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Judicial Watch • JW v DOJ Fast and Furious appeal 5215

JW v DOJ Fast and Furious appeal 5215

JW v DOJ Fast and Furious appeal 5215

Page 1: JW v DOJ Fast and Furious appeal 5215


Number of Pages:9

Date Created:February 4, 2016

Date Uploaded to the Library:February 18, 2016

Tags:5215, Fast, Furious, local, appeal, jackson, Attorney, order, Circuit, justice, ATF, committee, filed, document, records, DOJ, department, FOIA, states, district, united, Judge

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USCA Case #14-5215
Document #1598617
Filed: 02/12/2016
United States Court Appeals
Argued September 25, 2015
Decided February 12, 2016
No. 14-5215
Appeal from the United States District Court
for the District Columbia
(No. 1:13-cv-01344)
Michael Bekesha argued the cause and filed the briefs for
Gerard Sinzdak, Attorney, U.S. Department Justice,
argued the cause for appellee. With him the brief were
Ronald Machen Jr., U.S. Attorney the time the brief was
filed, and Michael Raab, Attorney.
Before: PILLARD and WILKINS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed Senior Circuit Judge
USCA Case #14-5215
Document #1598617
Filed: 02/12/2016
GINSBURG, Senior Circuit Judge: Judicial Watch,
organization that aims educate the public about the
operations and activities government, sent Freedom
Information Act (FOIA) request the Department Justice
seeking records the Department settlement discussions ongoing lawsuit. The Department denied the request
the ground that the requested documents had been placed
under seal the district court (Jackson, J.) prior
proceeding. Judicial Watch sued compel disclosure, the
district court (Leon, J.) granted summary judgment for the
Department, and Judicial Watch appealed this court.
vacate the judgment the district court, and remand this case the Department can seek clarification from Judge Jackson
about the intended effect her purported sealing order. Background October 2011, the House Committee Oversight and
Government Reform subpoenaed Attorney General Eric
Holder for documents related the Fast and Furious
operation conducted the Bureau Alcohol, Tobacco,
Firearms and Explosives (ATF). Comm. Oversight and
Gov Reform Holder, 979 Supp. (D.D.C. 2013).
Fast and Furious refers series gunwalking
operations which the ATF knowingly allowed firearms
dealers Arizona sell straw purchasers buyers
acting behalf others who legally could not purchase
gun hopes tracking the guns Mexican drug cartels,
but the program was unsuccessful and, once became public,
very controversial. Id.
When the Attorney General refused produce some
the subpoenaed records the ground executive privilege,
the House Committee sued enforce its subpoena. Id.
The case came before District Judge Amy Berman Jackson,
USCA Case #14-5215
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Filed: 02/12/2016
who encouraged the parties discuss settlement but
declined involve herself any settlement negotiations. Tr. 1/10/13 Status Conf., Holder, No. 12-cv-1332.
Specifically, after referring then-ongoing settlement
discussions, Judge Jackson stated, don know what you
said. don want know. Id.
Instead, Judge Jackson noted multiple occasions that
the case would good candidate for mediation and that
senior district judge had agreed serve neutral mediator.
See, e.g., id. 8-9. The judge indicated she would order
mediation the parties requested and possibly even they
did not. Id. 11. Finally, March 18, 2013, the
Department request, Judge Jackson referred the case
Two days later, Judicial Watch made FOIA request
the Department seeking:
Any and all records communications,
correspondence, and contacts between the
Department Justice and the House
Committee Oversight and Government
Reform concerning relating
settlement Committee Oversight and
Government Reform Holder, 1:12-cv01332, U.S. District Court, District
Columbia (Washington).
Such records
include, but are not limited to, records the
settlement discussions themselves.
The request covered all such records created between October 2012, and March 20, 2013. The Department located eight
responsive documents comprising pages, but May
2012, refused release them, explaining:
USCA Case #14-5215
Document #1598617
Filed: 02/12/2016
All the information responsive your
request withheld full. [T]he
information is, among other things, subject
Accordingly, the Civil
Division prohibited from releasing this
information you.
Judicial Watch filed administrative appeal with the
Department Office Information Policy, which affirmed
the initial denial. September 2013, Judicial Watch sued the
Department the district court, seeking the same eight
documents. The parties cross-moved for summary judgment,
and the district court, through Judge Leon, held favor the
Department the ground that the Department lacked
discretion release the responsive documents. See Judicial
Watch, Inc. United States Dep Justice, Supp. (D.D.C. 2014). Specifically, Judge Leon held Judge
Jackson remark the January 10, 2013 status conference
the predicate House Committee litigation don know
what you said. don want know. was explicit
statement from Judge Jackson instructing the parties keep
the substance their settlement discussions private,
there can doubt that there was valid court-imposed
restriction prohibiting disclosure. Id. 56. Alternatively,
the court concluded that disclosure was prohibited the
district court Local Civil Rule 84.9, which prohibits
disclosure any written oral communications made
connection with during any mediation session. Id. 55.
Judicial Watch then brought this appeal.
USCA Case #14-5215
Document #1598617
Filed: 02/12/2016
II. Analysis
The FOIA generally gives members the public the
right access records held the federal government. The
statute gives federal courts jurisdiction compel production records agency has (1) improperly (2) withheld (3)
agency records. GTE Sylvania, Inc. Consumers Un. the
United States, Inc., 445 U.S. 375, 384 (1980) (describing
