Reyes v. Freeberry , 192 F. App'x 120 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-10-2006
    Reyes v. Freeberry
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-3400
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-3400
    JACK REYES, Sergeant;
    JOSE ANTONIO HERNANDEZ, Sergeant,
    Appellants
    v.
    SHERRY FREEBERY,
    JOHN L. CUNNINGHAM, Colonel, both
    individually and in their official capacity;
    NEW CASTLE COUNTY, a municipal corporation
    On Appeal from the United States District Court
    for the District of Delaware
    D.C. Civil Action No. 02-cv-01283
    (Honorable Kent Jordan)
    Argued May 24, 2005
    Dismissed In Part and Remanded to the District Court for Clarification
    July 8, 2005
    Resubmitted Pursuant to Third Circuit LAR 34.1(a) Following Remand
    March 16, 2006
    Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges
    (Filed July 10, 2006)
    OPINION OF THE COURT
    SCIRICA, Chief Judge.
    This is an appeal of three orders of the District Court arising from a pre-trial
    discovery protective order entered on the joint request of the parties. We will dismiss in
    part and remand in part.
    I.
    On July 10, 2002, Sergeants Jack Reyes and Jose Antonio Hernandez filed a
    complaint in the District Court against Sherry Freebery, individually and in her official
    capacity as Chief Administrative Officer of New Castle County; Colonel John
    Cunningham, in his individual capacity; Colonel David McAllister, in his official capacity
    as Chief of the New Castle County Police Department; and New Castle County. Plaintiffs
    alleged, among other things, discriminatory promotion practices, retaliation, and
    constructive discharge. To facilitate discovery, the parties negotiated a confidentiality
    agreement. On January 22, 2003, the parties filed a joint motion for a protective order
    adopting the confidentiality agreement. The District Court granted the motion.
    Both parties filed motions for summary judgment. Defendants filed a motion to
    enforce compliance with the protective order. They alleged plaintiffs violated the
    protective order by failing to file their summary judgment pleadings under seal and by
    communicating with the press regarding confidential matters.
    2
    On January 15, 2004, the District Judge held a hearing via teleconference. With
    the consent of both parties, he ordered the summary judgment pleadings sealed pending
    his review of defendants’ motion. He also restricted the parties’ communications with the
    press.1 Plaintiffs contend his instruction constituted a blanket gag order on all
    communications relating to the case. Defendants contend the restriction was limited to
    communications that would violate the protective order.
    Plaintiffs filed a motion to void the confidentiality agreement and the protective
    order, and to make the record public. While this motion was pending, defendant Sherry
    Freebery was indicted on unrelated federal charges. On July 30, 2004, the District Judge
    issued an order staying all proceedings. In a footnote, the order explicitly declined to
    address Plaintiffs’ argument that in restricting communications with the press, the court
    had placed an unconstitutional prior restraint on his expression. On August 20, 2004, the
    District Court denied without prejudice all pending motions. Plaintiffs appealed,
    contending the District Judge erred in (1) staying the civil case, (2) refusing to void the
    1
    During the teleconference, the District Judge explained:
    I’m very interested in maintaining the press’ full and adequate access to the
    courts and the proceedings in the courts, but when we’re talking about
    confidential information or allegations that confidential information has
    been wrongly disseminated, I think you will only compound the problem by
    discussing this matter until we’ve aired it and discovered whether or not
    there’s substance to the allegations that are made.
    (App. 45.)
    3
    protective order, (3) denying the motion to unseal the summary judgment record, and (4)
    restricting counsel’s communications with the press.
    In a per curiam opinion filed July 8, 2005, we held that we lacked jurisdiction to
    review the stay order and that we could not determine, based on the record, whether we
    had jurisdiction over plaintiffs’ remaining arguments. We remanded for further
    clarification of the restrictions on discovery information, court records, and
    communications with the press. On December 29, 2005, the District Judge issued a
    memorandum opinion explaining the scope of and reasons for the restrictions. He
    emphasized the protective order was entered on the joint motion of the parties, and the
    sealing order and press enforcement order were entered to enforce the protective order.
    At our request, the parties filed letter briefs in response to the District Judge’s
    memorandum opinion.
    For the reasons set forth, we conclude we do not have jurisdiction to review the
    August 20, 2004 order denying the motion to void the protective order, or the January 15,
    2004 oral order not to communicate with the press regarding confidential information.
    We conclude we have jurisdiction to review the August 20, 2004 order denying the
    motion to unseal the summary judgment record, and we will remand for the District
    Court’s further consideration.
    4
    II.
    A.
    Under the final judgment rule, we have jurisdiction to review all final decisions of
    the district courts. See 
    28 U.S.C. § 1291
    . Under the collateral order doctrine, we can
    review an otherwise interlocutory appeal if the District Court’s order (1) conclusively
    determines the disputed question, (2) resolves an important question that is unrelated to
    the merits of the underlying case, and (3) would effectively be unreviewable on appeal
    from a final judgment. See Carr v. Am. Red Cross, 
    17 F.3d 671
    , 675 (3d Cir. 1994)
    (citing Coopers & Lybrand v. Livesay, 
    437 U.S. 463
    , 468 (1978)). We have construed the
    collateral order doctrine narrowly, “‘lest the exception swallow up the salutary general
    rule’ that only final orders may be appealed.” Yakowicz v. Pennsylvania, 
    683 F.2d 778
    ,
    783 n.10 (3d Cir. 1982) (quoting Rodgers v. U.S. Steel Corp., 
    541 F.2d 365
    , 369 (3d Cir.
    1976)).
    Plaintiffs contend we have jurisdiction to review the August 20, 2004 order
    denying the motion to void the protective order under the collateral order doctrine.2 We
    2
    Plaintiffs also contend we can review the protective order under the doctrine of
    pendent jurisdiction. We have stated “‘pendent appellate jurisdiction over an otherwise
    unappealable order is available only to the extent necessary to ensure meaningful review
