Company Doe v. Public Citizen , 749 F.3d 246 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2209
COMPANY DOE,
Plaintiff - Appellee,
v.
PUBLIC CITIZEN; CONSUMER FEDERATION OF AMERICA; CONSUMERS
UNION,
Parties-in-Interest – Appellants,
and
INEZ TENENBAUM, in her official capacity as Chairwoman of
the Consumer Product Safety Commission; CONSUMER PRODUCT
SAFETY COMMISSION,
Defendants.
------------------------------
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AARP; ADVANCE
PUBLICATIONS, INCORPORATED; BLOOMBERG, INCORPORATED; DOW
JONES AND COMPANY, INCORPORATED; GANNETT COMPANY,
INCORPORATED; THE NEW YORK TIMES COMPANY; NPR,
INCORPORATED; THE REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS; TRIBUNE COMPANY; WP COMPANY LLC, d/b/a The
Washington Post,
Amici Supporting Appellants,
NATIONAL ASSOCIATION OF MANUFACTURERS; THE AMERICAN
COATINGS ASSOCIATION; THE ASSOCIATION OF HOME APPLIANCE
MANUFACTURERS; THE MANUFACTURERS ALLIANCE FOR PRODUCTIVITY
AND INNOVATION; THE RECREATIONAL OFF−HIGHWAY VEHICLE
ASSOCIATION; THE SPECIALTY VEHICLE INSTITUTE OF AMERICA,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cv-02958-AW)
Argued: October 31, 2013 Decided: April 16, 2014
Before FLOYD, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Vacated in part, reversed in part, and remanded with
instructions by published opinion. Judge Floyd wrote the
opinion, in which Senior Judge Davis joined. Senior Judge
Hamilton wrote a separate opinion concurring in the judgment.
ARGUED: Scott Matthew Michelman, PUBLIC CITIZEN LITIGATION
GROUP, Washington, D.C., for Appellants. Baruch Abraham
Fellner, GIBSON, DUNN & CRUTCHER, LLP, Washington, D.C., for
Appellee. ON BRIEF: Allison M. Zieve, Julie A. Murray, PUBLIC
CITIZEN LITIGATION GROUP, Washington, D.C., for Appellants.
Thomas M. Johnson, Jr., Amanda C. Machin, GIBSON, DUNN &
CRUTCHER, LLP, Washington, D.C., for Appellee. Ben Wizner,
Brian M. Hauss, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New
York, New York, for Amicus Curiae American Civil Liberties Union
Foundation. Julie Nepveu, AARP FOUNDATION LITIGATION, Michael
Schuster, AARP, Washington, D.C., for Amicus Curiae AARP. Cary
Silverman, SHOOK, HARDY & BACON L.L.P., Washington, D.C., for
Amici Curiae National Association of Manufacturers, American
Coatings Association, Association of Home Appliance
Manufacturers, Manufacturers Alliance for Productivity and
Innovation, Recreational Off-Highway Vehicle Association, and
Specialty Vehicle Institute of America. Leslie Moylan,
Washington, D.C., Robert D. Balin, Edward J. Davis, Eric Feder,
DAVIS WRIGHT TREMAINE LLP, New York, New York, for Amici Curiae
Media Organizations.
2
FLOYD, Circuit Judge:
This appeal presents numerous issues relating to
transparency in federal courts and the public’s constitutional
and common-law rights of access to judicial records and
documents. The plaintiff in the underlying proceedings, known
to the public only as “Company Doe,” filed suit under the
Administrative Procedure Act to enjoin the United States
Consumer Product Safety Commission (the Commission) from
publishing in its online, publicly accessible database a “report
of harm” that attributes the death of an infant to a product
manufactured and sold by Company Doe. The case generated ample
media attention, for this was the first legal challenge to the
implementation of the Commission’s newly minted database
mandated by the Consumer Product Safety Improvement Act of 2008.
Regrettably, the district court allowed the entire litigation—
from filing to judgment—to occur behind closed doors, keeping
all documents filed in the case under seal, not even reflected
on the public docket. As a result, neither the press nor the
public was able to monitor the litigation as it unfolded.
Three months after the district court entered judgment in
favor of Company Doe and enjoined the Commission from publishing
the challenged report in its online database, the court released
its memorandum opinion on the public docket with sweeping
redactions to virtually all of the facts, expert testimony, and
3
evidence supporting its decision. Much of the record—including
the pleadings, the briefing pertaining to Company Doe’s motion
for injunctive relief, the Commission’s motion to dismiss, the
parties’ cross-motions for summary judgment, and numerous
residual matters—remains sealed in its entirety.
Three consumer advocacy groups—Public Citizen, Consumer
Federation of America, and Consumers’ Union (collectively
Consumer Groups)—filed a post-judgment motion to intervene for
the purpose of appealing the district court’s sealing order as
well as its decision to allow Company Doe to proceed under a
pseudonym. The district court, however, neglected to rule on
the intervention motion before the period to appeal the
underlying judgment expired. Consumer Groups therefore noted
their appeal of the district court’s sealing and pseudonymity
orders as well as the court’s “constructive denial” of the
motion to intervene. Three months after Consumer Groups filed
their notice of appeal, the district court issued an order
denying Consumer Groups’ motion to intervene.
We hold that Consumer Groups’ notice of appeal deprived the
district court of jurisdiction to entertain Consumer Groups’
motion to intervene, and, therefore, we vacate the district
court’s order denying intervention. Although Consumer Groups
were neither parties to, nor intervenors in, the underlying case
before the district court, we nevertheless conclude that they
4
are able to seek appellate review of the district court’s
sealing and pseudonymity orders because they meet the
requirements for nonparty appellate standing and have
independent Article III standing to challenge the sealing and
pseudonymity orders. As for the merits, we hold that the
district court’s sealing order violates the public’s right of
access under the First Amendment and that the district court
abused its discretion in allowing Company Doe to litigate
pseudonymously. Accordingly, we vacate in part, reverse in
part, and remand to the district court with instructions to
unseal the case in its entirety.
I.
A.
A brief summary of the relevant statutory and regulatory
framework provides the necessary background for this appeal.
Congress passed the Consumer Product Safety Improvement Act of
2008 (CPSIA or the Act) to establish more stringent safety and
testing standards for manufacturers of children’s products.
CPSIA, Pub. L. No. 110-314, 122 Stat. 3016 (2008); 15 U.S.C.
§ 2051(a)(1). To enhance public access to product safety
information, the Act required the Commission, the federal
regulatory agency responsible for the implementation and
enforcement of the Act, to create and maintain a publicly
5
accessible, Internet database containing “[r]eports of harm”
about product safety. 15 U.S.C. § 2055a(a)(1)(A)-(C), (b)(1).
The purpose of the database was to provide consumers an avenue
to report safety hazards about specific consumer products and to
learn of and evaluate the potential dangers posed by products
that had entered the stream of commerce. See H.R. Rep. No. 110-
501, at 34 (2007).
Recognizing that inaccurate or erroneous information would
thwart the intended goals for the database, Congress engrafted
into the statute certain safeguards aimed at excluding
misleading material. The Act, for example, establishes minimum
requirements that reports must meet to be included in the
database and provides manufacturers the right to receive notice
of a report prior to its publication. See 15 U.S.C. § 2055a.
One such minimum requirement is that the harm described in the
report must “relat[e] to the use of the consumer product.” Id.
§ 2055a(b)(2)(B)(iii). A manufacturer has an opportunity to
object to the inclusion of information that it believes to be
materially inaccurate or confidential. Id. § 2055a(c)(2). The
Commission’s promulgated regulations define “materially
inaccurate information” as “information that is false or
misleading, and which is so substantial and important as to
affect a reasonable consumer’s decision making about the
product.” 16 C.F.R. § 1102.26(a)(1). If a manufacturer submits
6
a claim that a report is materially inaccurate and the
Commission substantiates the manufacturer’s claim, the
Commission must either correct the inaccuracy or exclude the
materially inaccurate information from the database. 15 U.S.C.
§ 2055a(c)(4). To avoid delays in making reports available to
the public, the Commission is required to publish a report
within twenty business days of receipt of the report. Id.
§ 2055a(c)(1), (c)(3)(A), (c)(4)(A).
B.
The underlying case stems from a report of harm received by
the Commission from an unidentified local government agency
concerning a product manufactured by Company Doe. Upon
transmittal of the report, Company Doe submitted a claim that
the report was materially inaccurate, asserting that the
Commission should not publish the report in its online database
because it contained confusing and contradictory statements that
rendered the information materially inaccurate within the
meaning of the Act and the Commission’s regulations. The
Commission attempted to correct the report by redacting certain
information that it deemed materially inaccurate, but Company
Doe insisted that the report remained unpublishable due to the
material inaccuracies. The Commission proposed multiple
versions of the report in its endeavor to purge the materially
7
inaccurate information, but the parties ultimately reached an
impasse as to whether the report satisfied the requisite
criteria to be included in the database. When the Commission
signaled its intent to publish the report, Company Doe filed
suit to enjoin the Commission from including the report of harm
in the database.
