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Once again, no judicial review of DPAs

Tom Fox | July 17, 2017

One of the criticisms most often made about Deferred Prosecution Agreements (DPAs) is that there is no judicial scrutiny of the final documents or results by any judicial authority, even though they are filed with federal district courts. The question of whether district courts can object to the terms and conditions of DPAs was settled in the prior decision of US v. Fokker Servs B.V. Unfortunately for those seeking transparency in the process, appeals courts have held that the terms and conditions of DPAs are the sole province of prosecutors and they cannot be objected to or revised by district courts.

There was another turn on this issue recently in a case where a federal district court approved a limited release of a Monitor’s report from the financial institution HSBC. The district court had approved the release of a redacted portion of the Monitor’s report, finding it to be a “judicial document” and therefore subject to the court’s jurisdiction. This limited release, however, was overturned on appeal by both the government and HSBC.

The court of appeals based its decision on the underlying assumption that it had any “supervisory power” to oversee the government’s entry into and implementation of a DPA. Since a district court has no role in the terms and conditions of a DPA, the court of appeals reasoned that absent some impropriety, a district court has no role in overseeing a Monitor’s report and hence cannot release it to the public. This HSBC decision would seem to once and for all answer the question of whether there will be any judicial review of DPAs and that clear answer seems to be a resounding "No."

Even if the appellate judges made a clear decision following the law, however, it does not seem all were comfortable with the result. One judge added a concurrence in which he urged Congress to amend the underlying law and allow judicial review of DPAs and Non-Prosecution Agreements (NPAs) as well. Whether this Congress will afford the judiciary such power is at best an open question at this point.