    of an appealable order.’” In re Montgomery County, 
    215 F.3d 367
    , 376 (3d Cir. 2000)
    (quoting Nat’l Union Fire Ins. v. City Sav., F.S.B., 
    28 F.3d 376
    , 382 (3d Cir. 1994)).
    Here, there is overlap between the first order, denying the motion to vacate the protective
    order, and the second order, temporarily sealing the summary judgment record. But the
    sealing order was based on the District Judge’s need for time to consider the parties’
    (continued...)
    5
    disagree. Under the doctrine’s first requirement, the order must conclusively determine
    the disputed question. See Carr, 
    17 F.3d at 675
    . Here, the order denied plaintiffs’ motion
    without prejudice, and stated “[a]ny party may renew their motions when the stay is
    lifted.” (App. 62.) We have noted, “[s]o long as there is a plain prospect that the trial
    court may itself alter the challenged ruling, there is little justification for immediate
    appellate intrusion.” Lusardi v. Xerox Corp., 
    747 F.2d 174
    , 178 (3d Cir. 1984) (citing 15
    Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 3911 (1976)).
    Accordingly, the order does not satisfy the first requirement of the collateral order
    doctrine. Because we cannot exercise jurisdiction over a collateral order unless all three
    requirements of the collateral order doctrine are satisfied, see Carr, 
    17 F.3d at 675
    , we
    will dismiss for lack of jurisdiction.3
    2
    (...continued)
    positions, and not on an evaluation of the protective order’s validity. We need not review
    the protective order to review the decision to seal the record. The third order, restricting
    communications with the press that violated the protective order, is not sufficiently
    related to the sealing order to warrant pendent jurisdiction.
    3
    Furthermore, we think it is unlikely that the order could satisfy the second
    requirement of the collateral order doctrine, under which an order must resolve an
    important issue unrelated to the merits of the underlying case. See Carr v. Am. Red
    Cross, 
    17 F.3d 671
    , 675 (3d Cir. 1994). Plaintiffs contend the protective order implicates
    First Amendment issues that are both important and independent from the merits. But a
    protective order only implicates the First Amendment if it is not supported by a showing
    of “good cause.” See Seattle Times Co. v. Rhinehart, 
    467 U.S. 20
    , 37 (1982). We cannot
    determine whether the protective order is supported by good cause—and whether
    plaintiffs raise a First Amendment claim—without reviewing the merits of the underlying
    case. In Cipollone, we noted that because of ambiguous language in Seattle Times, it was
    unclear if the Court had mandated a Rule 26(c) analysis without regard to the First
    (continued...)
    6
    B.
    An order either granting or denying access to portions of a trial record is
    appealable as a final order under 
    28 U.S.C. § 1291
    . See United States v. Smith, 
    123 F.3d 140
    , 145 (3d Cir. 1997); United States v. Antar, 
    38 F.3d 1348
    , 1355–56 (3d Cir. 1994).
    Accordingly, we have jurisdiction to review the August 20, 2004 order denying plaintiffs’
    motion to unseal the summary judgment record.4
    3
    (...continued)
    Amendment, or if the analysis should include a least restrictive means test. Cipollone v.
    Liggett Group, Inc., 
    785 F.2d 1108
    , 1119 (3d Cir. 1986). But we concluded “Seattle
    Times prohibits a court considering a protective order from concerning itself with first
    amendment considerations.” 
    Id.
     Accordingly, in cases addressing our jurisdiction to
    review interlocutory appeals of discovery protective orders, we have concluded First
    Amendment concerns are not properly considered. See id.; New York v. U.S. Metals
    Refining Co., 
    771 F.2d 796
    , 802 (3d Cir. 1985).
    4
    The order satisfies all three requirements of the collateral order doctrine. Under the
    first requirement, it “conclusively determines the disputed question,” Carr v. Am. Red
    Cross, 
    17 F.3d 671
    , 675 (3d Cir. 1994), because there is no reason to believe the District
    Court will reconsider the order prior to the termination of criminal proceedings. Even if
    the court were to reconsider it after the stay is lifted, access to the trial record would have
    been denied until that time, thereby conclusively determining the issue of access to the
    record during the criminal proceedings. The second requirement is satisfied because First
    Amendment and common law rights of access to trial proceedings are important questions
    “unrelated to the merits of the underlying case.” 
    Id.
     As noted, protective orders generally
    do not implicate First Amendment issues. But portions of the sealed summary judgment
    record were not marked confidential and were not covered by the protective order. The
    third requirement is satisfied because even a temporary denial of access to trial
    proceedings can impose a serious injury that “would effectively be unreviewable on
    appeal from a final judgment.” 
    Id.
     The right to engage in constitutionally protected and
    time sensitive communications might be lost, and any relief that could be granted would
    be stale. See Shingara v. Skiles, 
    420 F.3d 301
    , 305 (3d Cir. 2005).
    7
    We will affirm the District Court’s order if the record demonstrates “‘an overriding
    interest based on findings that closure is essential to preserve higher values and is
    narrowly tailored to serve that interest.’” Publicker Indus., Inc. v. Cohen, 
    733 F.2d 1059
    ,
    1073 (3d Cir. 1984) (quoting Press-Enterprise Co. v. Super. Ct. of Cal., Riverside
    County, 
    464 U.S. 501
    , 510 (1984)). In the absence of an overriding interest, there is a
    strong presumption in favor of public access to judicial proceedings and records. See 
    id.
    In Publicker, we concluded restricting disclosure of sensitive information until a district
    judge determines its confidential status can constitute an important overriding interest,
    sufficient to outweigh the presumption in favor of access. See 
    id.
     at 1071–72. Noting
    “there are circumstances where ‘disclosure . . . would effectively nullify [a party’s] claim
    of privileges without a hearing on the merits,’” id. at 1071 (quoting Globe Newspaper Co.
    v. Superior Court for Norfolk County, 
    457 U.S. 596
    , 609 n.25 (1982)), we stated
    “[p]arties are thus afforded the opportunity to resolve their disputes in court without
    automatically destroying the confidentiality of certain information.” Id. at 1072.
    Here, the explicit purpose of the sealing order was to allow the District Judge time
    to make reasoned judgments regarding the material’s confidential nature and the privacy