Company Doe filed with its complaint a motion to litigate
the case under seal and to proceed under a pseudonym. It
claimed that exposing the content of the challenged report of
harm through court documents would vitiate the very relief it
sought to obtain by filing suit. Disclosure of its identity as
well as any facts that would enable the public to link its
product to the harm alleged in the report, Company Doe argued,
would have the same effect as disclosure via the Commission’s
database.
The district court’s local rules prohibited the court from
ruling on the motion to seal for at least fourteen days to allow
interested parties to object to the sealing request. The local
rules also required that the suit remain sealed pending
resolution of the sealing motion. Both Consumer Groups and the
Commission filed objections to the motion to seal, maintaining
that Company Doe’s sealing request was overbroad and, if
countenanced, would violate the public right of access to court
documents. Although they were not named parties to the
8
underlying litigation, Consumer Groups also filed a motion to
unseal the briefing related to Company Doe’s sealing motion.
Despite the objections to Company Doe’s sealing motion, the
district court failed to rule on the motion for nine months, at
which time it issued its memorandum opinion adjudicating the
parties’ summary judgment motions. As a result, the entire
litigation—which included Company Doe’s motion for a preliminary
injunction, the Commission’s motion to dismiss, Company Doe’s
motion to amend the complaint, the parties’ motions for summary
judgment, and oral argument—occurred under seal.
On the parties’ cross-motions for summary judgment, the
district court entered judgment in favor of Company Doe. In
doing so, the court found that the challenged report of harm
failed to describe a harm or risk “relating to the use” of
Company Doe’s product as required by the Act and that the
information contained in the report was materially inaccurate.
It therefore concluded that the Commission’s decision to publish
the report of harm was arbitrary and capricious and an abuse of
discretion. The district court further found that publication
of the materially inaccurate report risked harm to Company Doe’s
reputational and pecuniary interests. Accordingly, the court
permanently enjoined the Commission from publishing the report
in the online database.
9
After adjudicating the merits of Company Doe’s claims, the
district court addressed Company Doe’s motion to seal and to
proceed under a pseudonym. The court acknowledged the
presumption favoring public access to judicial documents but
determined that Company Doe’s interest “in preserving its
reputational and fiscal health” outweighed the public’s
“abstract interest” in obtaining information about the lawsuit.
The district court reasoned that permanent sealing of certain
documents and pseudonymity were necessary because drawing public
attention to the report was the consequence Company Doe sought
to avoid in bringing its suit. To hold otherwise, the district
court believed, would “reduce [Company Doe’s] First Amendment
interest in petitioning the Court for redress of its grievance
to a Hobson’s choice, a figurative fork that would fly in the
face of fundamental notions of fairness.” Accordingly, the
court denied Consumer Groups’ motion to unseal, overruled their
objections to Company Doe’s sealing motion, and granted Company
Doe’s motion to proceed under a pseudonym.
Recognizing that the public retained some “residual
interest” in accessing its memorandum opinion and that the First
Amendment public right of access likely attached to some of the
documents filed in the litigation, the district court refused to
seal the entire case. Instead, it ordered Company Doe to
propose redactions to information that, if disclosed, would harm
10
Company Doe’s reputation, explaining that Company Doe was in the
“best position to determine what level of redaction . . .
[would] suffice to balance the competing interests.” The court
noted that it “prognosticated the propriety of heavy redactions”
and even wholesale sealing of certain records, documents, and
evidence filed in the proceedings.
Company Doe thereafter filed a response to the district
court’s order and proposed redactions to the court’s memorandum
opinion as well as other documents filed in the litigation. The
Commission objected to Company Doe’s redactions as overbroad and
submitted redactions of its own. After considering the parties’
submissions, the district court adopted the redactions proposed
by Company Doe and rejected the Commission’s redactions, citing
concern that the public would be able to uncover Company Doe’s
identity and link Company Doe to the challenged report.
Three months after the district court entered judgment in
favor of Company Doe, the court released its memorandum opinion
on the public docket with significant redactions to its
analysis, the underlying facts, and the expert opinion testimony
upon which its conclusions relied. As noted above, numerous
documents remain completely sealed, not even reflected on the
public docket.
11
C.
On August 7, 2012, seven days after the district court
issued its opinion granting Company Doe’s motion for summary
judgment, partially granting the motion to seal, and granting
Company Doe’s motion to proceed under a pseudonym, Consumer
Groups filed a post-judgment motion to intervene for the purpose
of appealing the district court’s sealing and pseudonymity
orders. The district court failed to rule on the intervention
motion before the period to appeal the underlying judgment
expired, causing Consumer Groups to appeal the “constructive
denial” of their motion to intervene as well as the court’s
sealing and pseudonymity rulings. The Commission filed a notice
of appeal of the district court’s adverse judgment.
On October 9, 2012, the district court issued a nunc pro
tunc order granting Consumer Groups’ motion to intervene, noting
that Company Doe did not oppose the motion. Company Doe
thereafter requested that the district court modify its
October 9 order to reflect that its consent to Consumer Groups’
intervention hinged upon the continuance of a case or
controversy between the original parties and that it might wish
to object to the motion in the event the Commission abandoned
its appeal. The district court approved Company Doe’s request
for clarification, stating that its October 9 order was
conditioned upon Company Doe’s lack of opposition and that
12
Company Doe could file a motion asking the court to reconsider
its previous order granting the motion to intervene in the event
that it subsequently desired to oppose the intervention motion.
On December 7, 2012, the Commission withdrew its appeal of
the district court’s judgment, and Company Doe promptly moved
for the district court to reconsider its October 9 order. On
January 14, 2013, more than three months after Consumer Groups
filed their notice of appeal, the district court granted Company
Doe’s motion to reconsider and revoked Consumer Groups’
intervention, concluding that intervention was improper because
the underlying merits of the dispute and the sealing orders were
“inextricably intertwined,” and, therefore, Consumer Groups’
objections to the sealing order became moot when the district
court enjoined the Commission from including the report in its
online database.
On January 16, 2013, Consumer Groups filed an amended
notice of appeal encompassing the district court’s January 14
order as well as the district court’s rulings on Company Doe’s
motions to seal and to proceed under a pseudonym. Company Doe
subsequently filed a motion to dismiss the appeal.
II.
Before proceeding to the merits of Consumer Groups’
arguments, we first must address several threshold issues that
13
threaten our power to entertain this appeal. In its motion to
dismiss Consumer Groups’ appeal, Company Doe maintains that
Consumer Groups are unable to seek appellate review of the
district court’s sealing and pseudonymity rulings because
(1) they were neither parties to, nor intervenors in, the
underlying action, and (2) they lack Article III standing.
Consumer Groups counter that they are proper appellants because
the district court abused its discretion in denying their motion
to intervene or, alternatively, because they satisfy the
requirements for nonparty appellate standing. Consumer Groups
further argue that the denial of access to documents filed in
the proceedings below is a concrete injury sufficient to make
their claims on appeal justiciable. A prior motions panel
deferred ruling on the motion to the merits panel. For the
reasons set forth below, we reject Company Doe’s arguments and
deny its motion to dismiss the appeal.
A.
As a general rule, only named parties to the case in the
district court and those permitted to intervene may appeal an
adverse order or judgment. See Marino v. Ortiz, 484 U.S. 301,
304 (1988) (per curiam). Indeed, it is typically only parties
who are bound by a judgment and sufficiently aggrieved by it who
possess constitutional and prudential standing to seek appellate
14
review of the district court’s decision. See Newberry v.
Davison Chem. Co., 65 F.2d 724, 729 (4th Cir. 1933) (“[I]t is
only a party affected by an order or decree who may appeal from
it.”). In this case, however, we have no appeal from a named
party or successful intervenor. The Commission and its
chairwoman were the only named party-defendants to the
underlying proceedings, and they abandoned their appeal of the
district court’s judgment in favor of Company Doe. Although
Consumer Groups sought intervention before the district court,
the court denied the motion to intervene. Thus, because
Consumer Groups were neither parties to, nor intervenors in, the
proceedings before the district court, Company Doe argues that
no case or controversy exists and that we lack authority to hear
Consumer Groups’ challenge to the district court’s sealing and
pseudonymity orders.
Whether Consumer Groups may appeal the sealing and
pseudonymity orders rests, in part, upon the propriety of the
district court’s denial of Consumer Groups’ motion to intervene.
That is, Consumer Groups have standing to appeal the denial of
their intervention motion, see Hill v. W. Elec. Co., 672 F.2d
381, 385-86 (4th Cir. 1982), and if we conclude the district
court erred in its decision to deny intervention, then Consumer
Groups’ newfound intervenor status in light of our holding would
supply an ongoing, adversarial case or controversy, thereby
15
allowing us to review Consumer Groups’ challenges to the
district court’s sealing and pseudonymity rulings, see Izumi
Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510 U.S.
