USCA Case #17-7003 Document #1689388 Filed: 08/18/2017 Page 1 of 7

[ORAL ARGUMENT NOT YET SCHEDULED]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States et al., )

ex rel. Laurence Schneider, )
)
Appellant, Relator, )
)
v. ) No. 17-7003
)
J.P. Morgan Chase Bank, N.A., et al., )
)
Appellees. )
____________________________________ )

MOTION TO SUPPLEMENT THE RECORD

AND ENTRY OF A PROTECTIVE ORDER

Appellant/Relator Laurence Schneider requests the Court to use its inherent

equitable power to permit him to supplement the record in this appeal. Schneider

acknowledges the “basic tenet of appellate jurisprudence . . . that parties may not

unilaterally supplement the record on appeal with evidence not reviewed by the

court below.” Tonry v. Sec. Experts, 20 F.3d 967, 974 (9th Cir. 1994) (citing

Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982)). But appellate

courts may “exercise [their] inherent authority to supplement the record . . .

proceed[ing] by motion . . . so that the court and opposing counsel are properly

apprised of the status of the documents in question.” Lowry v. Barnhart, 329 F.3d

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1019, 1024-25 (9th Cir. 2003) (citing Dickerson, 667 F.2d at 1366-68 & n.5);

Dickerson, 667 F.2d at 1367 (“[I]t is clear that the authority to do so exists . . .

[and] is a matter left to discretion of the federal courts of appeals.”). In short,

appellate courts have “inherent equitable powers to supplement the record as

justice requires.” See Dickerson, 667 F.2d at 1368 n.5.

The reasons for this request are as follows:

1. Prior to filing its motion to dismiss in the district court, Appellee J. P.

Morgan Chase Bank, N.A. (“Chase”) moved to supplement the record with a

sealed document, which is now in the Joint Appendix as JA239. The district court

granted Chase’s motion over Schneider’s objection. ECF 109. Chase used this

document to argue that the Monitor of the National Mortgage Settlement

Agreement (“Consent Judgment”) was aware of Chase’s servicing practices that

Schneider alleged violated the Consent Judgment. The document was an email

dated January 31, 2014, with the names of the sender and recipients redacted.

Schneider argued, in response, that the document in question did not demonstrate

that the Monitor was aware of Chase’s practices regarding RCV1 when

Schneider’s complaint was filed in May 2013 or when Chase filed its certificates of

compliance with the Consent Judgment. ECF 110 at 32. In granting the motion to

dismiss, the district court did not discuss Chase’s arguments related to this

document.

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2. Chase now revives this argument in its response brief at pages 11 and 37.

As noted in the Second Amended Complaint, Schneider was personally affected by

Chase’s fraud against the government. 2nd Amend. Compl. ¶¶ 12-16, JA30-32.

As a result, Schneider filed a separate action for damages and other relief in the

U.S. District Court for the Southern District of New York (SDNY), Mortgage

Resolution Servicing, LLC, et al. v. JPMorgan Chase Bank, N.A., et al., No. 1:15-

cv-00293-LTS (S.D.N.Y. Dec. 24, 2014). Discovery in Schneider’s SDNY action

against Chase is well advanced and the parties have agreed that discovery used in

that case may be used in this case. See Amended Pre-Trial Scheduling Order, ECF

113-1, ¶ 12 at 5.

3. Much of that discovery supports Schneider’s allegations in this action. One

of the documents produced in that discovery is an un-redacted version of JA239,

which does not demonstrate that the Monitor was even aware of the email. Ex. A.

A Chase document, titled “National Mortgage Settlement Activities; Recovery

Update,” states that the Office of Mortgage Oversight did not learn that RCV1 was

intentionally excluded from servicing metric testing until October 2013. Ex. B.

Finally, Joseph Smith, the Monitor of the Consent Judgment, has been deposed and

portions of his testimony bear on Chase’s argument. Specifically, when asked

about the loans in Recovery 1 (RCV1) he stated: “your question is about did I

know they weren't being serviced, and the answer is I didn't know that.” Ex. C.

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4. Therefore, since these documents and evidence were not available to

Schneider during the pendency of the District of Columbia district court action,

Schneider moves to supplement the record with: (1) the un-redacted version of

JA239; (2) the Chase document, “National Mortgage Settlement Activities;

Recovery Update;” and (3) the relevant portion of the Smith deposition. These

documents confirm that JA239 does not show that the Monitor knew of Chase’s

servicing practices regarding RCV1 when Chase filed its certificates of

compliance.1

5. Schneider moves to introduce these documents into the record at this time

not to prove his allegations, which they do, but to demonstrate that there is a

dispute as to when the Monitor became aware of Chase’s practices regarding

RCV1. Therefore, it is important for the Court to reject Chase’s invitation to

depart from the rule that, on a motion to dismiss, it will “accept the plaintiff’s

factual allegations as true.” Browing v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002).

6. Discovery in the Southern District of New York action is governed by a

protective order, which requires that before confidential documents produced in

that case are used in another action that a confidentiality order be entered in that

1
If this motion is granted and the protective order entered, Exhibits A & B will be
filed under seal because they have been treated as confidential in the SDNY action.

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second case that is substantially similar to the one entered in the New York action.

Mortgage Resolution, No. 1:15-cv-00293-LTS-JCF, Doc. 127 ¶ 2, Ex. D In order

to comply with the terms of this protective order, Schneider moves this court to

enter the same protective order in this appeal for the limited purpose of permitting

Schneider to supplement the record with the two documents labeled confidential

that are described above.

7. Counsel for Chase does not consent to this motion.

8. Accordingly, Schneider requests that the Court grant his motion to

supplement the record with the documents described above.

Respectfully submitted,

/s/ Joseph A. Black

Joseph A. Black
Daniel E. Cohen
The Cullen Law Firm, PLLC
1101 30th Street NW, Suite 300
Washington, DC 20007
Tel: (202) 944-8600
Fax: (202) 944-8611

Counsel for Appellant

Dated: August 18, 2017

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION

This document complies with the type-volume limitation of Fed. R. App. P.

27(d)(2)(A) in that the brief contains 942 words excluding those parts exempted by

Fed. R. App. P. 27(a)(2)(B).

Dated: August 18, 2017 /s/ Joseph A. Black

Joseph A. Black

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CERTIFICATE OF SERVICE

I hereby certify that on August 18, 2017, I electronically filed the foregoing

document with the Clerk of this Court by using the appellate CM/ECF system.

The participants in the case are registered CM/ECF users and service will be

accomplished by the appellate CM/ECF system. I also certify that a true and

correct copy of the foregoing was sent via e-mail to the State Plaintiffs.

/s/ Joseph A. Black

Joseph A. Black

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