    concerns of third parties. During the teleconference, he explained, “if . . . some damage
    could be limited by putting matters under seal, I want to put it under seal sooner rather
    than later” (App. 39), pending resolution of defendants’ motion to seal the documents
    permanently. Later in the conversation, he criticized the parties for “using information
    8
    that was delivered under a confidentiality agreement . . . as to which there are legitimate
    privacy concerns of third parties.” (App. 44.) The District Judge’s concerns about third-
    party privacy interests were valid. The record indicates that if the material were released,
    serious harm could result to the privacy interests of police department employees who
    were not parties to the case. We have recognized an exception to the presumption of
    access where confidential material is determined to be injurious to third parties. See
    United States v. Criden, 
    681 F.2d 919
    , 921 (3d Cir. 1982).
    The District Court identified an important countervailing interest—adequate time
    to make reasoned judgments regarding the material’s confidential nature and third-party
    privacy concerns—sufficient to outweigh the presumption in favor of access and to justify
    a temporary sealing order. Accordingly, we believe the temporary sealing order was
    justified at the time it was issued. But when the District Judge stayed the case, he
    dismissed all pending motions without prejudice, including plaintiffs’ motion to unseal
    the record. The temporary sealing order became indefinite, and for the past twenty-eight
    months, the public has been denied access to most of the record, including many filings
    not covered by the protective order. We have noted “[e]ven if the initial sealing was
    justified, when there is a subsequent motion to remove such a seal, the district court
    should closely examine whether circumstances have changed sufficiently to allow the
    presumption allowing access to court records to prevail.” Miller v. Ind. Hosp., 
    16 F.3d 549
    , 551–52 (3d Cir. 1994). In dismissing all pending motions at the time of the stay, the
    9
    District Court might not have realized the stay would change the nature of the sealing
    order, shifting the balance between the strong presumption of access and the
    countervailing interests favoring confidentiality. The District Judge’s need for time to
    evaluate the parties’ respective positions and third party privacy interests—sufficiently
    important to justify a temporary sealing order—cannot justify an indefinite sealing order.
    Accordingly, we remand to the District Court the question of whether there is continuing
    justification for the summary judgment record to be sealed.
    C.
    In his December 29, 2005 memorandum opinion, the District Judge stated that his
    instruction regarding communications with the press was explicitly not a “blanket ‘gag
    order’” on all public communications about the case, but rather an instruction to refrain
    from speaking about confidential material.5 (Mem. Op. 14.) Plaintiffs recognize the
    memorandum opinion limits the scope of the order to information covered by the
    protective order, but contend there is a “disconnect between the lower court’s earlier
    actions and its recent words.” (Appellants Letter Br. at 4.) They contend the
    memorandum opinion “implicitly vacates and limits the scope of the earlier overbroad
    5
    The memorandum opinion explains the District Judge “merely told the parties that
    they should stay away from revealing information that could reasonably be called
    ‘confidential’ under the terms of their own Agreement and the court’s protective order,”
    and that “if the question is whether the direction I gave the parties covered solely
    information given in discovery pursuant to the protective order, the answer is yes.”
    (Mem. Op. at 14.)
    10
    gag order.” 
    Id.
     Because of the “wrong” suffered by plaintiffs’ lead counsel in the
    interim,6 they contend their challenge to the oral order restricting communication with the
    press falls within the “capable of repetition, yet evading review” exception to mootness.
    See So. Pac. Terminal Co. v. ICC, 
    219 U.S. 498
    , 515 (1911).
    We do not consider whether the order restricting communication with the press
    falls within this exception because this non-final order of the District Court does not
    satisfy the first or third requirements of the collateral order doctrine. Accordingly, we
    have no jurisdiction. The order does not satisfy the first requirement of the doctrine
    because it does not conclusively determine the disputed question. See Carr, 
    17 F.3d at 675
    . The order was to “[m]aintain . . . to the fullest extent possible a status quo with
    respect to confidential information,” pending review of defendants’ motion to seal the
    summary judgment pleadings. (App. 45–46.) It was explicitly intended to be a temporary
    order.7
    6
    We question whether the alleged injury to plaintiffs’ counsel can serve as the basis for
    plaintiffs’ challenge to the order. But even assuming the alleged injury is to plaintiffs
    themselves and to the public, we do not have jurisdiction to review this order.
    7
    It would appear the stay has transformed this temporary order into an indefinite one.
    But we note a difference between a temporary order of indefinite duration and an order
    that “conclusively determines the disputed question” under the first requirement of the
    collateral order doctrine. Carr, 
    17 F.3d at 675
    . In denying all pending motions without
    prejudice at the time of the stay, the District Judge stated “[a]ny party may renew their
    motions when the stay is lifted.” (App. 62.) In light of this, we cannot conclude the
    District Court conclusively determined the question.
    11
    Nor does the District Court’s order satisfy the third requirement, since it can be
    effectively reviewed on appeal from a final judgment. See Carr, 
    17 F.3d at 675
    . In
    Shingara v. Skiles, 
    420 F.3d 301
     (3d Cir. 2005), we considered this issue with respect to
    an order denying a motion to vacate a protective order. We noted two problems with
    delaying review. First, the issue might become moot if the confidentiality restrictions
    were relaxed before appeal from a final order. 
    Id. at 305
    . Second, any relief that could
    be granted would be “stale” because “a newspaper [was] being constrained in its attempt
    to obtain information so that it can report the news, and in such a situation time is of the
    essence.” 
    Id.
     Plaintiffs acknowledge the issue in this case is already moot unless it falls
    within the “capable of repetition, yet evading review” exception. So. Pac. Terminal Co,
    
