An Interesting Twist in Barhoumi

Last week I wrote that Barhoumi v. Obama, one of the government’s D.C. Circuit wins, had an outcome that was tentative because of underlying material the government had failed to produce in the district court. Here are the documents that underlie that controversy. Barhoumi lost his district-court case before Judge Rosemary Collyer.  He then lost again on appeal when the D.C. Circuit panel of Judges David Tatel, Douglas Ginsburg, and Brett Kavanaugh affirmed the denial of the writ. Less than three weeks later, however, the government wrote a letter to the D.C. Circuit, notifying it that it had given Barhoumi's counsel "certain documents describing petitioner's treatment while in government custody."  The government said it had discovered the documents while litigating other habeas cases in the district court. Subsequent pleadings and correspondence indicate that the government then discovered additional documents that it also planned to produce to the petitioner's counsel. After Barhoumi's counsel asked the D.C. Circuit to order production of those documents, the government opposed the request on grounds that it needed time to clear the new documents for disclosure.  The government further argued that the question of whether the late disclosure violated the district court's case management order could be properly resolved only by the district court in the first instance. The D.C. Circuit agreed with the government and denied the motion.  The petitioner soon filed a Rule 60(b)(2) motion in the district court.  Briefing on the motion is now complete, though entirely under seal, and the parties are now waiting for Judge Collyer's order.