In re: Fluor International

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 25, 2020
• Docket: 20-1241
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1241

In re: FLUOR INTERCONTINENTAL, INC., a California corporation; FLUOR FEDERAL GLOBAL PROJECTS, INC.; FLUOR FEDERAL SERVICES, LLC,

Petitioners.

On Petition for Writ of Mandamus. (1:19-cv-00289-LO-TCB)

Submitted: March 2, 2020 Decided: March 25, 2020

Before DIAZ, THACKER, and RUSHING, Circuit Judges.

Petition granted by unpublished per curiam opinion.

Mark C. Moore, Jennifer S. Cluverius, NEXSEN PRUET, LLC, Greenville, South Carolina; John P. Elwood, Craig D. Margolis, Tirzah S. Lollar, Christian D. Sheehan, Samuel M. Shapiro, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Petitioners. Eric N. Heyer, Thomas O. Mason, THOMPSON HINE LLP, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

On March 13, 2020, we granted a petition by Fluor Intercontinental, Inc., Fluor

Federal Global Projects, Inc., and Fluor Federal Services, LLC (collectively “Fluor”) for a

writ of mandamus. We directed the district court to vacate portions of three orders that

required Fluor to produce information over which the district court concluded Fluor had

waived attorney-client privilege. We set out our reasons here.

I.

In 2017, Fluor, a government contractor, began an internal investigation of an

alleged conflict of interest involving an employee, Steven Anderson, and a company

(Relyant Global, LLC) to which Fluor planned to award a contract. Fluor’s legal

department supervised the investigation, providing advice about Fluor’s potential legal

exposure and the need to report any wrongdoing to the government. Following its

investigation, Fluor terminated Anderson. It also sent a summary of its findings to the

government pursuant to 48 C.F.R. § 52.203-13(b)(3)(i), which provides that “[t]he

Contractor shall timely disclose, in writing, to the agency Office of the Inspector General

. . . whenever . . . the Contractor has credible evidence” that an employee has violated

certain federal criminal laws, including the False Claims Act. 1

1 In addition to the disclosure requirement, this regulatory regime, called the “Contractor Code of Business Ethics and Conduct,” requires government contractors to have a written code of business ethics and conduct, exercise due diligence to prevent and detect criminal conduct, and establish an ongoing business ethics awareness and compliance program as well as an internal control system. Id. § 52.203-13(b)–(c). The

2 The summary of Fluor’s findings includes the following statements: (1) “Anderson

had a financial interest in and appears to have inappropriately assisted [a] Fluor supplier

and potential subcontractor”; (2) “Fluor considers this a violation of its conflict of interest

policy and Code of Business Conduct and Ethics”; (3) “Anderson used his position as the

[Afghanistan] project manager to pursue Relyant concrete contracts with the German

military, and Mr. Anderson used his position as the [Afghanistan] project manager to obtain

and improperly disclose nonpublic information to Relyant”; and (4) “Fluor estimates there

may have been a financial impact to the Government because Mr. Anderson’s labor was

charged to the contract task order while he engaged in improper conduct.” Pet. Writ of

Mandamus 13.

Anderson filed suit against Fluor, asserting claims of, among other things, wrongful

termination, defamation, and negligence stemming from Fluor’s internal investigation and

disclosure to the government. In discovery, Anderson sought copies of Fluor’s files

regarding the internal investigation. Fluor objected, arguing that the files were protected

by attorney-client privilege and the work-product doctrine. Anderson moved to compel

production, but a magistrate judge denied the motion, agreeing with Fluor that the files

were protected from disclosure.

internal control system must provide for, among other things, “[f]ull cooperation with any Government agencies responsible for audits, investigations, or corrective actions.” Id. § 52.203-13(c)(2)(ii)(G). The disclosure requirement is meant to “emphasize the critical importance of integrity in contracting.” Federal Acquisition Regulation; FAR Case 2007- 006, Contractor Business Ethics Compliance Program and Disclosure Requirements, 73 Fed. Reg. 67064-02, 67071 (Nov. 12, 2008).

