                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                       )
COMMITTEE ON OVERSIGHT AND             )
GOVERNMENT REFORM, UNITED              )
STATES HOUSE OF                        )
REPRESENTATIVES,                       )
                                       )
                      Plaintiff,       )
                                       )
       v.                              )    Civil Action No. 12-1332 (ABJ)
                                       )
JEFFERSON B. SESSIONS III,             )
Attorney General of the United States, )
                                       )
                      Defendant.       )
____________________________________)


                          MEMORANDUM OPINION AND ORDER

       The Court entered judgment in this case on February 8, 2016, and the case is now pending

before the United States Court of Appeals for the District of Columbia Circuit. The parties have

arrived at a negotiated solution, and they have filed a joint motion for an indicative ruling pursuant

to Federal Rule of Civil Procedure 62.1. They ask the Court to inform them now whether it would

agree to vacate its orders of August 20, 2014 and January 19, 2016 1 and dismiss the case with

prejudice if the matter were remanded in accordance with the terms of their conditional settlement

agreement. Joint Mot. for Indicative Ruling [Dkt. # 130] (“Joint Mot.”).




1      Order [Dkt. # 81], Comm. on Oversight & Gov’t Reform, U.S. House of Representatives
v. Holder, No. 12-cv-1332, 2014 WL 12662665 (D.D.C. Aug. 20, 2014) (hereinafter the “August
2014 Order”); Order, [Dkt. # 117], Comm. on Oversight & Gov’t Reform, U.S. House of
Representatives v. Lynch, 156 F. Supp. 3d 101, 108 (D.D.C. Jan. 19, 2016) (hereinafter the
“January 2016 Order”) (collectively, “the Orders”).
       The motion comes almost two years after the Court ordered the defendant, the Attorney

General of the United States, to respond to a Congressional subpoena issued by plaintiff, the

Committee on Oversight and Government Reform of the U.S. House of Representatives, for

Department of Justice documents concerning a law enforcement effort known as Operation Fast

and Furious. The parties have executed a conditional settlement agreement providing that the

Department will search for and produce certain documents from its investigation of the operation

to the Committee, subject to this Court’s vacating the Orders and dismissing the case under Federal

Rule of Civil Procedure 60(b). Joint Suppl. Br. in Supp. of Mot. for Indicative Ruling [Dkt. # 135]

(“Joint Suppl.”) at 3–4, citing Conditional Settlement Agreement, Ex. A to Joint Mot. [Dkt.

# 130-1] ¶¶ 1, 5–8 (stating the settlement is only effective “upon vacatur of the District Court’s

orders of August 20, 2014 and January 19, 2016”).

       Because neither the balance of the equities nor the public interest weigh in favor of vacatur,

the Court will deny the parties’ motion.

                         FACTUAL AND PROCEDURAL HISTORY

       On October 11, 2011, the Committee issued a subpoena to the Attorney General 2 for

documents related to the Department’s investigation into Operation Fast and Furious. The

operation, run by the Bureau of Alcohol, Tobacco, and Firearms and the U.S. Attorney’s Office in

Phoenix, Arizona, sought to track the suspected flow of firearms from the United States to drug

cartels in Mexico. During the course of the investigation, agents permitted straw purchasers to

buy firearms illegally in the United States, and then let the purchasers “walk” the firearms into




2       At that time, the Attorney General was Eric H. Holder, Jr. Pursuant to Federal Rule of
Civil Procedure 25(d), Loretta E. Lynch was substituted as defendant in this case after she replaced
Holder, and Jefferson Sessions was substituted as defendant after he became Attorney General.
                                                 2
Mexico without being apprehended. Am. Compl. [Dkt. # 35] ¶ 1. The tactic was designed to track

the guns to their ultimate destination and reveal any nexus between the leaders of Mexican crime

syndicates and the individuals who purchased the firearms. Id. But the initiative came under

intense scrutiny when a U.S. law enforcement agent was killed in December 2010 with one of the

guns that was part of the operation. Id. ¶ 2. Members of Congress began inquiring into the matter,

and in a letter dated February 4, 2011, the Department of Justice firmly denied that ATF ever

knowingly failed to interdict weapons that had been purchased illegally. Id. As more facts came

to light, though, the Department acknowledged that law enforcement agents had in fact permitted

some guns to walk during the course of the Phoenix operation. Id. ¶ 3. The Committee then shifted

its focus to uncovering why the Department had provided it with incorrect information at the

outset. Id. ¶ 4.

        On October 11, 2011, the Committee issued the subpoena to the Attorney General that lies

at the heart of this lawsuit. See Am. Compl. ¶ 8. While a large volume of materials was produced,

the Department informed the Committee on June 20, 2012 that the President had asserted executive

privilege over all relevant documents dated after February 4, 2011. Id. ¶ 14. On August 13, 2012,

the Committee filed this action to compel the production of those records, which had been withheld

on the grounds that they were covered by the deliberative process prong of the executive privilege.

See Compl. [Dkt. #1].

        The case produced a number of rulings. After the lawsuit was filed, the Department of

Justice moved to dismiss it. It took the position that this Court did not have – or should decline to

exercise – jurisdiction over what the Department characterized as a political dispute between the

executive and legislative branches of the government. The Attorney General warned that it would

threaten the constitutional balance of powers if the Court endeavored to weigh the Committee’s



                                                 3
stated need for the material against the executive’s interest in confidential decision making, or if

the Court were to make its own judgment about whether the negotiation and accommodation

process to date had been adequate. Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 13-1] at 19–

45.