27, 34 (1993) (per curiam) (dismissing writ of certiorari as
improvidently granted but explaining that, if the Supreme Court
reversed the lower court’s denial of the motion to intervene,
the Court “could address the merits of the question on which
[it] . . . granted certiorari”); see also Ross v. Marshall, 426
F.3d 745, 761 & n.68 (5th Cir. 2005) (reversing denial of
intervention motion and entertaining the merits of intervenors’
claims on appeal); Crawford v. Equifax Payment Servs., Inc., 201
F.3d 877, 879, 881-82 (7th Cir. 2000) (same). We therefore turn
to the district court’s order denying Consumer Groups’ motion to
intervene, first considering whether the district court had
authority to rule on the motion at all.
1.
Consumer Groups filed their motion to intervene on August
7, 2012, seven days after the district court entered judgment in
favor of Company Doe. As noted above, the district court failed
to rule on the motion before the period to appeal the underlying
judgment expired. After Consumer Groups filed their notice of
appeal, the district court undertook a series of actions on the
intervention motion, which had the purported effect of first
16
granting, then conditionally granting, and ultimately denying
the motion on January 14, 2013. It is the district court’s
January 14 order denying intervention that is before us on
review.
Generally, a timely filed notice of appeal transfers
jurisdiction of a case to the court of appeals and strips a
district court of jurisdiction to rule on any matters involved
in the appeal. See Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982) (per curiam). This rule fosters judicial
economy and guards against the confusion and inefficiency that
would result if two courts simultaneously were considering the
same issues. See 20 James Wm. Moore et al., Moore’s Federal
Practice § 3902.1 (3d ed. 2010). We have recognized limited
exceptions to the general rule that permit district courts to
take subsequent action on matters that are collateral to the
appeal, Langham-Hill Petroleum Inc. v. S. Fuels Co., 813 F.2d
1327, 1330-31 (4th Cir. 1987), or to take action that aids the
appellate process, Grand Jury Proceedings Under Seal v. United
States, 947 F.2d 1188, 1190 (4th Cir. 1991). As our case law
amply demonstrates, however, these exceptions are confined to a
narrow class of actions that promote judicial efficiency and
facilitate the division of labor between trial and appellate
courts. See, e.g., Lytle v. Griffith, 240 F.3d 404, 407 n.2
(4th Cir. 2001) (concluding that the district court’s limited
17
modification of an injunction appropriately “aided in th[e]
appeal by relieving [the court] from considering the substance
of an issue begotten merely from imprecise wording in the
injunction”); Fobian v. Storage Tech. Corp., 164 F.3d 887, 890
(4th Cir. 1999) (holding that a district court is authorized,
under the in aid of appeal exception, to entertain a Rule 60(b)
motion after a party appeals the district court’s judgment);
Grand Jury Proceedings Under Seal, 947 F.2d at 1190 (holding
that the district court retained jurisdiction to memorialize its
oral opinions soon after a decision was rendered).
Here, the district court found that it had authority, under
the “in aid of appeal” exception, to act on the intervention
motion after Consumer Groups noticed their appeal, a finding
neither Consumer Groups nor Company Doe directly challenges on
appeal. Notwithstanding the parties’ acquiescence to the
district court’s jurisdictional determination, we have an
independent obligation to address a lower court’s jurisdiction
to issue a ruling we are reviewing on appeal. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 73 (1997); Stephens v.
Cnty. of Albemarle, 524 F.3d 485, 490 (4th Cir. 2008).
Whether a district court retains jurisdiction to rule on a
motion to intervene following a notice of appeal is a matter of
first impression in this Circuit. The majority of our sister
circuits that have confronted this issue have applied the
18
general jurisdiction-stripping rule to hold that an effective
notice of appeal deprives a district court of authority to
entertain a motion to intervene after the court of appeals has
assumed jurisdiction over the underlying matter. See Taylor v.
KeyCorp, 680 F.3d 609, 617 (6th Cir. 2012); Drywall Tapers &
Pointers of Greater N.Y., Local Union 1974 v. Natasi & Assocs.
Inc., 488 F.3d 88, 94-95 (2d Cir. 2007); Roe v. Town of
Highland, 909 F.2d 1097, 1100 (7th Cir. 1990); Nicol v. Gulf
Fleet Supply Vessels, Inc., 743 F.2d 298, 299 (5th Cir. 1984).
We see no reason why an intervention motion should be excepted
from the general rule depriving the district court of authority
to rule on matters once the case is before the court of appeals.
Accordingly, we join the majority of our sister circuits and
hold that an effective notice of appeal divests a district court
of jurisdiction to entertain an intervention motion.
We further conclude that the “in aid of appeal” exception
is inapposite in this case. After Consumer Groups appealed the
district court’s “constructive denial” of their motion to
intervene, the court undertook multiple actions on Consumer
Groups’ intervention motion. The district court’s final ruling
revoking its prior grant of intervention came three months after
Consumer Groups noted their appeal and one month after they
filed their opening brief. A district court does not act in aid
of the appeal when it “alter[s] the status of the case as it
19
rests before the court of appeals.” Coastal Corp. v. Tx. E.
Corp., 869 F.2d 817, 820 (5th Cir. 1989); see also Fobian, 164
F.3d at 890-91 (concluding that a district court’s grant of Rule
60(b) relief after an appeal of the underlying judgment has been
taken “cannot be considered in furtherance of the appeal”
because “two courts would be exercising jurisdiction over the
same matter at the same time”). By continuing to act on
Consumer Groups’ motion to intervene after we assumed
jurisdiction over the matter and briefing had commenced, the
district court purported to change the status of the appeal. In
doing so, it acted outside its authority.
Thus, we hold that Consumer Groups’ notice of appeal
deprived the district court of authority to rule on Consumer
Groups’ motion to intervene. Accordingly, we vacate the
district court’s January 14 order denying intervention on the
merits. See Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (“When the lower federal court lacks
jurisdiction, we have jurisdiction on appeal, not of the merits
but merely for the purpose of correcting the error of the lower
court in entertaining the suit.” (brackets omitted) (quoting
United States v. Corrick, 298 U.S. 435, 440 (1936))).
20
2.
Because the district court lacked jurisdiction to entertain
Consumer Groups’ motion to intervene, we next must address
whether Consumer Groups, as nonparties, may appeal the district
court’s sealing and pseudonymity orders. Consumer Groups
maintain they are entitled to pursue this appeal in the
Commission’s absence because they satisfy the requirements for
nonparty appellate standing announced in Kenny v. Quigg, 820
F.2d 665 (4th Cir. 1987).
The rule that only original parties and intervenors to the
action before the district court may appeal an adverse judgment
is not absolute. We have recognized an exception to the general
rule that permits a nonparty to appeal a district court’s order
or judgment when the appellant (1) possessed “an interest in the
cause litigated” before the district court and (2) “participated
in the proceedings actively enough to make him privy to the
record.” Kenny, 820 F.2d at 668. To satisfy the requirements
for nonparty appellate standing, the appellant must have some
cognizable interest that is affected by the district court’s
judgment or order. See Davis v. Scott, 176 F.3d 805, 807-08
(4th Cir. 1999). By restricting nonparty appeals to only those
individuals who sufficiently participate in the proceedings
before the district court and have some concrete interest that
is adversely affected by the trial court’s judgment or ruling,
21
we address the prudential standing concerns that arise when a
nonparty seeks to appeal from a district court’s judgment. See
Castillo v. Cameron Cnty., 238 F.3d 339, 349 & n.16 (5th Cir.
2001); see also Allen v. Wright, 468 U.S. 737, 751 (1984)
(prudential standing requirements include “the general
prohibition on a litigant’s raising another person’s legal
rights, the rule barring adjudication of generalized grievances
more appropriately addressed in the representative branches, and
the requirement that a plaintiff’s complaint fall within the
zone of interests protected by the law invoked”).
This Court first addressed and applied the standard for
nonparty appellate standing in Kenny. There, the Secretary of
Labor filed suit against an employee stock-ownership plan,
alleging the sale of stock to the plan’s trustees violated the
Employee Retirement Income Security Act of 1974. 820 F.2d at
666-67. Kenny, who was a participant in the plan but not a
named party to the proceedings before the district court, filed
objections to the plan’s motion to approve the sale of stock.
Id. at 667-68. When the district court overruled her objections
and approved the proposed sale, only Kenny appealed. Id. at
668. We permitted Kenny to appeal in the Department of Labor’s
absence, noting that she “participated significantly in the
proceedings below” by filing “her own memorandum opposing
approval of the sale,” which the district court fully considered
22
and rejected. Id. We also found that Kenny’s financial stake
in the plan gave her an interest in the proceedings sufficient
to confer nonparty appellate standing. Id.Consumer Groups’ involvement in the underlying proceedings
is no different. They participated in the case below by
objecting, under the district court’s local rules, to Company
Doe’s motions to seal and to proceed pseudonymously and by
filing their own motion to unseal. Although Consumer Groups had
not sought formal intervention to challenge the sealing and
pseudonymity requests prior to entry of summary judgment, the
district court fully considered, and overruled, Consumer Groups’
objections when addressing the merits of Company Doe’s motion to
seal and to proceed under a pseudonym. As in Kenny, Consumer
Groups’ participation before the district court—as it pertains
to the issues of sealing and pseudonymity—was akin to party
participation.
