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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Case N0. 13-01344 (RJL)
V.
UNITED STATES DEPARTMENT
OF JUSTICE,
FILED
Auszzzm¢.
S€\JS\J&/\é\./\J&
Defendant.
§§ cl@rk, us. cramer s. 3 k 1
MEM()RA ])UM ()P}NI()N Courts for the District ol?f(l,`orlijilr)n(tliila
(AugusrQ, 2014) [1)1<1.##15, 171
Plaintiff Judicial Watch ("plaintiff") filed this action against the United States
Department of justice ("defendant" or "DOJ") on September 5, 2013, challenging DOJ’s
denial of plaintiff` s request for records pursuant to the Freedom of Information Act, 5
U.S.C. § 552. See Complaint ("Compl.") [Dkt. #l]. Now before the Court are the
parties’ cross-motions for summary judgment See Defendant’s Motion for Summary
Judgment ("Def.’s Mot.") [Dkt. #15]; PlaintifF s Cross-Motion for Summary Judgment
("Pl.’s Mot.") [Dkt. #17]. Upon consideration of the parties’ pleadings, relevant law,
and the entire record in this case, the Court GRANTS defendant’s Motion for Summary
Judgment and DENIES plaintiff’s Cross-Motion for Summary Judgment.
BACKGROUND
This case involves a challenge to defendant’s denial of plaintiff" s request for
documents pursuant to the Freedom of lnformation Act ("FOIA"). See Compl. $Hl 5-6.
In August 20l2, the House Committee on Oversight and Government Reform ("House
Committee") sued Attorney General Eric Holder to enforce a congressional subpoena for
documents related to the Bureau of Alcohol, Tobacco, Firearms and Explosives "Fast and
Furious" operation. See Def.’s Mot. at l; Pl.’s Mot. at 2; Comm. on Oversz`ght and G0v ’z
Reform v. Hola'er, N0. 12-1332-ABJ (D.D.C. filed Aug. 13, 2012) ("Holder"). Although
the litigation is ongoing, DOJ and the House Committee have endeavored to resolve the
subpoena dispute out of court. See Def.’s Mot. at l; Pl.’s Mot. at 2. As of the writing of
this Opinion, settlement discussions remain ongoing, and have included at least three
court-ordered mediation sessions. See Defendant’s Statement of Material Facts Not in
Dispute ("Def.’s Facts") il 13 [Dkt. #15-2]; Plaintiff` s Statement of Undisputed Material
Facts ("Pl.’s Facts") ‘H l3 [Dkt. #16].
A. Procedural History in Holder
Within months of the complaint in Hola’er, 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 2()13
regarding potential settlement of the case. See l/7/2()l3 Joint Status Report at 4-5,
Hola’er, N0. l2-cv-l332 (D.D.C. 2012), ECF N0. 32. 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. See Tr. of
l/l0/20l3 Status Conf. at 8:16, Holder, N0. 12-cv-1332 (D.D.C. 2012), ECF N0. 39 ("l
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. See 3/15/2013 Joint Status Report at l-2, Hola’er, N0.
l2-cv-1332 (D.D.C. 2012), ECF N0. 40.
On March l5, 2013. in an effort to speed up the pace of negotiations, DOJ
requested that Judge Jackson refer the case to Visiting Senior Judge Barbara Rothsteinl
for mediation. See ia’. at 4; see also 3/18/2013 Order at l, Holder, N0. 12-cv-1332
(D.D.C. 2012), ECF N0. 4l. 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. See 3/18/2013
Minute Order, Holder, N0. 12-cv-1332 (D.D.C. 2012). 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. See Def.’s Facts
l Judge Barbara Rothstein was appointed a United States District Judge for the Western District
of Washington on February 20, 1980. Frorn 2003 to 201 l, she served as the Director of the
Federal Judicial Center in Washington, DC. On September l, 201 l, she took senior status and
shortly thereafter became a Visiting Senior Judge in the United States District Court for the
District of Columbia.
il l2; Declaration ofJohn Tyler ("Tyler Decl.") il 5 [Dkt. #15-4]. Following the
conclusion of the first mediation session on April 22, 20l3_with the parties failing to
reach a settlement-Judge Jackson ordered the parties back to mediation on October 30,
2013, and again on January l5, 20l4. See 10/30/2013 Minute Order, Holc{er, No.
l2-cv-1332 (D.D.C. 2012); l/l5/20l4 Minute Order, Hola’er, No. l2-cv-l332 (D.D.C.
20l2).
B. Plaintiff"s FOIA Request
On March 20, 2013, plaintiff submitted a FOIA request to the Civil Division of the
DOJ seeking documents related to settlement discussions in Hola’er. See at Def.’s F acts
ilil l-2; Pl.’s Facts ilil l-2. Specifically, the request 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
Committee on Oversight and Government Reform v. Hola'er,
l:l2-cv-0l332, U.S. District Court, District of Columbia (Washington).
Such records include, but are not limited to, records of the settlement
discussions themselves.
