JW v DOJ Fast and Furious appeal 5215
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Date Created:February 4, 2016
Date Uploaded to the Library:February 18, 2016
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USCA Case #14-5215 Document #1598617 Filed: 02/12/2016 United States Court Appeals FOR THE DISTRICT COLUMBIA CIRCUIT Argued September 25, 2015 Decided February 12, 2016 No. 14-5215 JUDICIAL WATCH, INC., APPELLANT UNITED STATES DEPARTMENT JUSTICE, APPELLEE 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 appellant. 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 GINSBURG. 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 Document #1598617 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 mediation. 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 court-imposed non-disclosure requirements. 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. The government has the burden proving order prohibits disclosure. See id. 198. USCA Case #14-5215 Document #1598617 Filed: 02/12/2016 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 Document #1598617 Filed: 02/12/2016 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 seal. 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 Document #1598617 Filed: 02/12/2016 attending the mediation from disclosing any written oral communications made connection with during any mediation session. 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.