Company Doe suggests that Consumer Groups’ involvement in
the proceedings below falls short of the participation necessary
to establish nonparty appellate standing because they failed to
substantially participate in the underlying litigation on the
merits. Consumer Groups, however, do not challenge the district
court’s entry of judgment in favor of Company Doe. Instead,
they appeal only the district court’s rulings on sealing and
pseudonymity, which are the very issues they contested below and
23
were affected by. Consumer Groups participated in the
proceedings before the district court to the greatest extent
possible given that the litigation proceeded in secret.
Numerous courts have found participation similar to that of
Consumer Groups adequate to permit a nonparty to appeal. See,
e.g., Kaplan v. Rand, 192 F.3d 60, 66-67 (2d Cir. 1999)
(permitting nonparty shareholder to appeal award of legal fees
to counsel for stockholder’s derivative action because
shareholder objected to the fee award before the district
court); Commodity Futures Trading Comm’n v. Topworth Int’l,
Ltd., 205 F.3d 1107, 1113-14 (9th Cir. 1999) (finding sufficient
participation based upon nonparty’s formal objection to
receiver’s proposed distribution plan); Binker v. Pennsylvania,
977 F.2d 738, 745 (3d Cir. 1992) (concluding that nonparty
appellants sufficiently participated in proceedings below by
asserting objections to settlement agreement). We conclude
that, by lodging objections to Company Doe’s motions to seal and
to proceed under a pseudonym, and by filing their own motion to
unseal, Consumer Groups sufficiently participated in the
proceedings before the district court to appeal the court’s
orders dismissing their objections and permitting the case to be
litigated under seal and pseudonymously.
Having determined that Consumer Groups satisfy the first
Kenny prong, we turn next to the second requirement for nonparty
24
appellate standing, asking whether a nonparty who claims a right
of access to judicial documents and objects to a sealing motion
and request to proceed under a pseudonym possesses an interest
in the underlying proceedings sufficient to appeal a district
court’s order overruling the nonparty’s objections and sealing
portions of the record.
We conclude that the presumptive right of access to
judicial documents and materials under the First Amendment and
common law gives Consumer Groups an interest in the underlying
litigation such that they may appeal the district court’s orders
disregarding their objections and depriving them of access to
the information they claim a right to obtain. The district
court’s rejection of Consumer Groups’ proffered objections to
the sealing motion and pseudonymity request is tantamount to an
adjudication of their rights of access. See United States v.
Antar, 38 F.3d 1348, 1363 (3d Cir. 1994) (“[T]he district judge
appears not to have recognized that maintaining the transcripts
under seal, though a passive act, was an active decision
requiring justification under the First Amendment.”).
Significantly, Consumer Groups are bound by the district court’s
denial of access and concomitant determination of their rights.
To deprive Consumer Groups of the right to appeal the district
court’s adverse ruling on their objections would leave no
possible avenue for them to vindicate their asserted First
25
Amendment and common-law rights of access, which are interests
that diverge from those of the named parties who had access to
the documents filed in the litigation as well as the identity of
Company Doe. Cf. United States v. Hickey, 185 F.3d 1064, 1066
(9th Cir. 1999) (rejecting the proposition that a named party
has standing to vindicate the public’s right of access). Thus,
appealing the district court’s sealing and pseudonymity
determinations is the only way Consumer Groups can protect
themselves from being bound by the adjudication of their rights
of access that they believe were violated. Because the orders
from which Consumer Groups appeal deprive Consumer Groups of the
very information they claim a right to inspect, their appeal
falls squarely within the exception allowing nonparties to seek
appellate review when necessary to preserve their rights. See
Davis, 176 F.3d at 808.
Company Doe argues that Consumer Groups lack the requisite
interest to appeal the district court’s sealing order because
the local rule under which Consumer Groups submitted objections
serves only as a public notice provision and does not confer
party status that would permit a third party to appeal a
district court’s rejection of its objections. True enough, but
a nonparty’s right to seek appellate review of an order that
disposes of his rights and by which he is bound does not depend
upon some explicit authorization to appeal. In Delvin v.
26
Scardelletti, for example, the Supreme Court held that an
unnamed class member who timely objects to a proposed class
action settlement may appeal the district court’s approval of
the settlement without seeking formal intervention in the
underlying proceedings. 536 U.S. 1, 14 (2002). In doing so,
the Court concluded that the petitioner was able to seek
appellate review of the district court’s order disregarding his
objections because he (1) participated in the district court
proceedings, (2) was bound by the court’s order overruling his
submitted objections, and (3) possessed interests that would not
be adequately represented on appeal by the named parties. See
id. at 7-9. Although “no federal statute or procedural rule
directly addresses who may appeal from approval of class action
settlements,” the Court observed, “the right to appeal from an
action that finally disposes of one’s rights has a statutory
basis.” Id. at 13 (citing 28 U.S.C. § 1291 (“The courts of
appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States
. . . .”)). As in Delvin, the district court’s order overruling
Consumer Groups’ objections and granting Company Doe’s motions
to seal and to proceed pseudonymously constitutes a final
decision with respect to Consumer Groups’ rights of access
sufficient to trigger their right to appeal. We therefore hold
that, because they objected to Company Doe’s motion to seal and
27
to proceed under a pseudonym, Consumer Groups may appeal the
district court’s adverse sealing and pseudonymity rulings
without first intervening in the underlying proceedings.
B.
We turn now to the final threshold issue presented by
Company Doe’s motion to dismiss. Company Doe contends that
Consumer Groups lack standing under Article III to pursue
appellate review of the district court’s sealing and
pseudonymity orders. Specifically, Company Doe argues that
Consumer Groups lack a concrete and particular injury necessary
to confer Article III standing. Because the Commission
abandoned its appeal of the district court’s judgment and
Consumer Groups have no judicially cognizable injury of their
own, Company Doe asserts that no justiciable case or controversy
exists.
To satisfy the requirements for constitutional standing,
the party invoking federal court jurisdiction must demonstrate
“that the conduct of which he complains has caused him to suffer
an ‘injury in fact’ that a favorable judgment will address.”
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). Article III standing “must be met by persons seeking
appellate review, just as it must be met by persons appearing in
28
courts of first instance.” Arizonans for Official English, 520
U.S. at 64. Accordingly, an intervenor may not pursue an appeal
in the absence of an original party on whose side intervention
was permitted unless the intervenor independently satisfies the
requirements for constitutional standing. Id. at 65.
This Court has previously permitted news organizations to
intervene in actions in which they were not otherwise parties to
challenge a district court’s sealing order. See Stone v. Univ.
of Md. Med. Sys. Corp., 855 F.2d 172, 178 (4th Cir. 1988);
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252-54 (4th
Cir. 1988). In those cases, the news organizations had an
interest in the sealed judicial documents and materials
sufficient to satisfy the constitutional standing requirements
of injury, causation, and redressability. They were bound by
the district court’s sealing orders, and insofar as they were
denied access to judicial documents that they claimed a right to
obtain, they were aggrieved by the district court’s sealing
determination. A favorable decision on appeal would ameliorate
their injuries by providing them access to the records that they
sought. In sum, it was the news organizations’ failure to
obtain information—information, which in their view, they had a
right to access under the common law or the Constitution—that
supplied the case or controversy necessary for the intervenors
to secure appellate review of a district court’s sealing orders.
29
Company Doe attempts to distinguish the above cases on the
ground that they involved media parties that had a First
Amendment right to inform public discourse. We see no reason
why the standing of news media to seek appellate review of a
district court’s sealing order should differ from that of a
member of the general public. The public right of access has
two dimensions. First, the right protects the public’s ability
to oversee and monitor the workings of the Judicial Branch. See
Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291,
303 (4th Cir. 2000) (“Publicity of such records, of course, is
necessary in the long run so that the public can judge the
product of the courts in a given case.”); see also Pepsico, Inc.
v. Redmond, 46 F.3d 29, 31 (7th Cir. 1995) (Easterbrook, J., in
chambers) (“Opinions are not the litigants’ property. They
belong to the public, which underwrites the judicial system that
produces them.”). Second, public access to the courts promotes
the institutional integrity of the Judicial Branch. See United
States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978) (“Public
confidence [in the judiciary] cannot long be maintained where
important judicial decisions are made behind closed doors and
then announced in conclusive terms to the public, with the
record supporting the court’s decision sealed from public
view.”). In light of the interests served by the public right
of access, we have recognized that “the rights of the news media
30
. . . are coextensive with and do not exceed those rights of
members of the public in general.” In re Greensboro News Co.,
727 F.2d 1320, 1322 (4th Cir. 1984); see also Branzburg v.
Hayes, 408 U.S. 665, 684 (1972) (“[T]he First Amendment does not
guarantee the press a constitutional right of special access to
information not available to the public generally.”). Instead,
the right of access is widely shared among the press and the
general public alike, such that anyone who seeks and is denied
access to judicial records sustains an injury.
Article III standing demands that a litigant demonstrate
“an invasion of a legally protected interest” that is “concrete
and particularized” and “‘actual or imminent.’” Lujan, 504 U.S.
at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Standing, the Supreme Court has instructed, “is not to be placed
in the hands of ‘concerned bystanders,’ who will use it simply
as a ‘vehicle of the vindication of value interests.’” Diamond
v. Charles, 476 U.S. 54, 62 (1986) (quoting United States v.
