made private again after release |
| Operational burden | Translation, responsiveness review, redaction review, training, and production would consume government resources |
| Separation of powers concern | DOJ argued that close judicial supervision would intrude into Executive Branch administration |
The filing did not establish that every foreign language record was protected from disclosure. It argued that DOJ should have an appellate decision before being compelled to perform the review and release process.
DOJ’s Arguments About Phang’s Right to Sue
Document 48 repeatedly returns to whether a private person may enforce EFTA.
DOJ argued that Phang lacked Article III standing and that Congress did not create a private right of action in the statute. It also disputed her reliance on the Administrative Procedure Act. According to DOJ, the Freedom of Information Act offered a remedy of the same general kind, even though FOIA contains exemptions and would not necessarily provide the same disclosure required by EFTA.
Phang’s case relies substantially on the Administrative Procedure Act, including the provision allowing a court to compel agency action that has been unlawfully withheld or unreasonably delayed. DOJ argued that the correct legal standards for such a claim had not been fully addressed before the preliminary injunction.
The government also cited congressional consideration of an EFTA amendment that would expressly create a private right of action for certain people. DOJ presented that possible amendment as evidence that the existing statute did not already provide the right Phang asserted.
That is an argument, not a judicial holding. The legal question remained for the courts to decide.
The Preliminary Injunction Dispute
DOJ argued that Judge Sullivan’s earlier orders effectively gave Phang the final relief she sought while the case was still at the preliminary injunction stage.
The government said a party should not be permanently bound by the shorter and less developed presentation ordinarily made during preliminary proceedings. It contended that the later show cause process occurred under the shadow of the June 25 injunction and did not replace a full merits proceeding.
This matters because a preliminary injunction is intended to provide temporary relief while litigation continues. DOJ claimed that if compliance produced all the requested records, there would be little left to litigate and no effective way to reverse the disclosure.
Phang’s opposing position was that DOJ had already been ordered to comply with a federal disclosure law and should not be allowed to transform continued noncompliance into a reason for further delay.
DOJ’s Response to Phang’s Claimed Harm
Phang argued that access to the records affected her profession and livelihood as a journalist. DOJ answered that she had not shown a specific injury caused by the temporary appellate delay itself.
DOJ also argued that the records would remain available for later review if Phang ultimately prevailed. The government contrasted that with disclosure, which it said could not be reversed after production.
The filing further accused Phang of delaying before seeking preliminary relief. That point was presented to weaken the claim that every additional day created irreparable harm. It remained contested advocacy rather than an independent finding by the court.
The Public Interest Argument
Both sides framed their positions as protecting the public interest.
DOJ argued that the public had an interest in appellate resolution of the threshold legal questions, particularly whether a private litigant could enforce EFTA and whether the district court had authority to order the review.
Phang’s position emphasized the public interest in timely compliance with a transparency statute concerning records of extraordinary public importance.
Document 48 invoked the principle that courts determine what the law means. DOJ used that principle to argue that the D.C. Circuit should be allowed to rule before disclosure changed the situation permanently.
The Procedural Fight Over Local Rule 7(m)
Phang argued that DOJ had not complied with the local rule requiring parties to confer before filing certain motions. DOJ answered that the parties’ disagreement over a stay was already obvious because Phang had opposed stays several times.
The government argued that denying its motion on this procedural ground would elevate a technical issue over appellate review of important legal questions.
A footnote stated that government counsel would seek to confer in the future even where opposition appeared certain. Counsel also wrote that, had they known some of Phang’s lawyers would observe Yom Kippur, they would have considered an agreed schedule moving the September 24 deadline by several days.
This procedural issue mattered because Judge Sullivan later denied the motion to stay. The district court docket records that denial as Document 49.
Why DOJ Said the Order Was Appealable
DOJ argued that the September 16 order functioned as an appealable injunction because it definitively resolved the foreign language issue, required affirmative government action, and imposed a deadline.