          The Committee opposed the motion to dismiss. It argued that it was both lawful and

prudent for the Court to exercise jurisdiction since the case involved a discrete, narrow question

of law:

                 This type of case – at bottom, a subpoena enforcement case – has been
                 brought in and addressed by the courts in this Circuit many times before
                 . . . . Moreover, this case involves the purely legal question of the scope
                 and application of Executive privilege . . . .

Pl.’s Opp. to Def.’s Mot. to Dismiss [Dkt. # 17] at 6 (emphasis in original).

          The Court agreed. Citing United States v. Nixon, 418 U.S. 683 (1974), it ruled that it had

not only the authority, but the responsibility, to resolve the conflict.

                 [T]he Supreme Court held that it was “the province and duty” of the Court
                 “‘to say what the law is’” with respect to the claim of executive privilege
                 that was presented in that case. Id. at 705, quoting Marbury v. Madison,
                 5 U.S. (1 Cranch) 137, 177 (1803). “Any other conclusion would be
                 contrary to the basic concept of separation of powers and the checks and
                 balances that flow from the scheme of a tripartite government.” Id. at 704.
                 Those principles apply with equal force here. To give the Attorney General
                 the final word would elevate and fortify the executive branch at the expense
                 of the other institutions that are supposed to be its equal, and do more
                 damage to the balance envisioned by the Framers than a judicial ruling on
                 the narrow privilege question posed by the complaint.

Comm. on Oversight & Gov’t Reform, U.S. House of Representatives v. Holder, 979 F. Supp. 2d

1, 11–12 (D.D.C. 2013); see also id. at 10–11, citing Comm. on the Judiciary v. Miers, 558 F.

Supp. 2d 53, 84–85 (D.D.C. 2008).

          The parties then filed cross-motions for summary judgment. See Pl.’s Mot. for Summ. J.

[Dkt. # 61]; Def.’s Mot. for Summ. J. [Dkt. # 63]. The Committee contended that as a matter of


                                                   4
law, the executive branch could not invoke the deliberative process privilege in response to a

Congressional subpoena. Pl.’s Mot. for Summ. J. [Dkt. # 61]. In the Committee’s view, since the

records did not involve actual communications with the President that would raise separation of

powers concerns, and they did not raise national security concerns, they had to be produced. Mem.

of P. & A. in Supp. of Pl.’s Mot. for Summ. J. [Dkt. # 61]. On August 20, 2014, in the first of the

two orders at issue in the pending motion, the Court ruled against the Committee on that issue.

Holder, 2014 WL 12662665. It determined that there is a constitutional dimension to the

deliberative process aspect of the executive privilege, and that the privilege could be properly

invoked in response to a legislative demand. Id. at *1, citing In re Sealed Case, 121 F.3d 729, 745

(D.C. Cir. 1997) (“Espy”).

       However, the Court also found that the Attorney General’s blanket assertion of the

privilege over all records generated after a particular date could not stand, because no showing had

been made that any of the individual records satisfied the legal prerequisites for the application of

the privilege. Holder, 2014 WL 12662665, at *2. The Department was ordered to review the

responsive records to identify those records that were both pre-decisional and deliberative and to

produce any that were not. Id. at *2. It was also ordered to create a detailed list identifying all

records that were being withheld on privilege grounds. Id.

       As the Committee acknowledged in a notice filed with the Court, the Department complied

with the August 2014 Order. See Comm.’s Notice of Disputed Claims and Other Issues [Dkt.

# 98] (reporting that on November 4, 2014, the Department produced 10,104 documents, or 64,404

pages, and it produced a list with 14,281 entries for documents being withheld on privilege

grounds). But the parties disagreed about whether the bulk of the records on the list – those




                                                 5
memorializing internal agency discussions about communications with Congress or with the media

– could be covered by the privilege. See id. at 2, 11.

       The Committee then moved to compel the production of every record described in the list,

as well as a body of material that defendant did not include in the index. Pl.’s Mot. to Compel

[Dkt. # 103] and Mem. of P. & A. in Supp. of Pl.’s Mot. to Compel (“Pl.’s Mem. for Mot. to

Compel”) [Dkt. # 103-1]. It took the position that not one of the records was deliberative, and that

even if some were, the interests advanced by the privilege were outweighed by the Committee’s

need for the material. The Committee asked the Court to hold that intra-agency communications

about responding to Congressional and media requests for information are not covered by the

privilege. Pl.’s Mem. for Mot. to Compel at 26–29. It also argued that the right to invoke any

privilege had been vitiated by the Department’s own misconduct. Id. at 32 n.15.

       In the second order at issue here, the Court rejected the Committee’s articulation of the

scope of the privilege. Lynch, 156 F. Supp. 3d at 105. Based upon authority from this Circuit, it

found that records containing the agency’s internal deliberations over how to respond to

Congressional and media inquiries were entitled to protection under the deliberative process

privilege. Id. But the Court also acknowledged, citing Espy, 121 F. 3d at 737–38, that the privilege

is a qualified one that can be overcome by a sufficient showing of need for the material. Id.

Ultimately, though, the Court concluded that there was no need to balance the Committee’s need

for the records against the impact their disclosure could have on candor in future executive decision

making because the Department had already disclosed the records itself. See id. at 105–06, citing

U.S. Dep’t of Justice, Office of the Inspector Gen. Oversight and Review Div., A Review of ATF’s

Operation Fast and Furious and Related Matters (Redacted) (Sept. 2012), https://oig.justice.gov/

reports/2012/s1209.pdf.



