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Judicial Watch, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

September 24, 2017

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.

         In this 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 Watch's cross-motion.

         BACKGROUND

         When 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")[1]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.).

         This 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).[2] 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[3] 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 issue.

Id. at 9:11-17, 10:5-6.

         The 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.

         Following 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") [Dkt. #33].

         Two 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”).

         My 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.

         Our 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 exemption." Id.

         Rather 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.

         On 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 ...


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