SCRAP, 412 U.S. 669, 687 (1973)). Thus, a mere generalized
grievance shared by the public at large is insufficient to
establish a justiciable case or controversy. See Lujan, 504
U.S. at 573-74.
That an injury may be widely shared, however, does not
automatically render it unsuitable for Article III standing.
Even a widely shared interest, “where sufficiently concrete, may
31
count as an ‘injury in fact.’” FEC v. Akins, 524 U.S. 11, 24
(1998). The Supreme Court consistently has held that a
plaintiff suffers an Article III injury when he is denied
information that must be disclosed pursuant to a statute,
notwithstanding “[t]he fact that other citizens or groups of
citizens might make the same complaint after unsuccessfully
demanding disclosure.” Pub. Citizen v. U.S. Dep’t of Justice,
491 U.S. 440, 449-50 (1989); see also Akins, 524 U.S. at 21-25(holding that a group of voters had a concrete injury based upon
their inability to receive certain donor and campaign-related
information from an organization); Havens Realty Corp. v.
Coleman, 455 U.S. 363, 373-74 (1982) (concluding that
deprivation of information about housing availability was
sufficient to constitute an Article III injury). What each of
these cases has in common is that the plaintiffs (1) alleged a
right of disclosure; (2) petitioned for access to the concealed
information; and (3) were denied the material that they claimed
a right to obtain. Their informational interests, though shared
by a large segment of the citizenry, became sufficiently
concrete to confer Article III standing when they sought and
were denied access to the information that they claimed a right
to inspect.
Although Consumer Groups’ right of access stems not from a
statute but from the Constitution and common law, the nature of
32
their alleged injury is indistinguishable from the informational
harm suffered by the plaintiffs in the above cases. Consumer
Groups’ injury is formed by their inability to access judicial
documents and materials filed in the proceedings below,
information that they contend they have a right to obtain and
inspect under the law. Because the public right of access under
the First Amendment and common law protects individuals from the
very harm suffered by Consumer Groups, their injury transcends a
mere abstract injury such as a “common concern for obedience to
law.” L. Singer & Sons v. Union Pac. R.R. Co., 311 U.S. 295,
303 (1940). Consumer Groups are public interest organizations
that advocate directly on the issues to which the underlying
litigation and the sealed materials relate. By seeking, and
having been denied access to, documents they allege a right to
inspect, Consumer Groups have a direct stake in having a
concrete injury redressed.
One final point merits our attention. Company Doe argues
that, because it prevailed on its claims before the district
court and secured an injunction barring the Commission from
publishing the challenged report of harm, Consumer Groups cannot
stand in the Commission’s shoes and seek appellate review of the
district court’s sealing order, which was necessary to
effectuate the district court’s judgment. In support of this
contention, Company Doe directs us to Diamond v. Charles, 476
33
U.S. 54 (1986), and Hollingsworth v. Perry, 133 S. Ct. 2652(2013).
In Diamond, a pediatrician who was licensed to practice
medicine in Illinois, and who was a “conscientious object[or] to
abortions,” sought to defend the constitutionality of a state
statute governing abortions after the state elected not to
appeal an injunction enjoining enforcement of certain provisions
of the statute. 476 U.S. at 57-58. The state Attorney General
filed a letter with the Supreme Court stating that his interest
in the continued proceedings was “essentially co-terminous with
the position on the issues set forth by the [petitioner].” Id.
at 61 (internal quotation marks omitted). The Court, however,
held that the petitioner lacked constitutional standing to
appeal the lower court’s decision because only the state
possessed a direct stake in defending the constitutionality of
its statute. Id. at 65. Because the petitioner had no
judicially cognizable interest of his own in the challenged
statute, he had no standing to appeal the judgment below in the
absence of the state. Id. at 71.
In Hollingsworth, the proponents of a ballot initiative
that amended the California constitution to define marriage as
between one man and one woman sought to defend the law’s
constitutionality after the named defendants—a group of state
and local officials responsible for enforcing California’s
34
marriage laws—refused to defend the law. 133 S. Ct. at 2660.
The Supreme Court held that the proponents lacked standing
because they had no personal stake in defending the law’s
enforcement that was distinct from the general interest of every
California citizen. Id. at 2663. Because the proponents did
not represent the State, they could not assert the State’s
interests. Id. at 2664-66.
Diamond and Hollingsworth illustrate that an intervenor’s
right to continue a suit on appeal in the absence of the
original party on whose side intervention was sought is
dependent upon the intervenor having an independent interest in
the proceedings sufficient to satisfy the requirements for
Article III standing. In both cases, the requisite injury in
fact was lacking because the intervening parties did not have a
direct stake in defending the constitutionality of a state
statute when state officials declined to do so. Consumer
Groups, by contrast, do not appeal the merits of the district
court’s decision to enjoin the Commission from publishing the
report of harm in its online database, nor do they attempt to
assert an interest that belongs only to the Commission. Their
interest in the litigation is that of a third party seeking
access to documents filed with the court, which is an interest
entirely independent of the injury that supplied the requisite
case or controversy between Company Doe and the Commission.
35
Consumer Groups have a redressable, actual injury and a personal
stake sufficient to make their claims justiciable.
We conclude that Consumer Groups’ participation before the
district court on the issues of sealing and pseudonymity,
coupled with their redressable injuries, create an ongoing,
adversarial case or controversy vis-à-vis Company Doe, whose
interests in maintaining the documents under seal are adverse to
those of Consumer Groups. Thus, having determined that Consumer
Groups have nonparty appellate standing and independent Article
III standing to seek appellate review of the district court’s
sealing and pseudonymity orders, we deny Company Doe’s motion to
dismiss this appeal and turn next to the merits of Consumer
Groups’ arguments.
III.
It is well settled that the public and press have a
qualified right of access to judicial documents and records
filed in civil and criminal proceedings. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980);
Nixon, 435 U.S. at 597; Media Gen. Operations, Inc. v. Buchanan,
417 F.3d 424, 428 (4th Cir. 2005). The right of public access
springs from the First Amendment and the common-law tradition
that court proceedings are presumptively open to public
scrutiny. Va. Dep’t of State Police v. Wash. Post, 386 F.3d
36567, 575 (4th Cir. 2004). “The distinction between the rights
of access afforded by the common law and the First Amendment is
significant, because the common law does not afford as much
substantive protection to the interests of the press and the
public as does the First Amendment.” In re United States for an
Order Pursuant to 18 U.S.C. Section 2703, 707 F.3d 283, 290 (4th
Cir. 2013) (quoting Va. Dep’t of State Police, 386 F.3d at 575)
(internal quotation marks omitted). The common-law presumptive
right of access extends to all judicial documents and records,
and the presumption can be rebutted only by showing that
“countervailing interests heavily outweigh the public interests
in access.” Rushford, 846 F.2d at 253. By contrast, the First
Amendment secures a right of access “only to particular judicial
records and documents,” Stone, 855 F.2d at 180, and, when it
applies, access may be restricted only if closure is
“necessitated by a compelling government interest” and the
denial of access is “narrowly tailored to serve that interest,”
In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986) (quoting
Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510 (1984)
(internal quotation marks omitted)).
We have cautioned district courts that the right of public
access, whether arising under the First Amendment or the common
law, “may be abrogated only in unusual circumstances.” Stone,
855 F.2d at 182. As explained above, public access promotes not
37
only the public’s interest in monitoring the functioning of the
courts but also the integrity of the judiciary. See Columbus-
Am. Discovery Grp., 203 F.3d at 303. “Public access serves to
promote trustworthiness of the judicial process, to curb
judicial abuses, and to provide the public with a more complete
understanding of the judicial system, including a better
perception of fairness.” Littlejohn v. Bic Corp., 851 F.2d 673,
682 (3d Cir. 1988). As Judge Easterbrook, writing for the
Seventh Circuit, stated: “The political branches of government
claim legitimacy by election, judges by reason. Any step that
withdraws an element of the judicial process from public view
makes the ensuing decision look more like a fiat and requires
rigorous justification.” Hicklin Eng’g, L.C. v. Bartell, 439
F.3d 346, 348 (7th Cir. 2006).
With these principles in mind, we turn to Consumer Groups’
arguments on appeal.
A.
Consumer Groups argue that the First Amendment right of
access applies to all of the documents sealed by the district
court and that the court erred in determining that Company Doe
demonstrated a compelling interest that justified sealing the
materials. Company Doe counters that the First Amendment is
inapplicable to the materials filed before the district court
38
and, even if it does extend to some of the documents, Company
Doe has a compelling interest sufficient to defeat the First
Amendment presumptive right of access.
