United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 2, 2006
Charles R. Fulbruge III
Clerk
No. 06-20330
In re: UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Petitioner.
Petition for Writ of Mandamus to the
United States District Court for the
Southern District of Texas, Houston
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
The United States Department of Homeland Security
(“Petitioner”) petitions this Court to issue a writ of mandamus to
correct a discovery order by the United States District Court for
the Southern District of Texas, Houston Division. Petitioner
claims the district court erred by compelling disclosure of
documents protected by the law enforcement privilege. We conclude
that the district court erred in declaring that no law enforcement
privilege exists (beyond protecting confidential informant
identity). We remand the case to the district court for an in
camera review of the documents. Confident that the district court
will conduct its review in accordance with this opinion, we dismiss
the petition without prejudice to the rights of the parties to seek
additional relief following the review.
I. BACKGROUND
Surety National Casualty Corporation, a surety company, and
AAA Bonding Agency, Inc., its bonding agent (collectively
“Respondents”), underwrite bonds posted by aliens to enable them to
secure release from Petitioner’s custody pending removal. See
generally 8 C.F.R. 103.6. Petitioner found that Respondents had
breached their obligations on more than 1400 immigration bonds,
totaling more than nine million dollars in cumulative bond debt.
The vast majority of Respondents’ administrative appeals were
denied.
Respondents brought suit seeking a judicial order estopping
Petitioner from collecting bonds because of Petitioner’s alleged
“affirmative misconduct.” Petitioner filed a counterclaim for the
outstanding bond debt. To facilitate settlement of the debt
dispute, the parties agreed to a framework for alternative dispute
resolution (“ADR”). As part of ADR, the parties agreed to review
fifty of the bond breach determinations with twenty-five selected
by each side. Petitioner also agreed to produce each respective
alien’s file for those fifty determinations being reviewed.
According to the ADR agreement, the production requirement was
“exclusive of any privileged or otherwise protected documents,
which will be set forth on a privilege log for further review by
the Court, if necessary.” Petitioner produced nearly 4000 pages of
documents but withheld approximately 2000 pages, claiming that they
2
were privileged.
Respondents moved to compel production of the withheld
documents. The district court did not review the disputed
documents, yet granted the motion to compel. Significantly, the
court found no support for the law enforcement privilege in this
Circuit. Petitioner filed an emergency petition for writ of
mandamus and an emergency motion to stay the district court’s order
pending disposition of the petition. This Court has granted the
stay.
II. STANDARD OF REVIEW
“The remedy of mandamus is a drastic one, to be invoked only
in extraordinary situations.” Kerr v. U.S. Dist. Ct. for N. Dist.
of Cal., 426 U.S. 394, 402 (1976). One area where this Court has
granted mandamus relief is in the context of privileged documents.
See In re Aventel, S.A., 343 F.3d 311, 317 (5th Cir. 2003).
Mandamus is appropriate if the district court errs in ordering the
discovery of privileged documents, as such an order would not be
reviewable on appeal. Id.; see also In re Burlington N., 822 F.2d
518, 522 (5th Cir. 1987) (“[C]ases have recognized the importance
of the asserted privilege and the absence of an adequate
alternative method of obtaining review.”). Courts have considered
the seriousness and novelty of the privilege issue, and
“[r]espected commentators have . . . noted that the difficulty of
obtaining effective review of discovery orders, the serious injury
3
that sometimes results from such orders, and the often recurring
nature of discovery issues support use of mandamus in exceptional
cases.” In re Burlington N., 822 F.2d at 522.
III. DISCUSSION
Petitioner contends that the documents at issue fall within
the scope of the law enforcement privilege. These documents
allegedly are used by Petitioner in enforcing immigration and
nationality laws, detecting violations of these laws, and referring
such violations for prosecution. In support of its contention,
Petitioner offered the declaration of John P. Clark, the Deputy
Assistant Secretary of U.S. Immigration and Customs Enforcement, a
bureau within the Department of Homeland Security. Clark, in that
declaration, states that the documents contain information about
ongoing criminal investigations—including investigative leads, law
enforcement methods and techniques, internal investigative
memoranda, and identifying information relating to witnesses and
law enforcement personnel, including undercover operatives.
Petitioner argues that these concerns “go to the heart of the law
enforcement privilege.”
A. The Fifth Circuit’s Application of the Law Enforcement
Privilege
The district court found no precedent supporting a law
enforcement privilege and therefore refused to apply the privilege
to any portion of Petitioner’s documents. Petitioner disputes that
no such privilege exists in this Circuit. Petitioner relies on two
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Fifth Circuit cases to support its contention: Brown v. Thompson,
430 F.2d 1214 (5th Cir. 1970), and Swanner v. United States, 406
F.2d 716 (5th Cir. 1969).