                                                 6
       The Court ruled that the qualified privilege must yield, given the executive’s

acknowledgment of the legitimacy of the investigation, and the fact that the Department itself had

already publicly revealed the sum and substance of the very material it was seeking to withhold.

Id. at 106. Since any harm that would flow from the disclosure in response to the subpoena would

be merely incremental, the Court ordered on January 19, 2016 that the records had to be produced.

Id. 3 Thereafter, the parties informed the Court that its orders had resolved all of the issues in the

case and that a final order should issue. See Def.’s Notice Regarding Entry of Final J. [Dkt. # 120]

(“Defendant agrees that the Court’s Order resolves all of the outstanding issues in the case, and

therefore entry of final judgment is appropriate at this time.”); Pl.’s Not. of Compliance with

Court’s Feb. 1, 2016 Min. Order [Dkt. # 121] (submitting proposed Final Judgment); Final

Judgment [Dkt. # 124].




3       The Court emphasized that its order was not based on any finding of misconduct on the
part of the Department. Lynch, 156 F. Supp. 3d at 106.
        In addition to the materials withheld on deliberative process grounds, the Committee’s
motion to compel also addressed three other categories of documents: materials for which no basis
for a claim of privilege had been identified on the list; materials that the Department had neither
produced nor included on the list; and materials withheld in full or in part on grounds other than
the deliberative process privilege. The Court ordered the production of any records for which no
explanation had been offered. Id. at 120–21. With respect to the records that had not been included
in the production or the list, the Court declined to address the parties’ dispute over whether the
Committee’s request had been previously narrowed by agreement to exclude what the Committee
referred to in the motion to compel as the “post February 4 subset” since those records were not
embraced in the June 20, 2012 assertion of executive privilege that prompted the lawsuit. Id.
at 119. It also ordered that any remaining disputes concerning withholdings of attorney-client
privileged material, attorney work product, law enforcement sensitive material, national security
matters, or personal privacy information fell outside the scope of the complaint and should be
resolved through the negotiation and accommodation process. Id. Since the Committee was quite
clear when it invoked the jurisdiction of the Court that it was simply asking for a ruling on the
discrete questions of law that had been decided – can the executive assert the deliberative process
privilege in response to a Congressional request? And if so, does the privilege cover internal
deliberations that do not include advice to or communication with the President? – the Court
declined to interpose itself in the negotiations between the parties on the other issues.


                                                  7
       Notwithstanding the fact that it had prevailed in its effort to enforce compliance with the

subpoena, the Committee filed a Notice of Appeal on April 8, 2016. Notice of Appeal [Dkt # 125];

see also Notice of Appeal [Doc. # 1609215], Comm. on Oversight & Gov’t Reform, U.S. House of

Representatives v. Sessions, No. 16-5078 (D.C. Cir. Apr. 18, 2016). While the Notice of Appeal

covered “all aspects” of the Court’s Final Judgment “that are adverse to the Committee, including,

but not limited to, from the Order of August 20, 2014 (ECF No. 81); the Order of September 9,

2014 (ECF No. 88); and the Memorandum Opinion and Order of January 19, 2016 (ECF No.

117),” id. at 2, the brief filed in the D.C. Circuit was more narrowly focused.

       The Committee challenged the ruling that the deliberative process privilege can be invoked

by the executive in Congressional investigations, and it objected to the Court’s decision to decline

to address other issues: the Department’s failure to produce what the Committee referred to as the

“Post-February 4 Subset” of documents, and the withholding or redaction of records on grounds

other than the deliberative process privilege. Br. for Appellant [Doc. #1639836] at 14–61,

Sessions, No. 16-5078 (D.C. Cir. Oct. 6, 2016).

       In response, the Department argued that the case that had been appealed was moot: the

complaint sought an order compelling the Department to produce documents that had been

withheld as deliberative, the order had been issued by this Court, and – of importance to this

motion – the documents had already been produced. Br. for Appellee [Doc. # 1651995] at 10–11,

Sessions, No. 16-5078 (D.C. Cir. Dec. 20, 2016) (“[T]he district court ordered the Department to

produce all materials withheld on deliberative process grounds, and the Department has complied

in full.”). The Department added that it had also provided the Committee in camera access to

disputed non-deliberative materials unrelated to the Committee’s suit “with very minor

exceptions.” Id. at 11. It urged the Court of Appeals to refrain from addressing any other aspects



                                                  8
of the Committee’s appeal, and it took the position that the case did not include the “post-February

4 subset” of documents. Id. at 17–24. In the event the Circuit decided to hear the matter on the

merits, the Department also reasserted the jurisdictional arguments based on standing and

separation of powers that had been rejected below, and it defended this Court’s rulings on the

scope of the deliberative process privilege and the other documents. Id. at 26–59.

       On January 13, 2017, the Committee filed a consent motion to hold the appeal in abeyance

because it was attempting to negotiate a settlement of the remaining outstanding matters with the

incoming Administration. Appellant’s Unopposed Mot. to Hold Appeal in Abeyance [Doc.

#1655926], Sessions, No. 16-5078 (D.C. Cir. Jan. 13, 2017). The Court granted the motion, Order

[Doc. # 1667880], Sessions, No. 16-5078 (D.C. Cir. Jan. 19, 2017), and the appeal has remained

in abeyance since then.

