For the second time in a month, a Washington, D.C., court has rejected DOJ’s arguments for withholding documents related to the Fast and Furious scandal.

Last month, Judge Amy Berman Jackson of the United States District Court for the District of Columbia, presiding in Committee On Oversight And Government Reform, United States House of Representatives v. Lynch (the “House Suit”), rejected the Justice Department’s assertion of the “deliberative process privilege” to withhold around 10,000 Fast and Furious documents.  Judge Jackson held that DOJ had waived the privilege by previously releasing a substantial amount of information about the same documents it then sought to withhold.

I discussed Judge Jackson’s decision in more detail, here.

Background

The February 12, 2016 decision from the D.C. Circuit Court of Appeals comes from a follow-on suit in Judicial Watch, Inc. v. United States Department of Justice (the “Judicial Watch Suit”).  In March, 2013, Judicial Watch, Inc. filed a Freedom of Information Act (“FOIA”) request with the Department of Justice for documents related to the House Suit.  Judicial Watch sought:

Any and all records of communications, correspondence, and contacts between the Department of Justice and the House Committee on Oversight and Government Reform concerning or relating to a settlement in [the House Suit].  Such records include, but are not limited to, records of the settlement discussions themselves.

DOJ identified eight responsive documents totaling thirty-two pages, but refused to release them, asserting that “the information is, among other things, subject to court-imposed non-disclosure requirements.  Accordingly, the Civil Division is prohibited from releasing this information to you.”

The District Court’s Decision

After exhausting the administrative processes predicate to filing a federal suit, Judicial Watch sued. (Complaint at bottom of post).

In August, 2014, District Court Judge Richard J. Leon granted DOJ’s motion for summary judgment.  Summary judgment is granted only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.  In other words, if the parties agree on facts that dictate the outcome of the case no matter how other, disputed facts were resolved, the court can and should enter judgment based on those undisputed facts.

Judge Leon set the context:

Although the [House Suit] is ongoing, DOJ and the House Committee have endeavored to resolve the subpoena dispute out of court. . . As of the writing of this Opinion, settlement discussions remain ongoing, and have included at least three court-ordered mediation sessions

. . .

Within months of the complaint in [House Suit], the parties began discussing the possibility of resolving the case outside of litigation.  The parties met in early December 2012 and then exchanged correspondence in late December and early January 2013 regarding potential settlement of the case.  During a January 10, 2013 status conference before Judge Amy Berman Jackson, Judge Jackson indicated that she did not want the substance of the parties’ settlement discussions made public.  (“I don’t know what you said [in settlement communications]. I don’t want to know.”).  The parties continued their settlement negotiations, exchanging more letters and draft settlement agreements.

On March 15, 2013, in an effort to speed up the pace of negotiations, DOJ requested that Judge Jackson refer the case to Visiting Senior Judge Barbara Rothstein for mediation.  Pursuant to an order from Judge Rothstein, the parties submitted memoranda “outlining the current status of the case, including a summary of … the settlement history to date, including a summary of any issues that prevented settlement,” prior to commencement of the first mediation session.  DOJ’s memorandum contained substantive summaries of the parties’ settlement negotiations and attached copies of two letters and two draft settlement agreements exchanged by the parties.  Following the conclusion of the first mediation session on April 22, 2013 — with the parties failing to reach a settlement — Judge Jackson ordered the parties back to mediation on October 30, 2013, and again on January 15, 2014.

Judicial Watch, Inc. v. United States Department of Justice, 63 F.Supp. 3d 50, 52-53 (D. D.C. 2014) (citations and footnote omitted).

Judge Leon ruled the eight documents were properly withheld for two reasons.  First, because Judge Berman did not want “the substance of [the parties’] settlement communications” made public and “agency records that are subject to a court order or rule preventing their public disclosure are properly withheld under FOIA.”  Second, because of a Local Rule in the D.C. District Court prohibiting disclosure of communications “made in connection with or during any mediation session.”  Id. at 54-55.

The first point is the more interesting.  Judge Leon agreed with DOJ that it could not disclose the identified documents because they were under a “court-imposed non-disclosure requirements.”  However, there is no order or ruling imposing any such non-disclosure requirement.

Instead, Judge Leon seemingly inflated an off-handed comment into a substantive ruling.  Judge Berman said during a hearing that “I don’t know what you said [in settlement communications]. I don’t want to know.”  From that, Judge Jackson inferred that Berman “did not want the substance of the parties’ settlement discussions made public,” even calling it “an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions.”  Id. at 56.

Recall that summary judgment is only proper if “there is no genuine dispute as to any material fact.”  Contrary to Judge Leon’s gloss, it is not at all obvious that Judge Berman intended to impose a non-disclosure requirement in the first instance, so summary judgment was not proper on that argument.

The second, point is more technical.  All federal litigation is organized according to the Federal Rules of Civil Procedure.  “Local Rules” are additional rules of procedure applicable only to proceedings in a particular jurisdiction or even in a particular judge’s chambers.

