United States Court of Appeals, District of Columbia Circuit
Argued September 25, 2015
Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-01344).
Michael Bekesha argued the cause and filed the briefs for appellant.
Gerard J. Sinzdak, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Michael S. Raab, Attorney.
Before: PILLARD and WILKINS, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Ginsburg, Senior Circuit Judge.
Judicial Watch, an organization that aims " to educate the public about the operations and activities of government," sent a Freedom of Information Act (FOIA) request to the Department of Justice seeking records of the Department's settlement discussions in an ongoing lawsuit. The Department denied the request on the ground that the requested documents had been placed under seal by the district court (Jackson, J.) in a prior proceeding. Judicial Watch sued to compel disclosure, the district court (Leon, J.) granted summary judgment for the Department, and Judicial Watch appealed to this court. We vacate the judgment of the district court, and remand this case so the Department can seek clarification from Judge Jackson about the intended effect of her purported sealing order.
In October 2011, the House Committee on Oversight and Government Reform subpoenaed Attorney General Eric Holder for documents related to the " Fast and Furious" operation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Comm. on Oversight and Gov't Reform v. Holder, 979 F.Supp.2d 1, 4 (D.D.C. 2013). " Fast and Furious" refers to a series of " gunwalking" operations in which the ATF knowingly allowed firearms dealers in Arizona to sell to " straw" purchasers -- buyers acting on behalf of others who legally could not purchase a gun - in hopes of tracking the guns to Mexican drug cartels, but the program was unsuccessful and, once it became public, very controversial. Id. at 5.
When the Attorney General refused to produce some of the subpoenaed records on the ground of executive privilege, the House Committee sued to enforce its subpoena. Id. at 3. The case came before District Judge Amy Berman Jackson, who encouraged the parties to discuss a settlement but declined to involve herself in any settlement negotiations. Tr. of 1/10/13 Status Conf., at 8, Holder, No. 12-cv-1332. Specifically, after referring to then-ongoing settlement discussions, Judge Jackson stated, " I don't know what you said. I don't want to know." Id.
Instead, Judge Jackson noted on multiple occasions that the case would be a good candidate for mediation and that a senior district judge had agreed to serve as a neutral mediator. See, e.g., id. at 8-9. The judge indicated she would order mediation if the parties requested it and possibly even if they did not. Id. at 11. Finally, on March 18, 2013, at the Department's request, Judge Jackson referred the case to mediation.
Two days later, Judicial Watch made a FOIA request of the Department seeking:
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. Holder, 1:12-cv-01332, U.S. District Court, District of Columbia (Washington). Such records include, but are not limited to, records of the settlement discussions themselves.
The request covered all such records created between October 1, 2012, and March 20, 2013. The Department located eight responsive documents comprising 32 pages, but on May ...