In Brown, this Court reviewed the dismissal of a wrongful
death action in which the plaintiffs sought discovery of police
reports. The district court “declined to require the production of
files . . . on the ground that the contents were privileged and
that the files concerned parts of a homicide investigation which
was then still open, the contents of which were highly
confidential.” Brown, 430 F.2d at 1215. Upon review, this Court
stated that such “[g]overnment documents are the outstanding
example of matter which is privileged and which is not subject to
disclosure. It will expire upon the lapse of an unreasonable
length of time. Whether there should be disclosure is within the
discretion of the trial court . . . .” Id.
In Swanner, this Court addressed whether the district court
had “erred in failing to require production of certain
investigative files, principally for the purpose of supplying
plaintiffs with the identity of two people who were under suspicion
in connection with the [underlying crime].” Swanner, 406 F.2d at
718. The Swanner Court stated that “pendency of a criminal
investigation is a reason for denying discovery of investigative
reports [, although it] would not apply indefinitely . . . .” Id.
at 719. Although concluding that the district court had not abused
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its discretion, this Court reversed and remanded the case for a new
trial in “the interests of justice.” Id.
This Circuit also has recognized the law enforcement privilege
more recently. In Coughlin v. Lee, we stated that, in addition to
protecting the identity of a confidential informant, “[f]ederal
common law recognizes a qualified privilege protecting
investigative files in an ongoing criminal investigation.” 946
F.2d 1152, 1159 (5th Cir. 1991). In that case, the district court
had limited discovery of police files because it considered those
files “irrelevant” to the plaintiffs’ freedom of speech claim. Id.
at 1160. On remand, we instructed the district court to review the
documents instead for discoverability on the basis of the law
enforcement privilege. Id.
Our case law has acknowledged the existence of a law
enforcement privilege beyond that allowed for identities of
confidential informants.1 Moreover, in today’s times the compelled
1
Other circuits also recognize the law enforcement privilege
as covering documents relating to ongoing criminal
investigations. See, e.g., Dellwood Farms v. Cargill, Inc., 128
F.3d 1122, 1125 (7th Cir. 1997) (recognizing the “law enforcement
investigatory privilege”); In re Dep’t of Investigation, 856 F.2d
481, 483–84 (2d Cir. 1988) (stating that the law enforcement
privilege exists and prevents the “disclosure of law enforcement
techniques and procedures, [preserves] the confidentiality of
sources, [protects] witnesses and law enforcement personnel,
[safeguards] the privacy of individuals involved in an
investigation, and otherwise [prevents] interference with an
investigation”); United States v. Winner, 641 F.2d 825, 831 (10th
Cir. 1981) (stating that the “law enforcement investigative
privilege is based primarily on the harm to law enforcement
efforts which might arise from public disclosure of investigatory
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production of government documents could impact highly sensitive
matters relating to national security. Therefore, the reasons for
recognizing the law enforcement privilege are even more compelling
now than when Brown, Swanner, and Coughlin were decided. Such a
privilege should have been recognized by the district court.2 The
files”) (internal quotation marks and ellipse omitted); Tuite v.
Henry, 181 F.R.D. 175, 176–77 (D.D.C. July 31, 1998)
(unpublished), aff’d Tuite v. Henry, 203 F.3d 53 (D.C. Cir. 1999)
(“The federal law enforcement privilege is a qualified privilege
designed to prevent disclosure of information that would be
contrary to the public interest in the effective functioning of
law enforcement. [It] serves to preserve the integrity of law
enforcement techniques and confidential sources, protects
witnesses and law enforcement personnel, safeguards the privacy
of individuals under investigation, and prevents interference
with investigations.”).
2
Both the district court and Respondents claim that the
Fifth Circuit has recognized only an executive privilege, not a
law enforcement privilege. Consequently, they argue,
Petitioner’s claim to a law enforcement privilege is not
supported by this Circuit’s law. However, they provide no basis
for why the privilege should be labeled “executive” instead of
“law enforcement” or how that label impacts the substance of the
privilege. Like other circuits using the law enforcement
moniker, the purpose of the privilege in the Fifth Circuit is to
protect from release documents relating to an ongoing criminal
investigation. The term “law enforcement privilege” appears to
have evolved over time out of the same concept. Compare Black v.
Sheraton, 564 F.2d 531, 545–46 (D.C. Cir. 1977) (recognizing, in
the context of discussing executive privilege, that law
enforcement documents disclosing “investigative techniques or
sources” should be minimized) with Landry v. FDIC, 204 F.3d 1125,
1135 (D.C. Cir. 2000) (using the term “law enforcement
privilege”). Fifteen years ago this Circuit addressed the law
enforcement privilege without naming it. See Coughlin, 946 F.2d
at 1159–60. In any event, the law enforcement privilege is in
fact a subcategory of the executive privilege. Landry, 204 F.3d
at 1135 (describing the law enforcement privilege as a
“qualified, common law executive privilege[]”). In short,
however it is labeled, a privilege exists to protect government
documents relating to an ongoing criminal investigation.