3 On November 8, 2019, the district court overruled (in part) the magistrate judge’s

order. As relevant here, the court concluded that the four statements described above in

Fluor’s disclosure to the government revealed “legal conclusions which characterize

[Anderson’s] conduct in a way that reveals attorney-client communications,” Pet. Writ of

Mandamus Ex. D, at 10, and thus that Fluor had waived attorney-client privilege as to those

statements, other communications on the same subject matter, and the details underlying

them, including fact work product. The district court also concluded that Fluor’s

description of the disclosure as “voluntary” in its answer and counterclaim was a binding

judicial admission. And it asserted that 48 C.F.R. § 52.203-13(b)(3)(i) requires only “a

mere notice disclosing the fact that the contractor has credible evidence,” so Fluor’s

disclosure of information beyond that fact was voluntary. Pet. Writ of Mandamus Ex. D,

at 12 n.1. Fluor moved for reconsideration of the district court’s ruling, but the court denied

the motion on December 20, 2019.

The magistrate judge then ordered Fluor to produce the relevant internal

investigation files. But based on Fluor’s representation that it would promptly seek

appellate review, the magistrate judge stayed the production order. On February 26, 2020,

the district court overruled the magistrate judge’s order staying production and ordered

Fluor to produce the relevant materials within seven days.

Fluor then sought mandamus relief in our court.

4 II.

“Mandamus is a ‘drastic’ remedy that must be reserved for ‘extraordinary

situations[.]’” Cumberland Cty. Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 52 (4th Cir. 2016)

(quoting Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 402 (1976)). We

provide mandamus relief “only when (1) petitioner ‘ha[s] no other adequate means to attain

the relief [it] desires’; (2) petitioner has shown a ‘clear and indisputable’ right to the

requested relief; and (3) the court deems the writ ‘appropriate under the circumstances.’”

In re Murphy-Brown, LLC, 907 F.3d 788, 795 (4th Cir. 2018) (quoting Cheney v. U.S. Dist.

Court, 542 U.S. 367, 380–81 (2004)). As we explain, we conclude that Fluor has satisfied

these exacting standards.

A.

We consider first whether Fluor has other adequate means to attain the relief it seeks.

Anderson argues that Fluor has available to it three such means—(1) disobey the district

court’s order, be found in contempt, and appeal the contempt order; (2) seek certification

of an interlocutory appeal under 28 U.S.C. § 1292(b); and (3) appeal after final judgment.

But under the circumstances of this case, we cannot agree that these means are

adequate. As to appealing from a contempt order, we have previously held that “such an

appellate remedy is hardly ‘adequate.’” Rowley v. McMillan, 502 F.2d 1326, 1335 (4th

Cir. 1974); see also In re Kellogg Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir. 2014)

(noting that “forcing a party to go into contempt is not an ‘adequate’ means of relief”). As

we have explained, a civil contempt sanction is not immediately appealable as an

interlocutory order. United States v. Myers, 593 F.3d 338, 344 (4th Cir. 2010). And while

5 “a party to an action may immediately appeal an order of criminal contempt,” Fluor

couldn’t have known in advance “whether the [d]istrict [c]ourt would punish its

disobedience with an appealable criminal sanction or an ‘onerously coercive civil contempt

sanction with no means of review until the perhaps far distant day of final judgment.’” See

In re The City of New York, 607 F.3d 923, 934 (2d Cir. 2010) (quoting 15B Charles Alan

Wright, Arthur R. Miller & Edward C. Cooper, Federal Practice and Procedure § 3914.23,

at 146 (2d ed. 1992)).

As to seeking certification of an interlocutory appeal under § 1292(b), we agree with

Fluor that this means of relief is inadequate in light of the district court’s suggestion that

such an effort would be futile. When considering the magistrate judge’s order staying

production, the district court evaluated Fluor’s likelihood of success on appeal. In doing

so, it noted that, despite Fluor’s “significant briefing and argument,” Fluor “ha[d] not gone

so far as to identify specific grounds which will satisfy the preconditions for [interlocutory

appeal].” Pet. Writ of Mandamus Ex. K, at 8.

Nor are we satisfied that appealing after a final judgment is an adequate means of

relief here. True, in Mohawk Industries, Inc. v. Carpenter, the Supreme Court concluded

that post-judgment appeals are generally adequate means of relief from disclosure orders

adverse to attorney-client privilege. 558 U.S. 100, 109 (2009). But it also noted that in

“extraordinary circumstances,” such as “when a disclosure order ‘amount[s] to a judicial

usurpation of power or a clear abuse of discretion,’ or otherwise works a manifest

injustice,” a party may still “petition the court of appeals for a writ of mandamus.” Id. at

111 (quoting Cheney, 542 U.S. at 390).

