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Question
Hear the word response --- I assume is semi misleading - Perry is not really responding to what I believe is the Fairholme motion to have the information avaialable
It is supporting the motion - joining in arguing - adding an amicus
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DC Circuit (appeals)
USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 1 of 6 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ??PERRY CAPITAL LLC, Appellant, Nos. 14-5243 (L), 14-5254 (con.), v. 14-5260 (con.), 14-5262 (con.) JACOB J. LEW, et al., Appellees. APPELLANT PERRY CAPITAL LLC’S RESPONSE TO MOTION FILED UNDER SEAL FOR JUDICIAL NOTICE
On July 29, 2015, Fairholme Fund and Fairholme Funds, Inc. (collectively “Fairholme”) filed a motion under seal requesting that this Court take judicial notice of documents that were produced by the government in a separate litigation involving the Net Worth Sweep in the Court of Federal Claims. Under Seal Motion (July 29, 2015) (D.E. 1565601). Pursuant to Federal Rule of Appellate Procedure 27(a)(3), Perry Capital, LLC (“Perry Capital”) submits this response in support of Fairholme’s motion. The opening merits brief filed by Perry Capital, Fairholme, and Arrowood Indemnity Co. in this consolidated appeal argues, among other things, that the district court erred when it relied on flawed and incomplete administrative records. Initial Opening Brief for Institutional Plaintiffs, at 67-73 (June 29, 2015) (D.E. ?? USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 2 of 6 1560037). An administrative record must represent the whole of the record before the agency at the time of the challenged agency action. Id. at 68. The records below, however, were clearly incomplete because the government failed to include key, relevant documents—documents that evidently were before the agencies at the time the Net Worth Sweep was executed. Id. at 68-71. Although Perry Capital does not currently have access to the documents appended to Fairholme’s motion for judicial notice, it is highly likely that those documents serve as further proof that the administrative records were incomplete and that the district court, at a minimum, should have ordered supplementation. The documents may also serve to undermine or refute entirely the government’s purported rationales for the Net Worth Sweep, and thus support Perry Capital’s arguments on the merits of this appeal. Perry Capital therefore generally supports Fairholme’s request for this Court to take judicial notice of those documents produced by the government related to the Net Worth Sweep. Perry Capital currently lacks access to the documents attached to Fairholme’s motion because the documents are subject to a protective order issued by the Court of Federal Claims. See Fairholme Funds, Inc. v. United States, No. 13-465C (Fed. Cl.) (D.E. 217). Although Circuit Rule 47.1(d)(2) requires that “[e]ach party” to a case be served with copies of material filed under seal, that requirement applies only “if the party is entitled to receive the material under seal.” 2 USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 3 of 6 Circuit Rule 47.1(d)(2). Because Perry Capital is not yet “entitled” to access the materials under the protective order issued by the Court of Federal Claims, Fairholme has not provided Perry Capital with those materials. Thus, only the parties to this appeal that are also parties to the Court of Federal Claims action— including the government—currently have access to Fairholme’s motion and the attached materials. It is extremely rare and unusual for a single party to a litigation to be barred from viewing documents filed in its case. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986) (explaining the limited circumstances under which courts may “dispose of the merits of a case on the basis of ex parte, in camera submissions”), aff’d, 484 U.S. 1 (1987); U.S. ex rel. Boisjoly v. Morton Thiokol, Inc., CIV. A. No. 87-0209, 1987 WL 10232, at *4 (D.D.C. Apr. 15, 1987) (lifting seal on documents to allow a litigating party access to documents). Not only is Perry Capital barred from reviewing the motion filed under seal and the attached documents, but Perry Capital also will likely be unable to review the government’s response to that motion or any further briefing containing sealed materials. In addition, it is significant that this Court has suspended the merits briefing schedule pending resolution of the motion for judicial notice, demonstrating that the document issue is affecting Perry Capital’s rights in this appeal.
3 USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 4 of 6 For this Court’s information, Perry Capital has filed a motion before the Court of Federal Claims requesting that Perry Capital’s counsel be granted access to the documents filed in this Court, and counsel has agreed to be bound by the protective order. That motion is currently pending.
Dated: August 13, 2015 Respectfully submitted, /s/ Theodore B. Olson Theodore B. Olson Douglas R. Cox Matthew D. McGill GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: 202.955.8500 Facsimile: 202.467.0539 Janet M. Weiss GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, N.Y. 10166 Telephone: 212.351.3988 Facsimile: 212.351.5234 Counsel for Perry Capital LLC ?4 USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 5 of 6 CERTIFICATE OF SERVICE I certify that on this 13th day of August, 2015, I caused the foregoing to be filed with the Clerk of the United States Court of Appeals for the D.C. Circuit using the appellate CM/ECF system. Service was accomplished on the following persons by the appellate CM/ECF system: Mark B. Stern Alisa B. Klein Abby Christine Wright U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Telephone: 202-514-2000 mark.stern@usdoj.gov alisa.klein@usdoj.gov abby.wright@usdoj.gov Counsel for the U.S. Department of the Treasury and Secretary Jacob J. Lew Charles J. Cooper Brian W. Barnes Howard Curtis Nielson, Jr Peter A. Patterson David H. Thompson COOPER & KIRK, PLLC 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: 202.220.9600 Facsimile: 202.220.9601 Counsel for Fairholme Funds, et al. Howard N. Cayne Asim Varma David B. Bergman ARNOLD & PORTER LLP 555 12th Street, N.W. Washington, D.C. 20004 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 Howard.Cayne@aporter.com Asim.Varma@aporter.com David.Bergman@aporter.com Counsel for Defendants Federal Housing Finance Agency and Director Melvin L. Watt USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 6 of 6 Hamish P.M. Hume BOISE, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W., Suite 800 Washington, D.C. 20015 Telephone: 202-237-2727 Facsimile: 202-237-6131 hhume@bsfllp.com David L. Wales BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP 1285 Avenue of the Americas New York, N.Y. 10019 Telephone: 212-554-1409 Facsimile: 212-554-1444 Blair A. Nicholas David R. Kaplan BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: 858-793-0070 Facsimile: 858-793-0323 blairn@blbglaw.com davidk@blbglaw.com Jay W. Eisenhofer GRANT & EISENHOFER, PA 485 Lexington Avenue New York, N.Y. 10017 Telephone: 646-722-8500 Facsimile: 646-722-8501 jeisenhofer@gelaw.com Geoffrey C. Jarvis Michael J. Barr GRANT & EISENHOFER, PA 123 Justison Street Willmington, DE 19801 Telephone: 302-622-7000 Facsimile: 302-622-7100 gjarvis@gelaw.com mbarry@gelaw.com Lee D. Rudy Eric L. Zagar Matthew A. Goldstein KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: 610-667-7706 Facsimile: 610-667-7056 Interim Co-Lead Class Counsel for Class Plaintiffs