Declaration of James M. Kovakas ("Kovakas Decl."), Ex. A [Dkt. #15-3]; see also Def.’s
Facts il 2 ; Pl.’s Facts il 2. The time period covered by the request was October l, 2012 to
March 20, 20l3. See Def.’s Facts il 2; Pl.’s Facts il 2; Kovakas Decl., Ex. A.
DOJ identified and contacted ten Civil Division attorneys and one staff member
who were likely to have records responsive to the request. See Def.’s Facts il 4; Kovakas
Decl. il 4. Following searches of the attorneys’ and staff member’s records, DOJ was
able to locate eight responsive documents_32 pages in total~consisting of
communications related to potential settlement between DOJ and the House Committee.
See Def.’s Facts il 4; Kovakas Decl. il 5. ln a letter dated May 3, 2013, DOJ informed
plaintiff that "[a]ll of the information responsive to your request is withheld in full." See
Kovakas Decl., Ex. C; Def.’s Facts il 5; Pl.’s Facts il 5. DOJ explained that it was
withholding all internal communications pursuant to 5 U.S.C. § 552(b)(5) and all external
communications pursuant to "court-imposed non-disclosure requirements." See Def.’s
Facts il 5; Pl.’s Facts il 5; Kovakas Decl., Ex. C.
Defendant appealed DOJ’s determination on May 20, 2013, clarifying that its
FOIA request did not seek disclosure of any internal DOJ communications. See Def.’s
Facts il 6; Pl.’s Facts il 6; Kovakas Decl., Ex. D. On June 19, 2013, DOJ’s Office of
lnformation Policy affirmed the Civil Division’s determination, informing plaintiff that
"the records responsive to your request are subject to court-imposed, non-disclosure
requirements under the Local Rules of the United States District Court for the District of
Columbia." See Def.’s Facts il 7; Pl.’s Facts il 7; Kovakas Decl., Ex. E.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate
when the evidence in the record demonstrates that "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When evaluating
cross-motions for summary judgment, "the court shall grant summary judgment only if
one of the moving parties is entitled to judgment as a matter of law upon material facts
that are not genuinely disputed." Selecl Specially Hosp.-Bloo)nz`nglon, Inc, v. Sebelz`us,
774 F. Supp. 2d 332, 338 (D.D.C. 2011) (citation omitted). The court must accept as
true the evidence of, and draw "all justifiable inferences" in favor of, the party opposing
summaryjudgment. Ana'erson v. Lz'berzj) Lobby, Inc., 477 U.S. 242, 255 (1986). A
genuine issue exists only where "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. at 248.
Although FOIA generally favors agency disclosure of responsive documents, an
agency is entitled to summary judgment on a FOIA claim where it shows that the
documents withheld are "wholly exempt from the Act’s inspection requirements." Exxon
Corp. v. FTC, 663 F.2d 120, 126 (D.C. Cir. 1980) (citing Nat’l Cable Televz'sz'on Ass ’n v.
FCC, 479 F.2d 183, 186 (D.C. Cir. 1973). l\/Ioreover, agency records that are subject to a
court order or rule preventing their public disclosure are properly withheld under FOIA.
See GTE Sylvanz'a, Inc. v. Consurners Unz`on ofthe US., 445 U.S. 375, 387 (1980). The
court reviews the agency’s justification for withholding responsive documents a’e novo.
See Ctr.for Nat’l Sec. Studz'es v. U.S, Dep’t of]ustz`ce, 331 F.3d 918, 926 (D.C. Cir.
2003). In determining whether responsive documents were properly withheld, the court
"shall accord substantial weight to an affidavit of an agency concerning the agency’s
determination," so long as the affidavit is relatively detailed, demonstrates that the
documents are logically withheld, and is submitted in good faith. 5 U.S.C. §
552(a)(4)(B); see also Milz`tary Aua'z`t Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
ANALYSIS
This case requires a determination as to whether documents responsive to
plaintiff" s FOIA request were improperly withheld. Indeed, the FOIA statute only
confers jurisdiction on this Court to compel the production of agency documents that are
"improperly withheld." GTE Sylvania, 445 U.S. at 384; see also 5 U.S.C. §
552(a)(4)(B). When there is "no discretion for the agency to exercise," the withholding
of responsive documents cannot be said to be improper. GTE Sylvanz'a, 445 U.S. at 386.
Here, there appear to be two applicable bars to the production of responsive docurnents:
Judge Jackson’s admonition that the parties not disclose the substance of their settlement
communications, and the prohibition on disclosure of communications "made in
connection with or during any mediation session" contained in Local Rule 84.9. See Tr.
of 1/10/2013 Status Conf. at 8:l6, Holder, No. 12-cv-1332 (D.D.C. 2012), ECF No. 39;
LCvR 84.9(a)(1). Defendant argues that because it is prevented from disclosing the
responsive documents by "court-imposed non-disclosure requirements," it lacks any
discretion regarding the documents’ production, and thus its withholding of the
documents is not improper. Kovakas Decl., Ex. C; see also Def.’s Mot. at 9. l agree.