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court legally erred in refusing to do so. Petitioner also is
correct that the error of ordering the discovery of potentially
privileged documents, without judicial review of the those
documents, would be irremediable on appeal. See In re Avantel,
S.A., 343 F.3d at 317. Hence, Petitioner has no other means to
obtain the relief sought. See Mallard v. U.S. Dist. Ct. for the S.
Dist. of Iowa, 490 U.S. 296, 309 (1989).
Yet, this Court does not know whether any of the disputed
documents fall within the realm of the privilege. The documents
were not presented for our review. In any event, determining
privilege is a “particularistic and judgmental task” of balancing
the “need of the litigant who is seeking privileged investigative
materials . . . against the harm to the government if the privilege
is lifted.” Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125
(7th Cir. 1997). In this case, we think this task—the
determination of privilege following an initial review of the
documents—is best left to the district court.
B. Determining Whether the Law Enforcement Privilege
Protects Particular Documents
On remand, the district court should review the documents at
issue in camera to evaluate whether the law enforcement privilege
applies to the documents at issue. In making its determinations,
the court must balance “the government’s interest in
confidentiality against the litigant’s need for the documents.”
Coughlin, 946 F.2d at 1160. The court, therefore, should consider
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the Frankenhauser factors. See Frankenhauser v. Rizzo, 59 F.R.D.
339, 344 (E.D. Pa. Mar. 13, 1973) (unpublished) (developing the
factors).
The oft-cited Frankenhauser test consists of weighing the
following ten factors: (1) the extent to which disclosure will
thwart governmental processes by discouraging citizens from giving
the government information; (2) the impact upon persons who have
given information of having their identities disclosed; (3) the
degree to which governmental self-evaluation and consequent program
improvement will be chilled by disclosure; (4) whether the
information sought is factual data or evaluative summary; (5)
whether the party seeking discovery is an actual or potential
defendant in any criminal proceeding either pending or reasonably
likely to follow from the incident in question; (6) whether the
police investigation has been completed; (7) whether any
interdepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is
non-frivolous and brought in good faith; (9) whether the
information sought is available through other discovery or from
other sources; (10) the importance of the information sought to the
plaintiff’s case. See Tuite v. Henry, 98 F.3d 1411, 1417 (D.C.
Cir. 1996) (utilizing the Frankenhauser factors). “Although a
district court has considerable leeway in weighing the different
factors, . . . the failure to balance at all requires remand . . .
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to consider the respective interests.” In re Sealed Case, 856 F.2d
268, 272 (D.C. Cir. 1988). Here, the district court must apply the
Frankenhauser test, even if in a flexible manner, when making its
privilege determinations. Coughlin, 946 F.2d at 1160 (instructing
the district court to consider the Frankenhauser factors on remand
in determining whether documents are discoverable).
Additionally, the law enforcement privilege is bounded by
relevance and time constraints. Petitioner argues that documents
pertaining to “individuals who are under investigation, or who were
investigated by ICE [Immigration and Customs Enforcement] in the
past, or who are suspected of violating the criminal or civil
provisions of treaties, statutes, executive orders and presidential
proclamations administered by ICE” are protected. Petitioner
expands the privilege’s scope too broadly. Several types of
information probably would not be protected, including documents
pertaining to: (1) people who have been investigated in the past
but are no longer under investigation, (2) people who merely are
suspected of a violation without being part of an ongoing criminal
investigation, and (3) people who may have violated only civil
provisions. Furthermore, the privilege lapses after a reasonable
period of time. See Brown, 430 F.2d at 1215; Am. Civil Liberties
Union v. Finch, 638 F.2d 1336, 1344 (5th Cir. Mar. 1981) (“Even the
files of active law enforcement agencies lose their privileges
after particular investigations become complete.”) (dicta).
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Therefore, the privilege lapses either at the close of an
investigation or at a reasonable time thereafter based on a
particularized assessment of the document.
IV. CONCLUSION
The district court erred when determining that no law
enforcement privilege exists in the Fifth Circuit. Based on that
erroneous legal conclusion, the court failed to review the
documents and erroneously ordered production. The case is remanded
to the district court for an in camera examination of the
documents. The court should determine whether any of the documents
are protected by the law enforcement privilege in accordance with
this opinion. To assist the court in its review, the court may
request additional information or hold additional proceedings. We
are confident that in making its determinations, the court will be
mindful of the need to balance Respondents’ right to seek discovery
in the legitimate pursuit of its claims with Petitioner’s privilege
to prevent disclosure of information that might impede important
government functions such as conducting criminal investigations,
securing the borders, or protecting the public from international
threats.
