United States District Court, District of Columbia
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.
action under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, Judicial Watch seeks
disclosure by the Department of Justice
("Department") of records pertaining to settlement
discussions between the Department and the House Committee on
Oversight and Government Reform ("Committee") in
separate litigation between those entities. The case is here
on remand from our Circuit. Before the Court are the
Department's Second Motion for Summary Judgment [Dkt.
#31] and Judicial Watch's Cross-Motion for Summary
Judgment [Dkt. #33]. Upon consideration of the pleadings,
relevant law, and the entire record herein, the Court will
GRANT the Department's motion and DENY Judicial
this case was last before me, I ruled that Judicial Watch was
not entitled to the disclosure of eight settlement-related
documents prepared in connection with another case,
Committee on Oversight and Government Reform v.
Holder, l:12-cv-01332 (D.D.C.)
("Holder")In that case, filed August 2012,
the House Committee on Oversight and Government Reform sought
to enforce a subpoena of certain documents related to the
controversial "Fast and Furious" operation
conducted by the Bureau of Alcohol, Tobacco, Firearms and
Explosives, a component of the Department. The parties
attempted to settle. As part of those efforts, they exchanged
six letters and two draft settlement agreements. Ultimately,
they were unable to reach a settlement, and in a final
judgment entered on February 8, 2016, my colleague, Judge Amy
Berman Jackson, ordered the Attorney General to release some,
but not all, of the "Fast and Furious" documents
sought by the Committee. The Committee appealed. See
Comm. on Oversight and Gov't Reform v. Sessions, No.
16-5078 (D.C. Cir.).
case is not about the "Fast and Furious" documents
that were the subject of Holder and the
Committee's appeal. Rather, it involves an attempt by
Judicial Watch, a third party, to obtain the six letters and
two draft settlement agreements created and exchanged by the
Department and the Committee during their settlement
negotiations. To evaluate Judicial Watch's claims, it is
necessary to begin by reviewing the context in which these
eight documents were created. Not long after Holder
was filed, Judge Jackson entered a minute order setting an
initial status conference and informing the parties to be
prepared to discuss at that conference the matters listed in
Local Civil Rule 16.3(c). At the initial conference, Judge
Jackson inquired whether "the parties [were] engaged in
any effort at this time to work this matter out."
See Def.'s First Mot. Summ. J. ("Def.'s
First Mot."), Ex. C, Tr. of 11/27/12 Status Conf.
8:15-17 [Dkt. #15-7]. She informed the parties that Senior
District Judge Barbara Rothstein was prepared to serve as a
mediator. Id. at 9:6-10. She then said:
The next question I was going to ask you was is there any
reason that I shouldn't order you to go do [mediation],
but if you're [planning on] meeting with each other
already, then I don't think I need to order you to go do
that, but I will invite you that if after you meet, you feel
that that will be beneficial or if you'd rather work with
a magistrate judge or the court's mediation program, if
you notify chambers, we will order that promptly. ... If you
want it, you just need to notify chambers and the order will
Id. at 9:11-17, 10:5-6.
parties met on December 7, 2012, approximately one week after
the initial status conference. Def.'s First Mot., Ex. A,
Joint Status Report 4 [Dkt. #15-5]. Over the next four weeks,
they exchanged letters outlining their settlement positions.
Id. at 5. No agreement was reached, and, on January
10, 2013, they again appeared before Judge Jackson for a
status conference. At this conference, Judge Jackson again
asked whether it was time to order the parties into
mediation. See Def.'s First Mot., Ex. D, Tr. of
1/10/13 Status Conf. 8:2-9:2 [Dkt. #15-8]. Although the
Department believed court-ordered mediation was
"premature" and the Committee expected "it
would be largely a waste of time, " id. at
9:12, 10:1, Judge Jackson warned the parties she was
"still going to consider whether ... to order it anyway,
" id. at 11:14-15. She also stated that she
would "like the process [of settlement negotiations] to
speed up": "[I]f it takes three weeks to respond to
their letter again, then we're not going to get
anywhere." Id. at 10:12, 11:1-3. Finally, Judge
Jackson stated that she did not know and did not want to know
what the parties had said in their negotiations to date.
See Id. at 8:16.
the second status conference, the parties exchanged four more
letters concerning their settlement positions. Def.'s
Statement Mat. Facts ¶ 12 ("Def.'s SMF")
[Dkt. #15-2]; Def.'s First Mot., Ex. B, Second Joint
Status Report 1-2 [Dkt. #15-6]. They also exchanged draft
settlement agreements. Def.'s SMF ¶ 12; Second Joint
Status Report 1-2. Following those exchanges, the Department
informed Judge Jackson that it would like to "accept the
Court's offer of mediation before Judge Rothstein."