       On March 7, 2018, the parties filed the instant motion. The Court then ordered the parties

to file a further submission “detail[ing] the exceptional circumstances” that would justify vacatur

and why it would be in the public interest. Order (Mar. 12, 2018) [Dkt. # 131] at 2–3. The parties

filed supplemental submissions on April 16, 2018 and May 21, 2018. Joint Suppl.; Joint Notice

of Suppl. Authority [Dkt. # 136].

       The parties seek vacatur of the August 2014 and January 2016 orders pursuant to Rule

60(b) and the conditional settlement agreement “and in light of changed circumstances,” and they

argue that they do not need to make a showing of “exceptional circumstances” to prevail. Joint

Mot. at 1; Joint Suppl. at 1. Since the Court finds that the balance of the equities does not weigh

in favor of vacating the Orders, it will deny the motion, and it need not determine whether

exceptional circumstances are required.




                                                 9
                                            ANALYSIS

       Utilizing the procedure set forth in Federal Rule of Civil Procedure 62.1, 4 the parties have

asked the Court to issue an indicative ruling stating that in light of the parties’ conditional

settlement, it will vacate its August 2014 and January 2016 orders upon remand.

       In U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 22 (1994), the Supreme

Court addressed the question of whether an appellate court should vacate a civil judgment if the

case becomes moot because, as here, it was settled while it was on appeal. The Court noted that

generally, when “a civil case from a court in the federal system . . . has become moot while on its

way here or pending our decision on the merits,” the established practice is “to reverse or vacate

the judgment below and remand with a direction to dismiss.” Id. at 22, quoting United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950). It made it clear, though, that this practice is limited

to those cases in which the mootness arose out of circumstances beyond the parties’ control and

was not engineered by the party that filed the appeal. Bancorp, 513 U.S. at 25.

       The Court reasoned that “a party who seeks review of the merits of an adverse ruling, but

is frustrated by the vagaries of circumstances, ought not in fairness be forced to acquiesce in the

judgment.” Id. But it highlighted the contrast between that circumstance and a situation in which

a party settles a case and “voluntarily forfeit[s] his legal remedy by the ordinary processes of appeal




4       Rule 62.1 provides that upon the timely filing of a motion “for relief that the court lacks
authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the
motion if the court of appeals remands for that purpose or that the motion raises a substantial
issue.” Fed. R. Civ. P. 62.1. This rule is invoked in situations where a court has lost jurisdiction
over a case because it has been docketed for appeal, and therefore cannot entertain motions such
as those made under Rule 60(b) for relief from judgment. 11 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 2911 (3d ed.). Rule 62.1 allows a court to indicate to the
appeals court that it would grant the party’s motion if remanded to the lower court. Id.
                                                  10
. . . thereby surrendering his claim to the equitable remedy of vacatur.” Id. Thus, the Court

concluded:

               [M]ootness by reason of settlement does not justify vacatur of a judgment
               under review. This is not to say that vacatur can never be granted when
               mootness is produced in that fashion. As we have described, the
               determination is an equitable one, and exceptional circumstances may
               conceivably counsel in favor of such a course. It should be clear from our
               discussion, however, that those exceptional circumstances do not include
               the mere fact that the settlement agreement provides for vacatur – which
               neither diminishes the voluntariness of the abandonment of review nor
               alters any of the policy considerations we have discussed.

513 U.S. at 29.

       While the D.C. Circuit has not addressed whether the ruling in Bancorp should apply to a

request that a district court vacate its own order under Rule 60(b), several courts in this district

have looked to Bancorp for guidance. In 3M Co. v. Boulter, the Circuit remanded a case and

instructed the district court to consider a motion for vacatur under Rule 60(b), adding, “see U.S.

Bancorp.” 290 F.R.D. 5, 7 (D.D.C. 2013); Order, 3M Co. v. Boulter [Dkt. # 96] (D.D.C. Jan. 4,

2013). The court proceeded to consider the motion under both Rule 60(b)(6) and Bancorp.

3M Co., 290 F.R.D. at 8 (noting that relief under Rule 60(b)(6) requires a showing of

“extraordinary circumstances” and that Bancorp requires “‘exceptional circumstances’ to justify

the equitable relief of vacatur following a settlement”), quoting Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 863–64 (1988) and Bancorp, 513 U.S. at 25–26. The court ruled

that the circumstances presented were not so extraordinary or exceptional to warrant the requested

relief. Id. Other courts in this district have applied the Bancorp principles as well when

considering whether to vacate their own decisions. See St. Lawrence Seaway Pilots’ Ass’n v.

Collins, No. 03-cv-1204 (RBW), 2005 WL 1138916, at *2 (D.D.C. May 13, 2005) (relying on

Bancorp in vacating district court opinion on grounds that the opinion had become moot because

the rulemaking at issue had been completed, and the dispute may be the subject of future litigation
                                                11
involving the same parties); Fund for Animals v. Mainella, 335 F. Supp. 2d 19, 25–26 (D.D.C.

2004) (collecting cases in which district courts relied on Bancorp as a basis to vacate their own

opinions but denying vacatur because, among other reasons, movants had failed to request the

administrative record that they now argued made the district court’s ruling unreviewable). 5

       The parties insist, though, that this Court need not find that extraordinary circumstances

exist before it may vacate its orders. They point to the passage in Bancorp in which the Supreme

Court observed that an appellate court may simply remand a case to take advantage of the options

available to a district judge under the Federal Rules:

               Of course even in the absence of, or before considering the existence of,
               extraordinary circumstances, a court of appeals presented with a request for
               vacatur of a district-court judgment may remand the case with instructions
               that the district court consider the request, which it may do pursuant to
               Federal Rule of Civil Procedure 60(b).