The courts and procedural rules generally promote settlement as, among other things, a cost-efficient way of resolving litigation.  D.C. District Court Local Rule 84.9(a)(1) accordingly provides:

The Court hereby prohibits the mediator, all counsel and parties and any other persons attending the mediation from disclosing any written or oral communications made in connection with or during any mediation session.

Judicial Watch filed it’s FOIA before the House Suit went to mediation, and requested documents from before the suit went to mediation.  Nevertheless, according to Judge Leon:

Plaintiff argues . . . that because the responsive documents were created before the parties were formally ordered into mediation by Judge Jackson, Local Rule 84.9 does not apply.  Unfortunately for the plaintiff, its narrow interpretation of Local Rule 84.9 is inconsistent with the broad protections this District Court provides for confidential settlement discussions between parties.  Indeed, the prohibition of disclosure of settlement-related communications contained in Local Rule 84.9 has been applied to negotiations occurring outside of the Court’s formal mediation program.

63 F.Supp. 3d at 55 (citations omitted).  However, Judge Leon relies on precedent that does not interpret or apply Local Rule 84.9, and that discusses communications associated with actual, ongoing mediation.  By its terms, Judicial Watch’s FOIA pertains only to pre-mediation documents.  As such, those cases and arguments do not apply and should not have been relied upon.

Judge Leon’s later observation that “the substance of these confidential settlement communications — including actual communications and draft settlement agreements — were submitted to the Visiting Senior District Judge and became the starting point from which the mediation sessions before Judge Rothstein proceeded” is likewise irrelevant.  A document that is not privileged cannot become privileged by some later use.

Nevertheless, the District Court granted DOJ’s motion for summary judgment on these two, independent, rationales.

The Circuit Court Decision

The D.C. Circuit reversed and remanded the case back to the District Court for further proceedings.

Regarding whether Judge Berman ordered the documents sealed, the Circuit Court noted:

That test requires us to examine (1) any explicit sealing order from the court, if there is one; (2) extrinsic evidence about the intended scope of a purported sealing order; (3) orders of the same court in similar circumstances; and (4) the issuing court’s general rules or procedures.  The government has the burden of proving an order prohibits disclosure.

Judicial Watch, Inc. v. Department of Justice, No. 14-5215, slip op. at 5 (D.C. Cir., Feb. 12, 2016) (citations omitted).  The Court went on to observe that “the intended effect of Judge Jackson’s order [that she didn’t want to know what was said in settlement discussions] is ambiguous” and an ambiguous order is not sufficient to justify withholding documents responsive to a FOIA request.  Id. at 6.  Instead of putting the burden on the Court to infer what another Judge in another proceeding intended, the burden is on the government agency to seek clarification from the judge who putatively ordered documents sealed.  Id. at 7.

Regarding Local Rule 84.9, the Court noted that Judge Leon’s interpretation “presents difficult questions.”  Id. at 8.  The Court went on to note that “Local Rule 84(b) explicitly provides that ‘[t]hese Rules [including Rule 84.9] apply only to mediation proceedings that are formally conducted through the United States District Court’s Mediation Program.'”  Id. at 8.  The Judicial Watch Suit seeks disclosure of documents from before there was any mediation at all, so there were no “mediation proceedings” at all.

Nevertheless, and in a time-honored show of judicial restraint, the D.C. Circuit deferred any decision on Judge Leon’s interpretation of Local Rule 84.9 because of the possibility that Judge Berman might moot the point.  If Judge Berman indicated that she did indeed intend the documents to be permanently sealed, interpretation of Local Rule 84.9 would be irrelevant.

What It Means

The Circuit Court’s decision has little substantive impact, for the moment.  In reversing and remanding, the Circuit Court held without stating it explicitly that DOJ could not be granted summary judgment because the fact central to its argument – whether or not Judge Berman intended to order pre-mediation settlement discussions and documentation thereof sealed – was “ambiguous.”  Ambiguous dispositive facts are obviously contrary to the summary judgment standard’s predicate demand for “no genuine dispute as to any material fact.”

The bad news for Judicial Watch and for government transparency is that Judge Berman might doom its FOIA suit by stating that she intended the underlying documents to be sealed.  Even if she doesn’t, DOJ’s Local Rule 84.9 argument remains live.

On the other hand, the Judicial Watch Suit was dead Friday morning and the Circuit Court has brought it back to life.  Without any inside information, Judge Berman’s statement – “I don’t know what you said. I don’t want to know”- sounds like an offhanded deflection not to get into the issue at that moment and in that venue, rather than like a substantive order sealing documentation of those discussions.  And although the Local Rule argument is live, the D.C. Circuit already expressed significant skepticism.

In any event, DOJ’s effort to suppress access to Fast and Furious documents has suffered another setback.

Judicial Watch FOIA Complaint