When presented with a sealing request, our right-of-access
jurisprudence requires that a district court first “determine
the source of the right of access with respect to each document,
because only then can it accurately weigh the competing
interests at stake.” Va. Dep’t of State Police, 386 F.3d at 576
(brackets omitted) (quoting Stone, 855 F.2d at 181 (internal
quotation marks omitted)). Although the district court ordered
that some of the materials be unsealed after Consumer Groups
noted their appeal, our review of the record reveals that the
following categories of documents remain sealed in their
entireties: (1) the pleadings and attachments thereto; (2) the
motions, related briefing, and exhibits supporting (i) Company
Doe’s motion for a preliminary injunction, (ii) the Commission’s
motion to dismiss, (iii) Company Doe’s motion to amend its
complaint, and (iv) the parties’ cross-motions for summary
judgment; and (3) the amended pleadings as well as numerous
other residual matters. None of these sealed documents appear
on the public docket. Further, in addition to these materials,
the district court released its memorandum opinion on the public
docket with redactions to virtually all of the facts, the
court’s analysis, and the evidence supporting its decision.
39
1.
We begin with the district court’s redactions to its
memorandum opinion as well as its wholesale sealing of the
parties’ summary judgment motions and accompanying materials.
We have squarely held that the First Amendment right of access
attaches to materials filed in connection with a summary
judgment motion. See Rushford, 846 F.2d at 252-53. Although we
have not addressed whether the First Amendment right of access
extends to a judicial opinion ruling on a summary judgment
motion, we have little difficulty in concluding that it does.
In In re Washington Post Co., we held that the right of
access under the First Amendment applied to documents filed in
connection with plea and sentencing hearings in criminal cases,
reasoning that the First Amendment right of access extends to
materials submitted in conjunction with judicial proceedings
that themselves would trigger the right to access. 807 F.2d at
390 (“Because we conclude that the more rigorous First Amendment
standard should apply in this context, we hold that the First
Amendment right of access applies to documents filed in
connection with plea hearings and sentencing hearings in
criminal cases, as well as to the hearings themselves.”). Our
decision in In re Washington Post Co. recognized the right of
access to documents as “a necessary corollary of the capacity to
attend the relevant proceedings.” Hartford Courant Co. v.
40
Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004). We reaffirmed our
commitment to this analytical approach in Rushford, by observing
that summary judgment is an adjudication that “serves as a
substitute for trial,” 846 F.2d at 252, and therefore, the First
Amendment right of access attaches to documents and materials
filed in connection with a summary judgment motion, see id. at
253.
The same logic dictates that the First Amendment right of
access extends to a judicial opinion ruling on a summary
judgment motion. The public has an interest in learning not
only the evidence and records filed in connection with summary
judgment proceedings but also the district court’s decision
ruling on a summary judgment motion and the grounds supporting
its decision. Without access to judicial opinions, public
oversight of the courts, including the processes and the
outcomes they produce, would be impossible. See Cox Broad.
Corp. v. Cohn, 420 U.S. 469, 492 (1975) (“[O]fficial records and
documents open to the public are the basic data of governmental
operations.”); Mueller v. Raemisch, 740 F.3d 1128, 1135-36 (7th
Cir. 2014) (“Secrecy makes it difficult for the public
(including the bar) to understand the grounds and motivations of
a decision, why the case was brought (and fought), and what
exactly was at stake in it.”); United States v. Mentzos, 462
F.3d 830, 843 n.4 (8th Cir. 2006) (denying motion to file
41
opinion under seal because “decisions of the court are a matter
of public record”); Union Oil Co. of Cal. v. Leavell, 220 F.3d
562, 568 (7th Cir. 2000) (“[I]t should go without saying that
the judge’s opinions and orders belong in the public domain.”);
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
(observing that public monitoring of the courts “is not possible
without access to . . . documents that are used in the
performance of Article III functions”). Indeed, it would be
anomalous to conclude that the First Amendment right of access
applies to materials that formed the basis of the district
court’s decision ruling on a summary judgment motion but not the
court’s opinion itself. We therefore hold that the First
Amendment right of access extends not only to the parties’
summary judgment motions and accompanying materials but also to
a judicial decision adjudicating a summary judgment motion.
2.
During the pendency of the underlying litigation, the
district court allowed the entire docket sheet to remain sealed
with the exception of Company Doe’s motion to seal. Although
the district court ultimately unsealed portions of the docket
sheet, numerous entries remain hidden from public view.
This Court has, in the criminal context, reversed the
sealing of docket sheets as overbroad and incompatible with the
42
First Amendment presumptive right of access. See In re State-
Record Co., 917 F.2d 124, 129 (4th Cir. 1990) (per curiam). In
doing so, we observed:
There are probably many motions and responses thereto
that contain no information prejudicial to defendant,
and we can not understand how the docket entry sheet
could be prejudicial. However, under the terms of the
orders entered in these cases, this information,
harmless as it may be, has also been withheld from the
public.
Id. Our skepticism toward wholesale sealing of docket sheets
was grounded in the commonsensical observation that most of the
information contained on a docket sheet is material that is
presumptively open to public inspection. The Eleventh Circuit
has squarely held that a district court’s maintenance of a
sealed docket sheet violates the public and press’s First
Amendment right of access to criminal proceedings, United States
v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993), and the Second
Circuit has extended the First Amendment right of public access
to docket sheets for civil proceedings, Hartford Courant Co.,
380 F.3d at 96; see also United States v. Mendoza, 698 F.3d
1303, 1307 (10th Cir. 2012) (noting that “dockets are generally
public documents” and collecting cases). We join the Second
Circuit and hold that the public and press’s First Amendment
qualified right of access to civil proceedings extends to docket
sheets.
43
The ability of the public and press to inspect docket
sheets is a critical component to providing meaningful access to
civil proceedings. The docket sheet provides onlookers an
overview of the court proceedings and allows them to ascertain
the parties to the case, the materials that have been filed, and
the trial judge’s decisions. See United States v. Ochoa-
Vasquez, 428 F.3d 1015, 1029 n.15 (11th Cir. 2005). Access to
docket sheets therefore enhances the appearance of fairness and
enlightens the public both to the procedures the district court
utilized to adjudicate the claims before it and to the materials
it relied upon in reaching its determinations. In this respect,
“docket sheets provide a kind of index to judicial proceedings
and documents, and endow the public and press with the capacity
to exercise their rights guaranteed by the First Amendment.”
Hartford Courant Co., 380 F.3d at 93.
By sealing the entire docket sheet during the pendency of
the litigation, as the district court permitted in this case,
courts effectively shut out the public and the press from
exercising their constitutional and common-law right of access
to civil proceedings. But there is a more repugnant aspect to
depriving the public and press access to docket sheets: no one
can challenge closure of a document or proceeding that is itself
a secret. Indeed, in this case Consumer Groups were able to
challenge the sealing of only those categories of documents they
44
were able to glean from the district court’s heavily redacted
memorandum opinion. Because access to docket sheets is integral
to providing meaningful access to civil proceedings, we hold
that the public and press enjoy a presumptive right to inspect
docket sheets in civil cases under the First Amendment.
B.
Having concluded that the public enjoys a qualified right
of access under the First Amendment to the district court’s
memorandum opinion ruling on the parties’ cross-motions for
summary judgment, the materials the district court relied upon
in adjudicating the summary judgment motions, and the docket
sheet, we next must determine whether a compelling governmental
interest negates the public’s presumptive right of access to
these documents. Because the First Amendment guarantees the
right of access to these documents, our review of the district
court’s sealing decision is de novo. ACLU v. Holder, 673 F.3d
245, 251 (4th Cir. 2011).
The district court identified three interests that it found
sufficiently compelling to defeat the First Amendment right of
access: (1) Company Doe’s interest in “preserving its
reputational and fiscal health”; (2) Company Doe’s interest in
ensuring the efficacy of the injunctive relief awarded by the
45
district court; and (3) Company Doe’s First Amendment right to
petition the courts. We address each in turn.
1.
The district court surmised that disclosure of the
materially inaccurate report of harm and any facts that would
allow the public to link the report to Company Doe would risk
injury to Company Doe’s economic and reputational interests.
The court then concluded that Company Doe’s interest in
“preserving its reputational and fiscal health” outweighed the
public’s First Amendment right of access.
A corporation very well may desire that the allegations
lodged against it in the course of litigation be kept from
public view to protect its corporate image, but the First
Amendment right of access does not yield to such an interest.
The interests that courts have found sufficiently compelling to
justify closure under the First Amendment include a defendant’s
right to a fair trial before an impartial jury, Press-Enter.,
Co., 464 U.S. at 510; protecting the privacy rights of trial
participants such as victims or witnesses, Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 607-08 (1982); and risks to
national security, United States v. Aref, 533 F.3d 72, 83 (2d
Cir. 2008); Detroit Free Press v. Ashcroft, 303 F.3d 681, 705
(6th Cir. 2002). Adjudicating claims that carry the potential
46
for embarrassing or injurious revelations about a corporation’s
image, by contrast, are part of the day-to-day operations of
federal courts. But whether in the context of products
liability claims, securities litigation, employment matters, or
consumer fraud cases, the public and press enjoy a presumptive
right of access to civil proceedings and documents filed
therein, notwithstanding the negative publicity those documents
may shower upon a company. A corporation may possess a strong
interest in preserving the confidentiality of its proprietary
and trade-secret information, which in turn may justify partial
sealing of court records. See Nixon, 435 U.S. at 598. We are
unaware, however, of any case in which a court has found a
company’s bare allegation of reputational harm to be a
compelling interest sufficient to defeat the public’s First
Amendment right of access. Conversely, every case we have
located has reached the opposite result under the less demanding
common-law standard. See, e.g., Procter & Gamble Co. v. Bankers
Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (“commercial self-
interest” does not to qualify as a legitimate ground for keeping
documents under seal); Republic of Philippines v. Westinghouse
Elec. Corp., 949 F.2d 653, 663 (3d Cir. 1991) (harm to a
“company’s public image” alone cannot rebut the common-law
presumption of access); Cent. Nat’l Bank of Mattoon v. U.S.