Bancorp, 513 U.S. at 29.

       Here, the Court of Appeals has not instructed this Court to do anything. But the parties are

asking the Court to indicate that it would exercise its equitable discretion to vacate the Orders

under Federal Rule of Civil Procedure 60(b) alone and to forego – or at least, adopt an alternative

construction of – the Bancorp extraordinary circumstances test. 6 Joint Suppl. at 3–7.




5      The Fourth Circuit has held that the Bancorp considerations, “that are relevant to appellate
vacatur for mootness, are also relevant to . . . a district court’s vacatur decision for mootness under
Rule 60(b)(6),” while noting that the Ninth Circuit in American Games, Inc. v. Trade Prods., Inc.,
142 F.3d 1164 (9th Cir.1998), arguably rejected that view. See Valero Terrestrial Corp. v. Paige,
211 F.3d 112, 121 (4th Cir. 2000).

6        See Joint Suppl. at 6–7 (arguing that if the Court applies the “exceptional circumstances”
test to its decision to vacate its own orders, the Court should reject a narrow application of the
test).
                                                  12
       The problem with this approach is that the parties point to only two provisions in Rule 60

that could supply a basis for relief in this case: subsections (b)(5) and (b)(6). Rule 60(b)(5), as

will be discussed in more detail below, is inapplicable as a matter of law, and section (b)(6)

requires a showing of extraordinary circumstances anyway. The D.C. Circuit has repeatedly

cautioned that the residual clause should be “sparingly used” and only in “extraordinary

circumstances.” Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110, 1119–20 (D.C.

Cir. 2011), quoting Ackermann v. United States, 340 U.S. 193, 199 (1950), and Kramer v. Gates,

481 F.3d 788, 792 (D.C. Cir. 2007). So it is unclear what the parties accomplish by predicating

their motion on Rule 60 alone.

       In the end, though, the Court need not wrestle with the question of whether it is bound by

Bancorp, or what must be shown to satisfy the Bancorp requirement of extraordinary

circumstances, or whether there is any difference between the Bancorp and Rule 60(b)(6)

extraordinary circumstance standards because, as the parties acknowledge, a district court’s

decision to vacate its own orders is subject to equitable considerations. Joint Suppl. at 5–6, citing

Jewish War Veterans of the U.S of Am., Inc. v. Mattis, 266 F. Supp. 3d 248, 252 (D.D.C. 2017)

and Fund for Animals, 335 F. Supp. 2d at 25; see also Fed. R. Civ. Proc. 60(b) (“On motion and

just terms, the court may relieve a party from a final judgment . . . .”). The Court finds that the

balance of equities does not favor vacatur in this case, and that vacating the orders would not be

in the public interest. Thus, it is unnecessary to determine whether a higher threshold applies or

whether the parties could overcome it.

I.     The Parties are Not Entitled to Vacatur under Rule 60(b)(5).

       Rule 60(b)(5) authorizes courts to grant relief from a judgment for the reason that: “the

judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively is no longer equitable.” Fed. R. Civ.
                                                 13
Pro. 60(b)(5). The rule is to be invoked when “a significant change either in factual conditions or

in law renders continued enforcement detrimental to the public interest.” Am. Council of the Blind

v. Mnuchin, 878 F.3d 360, 366 (D.C. Cir. 2017), quoting Horne v. Flores, 557 U.S. 433, 447 (2009)

(internal quotation marks omitted).

       The parties rely solely on the third clause of section (b)(5); they assert in their motion that

applying the orders “prospectively is no longer equitable.” Joint Mot. at 1. A court may modify

an order or judgment under this portion of Rule 60(b)(5) “only to the extent it has prospective

application.” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988).

Here, neither order has prospective application as that term has been interpreted by the D.C.

Circuit, and in fact, the Department has already complied with both of them. Therefore, Rule

60(b)(5) does not supply a basis for vacatur in this case.

       The standard to be applied when determining whether an order or judgment has prospective

application within the meaning of Rule 60(b)(5) is “whether it is ‘executory’ or involves ‘the

supervision of changing conduct or conditions’” within the meaning of Wheeling and Swift, the

two Supreme Court cases from which this portion of the rule was derived. Twelve John Does, 841

F.2d at 1139, citing State of Pa. v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856),

and United States v. Swift & Co., 286 U.S. 106 (1932). In Wheeling, the Court had ordered that a

bridge impeding navigation of the Ohio River must either be elevated or removed, but Congress

passed a statute legalizing the structure. The Court then found that the portion of the original order

requiring the abatement of construction was an executory, continuing decree meant to govern the

parties’ actions into the future, and therefore, it concluded that the order could be modified in light

of the change in circumstances. See Twelve John Does, 841 F. 2d at 1138–39, citing 59 U.S.

at 431. In Swift, the Supreme Court declined to modify an injunction, and it stated that such



                                                  14
decrees are “continuing” only if they “involve the supervision of changing conduct or conditions

and are thus provisional and tentative.” 286 U.S. at 114. Applying those precedents in Twelve

John Does, the Court found that a prior order dismissing the Attorney General as a defendant from

a case involving D.C. prisons lacked prospective application because “it did not compel the

Attorney General to perform, or order him not to perform, any future act; [and] it did not require

the court to supervise any continuing interaction between him and the other parties to the case.”