The government acknowledged uncertainty over whether the original June 25 order was immediately appealable. It had filed what it called a protective notice of appeal concerning that order. DOJ then argued that the September 16 order either created a new appealable obligation or modified the earlier injunction by adding an imminent deadline.
Document 48 asked the court to interpret the stay request broadly enough to cover the relevant June 25 and September 16 directives. Its conclusion also refers to the July 25 order. That reference is not necessarily a date error. The docket contains a separate July 25 order requiring DOJ to submit documents for private judicial review.
The Alternative Request for a Temporary Pause
DOJ’s fallback request was narrower. If Judge Sullivan would not grant a stay for the full appeal, DOJ asked him to pause enforcement long enough for the D.C. Circuit to consider a separate stay application.
The filing argued that Phang had not specifically answered this alternative request and therefore had conceded it under the district court’s approach to unopposed arguments.
DOJ asked for a ruling by 8:00 p.m. Eastern Time on September 21 so it could seek appellate relief before the September 24 compliance deadline.
What Happened After Document 48
Judge Sullivan denied DOJ’s partial stay request in Document 49 on September 21, 2026. The denial means Document 48 did not persuade the district court to suspend the foreign language review requirement.
The underlying appeal was docketed in the D.C. Circuit as Katie Phang v. Todd Blanche, Case No. 26 5299. DOJ’s ability to seek emergency relief from the appellate court remained a separate procedural path.
As of September 25, 2026, the litigation remained active. The district court’s denial should not be confused with a final appellate ruling on whether Phang may enforce EFTA through the Administrative Procedure Act.
What the Filing Establishes
Document 48 establishes that:
- DOJ sought to prevent the September 24 foreign language review requirement from taking effect while it appealed.
- DOJ maintained that Phang lacked standing and a legally available cause of action.
- DOJ argued that disclosure could make appellate review meaningless.
- DOJ acknowledged that the order required review and possible production of foreign language Epstein materials.
- DOJ treated the translation and review process as a significant operational burden.
- DOJ requested both a full stay pending appeal and a shorter pause for appellate review.
- Judge Sullivan denied the requested district court stay later that day.
What the Filing Does Not Establish
Document 48 does not establish that:
- The foreign language documents are irrelevant.
- Every untranslated record is exempt from EFTA.
- The materials contain evidence of crimes or misconduct.
- DOJ completed a translation or responsiveness review.
- The D.C. Circuit agreed with DOJ’s legal arguments.
- Judge Sullivan granted the requested stay.
- Phang won a final judgment on every claim in her complaint.
- Every redaction challenged elsewhere in the case was unlawful.
- Document 48 ordered the public release of the handwritten FBI notes discussed in related proceedings.
Why Document 48 Matters to Epstein Researchers
The filing matters because it documents the government’s effort to delay review of a category of Epstein material that had not been fully assessed for release. The existence of unreviewed foreign language material raises basic evidence management questions concerning collection, translation, responsiveness review, redaction, and production.
It also exposes the legal gap at the center of the lawsuit. Congress enacted a disclosure mandate, but DOJ disputes whether an individual journalist may ask a federal court to enforce it. If no private right exists and no Administrative Procedure Act claim is available, enforcement may depend heavily on Congress, institutional oversight, or government compliance rather than private litigation.
For researchers, the correct conclusion is narrow but important. Document 48 does not reveal what the foreign language records say. It shows that DOJ sought appellate protection before being required to review and potentially produce them.
