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w . v i l l a no v a . e du/thir dc ir c uit_2015/869NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 14

- 4180

___________
JAMES BAYLISS

v. NEW JERSEY STATE POLICE; TROOPER R. WAMBOLD, JR., individually and in his ca pacity as a member of the New Jersey State Police; TROOPER K. JUCKETT, individually and in his capacity as a member of the New Jersey State Police; JOHN DOES (1

- 10), individually and in their official capacities with various Law Enforcement Agencies

Ric hard Wambold,

Appellant

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3

- 11

- cv - 00890 ) District Judge: Honorable Mary L. Cooper

____________ ________________________
Submitted under Third Circuit L

. A

. R

. 34.1(a)

June 24 , 201 5 Before: CHAGARES , KRAUSE, AND VAN ANTWERPEN, Circuit Judges. (Filed: August 13, 2015 )2 OPINION * KRAUSE, Circuit Judge.
B efore this Court is Trooper Richard Wambold’s challenge t o the District Court’s decision to (1) affirm the Magistrate Judge’s order that Wambold return certain documents he obtained during discovery and (2) terminate the case, thus preventing Wambold from asserting various counterclaims, cross

- claims, and a thir d

- party complaint against the State of New Jersey (the “State”) and the Office of the Attorney General of New Jersey (“OAG”)

. For the reasons set forth below, we will affirm.
I. Background
T he Plaintiff, James Bayliss, filed suit pursuant to 42 U.S.C. § 1983 against Wambold, another Trooper , and the New Jersey State Police (the “State Police”) alleging that the two Troopers used excessive force against him during a traffic stop and arrest

. Initially, State counsel represented all thre e defendants. After the suit was filed, the State Police’s Office of Professional Standards (“OPS”) conducted an internal investigation and brought administrative proceedings against the Troopers

. T he Attorney General thus terminated the State’s representation and indemnifi cation of Wambold. Wambold then filed a Motion to Amend his Answer to plead cross

- claims and a third

- party complaint against the State Police, State, and OAG for indemnification, contribution, legal

* This disposi tion is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

malpractice, violation of the duty of loyalty, violation of contract, collateral estoppel, and civil rights violations under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act , as well as counterclaims against Bayliss for costs and attorneys’ fees. Meanwhile, d uring discovery, Wambold came into possession of OPS “Review Sheets,” which contain ed the opinions of senior State Police personnel regarding the sufficiency of the investigation into the Troopers’ conduct and their recommendations as to whether the Troopers should be disciplined. T he State Police f iled a motion seeking return of the Review Sheets on March 18, 2013 (the “Clawback Motion”) , arguing that they were disclosed inadvertently and protected by the deliberative process privilege

. While both the Motion to Amend and Clawback Motion were pendin g, the State settled all of Bayliss’s claims, including his claims against Wambold. As a result , on August 29, 2013, the Magistrate Judge terminated Wambold’s Motion to Amend and instructed Wambold to indicate whether he intended to refile the motion. 1 T he Magistrate Judge then granted the Clawback Motion on September 20, 2013, and denied Wambold’s Motion for Reconsideration of that order on December 9, 2013.

1 Wambold suggested in correspondence with the Magistrate Judge that he would refile the Motion to Amend unless the State “agree[d] to waive any arg ument or defense that it may assert with the State Court or in any other forum as to collateral estoppel, res judicata, or any other form of claim preclusion including State of Limitations.” Joint Suppl. App. 199. The State replied that Wambold presented no basis for federal jurisdiction, and thus, would not “agree to anything other than a standard stipulation of dismissal without prejudice.” Letter from John M. Bowens, Esq., Oct. 22, 2013, ECF No. 107. Nonetheless, Wambold never refiled the Motion to A mend.4

Wambold appealed the Magistrate Judge’s orders granting the Clawback Motion and denying t he Moti on for Reconsideration, 2 and t he District Court affirmed both on September 17, 2014. In the same Order, the District Court directed the clerk to close the case in its entirety, observing that all of the pending claims had been settle d and that Wambold’s p roposed counterclaims, cross

- claims, and third

- party claims were barred by Younger abstention and the Rooker

- Feldman doctrine. The District Court explained, however, that it did not bar Wambold “from attempting to bring a completely separate action assert ing his claims in federal court.” App. 39. Wambold then sought review in this Court, naming only the September 17, 2014 Order in his Notice of Appeal.
II. Jurisdiction and Stan dard of Review The District Court had jurisdiction over Bayliss’s claims pur suant to 28 U.S.C. § 1331, and we have jurisdiction over Wambold’s appeal pursuant to 28 U.S.C. § 1291. We review the decision to grant the State’s Clawback Motion for abuse of discretion. See Holmes v. Pension Plan of Bethlehem Steel Corp. , 213 F.3d 124 , 138 (3d Cir. 2000).
III. Discussion Wambold contends the Magistrate Judge and District Court erred in finding that the OPS Review Sheets were protected by the deliberative process privilege , which