841 F. 2d. at 1139.

       Obviously, each order in this case required the Department to do something after the order

was entered, but that is not the touchstone of an “executory” order.

               Virtually every court order causes at least some reverberations into
               the future, and has, in that literal sense, some prospective effect;
               even a money judgment has continuing consequences, most
               obviously until it is satisfied . . . . That a court’s action has
               continuing consequences, however, does not necessarily mean that
               it has “prospective application” for the purposes of Rule 60(b)(5).

Twelve John Does, 841 F.2d at 1138.

       The orders at issue here were not “provisional” or “tentative,” see Swift, 286 U.S. at 114;

they did not embroil the Court in ongoing oversight, and they were no more executory or

prospective than an order to pay a money judgment. The first order in August 2014 denied the

parties’ cross motions for summary judgment without prejudice, and it called for the production

of some records and the creation of a detailed list justifying any withholdings by a date certain.

Holder, 2014 WL 12662665, at *3. The defendant complied with the order fully as of November

4, 2014, see Comm.’s Notice of Disputed Claims and Other Issues, and the order included no

ongoing obligations.

       The January 2016 Order then required the Department to produce the deliberative records

described in the list to the Committee.      See 156 F. Supp. 3d at 106.      That too has been


                                                15
accomplished. Br. for Appellee at 10–11. So even if the first order contemplated that the Court

would remain involved for some time to rule on the privilege assertions in the list, neither order

has any prospective elements now. Both parties advised this Court on February 3, 2016 that the

orders resolved all of the outstanding issues presented in the case, and they called for entry of final

judgment. See Def.’s Notice Regarding Entry of Final J.; Pl.’s Not. of Compliance with Court’s

Feb. 1, 2016 Min. Order; see also Final Judgement. Thus, the Orders bear no resemblance to

continuing injunctions that call for ongoing supervision or involvement by a Court. Indeed, the

only aspect of the dispute that was supposed to play out in the future was that portion of the process

from which the Court expressly excluded itself: negotiation over other privileges that were not a

part of the initial complaint, and the resolution of the parties’ spat over whether they had or had

not narrowed the subpoena by agreement. See Lynch, 156 F. Supp. 3d. at 119 (“[A]ny responsive

documents that were not embraced in [the privilege assertion on June 20, 2012] are an entirely

separate matter, and intervention in that dispute would entangle the Court in an ongoing political

dispute of the sort that is not suitable to judicial resolution.”).

        Furthermore, if a goal of the request that the Orders be vacated is, as the parties have

indicated, to eliminate any “preclusive effect[s],” Conditional Settlement Agreement ¶ 4, the

Circuit has made it clear that future preclusive effects do not fall within the scope of “prospective

application” as that term is used in Rule 60(b)(5). Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir. 2006),

quoting Twelve John Does, 841 F.2d at 1139–40 (“[P]reclusive effects do not qualify as

‘prospective application[s]’ under Rule 60(b)(5), which is addressed to ‘executory’ decrees or ones

involving ‘the supervision of changing conditions or circumstances.’”). Accordingly, there is no

legal basis to vacate the Orders under Rule 60(b)(5).




                                                   16
II.    The Parties are Not Entitled to Vacatur under Rule 60(b)(6).

       The parties also point the Court to subsection (b)(6) of Rule 60, referred to as the catch-all

provision, see Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007), which authorizes courts to

grant relief from a judgment for “any other reason.” Fed. R. Civ. P. 60(b)(6). It is a well-

established principle that a party must show “extraordinary circumstances” to obtain relief under

Rule 60(b)(6). Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393

(1993); see also Kramer, 481 F.3d at 792 (observing that a party “must clear a very high bar to

obtain relief under Rule 60(b)(6)” and that the rule should be used “only sparingly”). But even if

this Court simply weighs the equities involved and considers the public interest, it finds that the

parties’ motion falls short.

       The parties explain that they are seeking vacatur because they “have reached a negotiated

resolution of their dispute, contingent on vacatur of only the two specified orders.” Joint Mot. at 3.

They assert that “equitable considerations strongly favor” their requested relief because settlement

“is highly favored,” and granting the motion will save the parties and the public “time and money”

by facilitating the settlement. Joint Mot. at 3, quoting United States v. Hyundai Motor Co.,

77 F. Supp. 3d 197, 199 (D.D.C. 2015) and Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117,

1126 (D.C. Cir. 1983). They add that allowing the settlement to proceed will save judicial

resources by obviating a decision by the Court of Appeals in a case they are prepared to resolve

amicably. Joint Mot. at 3; Joint Suppl. at 1–2. Finally, their conditional settlement agreement also

makes it clear that they are seeking to be relieved of any preclusive effect the Orders might have

in future litigation. See Conditional Settlement Agreement ¶ 4.

       None of these considerations supports the grant of equitable relief. First, the Court agrees

with the view of the district court in 3M Co. v. Boulter, 290 F.R.D. at 7, that because the parties’

request is based solely on their conditional settlement agreement, Bancorp is instructive, even if it
                                                 17
is not binding. And in Bancorp, the Supreme Court stated that judicial opinions “are presumptively

correct and valuable to the legal community as a whole. They are not merely the property of the

private litigants and should stand unless a court concludes that the public interest would be served

by a vacatur.” Bancorp, 513 U.S. at 26, quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting). When a case between two

adversaries ends, the case produces judicial precedent that has “social value . . . created at [a] cost

to the public and other litigants.” In re United States, 927 F.2d 626, 628 (D.C. Cir. 1991), quoting

In re Mem’l Hosp. of Iowa Cty., Inc., 862 F.2d 1299, 1302 (7th Cir. 1998) (stating that precedent

should not “be a bargaining chip in the process of settlement” because it is “a public act of a public

official”). This is particularly true in this case where the adversaries and amici that briefed and

argued their positions before the Court were not private litigants, but all were government entities

or individual officials whose mission is to serve the public.