Dep’t of Treasury, 912 F.2d 897, 900 (7th Cir. 1990)
47
(information that “may impair [a corporation’s] standing with
its customers” insufficient to justify closure); Littlejohn, 851
F.2d at 685 (a corporation’s “desire to preserve corporate
reputation” is insufficient overcome common-law right of
access); Wilson v. Am. Motors Corp., 759 F.2d 1568, 1570-71
(11th Cir. 1985) (per curiam) (“harm [to] the company’s
reputation” is insufficient to outweigh common-law right of
access).
In any event, it is unclear from the district court’s
memorandum opinion what, if any, evidence the district court
relied upon to conclude that dissemination of the report of harm
would injure Company Doe’s reputational and pecuniary interests.
The district court made no specific findings explaining how the
information sealed in this case would harm Company Doe’s
reputation, and Company Doe does not point us to any evidence
that buttresses the district court’s conclusion. After scouring
the record on appeal, we find no credible evidence to support
Company Doe’s fear that disclosure of the challenged report of
harm and the facts of this case would subject it to reputational
or economic injury, particularly in light of the fact that the
district court’s entry of judgment in favor of Company Doe
vindicated the company and its product. This Court has never
permitted wholesale sealing of documents based upon
unsubstantiated or speculative claims of harm, let alone harm to
48
a company’s reputation. Cf. Joy v. North, 692 F.2d 880, 894 (2d
Cir. 1982) (“[A] naked conclusory statement that publication of
the Report will injure the bank in the industry and local
community falls woefully short of the kind of showing which
raises even an arguable issue as to whether it may be kept under
seal.”). An unsupported claim of reputational harm falls short
of a compelling interest sufficient to overcome the strong First
Amendment presumptive right of public access. The district
court erred by concluding otherwise.
2.
We also must reject the district court’s conclusion that
sealing was justified to safeguard the statutory right Company
Doe sought to vindicate by bringing the underlying action. The
district court believed that blanket sealing of the summary
judgment materials and sweeping redactions to its opinion were
warranted so that Company Doe would not forfeit the statutory
relief it obtained after successfully showing that the report of
harm was materially inaccurate and should not, under the CPSIA,
be published.
The relief Company Doe secured by prevailing on its claims
was the right to keep the challenged report of harm removed from
the online database. That remedy is distinct from the right to
litigate its claims in secret and to keep all meaningful facts
49
about the litigation forever concealed from public view.
Neither the CPSIA nor the Administrative Procedure Act confers
upon district courts carte blanche to conduct secret
proceedings, and, more importantly, the Constitution forbids it.
The district court’s sealing determination seems to be
rooted in a concern that the public would be unable to
appreciate the court’s determination that the information
contained in the challenged report of harm was materially
inaccurate and failed to relate to Company Doe’s product. The
court’s apprehension over the ramifications of disclosing the
facts germane to this case cannot be squared with the principles
of public discourse that underlie the First Amendment. As the
Supreme Court long ago recognized, “erroneous statement is
inevitable in free debate, and . . . it must be protected if the
freedoms of expression are to . . . survive.” N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 271-72 (1964).
We are not blind to the fact that a corporation’s image or
reputation may diminish by being embroiled in litigation against
the government over the safety of one of its products. That is
the nature of public litigation. When parties “call on the
courts, they must accept the openness that goes with subsidized
dispute resolution by public (and publicly accountable)
officials.” Union Oil Co. of Cal., 220 F.3d at 568. The
district court therefore erred in concluding that sealing was
50
justified to protect the rights that Company Doe sought to
vindicate by bringing its suit.
3.
For reasons substantially similar to those we have
identified above, we cannot accept the district court’s
contention that allowing public access to a manufacturer’s legal
challenge to the inclusion of a report of harm in the
Commission’s database would impermissibly impinge upon the
manufacturer’s First Amendment right to petition the courts.
Company Doe posits that, if pre-publication challenges to the
Commission’s online database could not be litigated without
disclosing the very information the Commission seeks to publish,
no manufacturer would challenge the inclusion of a report of
harm in the database and risk more exposure to the challenged
report through litigation.
Company Doe’s argument contorts the First Amendment right
to petition federal courts for redress of grievances and, if
embraced, would allow any company that challenged the inclusion
of a report in the Commission’s database to litigate its claims
behind closed doors. The First Amendment right to petition the
government secures meaningful access to federal courts. See
Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 741 (1983).
It does not provide for a right to petition the courts in
51
secret. In this case, Company Doe was not denied meaningful
access to the courts: it litigated its claims and obtained the
relief it was entitled to under the Administrative Procedure
Act.
C.
The sealed documents in this case implicate public concerns
that are at the core of the interests protected by the right of
access: “the citizen’s desire to keep a watchful eye on the
workings of public agencies . . . [and] the operation of the
government.” Nixon, 435 U.S. at 598. The interest of the
public and press in access to civil proceedings is at its apex
when the government is a party to the litigation. Indeed, the
public has a strong interest in monitoring not only functions of
the courts but also the positions that its elected officials and
government agencies take in litigation. See Fed. Trade Comm’n
v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)
(“The appropriateness of making court files accessible is
accentuated in cases where the government is a party: in such
circumstances, the public’s right to know what the executive
branch is about coalesces with the concomitant right of the
citizenry to appraise the judicial branch.”). In this case, the
heightened public interest in disclosure is underscored by the
fact that this legal action marked the first challenge to the
52
accuracy of material sought to be posted on the Commission’s
database.
The burden rested with Company Doe to articulate a
compelling interest that outweighs the strong presumption of
public access. Measured against the heightened public interests
presented in this case, Company Doe has failed to demonstrate
any interest sufficient to defeat the public’s First Amendment
right of access and to justify continued sealing. The district
court’s sealing order therefore must be reversed. Our
determination to unseal the district court’s memorandum opinion
and the materials related to the parties’ motions for summary
judgment will bring to light the underlying facts, the
information contained in the report of harm, and the evidence
the district court relied upon in its adjudication of the
claims. It follows that Company Doe would have no
countervailing interest that would justify continuing to keep
the remaining documents sealed. Accordingly, we instruct the
district court to unseal the case in its entirety on remand.
D.
Before proceeding to Consumer Groups’ challenge of the
district court’s pseudonymity ruling, we pause to address a
final issue relating to the district court’s sealing order.
When presented with a motion to seal, the law in this Circuit
53
requires a judicial officer to comply with the following
procedural requirements: (1) provide public notice of the
sealing request and a reasonable opportunity for the public to
voice objections to the motion; (2) consider less drastic
alternatives to closure; and (3) if it determines that full
access is not necessary, it must state its reasons—with specific
findings—supporting closure and its rejections of less drastic
alternatives. In re Knight Pub. Co., 743 F.2d at 234-35.
Consumer Groups do not quarrel with the district court’s
adherence to the procedures mandated by In re Knight Publishing
Co. However, Consumer Groups and their supporting amici
complain that the district court erred by failing to rule on the
sealing motion for nine months, thereby allowing the case to
remain under temporary seal pursuant to the district court’s
local rules.
The public’s interest in monitoring the work of the courts
is subverted when a court delays making a determination on a
sealing request while allowing litigation to proceed to judgment
in secret. Indeed, this Court has rejected pleas by litigants
that the public right of access can be accommodated “by
releasing the information after [the] trial has concluded, when
all danger of prejudice will be past,” reasoning that “the value
of openness . . . is threatened whenever immediate access to
ongoing proceedings is denied, whatever provision is made for
54
later public disclosure.” In re Application & Affidavit for a
Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991) (quoting In re
Charlotte Observer, 882 F.2d 850, 856 (4th Cir. 1989)) (internal
quotation marks omitted). Because the public benefits attendant
with open proceedings are compromised by delayed disclosure of
documents, we take this opportunity to underscore the caution of
our precedent and emphasize that the public and press generally
have a contemporaneous right of access to court documents and
proceedings when the right applies. “Each passing day may
constitute a separate and cognizable infringement of the First
Amendment.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,
24 F.3d 893, 897 (7th Cir. 1994) (brackets omitted) (quoting
Neb. Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (Blackmun,
Circuit Justice, 1975)). A district court therefore must make
on-the-record findings required by In re Knight Publishing and
act on a sealing request as expeditiously as possible.
Because the district court allowed Company Doe’s motion to
seal to remain pending for nine months while it adjudicated the
merits of Company Doe’s claims, neither the public nor the press
was able to monitor the progress of the litigation as it
unfolded. The district court’s nine-month delay in ruling on
the sealing motion ostensibly was based upon its belief that the
merits of Company Doe’s claims were “inextricably intertwined”
with the issues of sealing. But the public right of access
55
under the First Amendment and common law is not conditioned upon
whether a litigant wins or loses. The district court erred by
failing to act expeditiously on the sealing motion.
