In re U.S.

• Decision Date: 30 December 2009
• Docket Number: No. 908.,908.
• Citation: 590 F.3d 1305
• Parties: In re UNITED STATES, Petitioner.
• Court: U.S. Court of Appeals — Federal Circuit

590 F.3d 1305

In re UNITED STATES, Petitioner.

No. 908.

United States Court of Appeals, Federal Circuit.

December 30, 2009.

Brian C. Toth, Attorney, Appellate Section, Environment and Natural Resources Division, United States Department of Justice, of Washington, DC, for petitioner. With him on the petition was John C. Cruden, Acting Assistant Attorney General.

Steven D. Gordon, Holland & Knight LLP, of Washington, DC, for respondent, Jicarilla Apache Nation.

Alan R. Taradash, Nordhaus Law Firm, LLP, of Albuquerque, NM, for amici curiae, Navajo Nation and Pueblo of Laguna. With him on the brief were Daniel I.S.J. Rey-Bear, of Albuquerque, New Mexico, and Donald H. Grove, of Washington, DC.

Before LOURIE, FRIEDMAN, and GAJARSA, Circuit Judges.

ORDER

GAJARSA, Circuit Judge.

The United States petitions for a writ of mandamus to direct the Court of Federal Claims ("trial court") to vacate its orders requiring the United States to produce documents that it asserts are protected by the attorney-client privilege. Jicarilla Apache Nation ("Jicarilla") opposes. We hold that the United States cannot deny an Indian tribe's request to discover communications between the United States and its attorneys based on the attorney-client privilege when those communications concern management of an Indian trust and the United States has not claimed that the government or its attorneys considered a specific competing interest in those communications. Accordingly, we adopt the fiduciary exception in tribal trust cases. Under the fiduciary exception, a fiduciary may not block a beneficiary from discovering information protected under the attorney-client privilege when the information relates to fiduciary matters, including trust management. Because we find that the trial court correctly applied the fiduciary exception to the United States' privileged communications, we deny the United States' petition for a writ of mandamus.

BACKGROUND

Jicarilla sued the United States in the Court of Federal Claims for a breach of fiduciary duties, alleging that the United States mismanaged the tribe's trust assets and other funds. Jicarilla Apache Nation v. United States, 88 Fed.Cl. 1, 4 (2009). The trial court divided the case into phases. The first phase only concerns the government's management of Jicarilla trust accounts from 1972 to 1992. Id. During this phase, the tribe moved to compel discovery of documents related to the management of the trust funds that the United States asserted were protected by the attorney-client privilege, the work-product doctrine, and the deliberative process privilege. Id. In response, the United States "agreed to produce 71 of the 226 documents listed in its privilege log based, in part, upon withdrawing any deliberative process privilege claims," but maintained its privilege claims over the remaining 155 documents. Id. Per court order, the trial court reviewed the remaining 155 documents in camera. Id.

The trial court held that the United States could not deny Jicarilla's request to discover communications between the United States and its attorneys based on the attorney-client privilege because those communications were subject to the fiduciary exception. Id. at 11-12. The trial court explained that under the fiduciary exception, "fiduciaries may not shield from their beneficiaries communications between them and their attorneys that relate to fiduciary matters, including the administration of trusts." Id. at 10. According to the trial court, the fiduciary exception applied to the "`general trust relationship between the United States and the Indian people,' which comprises a `distinctive obligation of trust incumbent upon the Government.'" Id. at 6 (quoting United States v. Mitchell, 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). The trial court opined that "basic trust principles are readily transferable to" the United States' fiduciary relationship with Indian tribes. Id. at 11-12. The trial court noted that Congress had enacted legislation appointing the United States as trustee over "56 million acres of land and billions of dollars in tribal assets" and created an Office of Special Trustee "to ensure that each tribe received as complete a trust fund accounting as soon as possible." Id. at 5 (citing 25 U.S.C. §§ 4041-44 (2006)). Though statutes undoubtedly "delimit somewhat the government's obligations," the trial court explained that the U.S. Supreme Court had evaluated the fiduciary relationship using principles of common law and had judged tribal trust cases with the "`most exacting fiduciary standards.'" Id. at 6 (quoting Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942)).