       The parties contend nonetheless that vacating the Orders would serve the public interest

because their proposed settlement would serve the public interest. They argue first that it is in the

public interest to vacate the Orders because “courts should avoid unnecessarily deciding

constitutional questions.” Joint Suppl. at 7–8, citing Nat’l Black Police Assoc. v. District of

Columbia, 108 F.3d 346, 353–54 (D.C. Cir. 1997). But the cases the parties cite for this point

involved vacating decisions that became moot due to circumstances beyond the control of the

parties, and not due to a settlement. See Nat’l Black Police Ass’n, 108 F.3d at 348 (declining to

rule on First Amendment challenge to a D.C. campaign finance law that capped campaign

contributions after the D.C. Council passed legislation that increased the cap while the case was

on appeal); Kremens v. Bartley, 431 U.S. 119, 134 (1977) (declining to answer a constitutional

question because new legislation made the issue moot); In re City of El Paso, 887 F.2d 1103, 1106



                                                  18
(D.C. Cir. 1989) (declining to address the constitutional issue of the district court quashing a

deposition subpoena issued by the U.S. Senate because the state court case was dismissed). 7

        Furthermore, the D.C. Circuit has expressed the view that “the precedential power of an

opinion is a reason arguing against vacatur.” Mahoney v. Babbitt, 113 F.3d 219, 222–23 (D.C.

Cir. 1997) (emphasis added), citing 513 U.S. at 26–27; see also Jewish War Veterans,

266 F. Supp. 3d at 248 (“[W]here an opinion establishes precedent on a rarely-litigated

constitutional issue . . . , that presents a reason to deny vacatur.”), citing Mahoney, 113 F.3d at 222.

Because disputes between the political branches “are normally settled through negotiation and

accommodation,” Miers, 558 F. Supp. 2d at 85, the issues addressed in the orders can be said to

fall within the “rarely-litigated” category, and that militates against vacatur.

        The parties also posit that their settlement exemplifies the sort of the comity between the

legislative and executive branch that this Court and others have encouraged, and that favors vacatur

in this instance. Joint Suppl. at 8–9. They cite United States v. Am. Tel. & Tel. Co., 567 F.2d 121,

127 (D.C. Cir. 1977), in which the Department sought to enjoin AT&T from responding to a

Congressional subpoena. Joint Suppl. at 9. The D.C. Circuit noted in that case that there is an

“implicit constitutional mandate to seek optimal accommodation” of disputes between the

branches of government rather than judicial intervention to resolve them, but after those efforts

failed, it determined it was necessary for the Court to resolve the parties’ dispute. 567 F.2d at

127–28. Similarly, this Court repeatedly urged the parties to resolve their dispute before it issued




7       The parties also cite Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (en banc) for
the proposition that removing the precedential effect of a ruling that carries broad implications
supports vacatur. See Joint Suppl. at 8. But the D.C. Circuit has subsequently noted that Clarke
“may no longer be good law.” Mahoney, 113 F.3d at 222–23 (noting that the Supreme Court held
after Clarke was decided that “the precedential power of an opinion is a reason arguing against
vacatur”), citing Bancorp, 513 U.S. at 26–27.
                                                  19
the Orders in this case. See Comm. on Oversight & Gov’t Reform, U.S. House of Representatives

v. Holder, No. 12-cv-1332, 2013 WL 5428834 (D.D.C. Sept. 30, 2013), at *25–26. So the

suggestion that the parties should be permitted to work this out among themselves comes a little

late in the proceedings to be a compelling factor. Indeed, the Supreme Court has observed that a

settlement at this stage does not weigh in favor of vacating an order, because granting vacatur after

appeal may create an incentive not to settle earlier in the process. See Bancorp, 513 U.S. at 28

(warning that making vacatur available while a judgment is on appeal “may deter settlement at an

earlier stage” because “[s]ome litigants . . . may think it worthwhile to roll the dice rather than

settle in the district court . . . if, but only if, an unfavorable outcome can be washed away by a

settlement-related vacatur”) (both emphases in original); see also Neuman v. Prudential Ins. Co.

of Am., 398 F. Supp. 2d 489, 493 (E.D. Va. 2005) (“[S]ettlement conditioned on post-judgment

vacatur, in sharp contrast to prejudgment settlement” encourages litigants to forgo “settlement

early in the litigation process, hoping to either prevail at trial or . . . bargain away any adverse

decision.”).

       Nor does the parties’ settlement now do much to conserve judicial resources. While it

would render a decision by the Court of Appeals unnecessary, “the judicial economies achieved

by settlement at the district-court level are ordinarily much more extensive than those achieved by

settlement on appeal.” See Bancorp, 513 U.S. at 28. That is also particularly true in this case,

which involved multiple rounds of briefing and argument to resolve the large number of legal

issues. And, since the Orders were not executory, and they have already been complied with,

denying the instant motion would not hinder a negotiated resolution in any way; the parties do not




                                                 20
need vacatur to agree to settle the matter and eliminate the expenditure of additional effort on the

part of counsel or the Court of Appeals. 8

       At the end of the day, the parties’ emphasis on the fact that they have come to an agreement

that the Court should welcome rings hollow, and their request that the Orders be vacated because

of the settlement and for no other reason is not persuasive.