6 We conclude that such circumstances are present in this case. First, for the reasons

discussed below, the district court’s ruling that Fluor’s disclosure waived attorney-client

privilege is clearly and indisputably incorrect. Second, the ruling implicates “the important

legal principles that protect attorney-client relationships,” which we recently “elucidate[d]”

in In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 172–74 (4th Cir. 2019). Third,

requiring Fluor to produce privileged materials is particularly injurious here, where Fluor

acted pursuant to a regulatory scheme mandating disclosure of potential wrongdoing.

Government contractors should not fear waiving attorney-client privilege in these

circumstances. We think that together, these circumstances work a manifest injustice.

For these reasons, we conclude that Fluor has no other adequate means to attain the

relief it desires.

B.

We consider next whether Fluor has shown a clear and indisputable right to relief.

Fluor contends that it has done so as to three erroneous conclusions by the district court:

(1) that Fluor’s disclosure revealed attorney-client communications and thus waived

attorney-client privilege, (2) that Fluor’s disclosure was voluntary under 48 C.F.R.

§ 52.203-13, and (3) that Fluor’s description of the disclosure as “voluntary” in its answer

and counterclaim was a binding judicial admission. We agree that the district court clearly

and indisputably erred as to the first conclusion, and so find it unnecessary to address the

others.

The district court overruled the magistrate judge’s denial of Anderson’s motion to

compel production of the internal investigation files because it concluded that the four

7 statements described above in Fluor’s disclosure to the government waived attorney-client

privilege. It focused on the following portions of the statements: “(i) Plaintiff ‘appears to

have inappropriately assisted . . .’; (ii) ‘Fluor considers [that] a violation . . .’; (iii) Plaintiff

‘used his position . . . to pursue [improper opportunities] and . . . to obtain and improperly

disclose nonpublic information . . .’; and (iv) ‘Fluor estimates there may have been a

financial impact . . . [due to] improper conduct.’” Pet. Writ of Mandamus Ex. D, at 9–10.

According to the district court, because these four statements are “conclusions

which only a lawyer is qualified to make,” id. at 10 (quoting In re Allen, 106 F.3d 582, 605

(4th Cir. 1997)), they revealed attorney-client communications and thereby waived

attorney-client privilege. Respectfully, the district court’s conclusion was clearly and

indisputably incorrect.

To find waiver, a court must find that there has been “disclosure of a communication

or information covered by the attorney-client privilege or work-product protection.” Fed.

R. Evid. 502. But we will not infer a waiver merely because a party’s disclosure covers

“the same topic” as that on which it had sought legal advice. Sky Angel U.S., LLC v.

Discovery Commc’ns, LLC, 885 F.3d 271, 276 (4th Cir. 2018); see also United States v.

O’Malley, 786 F.2d 786, 794 (7th Cir. 1986) (“[A] client does not waive his attorney-client

privilege ‘merely by disclosing a subject which he had discussed with his attorney.’ In

order to waive the privilege, the client must disclose the communication with the attorney

itself.” (internal citation omitted)).

Relatedly, in determining whether there has been disclosure of a communication

covered by the attorney-client privilege, we distinguish between disclosures based on the

8 advice of an attorney, on the one hand, and the underlying attorney-client communication

itself, on the other. See In re Grand Jury Subpoena, 341 F.3d 331, 336 (4th Cir. 2003).

In In re Grand Jury Subpoena, we considered whether the appellant waived attorney-client

privilege by answering “no” to a question on a publicly filed document based on the advice

of his attorney, and whether the appellant waived privilege by telling FBI agents that he

answered “no” to the question “under the advice of an attorney.” Id. at 334, 336.

We concluded that the appellant’s statement—based on the advice of his attorney—

on a publicly filed document did not waive privilege. Id. at 336. We explained that “[t]he

underlying communications between Counsel and Appellant regarding his submission of

[the publicly filed document] are privileged, regardless of the fact that those

communications may have assisted him in answering questions in a public document.” Id.