“ permits the government to withhold documents containi ng ‘confidential deliberations of law or policymaking, reflecting opin ions, recommendations or advice

. ’” Redland Soccer

2 He did not seek review of the August 2013 termination of his Motion to Amend.5

Club, Inc. v. Dep’t of Army of U.S. , 55 F.3d 827, 853 (3d Cir. 1995) (quoting In re Grand Jury , 821 F.2d 946, 959 (3d Cir. 1987)). “It recognizes ‘that were agencies forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.’” Id. at 854 (quoting First
Eastern C orp. v. Mainwaring , 21 F.3d 4 65, 468 (D.C. Cir. 1994)). Accordingly, a governmental entity asserting the privilege must show that the material sought is pre decisional and deliberative. Abdelfattah v. U

. S

. Dep’t of Homeland Sec. , 488 F.3d 178, 183 (3d Cir. 2007) ; Redland Soccer Club , 55 F.3d at 853

- 54

. We agree that the Review Sheets are protected by the deliberative process privilege. As explained in the Certification of Major David C. Jones, the Commanding Officer of OPS, after an investigation into alleged misconduct, supervisin g members of OPS review the investigating officer’s findings . The supervising members offer their opinions on the investigation and their recommendations as to whether to impose discipline in the Review Sheets. Major Jones then considers the complete fil e, including the Review Sheets, in formulating a recommendation for the Superintendent of the State Police, who renders the final decision on any disciplinary actions. As such, the Review Sheets are clearly pre

- decisional and deliberative. Wambold argues the Review Sheets cannot be privileged because they constitute d part of the State’s file in representing him in this lawsuit and should have been turned over to his counsel when the State ended its representation of him

. This argument conflates the State Police’s internal deliberations regarding their disciplinary processes

—6

deliberations solely within OPS

— and the represe ntation of Wambold by the OAG, and
t here is no indication that the Review Sheets were part of the files maintained by Wambold’s State cou nsel. Wambold further asserts that the Review Sheets are not pre

decisional because the State later reversed its decision to represent him, but that does not change the privileged character of the Review Sheets

. T he need to protect officials’ deliberatio ns about one decision does n o t evaporate because those officials make other decisions. Additionally, the Magistrate Judge and the District Court properly balance d Wambold’s need for the privileged material against the government’s interest in confident iality

. Because the deliberative process privilege is not absolute, a court deciding whether to grant discovery must consider , among other factors, “ (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) t he ‘serio usness’ of the litigation and the issues involved; (iv) the role of the government in the litigation; [and] (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. ” Redland
S occer Club , 55 F.3d at 854 (alteration in original) (quoting First Eastern Corp. , 21 F.3d at 468 n.5) (internal quotation marks omitted). Here, Major Jones indicated that disclosure of the Review Sheets would have a chilling effect on the candor of the

re viewing officers, which would impact his ability to make a recommendation to the Superintendent. Further, the Review Sheets, which did not contain any factual material that was not disclosed to the parties , had little relevance to the only claims before t he7

District Court

— Bayliss’s claims for excessive force

— and even those had been dismissed by the time the Magistrate Judge ruled on the Clawback Motion. Finally, we agree that the privilege was not waived because the disclosure was inadvertent, and the Sta te took reasonable steps in prevent ing and rectifying the disclosure. See Fed. R. Evid. 502(b). The record is unclear regarding how the Review Sheets came into Wambold’s possession, but the State demonstrated that the disclosure was unauthorized, and as such , led to an OPS investigation. Moreover, upon learning of the disclosure via references in Wambold’s Motion to Amend, the State immediately requested return of the Review Sheets, and upon Wambold’s refusal, filed the Clawback Motion. Therefore, we co nclude that neither the Magistrate Judge nor the District Court abused their discretion by granting the Clawback Motion. Wambold also argues that “[t]he District Court erred in determining the amended complaint would be precluded by the Younger abstention doctrine” and asks that we “vacate the District Court opinion about the application of the Younger doctrine .” Appellant’s Br. 33. But Wambold never appealed the Magistrate Judge’s termination of his Motion to Amend, nor did he file a subsequent Motion t o Amend. As a result , Wambold waived his right to challenge the termination , and his proposed counterclaims,

cross - claims, and third

- party complaint were never properly before the District Court

. See Con t’ l Cas. Co. v. Dominick D’Andrea, Inc. , 150 F.3d 2 45, 252 (3d Cir. 1998) (“[A] party failing to appeal to the district court a magistrate judge’s order in a nondispositive matter may not raise an objection to it on appeal to a circuit court.”). Because neither the8

Motion to Amend nor the amended Answer a re before us now , we need not address whether Wambold’s proposed claims can survive should he decide to reassert them in another action

.

III. Conclusion For the reasons stated above, we will affirm the judgment of the District Court.