       Not only did the parties fail to take advantage of multiple opportunities to achieve a

mediated solution while the case was pending, but the case was virtually over when they came to

this vaunted accommodation – the Court had already ordered the production of the documents that

had been withheld on deliberative process privilege grounds, and they had already been turned

over. The few loose ends that remained had been expressly left to be negotiated between the

parties anyway, and the Department advised the Court of Appeals that it had already granted the

Committee access to the bulk of those materials too. So there was little if anything to negotiate,

and the only real change in circumstance since the filing of the appeal has been the change in

political leadership at the Department of Justice in the wake of the Presidential election. This

suggests that the primary, if not the sole, objective of the conditional settlement and the pending

motion is to erase the Court’s prior rulings.




8       The parties’ suggestion that the Court should value accommodation over the public interest
in its opinions is particularly strained in this situation. In the Orders in question, the Court ruled
that the documents at issue in the complaint were subject to a valid privilege, but that they must
be produced, and thereafter, they were produced. So there was nothing left to negotiate after that
took place. With respect to other privileges that had not been challenged in the complaint, and the
parties’ dispute about whether they had narrowed the universe of records to be searched by
agreement, the Court ruled that it would not get involved in those issues and that they were better
suited to the process of negotiation and accommodation. This was one of the rulings the
Committee appealed, but if it has since changed its position on that issue, there is nothing in the
Orders that stands in the way of the negotiated resolution.
                                                 21
        The Court of course appreciates the fact that the parties were willing to sit down and resolve

the few open issues there were among themselves, even if it was long after the case had come to a

conclusion and after the expenditure of the parties’ and the Court’s resources. But the fact that

this unique dispute involving the production of a specific set of records – which the Court found

had already been disclosed to the public in any event – has been resolved does not diminish the

importance of the fundamental legal questions that arose along the way. And the parties have not

articulated any reason why the Court’s opinions on those broad subjects – which were shaped by

its consideration of the thorough briefing and skilled argument by both sides – should simply

evaporate.   During the course of this litigation pitting two branches of the United States

government against one another, the Court determined: that the dispute was justiciable and that

Congress could seek to enforce its duly issued subpoena in this Court; that the executive branch

could invoke the deliberative process prong of the executive privilege to shield records from

production to the legislature; that the privilege could not be asserted on a blanket basis, though,

but only on a document-by-document basis; that the privilege covered internal deliberations

concerning communications with Congress or the media; and that the privilege was not absolute

and could be waived or overcome by a showing of need. These are all issues that could very well

arise again in the future.

        The parties maintain that the opinions should be vacated so that this Court’s decisions on

those complex and delicate issues do not bind other courts in the future. Joint Suppl. at 7–8. But

as the parties well know, one district judge’s rulings are not binding on other district judges, and

they operate only as persuasive authority. Camreta v. Greene, 563 U.S. 692, 709, n.7 (2011) (“A

decision of a federal district court judge is not binding precedent in either a different judicial

district, the same judicial district, or even upon the same judge in a different case.”); Fund for



                                                 22
Animals, 335 F. Supp. 2d at 27 (“[A] decision by a district court has no precedential effect.”),

citing In re Exec. Office of the President, 215 F.3d 20, 24 (D.C. Cir. 2000). And other courts have

noted that “a party’s desire to avoid the potential legal precedent set by an order does not qualify

for Rule 60(b)(6) relief.” 3M Co., 290 F.R.D. at 10, quoting Tustin v. Motorists Mut. Ins. Co.,

668 F. Supp. 2d 755, 763 (N.D. W. Va. 2009).

       When this Court ruled that it had jurisdiction to hear the dispute between Congress and the

Attorney General, it cited another district court’s opinion in Committee v. Miers, not because it

was required to follow it, but because it independently reached the same conclusion. However, it

found the opinion to be persuasive and instructive in that process, and it had access to the ruling

on the jurisdictional question even though that dispute was ultimately resolved among the parties.

Judges find other judges’ opinions to be helpful when they are considering difficult questions, even

if they ultimately disagree with them, and that is one reason why these rulings should remain on

the books. 9 Also, the concordance between the two opinions – written by different judges, at times

when different political parties were in control of the House and were running the Department of

Justice – is a powerful illustration of the fact that under the Constitution, the rule of law endures

even when power changes hands, and no matter which party’s interests are affected by its

application. This is why the mere fact that the leadership of the Department of Justice has changed

should not be deemed to be a circumstance that warrants extraordinary equitable relief, and it is

yet another reason that the public interest would not be served by vacatur in this case.




9        The rulings may also prompt analysis in the academic sphere about what the law should
be; according to Westlaw, the initial decision finding that the Court had jurisdiction has been cited
in fifteen law review articles and the January 2016 Order at issue here has been mentioned in five
law review articles and multiple treatises.
                                                 23
       In light all these factors, the Court holds that the balance of equities weighs against vacating

the Orders and that granting the parties’ motion would not be in the public interest.

                                         CONCLUSION

       For the reason set forth above, the Joint Motion for an Indicative Ruling [Dkt. # 130] is

DENIED.




                                              AMY BERMAN JACKSON
                                              United States District Judge
DATE: October 22, 2018




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