Put differently, “Appellant filled out and submitted [the publicly filed document] himself;

that he may have answered a question in a particular way on the advice of his attorney does

not subject the underlying attorney-client communications to disclosure.” Id. Ruling

otherwise, we noted, “would lead to the untenable result that any attorney-client

communications relating to the preparation of publicly filed legal documents—such as

court pleadings—would be unprotected.” Id.

But, as to the appellant’s statements to the FBI agents, we concluded that he waived

attorney-client privilege because he “clearly stated to a third party that his attorney had

advised him to answer ‘no’” to the relevant question, thereby disclosing the content of the

underlying attorney-client communication itself. Id. at 337.

9 These principles reveal the clear and indisputable error in the district court’s

assertion that Fluor’s disclosure contained “legal conclusions as to past events, as well as

recommendations for future conduct, [] conclusions which only a lawyer is qualified to

make.” Pet. Writ of Mandamus Ex. D, at 10 (quoting In re Allen, 106 F.3d at 605). Setting

aside whether Fluor’s statements were in fact legal conclusions that only a lawyer could

make, that is not the test for whether waiver of attorney-client privilege has occurred. 2

Instead, to find waiver, a court must conclude that there has been disclosure of protected

communications.

As applied here, the fact that Fluor’s disclosure covered the same topic as the

internal investigation or that it was made pursuant to the advice of counsel doesn’t mean

that privileged communications themselves were disclosed. The district court clearly and

indisputably erred in finding otherwise.

We also disagree with the district court’s conclusion that this case is similar to In re

Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988). On the contrary, that case highlights

the problem with the district court’s determination that Fluor disclosed privileged

communications. There, we concluded that the appellant waived privilege over protected

internal audit interviews because its disclosure to the government quoted from the

interviews, and it waived privilege over protected internal notes and memoranda on the

2 As Fluor correctly notes, In re Allen has nothing to do with waiver. There, we held simply that because documents prepared by a lawyer contained legal conclusions that only an attorney was qualified to make, the documents were prepared in the attorney’s capacity as an attorney rather than as a lay investigator. 106 F.3d at 605.

10 interviews because the disclosure “summariz[ed] in substance and format the interview

results.” Id. at 626 n.2. For example, the disclosure stated that “‘of those consulted within

the Company all will testify that any qualms they had about the arrangement had nothing

to do with worries about fraud,’ and ‘there is no evidence, testimonial or documentary, that

any company officials in the meeting [of November 17, 1983] except Mr. Pollard and his

Maxim employees, understood that Maxim had departed from the strict procedures of its

[] contract.’” Id. at 623. By directly quoting and summarizing what employees had said

to counsel in the interviews, the appellant in In re Martin Marietta Corp. revealed

privileged communications.

But here, there is no evidence to suggest that the four statements in Fluor’s

disclosure quoted privileged communications or summarized them in substance and

format. Rather, the statements do no more than describe Fluor’s general conclusions about

the propriety of Anderson’s conduct. We are unwilling to infer a waiver of privilege on

these facts. The most that can be inferred from this record is that Fluor’s statements were

based on the advice of its counsel. Because that is clearly and indisputably insufficient to

show waiver, Fluor has shown a clear and indisputable right to relief.

C.

Lastly, we are satisfied that a writ is appropriate under the circumstances. In

addition to being manifestly incorrect, the district court’s decision has potentially far-

reaching consequences for companies subject to 48 C.F.R. § 52.201-13 and other similar

disclosure requirements. We struggle to envision how any company could disclose

credible evidence of unlawful activity without also disclosing its conclusion, often based

11 on the advice of its counsel, that such activity has occurred. More likely, companies would

err on the side of making vague or incomplete disclosures, a result patently at odds with

the policy objectives of the regulatory disclosure regime at issue in this case.

The district court’s decision also introduces uncertainty and irregularity into waiver

determinations. Whether a conclusion is one that only an attorney could make is a

subjective determination that will likely depend on the particular legal question at issue.

The Supreme Court has stated that “[a]n uncertain privilege, or one which purports to be

certain but results in widely varying applications by the courts, is little better than no

privilege at all.” Upjohn Co. v. United States, 449 U.S. 383, 393 (1981). We agree, and

therefore find it necessary to issue the writ here.

***

For the reasons given, we grant Fluor’s petition for a writ of mandamus on the terms

set out in our March 13 order.

PETITION GRANTED