Kavanaugh on Mediation

By George Somi

While the CPR Speaks blog traced the arbitration history of President Trump’s Supreme Court nominee, District of Columbia U.S. Circuit Court of Appeals Judge Brett M. Kavanaugh, in a series of recent posts—collected here—the circuit judge’s mediation history is much quieter.

That’s not unusual. While mediation periodically appears as part of the procedural history in appellate cases, the process itself generally isn’t a key part of the decisions.

But Kavanaugh, a 12-year appeals court veteran, was a member of a D.C. Circuit panel that issued an unpublished opinion where mediation was at the heart of the case.

In Judicial Watch Inc. v. United States DOJ, 719 Fed. Appx. 21 (D.C. Cir. 2018), the D.C. Circuit Court panel affirmed in a per curiam decision a federal district court’s ruling in favor of a Department of Justice summary judgment motion in a Freedom of Information Act suit.

The plaintiff, Judicial Watch, is a Washington, D.C., not-for-profit conservative watchdog group that files many FOIA suits primarily against Democrats and climate scientists— most of which have been dismissed.

In 2013, it filed a FOIA action seeking withheld Justice Department documents originating from settlement discussions with the House Judiciary Committee. Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C 2013).

The U.S. District Court granted summary judgment for the Justice Department on the FOIA request, first holding that Judge Amy Berman Jackson’s statements during Holder prohibited disclosure of the documents the nonprofit group sought.

Second, the court held the Justice Department could not release any records because of District Court Local Rule 84.9, which prohibits “parties… from disclosing any written or oral communications made in connection with or during any mediation session.”

After the D.C. Circuit remanded the case for clarification regarding the scope of Judge Jackson’s statements—she noted that she had not made a formal sealing order—the trial granted summary judgment a second time based on Local Rule 84.9 only.

Judicial Watch appealed solely on the basis that Local Rule 84.9 did not apply to the documents it specifically sought from the DOJ. It did not challenge the District Court’s conclusion that Local Rule 84.9 prohibited the DOJ from disclosing documents under FOIA.

The D.C. Circuit held that the District Court did not abuse its discretion in ruling that the documents that Judicial Watch sought from the DOJ were made in connection with a formal mediation under Rule 84.9.

The appellate panel described the lower court case:

In a November 27, 2012 status hearing in Holder, before the parties engaged in any mediation—formal or otherwise—Judge Jackson suggested that mediation would be appropriate in the case.  . . . The next time the parties met before Judge Jackson, she repeated her offer to impose court-ordered mediation and expressed dismay at the “pace of the negotiations.” . . .  At these status hearings, Judge Jackson emphasized that she had selected an individual—visiting Senior District Judge Barbara J. Rothstein—to mediate the parties’ dispute. On March 18, 2013, Judge Jackson finally ordered the parties to participate in the court’s formal mediation program.  . . .

In this unique factual and procedural context, we conclude that the district court did not abuse its discretion in concluding that the documents Judicial Watch sought from the [Justice] Department were “made in connection with” the formal mediation in Holder under Local Rule 84.9.

The court cited “Judicial Watch’s failure to challenge whether a district court’s collateral interpretation of Local Rule 84.9 can qualify as an exemption under FOIA.” Crucially, the court added that it “explicitly reserve[d] judgment on when (if ever) a district court’s collateral interpretation of its local rules can serve as the basis of a FOIA exemption.”

The panel, which along with Circuit Judge Kavanaugh included Circuit Judge Karen Lecraft Henderson and Senior Circuit Judge Douglas H. Ginsburg, affirmed the dismissal of the Judicial Watch suit.

 

The author, a student at Brooklyn Law School, is a CPR Institute Summer 2018 intern.

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