D.C. Local Rule 84.9 states that the District Court "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." LCvR 84.9(a)(1). Plaintiff argues, however, 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. See Pl.’s Mot. at 3-4. 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. See Bradshaw v. Vz`lsack, 286 F.R.D. l33, 139-40 (D.D.C. 20]2) (PLF); Davz`s v.
Nat’l Councz`l ofNegro Wornen, Inc., 821 F. Supp. 2d 262, 266 (D.D.C. 201 l) (RCL)
(striking portions of summary judgment motion containing references to the mediation
process as a "flagrant violation of [Local Rule 84.9]"); see also Black v. Kendig, 227 F.
Supp. 2d 153, 155 (D.D.C. 2002) (JMF) ("l yield to no one in my insistence that
settlement discussions remain confidential . . . [and] will not permit either party to refer in
any way to anything anyone, including me, said during settlement discussions.") (citing
Childers v. Slater, No. 97-853-JMF, 1998 WL 429849, at *6 (D.D.C. l998)). 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. See Bradshaw, 286 F.R.D. at 139-40 (applying LCvR 84.9 in
striking "characterizations of statements made during court-ordered mediation sessions
and related settlement discussions between the partz`es" (emphasis added)).
The settlement discussions between the parties in this case occurred amidst
numerous inquiries from Judge Jackson regarding the necessity of referring the case to
formal mediation, should the parties fail to reach a resolution on their own. See Def.’s
Mot., Ex. C at 8:13-9:10 [Dkt. #15-7]; Tr. of 1/10/2013 Status Conf. at 11114-20, Holder,
No. 12-cv-1332 (D.D.C. 2012), ECF No. 39. Moreover, the substance ofthese
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.
See Tyler Decl. il 5. To say the least, it strains credulity for plaintiff to argue that these
communications were not "made in connection" with mediation, given that the parties
were strongly encouraged to engage in settlement discussions, and were reminded that
court-ordered mediation might be ordered at any time. See Def.’s Mot., Ex. C at
8:13-9:10; Tr. of 1/10/2013 Status Conf. at ll:l4-20, Holder, No. 12-cv-1332 (D.D.C.
2012), ECF No. 39. As is the case with formal court-ordered mediation, disclosure of
sensitive_yet informal_settlement communications between parties would have a
chilling effect on settlement negotiations and would be inconsistent with the core purpose
of Local Rule 84.9-to promote resolution of civil disputes short oflitigation. Plaintiff’s
narrow interpretation of Local Rule 84.9’s applicability is simply inconsistent with both
the case law and the purpose of the Rule.
Even assuming, arguendo, that Local Rule 84.9 does not apply, however, DOJ did
not abuse its discretion in refusing to disclose the responsive settlement communications
because it was honoring a court-imposed restriction, and thus there "simply [was] no
discretion for the agency to exercise." GTE Sylvania, 445 U.S. at 386. According to the
reasoning in GTE Sylvania, "the proper test for determining whether an agency
improperly withholds records [subject to a court-imposed restriction] is whether the
[restriction], like an injunction, prohibits the agency from disclosing the records."
Morgan v. U.S. Dep ’t ofJustice, 923 F.2d 195, 197 (D.C. Cir. 1991) (emphasis in
original). In order to establish that a valid court-imposed restriction was in place, the
plaintiff may refer to: (1) an explicit order from the court; (2) extrinsic evidence; (3)
orders from the same court in similar circumstances; and (4) the court’s general rules or
procedures. See id. at 198.
Here, we have an explicit statement from Judge Jackson instructing the parties to
keep the substance of their settlement discussions private, see Tr. of 1/10/2013 Status
Conf. at 8:16, Holder, No. 12-cv-1332 (D.D.C. 2012), ECF No. 39, extrinsic evidence
that the parties believed there was a court-imposed restriction prohibiting the disclosure
of the substance of their settlement negotiations, see 1/7/2013 Joint Status Report at 4-5,
Holder, No. 12-cv-1332 (D.D.C. 2012), ECF No. 32 (omitting substance of settlement
discussions); 3/15/2013 Joint Status Report at 3, Holder, No. 12-cv-1332 (D.D.C. 20l2),
ECF No. 40 (noting that "[c]onsistent with this Court’s prior instructions, Defendant will
not delve into the specific substance of the parties’ confidential settlement offers"), and a
10
court rule prohibiting the disclosure of "any written or oral communications made in
connection with or during any mediation session,” LCvR 84.9(a)(1). Based on the
above, there can be no doubt that there was a valid court-imposed restriction prohibiting
disclosure of confidential settlement communications between the parties. The
defendant had no discretion to produce the responsive documents, and therefore, the
withholding of those documents was clearly proper.
CONCLUSION
Accordingly, for all of the foregoing reasons, the Court GRANTS defendant’s
Motion for Summary Judgment and DENIES plaintiff’ s Cross-Motion for Summary
Judgment. An Order consistent with this decision accompanies this Memorandum
Opinion.
,”ZMM
Ri`cHARDLJ-.-EEoN
United States District Judge
ll