    219 U.S. at 515
    . We believe the question of whether it falls within this exception can be
    effectively reviewed on appeal from a final judgment. Because of the District Court’s
    clarification of the scope of the order, plaintiffs are not being restrained from
    communicating non-confidential material, and neither plaintiffs nor the public will suffer
    further harm between the present and appeal from a final order. Accordingly, there is no
    risk that later review “will be futile” because it will afford only “stale relief.” Shinghara,
    
    420 F.3d at 305
    .8
    8
    Plaintiffs rely on United States v. Scarfo, 
    263 F.3d 80
     (3d Cir. 2001), in arguing that
    the oral order is appealable under the collateral order doctrine. But Scarfo is
    distinguishable. Under the first requirement of the doctrine, the district court in Scarfo
    “finally and conclusively entered a gag order,” restraining the defendant’s former defense
    (continued...)
    12
    III.
    For the reasons set forth, we will dismiss for lack of jurisdiction plaintiffs’ appeal
    of the August 20, 2004 order denying the motion to void the protective order and the
    January 15, 2004 oral order not to communicate with the press regarding confidential
    information. We will vacate the August 20, 2004 order denying the motion to unseal the
    summary judgment record and remand to the District Court for further proceedings
    consistent with this opinion.
    8
    (...continued)
    counsel from discussing the case with the press. Scarfo, 
    263 F.3d at 87
    . The court
    explicitly invited an appeal of the order. 
    Id.
     Here, the order was intended to remain in
    effect only until the District Judge ruled on the alleged breach of the protective order.
    Under the third requirement, the attorney challenging the order in Scarfo was no longer
    involved in the criminal case and would be unable to challenge the order on appeal from
    final judgment. See Scarfo, 
    263 F.3d at 88
    . Here, plaintiffs can challenge the oral order
    on appeal from a final judgment, and we can effectively review the order at that time.
    13
    