Court Record Appearances
| Record | Date | Significance |
|---|---|---|
| Complaint, ECF No. 1 | April 27, 2026 | Phang alleges DOJ failed to comply fully with EFTA and seeks declaratory and injunctive relief |
| Preliminary Injunction Order, ECF No. 15 | June 25, 2026 | Grants Phang preliminary relief and directs DOJ to address specified disclosure issues |
| Memorandum Opinion, ECF No. 16 | June 25, 2026 | Explains why the court found Phang likely to succeed on relevant Administrative Procedure Act claims |
| In Camera Review Order, ECF No. 23 | July 25, 2026 | Requires DOJ to submit documents for private judicial review |
| Notice of Appeal, ECF No. 35 | August 24, 2026 | DOJ appeals the June 25 preliminary injunction |
| September Memorandum Opinion and Order, ECF No. 43 | September 16, 2026 | Requires review and production of potentially responsive foreign language materials to begin by September 24 |
| Notice of Appeal, ECF No. 44 | September 17, 2026 | DOJ appeals the September 16 order |
| Motion for Partial Stay, ECF No. 46 | September 18, 2026 | DOJ asks the district court to pause the foreign language requirement |
| Phang Opposition, ECF No. 47 | September 21, 2026 | Phang opposes the stay |
| DOJ Reply, ECF No. 48 | September 21, 2026 | DOJ’s final district court argument supporting the requested stay |
| Order Denying Stay, ECF No. 49 | September 21, 2026 | Judge Sullivan denies the motion |
| D.C. Circuit Case No. 26 5299 | Filed August 25, 2026 | Appellate proceeding concerning the district court orders |
Related EFTA Evidence Identifiers
Document 48 focuses on the foreign language review and does not analyze individual Epstein files. The September 16 order arose from a broader compliance dispute involving the following identifiers:
| EFTA identifier | Issue described in the September 16 order |
|---|---|
| EFTA00749245 | Redacted private email address |
| EFTA01187999 | Redacted name DOJ represented as belonging to a victim, requiring further support |
| EFTA01930501 | Victim name redaction supported during private court review |
| EFTA01928255 | Victim name redaction supported during private court review |
| EFTA00628112 | Redacted private email address |
| EFTA02648868 | Victim name redaction supported during private court review |
| EFTA02504630 | Redacted name and email requiring further support |
| EFTA01022356 | Redacted name and email requiring further support |
| EFTA01703108 | Redactions involving a victim and government or law enforcement personnel, according to the court’s review |
| EFTA00038227 | Redactions involving a victim and government or law enforcement personnel, according to the court’s review |
| EFTA01245620 | FD 302 associated with underlying FBI interview notes ordered for private court review |
| EFTA02858481 | FD 302 associated with underlying FBI interview notes ordered for private court review |
| EFTA02858491 | FD 302 associated with underlying FBI interview notes ordered for private court review |
| EFTA02858495 | FD 302 associated with underlying FBI interview notes ordered for private court review |
These identifiers provide context for the litigation. They should not be represented as the foreign language document set unless a court record specifically makes that connection.
Sources
- Phang v. Blanche, Document 48, Defendant’s Reply in Support of Motion for a Partial Stay Pending Appeal
- Phang v. Blanche, Document 43, September 16, 2026 Memorandum Opinion and Order
- Phang v. Blanche, Document 42, September 16, 2026 Memorandum Opinion and Order
- Phang v. Blanche, June 25, 2026 Memorandum Opinion
- Civil Rights Litigation Clearinghouse, Phang v. Blanche docket and case summary
- D.C. Circuit docket, Katie Phang v. Todd Blanche, Case No. 26 5299
Questions That Remain
- How many foreign language documents, recordings, images, and other files are in DOJ’s Epstein collection?
- Which languages are represented?
- Which evidence collections and investigative matters contain those records?
- When did DOJ first identify the material as requiring translation?
- Did DOJ create an inventory before declaring the review impracticable?
- What translation and quality control methods will DOJ use?
- How will reviewers distinguish responsive Epstein records from unrelated material?
- What victim protection procedures will apply during translation and production?
- Will DOJ publish a production schedule and document count?
- Will the D.C. Circuit recognize Phang’s standing or an enforceable Administrative Procedure Act claim?
- Will Congress amend EFTA to create an express private right of action?
- Did DOJ satisfy the September 24 requirement after the district court denied its stay request?
- What additional relief, if any, will the D.C. Circuit grant while the appeal is pending?
- Will the litigation produce a complete administrative record showing how DOJ collected, reviewed, withheld, redacted, and released the Epstein files?