U.S.C. 552(a)(4)(B)). agency not required produce responsive record the record comes within any the nine
statutory exemptions. See U.S.C. 552(b). addition,
withholding record the disclosure which court has
enjoined not improper There simply [is] discretion
for the agency exercise such cases. GTE Sylvania, 445
U.S. 386; see also id. 387 (explaining that the Congress
did not intend require agency commit contempt
court order release documents review novo the
district court grant summary judgment FOIA case.
Sussman United States Marshals Serv., 494 F.3d 1106,
1111-12 (D.C. Cir. 2007). Judge Jackson Sealing Order
The test for determining whether agency has
improperly withheld records placed under seal court
whether the seal, like injunction, prohibits the agency
from disclosing the records. Morgan United States Dep Justice, 923 F.2d 195, 197 (D.C. Cir. 1991). That test
requires examine (1) any explicit sealing order from the
court, there one; (2) extrinsic evidence about the intended
scope purported sealing order; (3) orders the same
court similar circumstances; and (4) the issuing court
general rules procedures. See id. 197-98.
government has the burden proving order prohibits
disclosure. See id. 198.
USCA Case #14-5215
Document #1598617
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The government has not carried its burden this case.
First, Judge Jackson statement, don want know,
clearly bars the parties from divulging the contents their
settlement discussions only her; broader bar, any,
would have inferred for not explicit. The
Department offers good reason Judge Jackson might have
wanted prohibit disclosure third-parties because
protection from disclosure promotes more open dialogue
during settlement but there extrinsic evidence that was
what the judge intended; indeed, that concern nowhere
mentioned the record this case, and equally plausible
that Judge Jackson wanted simply preserve her objectivity case she ultimately were preside over trial. Nor has the
Department pointed extrinsic evidence, such information
that the district court customarily protects the confidentiality settlement discussions before case referred
mediation, that supports its preferred reading. Accordingly,
the intended effect Judge Jackson order ambiguous. ambiguous court order does not protect record from
disclosure pursuant the FOIA. Morgan, criminal
defendant alleged the prosecution had suppressed exculpatory
handwritten notes interview with witness. 923 F.2d
195-96. After denying Morgan motion for new trial, the
district court added the notes the record but sealed them,
and the Fourth Circuit affirmed the sealing order. The
defendant then filed FOIA request with the Department, and
when that was denied, brought lawsuit the district court
here D.C., which dismissed his FOIA action the ground
that was impermissible collateral attack the decision the Fourth Circuit. appeal, explained that whether
Morgan FOIA litigation impermissible collateral attack the sealing order depends the intended effect the
sealing order. Id. 198. Because such intent was not
USCA Case #14-5215
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evident from the record, remanded the matter for further
proceedings. the same time, recognized that may impossible determine the scope
and effect the seal from the face the
seal and the circumstances attending its
imposition. Thus, order meet its
burden proof, the DOJ may need seek
clarification from the court that issued the
Id. The same situation obtains here. oral argument, Judicial Watch raised objection
our remanding the case for clarification and acknowledged
that Judge Jackson explanation would dispositive.
Accordingly, vacate the judgment the district court and
remand this matter Judge Leon order give the
Department opportunity seek clarification from Judge
Jackson regarding the intended effect and scope her order.
See, e.g., Awan United States Dep Justice, Supp. 90, (D.D.C. 2014) (denying FOIA request after the
defendants produced order from the issuing court
confirming that the document question was sealed). The
district court shall stay[] its hand allow reasonable
period time for the DOJ seek clarification, and for
long the DOJ diligently pursuing [it]. Id. Local Rule 84.9
The district court held, the alternative, that disclosure
was prohibited its Local Rule 84.9:
The Court hereby prohibits the mediator, all
counsel and parties and any other persons
USCA Case #14-5215
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Filed: 02/12/2016
attending the mediation from disclosing any
written oral communications made
connection with during any mediation
According the district court, the requested
communications were made connection with mediation,
even though the case had not yet been referred the court
mediation program. Judicial Watch, Supp. 55.
This interpretation the rule presents difficult questions.
the one hand, district court interpretation its own rules
is, the Department argues, entitled deference. See Texas United States, 798 F.3d 1108, 1115 n.2 (D.C. Cir. 2015) Every circuit defers their district courts interpretation local rules. The federal court system could not fairly
function otherwise. (internal citations omitted). the
other hand, Local Rule 84(b) explicitly provides that [t]hese
Rules apply only mediation proceedings that are formally
conducted through the United States District Court
Mediation Program. Further, not established whether
Local Rule 84.9, applies, would resolve the FOIA
question because local rules not clearly fit within
recognized FOIA exemption.
Resolution this apparent conflict may unnecessary
depending upon whether Judge Jackson intended her order
bar disclosure. Accordingly, need not resolve the question
now and depending upon further proceedings the district
court, may not have later.
USCA Case #14-5215
Document #1598617
Filed: 02/12/2016
III. Conclusion
This case remanded the district court for further
proceedings consistent with the foregoing opinion. Ordered.