Document Info

Docket Number: 04-3400

Citation Numbers: 192 F. App'x 120

Filed Date: 7/10/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

Authorities (18)

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united-states-v-howard-l-criden-harry-p-jannotti-louis-c-johanson-and , 681 F.2d 919 ( 1982 )

John Shingara v. Kathy A. Skiles, Wesley R. Waugh, Jaime ... , 420 F.3d 301 ( 2005 )

United States v. Nicodemo S. Scarfo Donald F. Manno , 263 F.3d 80 ( 2001 )

united-states-v-eddie-antar-mitchell-antar-allen-antar-eddie-gindi , 38 F.3d 1348 ( 1994 )

29-fair-emplpraccas-1663-29-empl-prac-dec-p-32924-yakowicz-marion , 683 F.2d 778 ( 1982 )

united-states-v-j-david-smith-steven-dandrea-joseph-la-porta-gtech , 123 F.3d 140 ( 1997 )

antonio-cipollone-individually-and-as-the-of-the-estate-of-rose-d , 785 F.2d 1108 ( 1986 )

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lusardi-jules-walter-n-hill-james-marr-jr-and-john-f-weiss , 747 F.2d 174 ( 1984 )

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Southern Pacific Terminal Co. v. Interstate Commerce ... , 31 S. Ct. 279 ( 1911 )

Coopers & Lybrand v. Livesay , 98 S. Ct. 2454 ( 1978 )

Globe Newspaper Co. v. Superior Court, County of Norfolk , 102 S. Ct. 2613 ( 1982 )

Press-Enterprise Co. v. Superior Court of Cal., Riverside ... , 104 S. Ct. 819 ( 1984 )

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