Reyes v. Freeberry , 141 F. App'x 49 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-8-2005
Reyes v. Freeberry
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3400
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Recommended Citation
"Reyes v. Freeberry" (2005). 2005 Decisions. Paper 880.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
04-3400
____________
JACK REYES, Sergeant;
JOSE ANTONIO HERNANDEZ, Sergeant,
Appellants
v.
SHERRY FREEBERRY;
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. Civ. No. 02-cv-01283)
District Judge: The Honorable Kent Jordan
Argued: May 24, 2005
Before: SCIRICA, Chief Judge, ALITO, and ROSENN, Circuit Judges
(Filed: July 8, 2005)
STEPHEN J. NEUBERGER (Argued)
THOMAS S. NEUBERGER
The Neuberger Firm
Two East Seventh Street, Suite 302
Wilmington, Del. 19801
MARTIN D. HAVERLY
Two East Seventh Street, Suite 3021
Wilmington, Del. 19801
Counsel for Appellants
ELIZABETH A. MALLOY (Argued)
JESSAMYNE M. SIMON
Klett Rooney Lieber & Schorling
Two Logan Square, 12th Floor
Philadelphia, Pa. 19103
WILLIAM. W. BOWSER
Young Conaway Stargatt & Taylor
The Brandywine Bldg., 17th Floor
1000 West Street
Wilmington, Del. 19899
Counsel for Appellees
____________________
OPINION
____________________
PER CURIAM:
This appeal arose out of an action filed by officers of the Newcastle County Police
Department in federal court against the county and several current or former county
officials. The plaintiffs allege, among other things, discrimination based on race and
national origin and retaliation for engaging in protected activities. The parties entered
into a confidentiality agreement and filed a joint motion for a protective order approving
the agreement. The District Court granted that motion in January 2003. Claiming that
plaintiffs’ counsel had violated the order, the defendants subsequently filed a Motion to
Comply with Protective Order. After conducting a hearing by telephone, the District
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Court placed certain filings under seal and ordered counsel not to engage in certain
communications with the media. Some time later, the plaintiffs filed a motion to void the
confidentiality agreement and protective order and to make all of the records in the case
available to the public. While this motion was pending, defendant Freeberry was indicted
on unrelated federal charges, and the District Court stayed all proceedings in the civil
case until further order. The District Court also denied without prejudice all pending
motions, including the plaintiffs’ motion to void the confidentiality agreement and
protective order and to make the record available to the public. The plaintiffs then took
this appeal, arguing that the District Court erred in staying the civil case, in refusing for
the time being to void the confidentiality agreement and protective order and to make the
records available to the public, and in precluding counsel from speaking with the media.
We cannot consider the merits of the arguments raised by the plaintiffs in this
appeal unless we possess appellate jurisdiction. After considering the parties’ arguments
on this question, we conclude that we lack jurisdiction to review the order staying the
civil case. We further conclude that clarification by the District Court is needed in order
for us to resolve all of the jurisdictional questions relating to the remaining arguments
presented in this appeal. Accordingly, we are remanding this case to the District Court
for clarification of the points discussed below. Cf. Forbes v. Twp. of Lower Merion, 313
F.3d 144, 149 (3d Cir. 2002) (remanding case for clarification of matters relating to
determination of appellate jurisdiction).
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As noted, we conclude that we lack jurisdiction to review the order of the District
Court staying the civil case pending the resolution of the criminal case against defendant
Freeberry. “As a general rule, a stay order is not appealable.” Haberern v. Lehigh & N.E.
Ry. Co., 554 F.2d 581, 584 (3d Cir. 1977). Although we have entertained appeals of stay
orders in exceptional circumstances, no such circumstances are present here. It is not
uncommon for a civil case to be stayed pending resolution of a related criminal case, and
it appears likely that the period of the stay will conclude in the not-too-distant future.
Federal criminal cases are subject to the strict time limits of the Speedy Trial Act, 18
U.S.C. §§ 3161-3174, and we have been informed that the criminal case involving
defendant Freeberry is currently scheduled to commence in October of this year. We
therefore dismiss the appeal insofar as it seeks review of the stay order.
The protective order and the order barring counsel from engaging in certain
communications with the media require a different analysis. Of course, neither of these
orders is a final decision under 28 U.S.C. § 1291 in the usual sense, but the plaintiffs
argue that the requirements of the collateral order doctrine are met.
Under the collateral order doctrine, an order is immediately appealable if it (1)
conclusively determines the disputed question, (2) involves an “important” question that
is unrelated to the merits of the underlying case, and (3) would be effectively
unreviewable after the conclusion of the case. See, e.g., Coopers & Lybrand v. Livesay,
437 U.S. 463, 468-69 (1978). In applying this doctrine, it is important to determine as a
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threshold matter whether First Amendment free speech or free press rights are at issue.
There are circumstances in which even brief restrictions may irreparably damage these
rights. See Elrod v. Burns, 427 U.S. 347, 373 (1976); Swartzwelder v. McNeily, 297
F.3d 228, 241 (3d Cir. 2002); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989). In such a
situation, even a temporary restriction might be viewed as conclusively resolving an
important question that could not be effectively reviewed later because, by then, the right
– i.e., to engage in constitutionally protected and time-sensitive communications – would
have been irreparably lost. By contrast, in the usual case involving a dispute about the
disclosure of information obtained in discovery pursuant to a protective order, no First
Amendment rights are implicated. When a civil litigant obtains discovery pursuant to a
valid protective order, the litigant has no First Amendment right to disclose the
information. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). An order temporarily
refusing to vacate such a protective order might not satisfy either the first or the third
prong of the collateral order doctrine. In addition, the order might not be sufficiently
“important,” in the sense relevant here, to justify interlocutory review.
In the present case, it is not clear from the record whether, as the defendants
maintain, this appeal involves at bottom only a mundane dispute about the disclosure of
information obtained in discovery or whether, as the plaintiffs insist, important First
Amendment rights are implicated. For example, the defendants interpret the order
precluding communications with the media as limited to the disclosure of information
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covered by the protective order, while the plaintiffs interpret the order as prohibiting all
communications relating to the case. The defendants likewise argue that the only filings
that have been sealed are those that contain information covered by the protective order,
while the plaintiffs argue that virtually the entire record has been sealed.
It is also difficult for us to determine based on the present record whether the
question of nondisclosure is unrelated to the merits of the underlying case, as required by
the second prong of the collateral order doctrine. The District Court entered the
protective order in response to a joint motion and thus did not provide an explanation on
the record of the “good cause” justifying the restrictions on the disclosure of the
information covered by the order. See Fed. R. Civ. Proc. 26(c); Glenmeade Trust Co. v.
Thompson, 56 F.3d 476, 483 (3d Cir. 1995); Cipollone v. Liggett Group, Inc., 785 F.2d
1108, 1120-1121 (3d Cir. 1986). Without such an explanation, it is difficult for us to
determine whether the dispute about the disclosure of any particular category or item of
information is or is not related to the merits of the action.
For these reasons, we find it difficult to determine on the basis of the current
record whether we have appellate jurisdiction. We are therefore remanding this case to
the District Court so that the Court can clarify (a) the scope of the restrictions that it has
placed on the disclosure of court records and discovery information and on
communications by counsel to the media and (b) the reasons for any such restrictions. In
setting out these reasons, the District Court should provide specific reasons for each
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relevant category of documents or information. We will retain jurisdiction, and after
clarification is provided, we will proceed to determine whether we have appellate
jurisdiction and, if we do, whether the rulings of the District Court were correct under the
applicable standard of review.
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