United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2015 Decided February 12, 2016

No. 14-5215

JUDICIAL WATCH, INC.,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

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.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.
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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. 

I. Background

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, 
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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-cv01332, 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 3, 

2012, it refused to release them, explaining:
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All of the information responsive to your 

request is withheld in full. . . . [T]he 

information is, among other things, subject 

to court-imposed non-disclosure 

requirements. Accordingly, the Civil 

Division is prohibited from releasing this 

information to you.

Judicial Watch filed an administrative appeal with the 

Department’s Office of Information Policy, which affirmed 

the initial denial. 

On September 5, 2013, Judicial Watch sued the 

Department in the district court, seeking the same eight 

documents. The parties cross-moved for summary judgment, 

and the district court, through Judge Leon, held in favor of the 

Department on the ground that the Department lacked 

discretion to release the responsive documents. See Judicial 

Watch, Inc. v. United States Dep’t of Justice, 65 F. Supp. 3d 

50 (D.D.C. 2014). Specifically, Judge Leon held Judge 

Jackson’s remark at the January 10, 2013 status conference in 

the predicate House Committee litigation – “I don’t know 

what you said. I don’t want to know.” – was “an explicit 

statement from Judge Jackson instructing the parties to keep 

the substance of their settlement discussions private,” so 

“there can be no doubt that there was a valid court-imposed 

restriction prohibiting disclosure.” Id. at 56. Alternatively, 

the court concluded that disclosure was prohibited by the 

district court’s Local Civil Rule 84.9, which prohibits 

disclosure of “any written or oral communications made in 

connection with or during any mediation session.” Id. at 55. 

Judicial Watch then brought this appeal. 
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II. Analysis

The FOIA generally gives members of the public the 

right to access records held by the federal government. The 

statute gives federal courts jurisdiction to compel production 

of records if an agency has “(1) improperly (2) withheld (3) 

agency records.” GTE Sylvania, Inc. v. Consumers Un. of the 

United States, Inc., 445 U.S. 375, 384 (1980) (describing 5 

U.S.C. § 552(a)(4)(B)). An agency is not required to produce 

a responsive record if the record comes within any of the nine 

statutory exemptions. See 5 U.S.C. § 552(b). In addition,

withholding a record the disclosure of which a court has 

enjoined is not “improper”: “There simply [is] no discretion 

for the agency to exercise” in such cases. GTE Sylvania, 445 

U.S. at 386; see also id. at 387 (explaining that the Congress 

did not intend to require an agency “to commit contempt of 

court in order to release documents”). We review de novo the 

district court’s grant of summary judgment in a FOIA case. 

Sussman v. United States Marshals Serv., 494 F.3d 1106, 

1111-12 (D.C. Cir. 2007).

A. Judge Jackson’s Sealing Order

The test for determining whether an agency has 

improperly withheld records placed under seal by a court is 

“whether the seal, like an injunction, prohibits the agency 

from disclosing the records.” Morgan v. United States Dep’t 

of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991). That test 

requires us to examine (1) any explicit sealing order from the 

court, if there is one; (2) extrinsic evidence about the intended 

scope of a purported sealing order; (3) orders of the same 

court in similar circumstances; and (4) the issuing court’s 

general rules or procedures. See id. at 197-98. The 

government has the burden of proving an order prohibits 

disclosure. See id. at 198.
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The government has not carried its burden in this case. 

First, Judge Jackson’s statement, “I don’t want to know,” 

clearly bars the parties from divulging the contents of their 

settlement discussions only to her; a broader bar, if any, 

would have to be inferred for it is not explicit. The 

Department offers a good reason Judge Jackson might have 

wanted to prohibit disclosure to third-parties – because 

protection from disclosure promotes more open dialogue 

during settlement – but there is no extrinsic evidence that was 

what the judge intended; indeed, that concern is nowhere 

mentioned in the record in this case, and it is equally plausible 

that Judge Jackson wanted simply to preserve her objectivity 

in case she ultimately were to preside over a trial. Nor has the 

Department pointed to extrinsic evidence, such as information 

that the district court customarily protects the confidentiality 

of settlement discussions before a case is referred to 

mediation, that supports its preferred reading. Accordingly, 

the intended effect of Judge Jackson’s order is ambiguous. 

An ambiguous court order does not protect a record from 

disclosure pursuant to the FOIA. In Morgan, a criminal 

defendant alleged the prosecution had suppressed exculpatory 

handwritten notes of an interview with a witness. 923 F.2d at

195-96. After denying Morgan’s motion for a new trial, the 

district court added the notes to the record but sealed them, 

and the Fourth Circuit affirmed the sealing order. The 

defendant then filed a FOIA request with the Department, and 

when that was denied, brought a lawsuit in the district court

here in D.C., which dismissed his FOIA action on the ground 

that it was an impermissible collateral attack on the decision

of the Fourth Circuit. On appeal, we explained that “whether 

Morgan’s FOIA litigation is an impermissible collateral attack 

on the sealing order depends on the intended effect of the 

sealing order.” Id. at 198. Because such intent was not 
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evident from the record, we remanded the matter for further 

proceedings. At the same time, we recognized that

it may be impossible to determine the scope 

and effect of the seal from the face of the 

seal and the circumstances attending its 

imposition. Thus, in order to meet its 

burden of proof, the DOJ may need to seek a 

clarification from the court that issued the 

seal.

Id. The same situation obtains here. 

At oral argument, Judicial Watch raised no objection to 

our remanding the case for clarification and acknowledged 

that Judge Jackson’s explanation would be dispositive. 

Accordingly, we 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. 

See, e.g., Awan v. United States Dep’t of Justice, 46 F. Supp. 

3d 90, 92 (D.D.C. 2014) (denying a FOIA request after the 

defendants produced an order from the issuing court 

confirming that the document in question was sealed). The 

district court shall “stay[] its hand . . . to allow a reasonable 

period of time for the DOJ to seek a clarification,” and for “so 

long as the DOJ is diligently pursuing [it].” Id.

B. Local Rule 84.9

The district court held, in the alternative, that disclosure 

was prohibited by its Local Rule 84.9:

The Court hereby prohibits the mediator, all 

counsel and parties and any other persons 
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attending the mediation from disclosing any 

written or oral communications made in 

connection with or during any mediation 

session.

According to the district court, the requested 

communications were “made in connection with” mediation, 

even though the case had not yet been referred to the court’s 

mediation program. Judicial Watch, 65 F. Supp. 3d at 55. 

This interpretation of the rule presents difficult questions. On 

the one hand, a district court’s interpretation of its own rules 

is, as the Department argues, entitled to deference. See 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.”) (internal 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.” 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.

Resolution of this apparent conflict may be unnecessary 

depending upon whether Judge Jackson intended her order to 

bar disclosure. Accordingly, we need not resolve the question 

now and depending upon further proceedings in the district 

court, may not have to do so later.
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III. Conclusion

This case is remanded to the district court for further 

proceedings consistent with the foregoing opinion.

So Ordered.