With these principles in mind, the trial court applied the fiduciary exception, requiring the United States to produce many of the documents that were not otherwise protected as work product. Id. at 13-19. The trial court organized the documents that Jicarilla requested into five categories, including (1) Department of the Interior ("Interior") personnel requests for advice from the Interior Solicitor's Office ("Solicitor's Office") on administration of tribal trusts, (2) Solicitor's Office advice to Interior and Department of the Treasury ("Treasury") personnel, (3) accounting firm Arthur Andersen LLP documents generated under contracts with Interior, (4) Interior documents concerning litigation with tribes other than Jicarilla, and (5) miscellaneous documents such as cover sheets and other documents not falling into the other categories. Id. at 6. The court applied the fiduciary exception to all the documents in the first category except for duplicates because the "documents involve matters regarding the administration of tribal trusts, either directly or indirectly implicating the investments that benefit Jicarilla." Id. at 14. With few exceptions, the trial court also applied the fiduciary exception to documents in the second category because the documents contained "legal advice relating to trust administration." Id. at 16. In contrast to the first two categories, the trial court allowed the United States to withhold most of the documents in the third category from production as attorney work product. Id. at 17-18. As to the fourth category, the trial court allowed the United States to withhold most of the documents as work product, but required the government to produce four documents with the exception of two footnotes. Id. at 18. According to the trial court, those documents either did not constitute attorney work product at all or, if privileged, were subject to the fiduciary exception. Id. Finally, the trial court required the United States to produce two documents that fell under the fiduciary exception in the fifth category because the documents concerned trust management and various cover sheets that did not appear to be protected by either the attorney-client privilege or the work-product doctrine. Id. at 19.

The United States now petitions for a writ of mandamus to vacate the trial court's order requiring production of the above documents under the fiduciary exception. We have jurisdiction pursuant to 28 U.S.C. § 1651(a).

DISCUSSION

This court has the authority to issue a writ of mandamus against a lower court under common law as codified in the All Writs Act. "[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a) (2006). Mandamus is available only in extraordinary cases to correct a lower court's usurpation of judicial power or clear abuse of discretion. Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004); see also In re Regents of the Univ. of Cal., 101 F.3d 1386, 1387 (Fed.Cir.1996). A party seeking a writ of mandamus bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that its "right to issuance of the writ is `clear and indisputable,'" Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (quoting United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899)). Accordingly, the writ is a "`drastic and extraordinary' remedy `reserved for really extraordinary causes.'" Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947)).

Notwithstanding the extraordinary nature of mandamus, this court has issued the writ in appropriate cases "to prevent the wrongful exposure of privileged communications." Regents, 101 F.3d at 1387; see also Mohawk Indus., Inc. v. Carpenter, ___ U.S. ___, 130 S.Ct. 599, 601-02, ___ L.Ed.2d ___ (2009) (noting that an appellate court may grant a writ of mandamus to correct a "particularly injurious or novel privilege ruling"). "Specifically, `mandamus review may be granted of discovery orders that turn on claims of privilege when (1) there is raised an important issue of first impression, (2) the privilege would be lost if review were denied until final judgment, and (3) immediate resolution would avoid the development of doctrine that would undermine the privilege.'" In re Seagate Tech., LLC, 497 F.3d 1360, 1367 (Fed.Cir.2007) (en banc) (quoting Regents, 101 F.3d at 1388). Accordingly, mandamus may be appropriate to correct a lower court that ordered a party to produce documents in violation of the attorney-client privilege. See id. at 1375-76 (granting mandamus to correct a district court that held a party had waived the attorney-client privilege protecting trial counsel's client communications and work product by asserting the advice-of-counsel defense in patent infringement suit); Regents, 101 F.3d at 1390-91 (granting mandamus to correct a district court that misconstrued the community of...