Second Joint Status Report 3. The Committee stated mediation
"would be a waste of everyone's time."
Id. at 2. On March 18, 2013, Judge Jackson ordered
the parties into mediation with Senior Judge Rothstein.
Def.'s First Mot., Ex. E, Order [Dkt. #15-9]; Pl.'s
Statement Mat. Facts ¶ 4 ("Pl.'s SMF")
days later, Judicial Watch filed a FOIA request with the
Department seeking "[a]ny 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 [Holder]." Decl. James M. Kovakas ¶ 2
("Kovakas Decl.") [Dkt. #15-3]; Pl.'s SMF
¶ 2. The Department located eight documents responsive
to this request-the two letters exchanged after the first
status conference, the four letters exchanged after the
second status conference, and the proposed settlement
agreements drafted by each party-but refused to release them
on the ground that they were "subject to court-imposed
non-disclosure requirements." Kovakas Decl. ¶ 8;
Pl.'s SMF ¶ 7. Judicial Watch filed this lawsuit,
the parties cross-moved for summary judgment, and I ruled in
favor of the Department. See Judicial Watch, Inc. v. U.S.
Dep't of Justice, 65 F.Supp.3d 50, 55 (D.D.C. 2014)
("Judicial Watch I”).
decision was based on two grounds. First, I held that the
eight responsive documents were protected by Local Civil Rule
84.9, which "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 I, 65 F.Supp.3d at 55 (quoting LCvR
84.9(a)(1)). Second, I held that even if the documents did
not come within the protection of Local Civil Rule 84.9, they
were protected by court order because Judge Jackson had
"instructed] the parties to keep the substance of their
settlement discussions private." Id. at 56
(citing Tr. of 1/10/2013 Status Conf. 8:16) ("I
don't know what you said [in settlement communications].
I don't want to know."). Judicial Watch appealed.
Circuit found that my interpretation of Local Civil Rule 84.9
"presents difficult questions." Judicial Watch,
Inc. v. U.S. Dep't of Justice, 813 F.3d 380, 384
(D.C. Cir. 2016) ("Judicial Watch II”).
"On the one hand, a district court's interpretation
of its own rules is, as the Department argues, entitled to
deference." Id. (citing Texas v. United
States, 798 F.3d 1108, 1115 n.2 (D.C. Cir. 2015)
("Every circuit. . . defers to their district
courts' interpretation ... of local rules. The federal
court system could not fairly function otherwise."
(citations omitted)). "On the other hand, Local Rule
84(b) explicitly provides that '[t]hese Rules apply only
to mediation proceedings that are formally conducted through
the United States District Court's Mediation
Program.'" Id. (quoting LCvR 84(b)).
"Further, it is not established whether Local Rule 84.9,
if it applies, would resolve the FOIA question because local
rules do not clearly fit within a recognized FOIA
than confront these "difficult questions, " our
Circuit determined that it should begin by reviewing Judge
Jackson's order. It recited the four-factor test for
determining whether an agency has improperly withheld records
placed under seal by a court, see Morgan v. U.S.
Dep't of Justice, 923 F.2d 195, 197 (D.C. Cir.
1991), then concluded that under this test "the intended
effect of Judge Jackson's order is ambiguous, "
Judicial Watch II, 813 F.3d at 383. Because
"[a]n ambiguous court order does not protect a record
from disclosure pursuant to the FOIA, " id. at
383-84, the court determined that it should "vacate the
judgment of the district court and remand this matter to
Judge Leon in order to give the Department an opportunity to
seek clarification from Judge Jackson regarding the intended
effect and scope of her order, " id. at 384.
The court observed that, depending on the results of the
clarification, resolution of the questions presented by my
interpretation of Local Civil Rule 84.9 "may be
unnecessary." Id. at 385.
motion from the Department following remand, Judge Jackson
clarified that her "statement - which bears none of the
earmarks of an order - does not address the confidentiality
of any ongoing or future settlement negotiations or mediation
proceedings." Order on Mot. Clarification 3 [Dkt.
#27-1]. "However, " she explained, "the Court
ultimately referred the matter for mediation to United States
District Judge Barbara J. Rothstein, who did issue [three]
orders that appear on the docket in this case."
Id. Those orders directed the parties to submit
directly to Judge Rothstein's chambers memoranda
summarizing, inter alia, "the settlement
history to date, including a summary of any issues that
prevented settlement[, ] and the parties' current
settlement positions." Id. at 4. The first
order specified that the memoranda were due by noon on March