The writ of mandamus is dismissed without prejudice.
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DENNIS, Circuit Judge, concurring:
I respectfully concur in the majority's decision to
dismiss the petition for mandamus without prejudice. The
petitioner has failed to show that this case presents an
extraordinary situation calling for the drastic remedy of
mandamus. Because of the manner in which the matter was
presented in the district court, the petitioner has failed to
show that its right to issuance of the writ is "clear and
indisputable" by demonstrating that there has been a
“‘usurpation of judicial power" or a "clear abuse of
discretion."1
1
See Vioxx Prods. Liab. Litig. Steering Comm. v. Merck and Co., 2006 WL 1726675
(5th Cir. May 26, 2006) (Dennis, J., concurring in part and dissenting in part):
The Supreme Court has held that the remedy of mandamus is a drastic one, to be
invoked only in extraordinary situations. Kerr v. U.S. Dist. Court for Northern
Dist. of California, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (citing
Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967);
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382-385, 74 S.Ct. 145, 98
L.Ed. 106 (1953); Ex parte Fahey, 332 U.S. 258, 259, 67 S.Ct. 1558, 91 L.Ed.
2041 (1947)). The Court has observed that the writ "has traditionally been used in
the federal courts only ‘to confine an inferior court to a lawful exercise of its
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Furthermore, I agree with the majority's recognition,
discussion and delineation of the law enforcement privilege,
as well as its approval of in camera inspections applying the
Frankenhauser factors and the majority's admonitions that the
prescribed jurisdiction or to compel it to exercise its authority when it is its duty to
do so.’" Will, 389 U.S. at 95 (quoting Roche v. Evaporated Milk Assn., 319 U.S.
21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943)). And, while the courts have not
limited the use of mandamus by an unduly narrow and technical understanding of
what constitutes a matter of "jurisdiction," Will 389 U.S., at 95, still "only
exceptional circumstances amounting to a judicial ‘usurpation of power' will justify
the invocation of this extraordinary remedy." Will, 389 U.S. at 95.
.... Accordingly, the Supreme Court has set forth particular conditions for issuance
of mandamus. Among these are that the party seeking issuance of the writ have no
other adequate means to attain the relief he desires, Roche v. Evaporated Milk
Assn., supra, 319 U.S., at 26, 63 S.Ct., at 941, and that he satisfy "the burden of
showing that (his) right to issuance of the writ is ‘clear and indisputable." '
Banker's Life & Cas. Co. v. Holland, 346 U.S., at 384, 74 S.Ct., at 148 (quoting
United States ex rel. Bernardin v. Duell), 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43
L.Ed. 559 (1899); Will v. United States, supra, 389 U.S., at 96, 88 S.Ct., at 274.
Moreover, it is important to remember that issuance of the writ is in large part a
matter of discretion with the court to which the petition is addressed. Schlagenhauf
v. Holder, 379 U.S. 104, 112 n. 8, 85 S.Ct. 234, 239, 13 L.Ed.2d 152 (1964); Parr
v. United States, supra, 351 U.S., at 520, 76 S.Ct., at 917. See also Technitrol,
Inc. v. McManus, 405 F.2d 84 (C.A.8 1968), cert. denied, 394 U.S. 997, 89 S.Ct.
1591, 22 L.Ed.2d 775 (1969); Pacific Car & Foundry Co. v. Pence, 403 F.2d 949
(C.A.9 1968); Kerr, 426 U.S. at 403.
Nor is mandamus a substitute for appeal, "even though hardship may result from
delay and perhaps unnecessary trial." Kerr, 426 U.S. at 404 (citing Ex parte Fahey,
332 U.S. at 259-260; Bankers Life & Casualty Co., 346 U.S. at 382-383; United
States Alkali Export Ass'n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed.
1554,; Evaporated Milk Ass'n, 319 U.S. at 31). "The writ is appropriately issued,
however, when there is ‘usurpation of judicial power' or a clear abuse of
discretion." Bankers Life & Casualty Co., 346 U.S. at 383.
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privilege is bounded by relevance and time constraints. I write
separately, however, to emphasize that our circuit’s case law
defines the law enforcement privilege as “a qualified privilege
protecting investigative files in an ongoing criminal
investigation,” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir.
1991), and the petitioner does not argue for or request
extension of the privilege to anything else. Accordingly, the
suggestion in the majority’s conclusion that the privilege may
affect “information that might impede important government
functions such as...securing the borders, or protecting the
public from international threats,” is only dicta and cannot
be taken as modifying our precedents.
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