IV.
Last, Consumer Groups challenge the district court’s
decision permitting Company Doe to litigate under a pseudonym.
We review a district court’s pseudonymity decision under an
abuse-of-discretion standard. James v. Jacobson, 6 F.3d 233,
239 (4th Cir. 1993).
The Federal Rules of Civil Procedure require that the
identities of the parties to a case be disclosed. See Fed. R.
Civ. P. 10(a) (“The title of the complaint must name all the
parties . . . .”). This Court has recognized that in
exceptional circumstances, compelling concerns relating to
personal privacy or confidentiality may warrant some degree of
anonymity in judicial proceedings, including use of a pseudonym.
See Jacobson, 6 F.3d at 238. In Jacobson, we identified the
following nonexclusive factors for district courts to consider
when determining whether a party should be permitted to litigate
pseudonymously:
Whether the justification asserted by the requesting
party is merely to avoid the annoyance and criticism
that may attend any litigation or is to preserve
privacy in a matter of sensitive and highly personal
nature; whether identification poses a risk of
56
retaliatory physical or mental harm to the requesting
party or even more critically, to innocent non-
parties; the ages of the person whose privacy
interests are sought to be protected; whether the
action is against a governmental or private party;
and, relatedly, the risk of unfairness to the opposing
party from allowing an action against it to proceed
anonymously.
Id. We emphasized, however, that proceeding by pseudonym is a
“rare dispensation.” Id.The district court’s pseudonymity determination rested upon
two of the Jacobson factors: (1) the prejudice that precluding
Company Doe from proceeding pseudonymously likely would produce
and (2) the risk of unfairness to the Commission in allowing the
action to proceed anonymously. It found that both factors
weighed in favor of allowing Company Doe to litigate its claims
under a pseudonym, explaining that Company Doe initiated the
underlying suit to prevent disclosure of its identity;
disclosing Company Doe’s identity would cause harm to the
company; and the Commission would not be prejudiced by allowing
Company Doe to litigate its claims pseudonymously.
Pseudonymous litigation undermines the public’s right of
access to judicial proceedings. The public has an interest in
knowing the names of the litigants, see Coe v. Cnty. of Cook,
162 F.3d 491, 498 (7th Cir. 1998), and disclosing the parties’
identities furthers openness of judicial proceedings, see
Jacobson, 6 F.3d at 238. It is unsurprising, then, that many of
57
our sister circuits have adopted an approach for pseudonymity
requests that balances a litigant’s stated need for anonymity
against the public’s countervailing interests in full disclosure
and openness. See, e.g., Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 189 (2d Cir. 2008) (holding that “the plaintiff’s
interest in anonymity must be balanced against both the public
interest in disclosure and any prejudice to the defendant”); Doe
v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) (framing pseudonym
issue by asking “whether a plaintiff’s privacy interests
substantially outweigh the presumption of open judicial
proceedings”); Roe v. Aware Woman Ctr. for Choice, Inc., 253
F.3d 678, 685 (11th Cir. 2001) (explaining that the “ultimate
test for permitting a plaintiff to proceed anonymously is
whether the plaintiff has a substantial privacy right which
outweighs the customary and constitutionally-embedded
presumption of openness in judicial proceedings”); Does I Thru
XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.
2000) (holding that “a party may preserve his or her anonymity
in judicial proceedings in special circumstances when the
party’s need for anonymity outweighs prejudice to the opposing
party and the public’s interest in knowing the party’s
identity”); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998)
(adopting a test that “weigh[s] the plaintiff’s claimed right to
privacy against the countervailing public interest in [open
58
proceedings]”). We agree that the public’s interest in open
proceedings must inform a district court’s pseudonymity
calculus. We therefore hold that, when a party seeks to
litigate under a pseudonym, a district court has an independent
obligation to ensure that extraordinary circumstances support
such a request by balancing the party’s stated interest in
anonymity against the public’s interest in openness and any
prejudice that anonymity would pose to the opposing party.
With due respect for the discretion we afford to the
district court’s ability to balance the relevant Jacobson
factors in weighing the competing interests at stake, we
conclude that the court abused its discretion in permitting
Company Doe to litigate under a pseudonym. In allowing Company
Doe to proceed anonymously, the district court gave no explicit
consideration to the public’s interest in open judicial
proceedings. As we have explained, the public interest in the
underlying litigation is especially compelling given that
Company Doe sued a federal agency. See Doe v. Megless, 654 F.3d
404, 411 (3d Cir. 2011) (explaining that public’s interest in
disclosure of plaintiff’s identity was “heightened” because
defendants were “public officials and government bodies”
(citation omitted) (internal quotation marks omitted)); Femedeer
v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (noting that “the
public has an important interest in access to legal proceedings,
59
particularly those attacking . . . properly enacted
legislation”). Further, unlike cases in which courts granted
pseudonymity to protect “privacy or confidentiality concerns,”
Jacobson, 6 F.3d at 238, courts consistently have rejected
anonymity requests to prevent speculative and unsubstantiated
claims of harm to a company’s reputational or economic
interests, see, e.g., Nat’l Commodity & Barter Ass’n v. Gibbs,
886 F.2d 1240, 1245 (10th Cir. 1989) (per curiam) (explaining
that pseudonymity “has not been permitted when only the
plaintiff’s economic or professional concerns are involved” and
collecting cases). Although the use of a fictitious name has
been permitted in cases involving the disclosure of confidential
information, Company Doe has made no showing that such interests
were implicated in this case. Instead, Company Doe commenced
this action to challenge the Commission’s decision to publish a
report pertaining to one of Company Doe’s products in the
Commission’s online database. We have explained that use of a
pseudonym “merely to avoid the annoyance and criticism that may
attend . . . litigation” is impermissible. Jacobson, 6 F.3d at
238. Because Company Doe has failed to identify any exceptional
circumstances that justify the use of a pseudonym in these
proceedings, we hold that the district court abused its
discretion in allowing Company Doe to litigate pseudonymously.
60
V.
To recapitulate, we hold that Consumer Groups’ notice of
appeal deprived the district court of jurisdiction to entertain
Consumer Groups’ motion to intervene. Accordingly, we vacate
the district court’s order denying intervention on the merits.
We further conclude that Consumer Groups meet the requirements
for nonparty appellate standing and have Article III standing to
seek appellate review of the district court’s sealing and
pseudonymity orders. Thus, we deny Company Doe’s motion to
dismiss Consumer Groups’ appeal. Finally, we hold that the
district court’s sealing order violated the public’s right of
access under the First Amendment and that the court abused its
discretion in allowing Company Doe to proceed under a pseudonym.
We therefore reverse the district court’s sealing and
pseudonymity orders and remand the case with instructions for
the district court to unseal the record in its entirety.
VACATED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
61
HAMILTON, Senior Circuit Judge, concurring in the judgment:
To seal the court record below, as the district court did,
the relevant First Amendment jurisprudence required Company Doe
to establish, at a minimum, that a compelling governmental
interest would be furthered by granting the motion to seal.
Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th
Cir. 1988). Regrettably, Company Doe simply failed to meet this
burden, and, for this reason, I am constrained, with
reservations, to concur in the judgment. I also vote to deny
Company Doe’s motion to dismiss this appeal.
The able and conscientious district judge in this case
faced a difficult task: deciding whether Company Doe’s interest
in sealing the bulk of the court record overcame the First
Amendment interests of the Consumer Product Safety Commission
(the Commission), its then chairwoman Inez Tenenbaum in her
official capacity (Chairwoman Tenenbaum), and three consumer
advocacy groups--Public Citizen, Consumer Federation of America,
and Consumers’ Union (collectively the Consumer Groups). The
district court believed that sealing the bulk of the record in
this case from public consumption preserved, in large measure,
the efficacy of the injunctive relief the district court granted
Company Doe on the merits of its action against the Commission
and Chairwoman Tenenbaum. The district court also understood
Company Doe’s interest in preserving its sound reputation and
62
fiscal health as well as its interest in availing itself of its
First Amendment right to petition the courts for redress.
The district court’s reasoning founders for the simple
reason that it misunderstood the quantum of evidence necessary
to trump the First Amendment rights of, for example, the
Consumer Groups. Had Company Doe supported its motion to seal
with expert testimony establishing a high likelihood that
denying its motion to seal would cause it to suffer substantial
and irreparable economic harm, the disposition of the present
appeal, in my view, would be completely different.
To be sure, the equities here lie with Company Doe. Common
sense tells us that some harm will befall Company Doe by the
publication of the false and misleading reports at issue in this
case. In the electronically viral world that we live in today,
one can easily imagine how such publications could be
catastrophic to Company Doe’s fiscal health, allowing it never
to recover. In such a world, to say that the free flow of ideas
will save Company Doe is naive--the game often will be over
before it begins. Understandably, the district court was very
concerned about the impact these publications would have on
Company Doe, both from an economic and overall survival
standpoint. However, the First Amendment jurisprudence requires
more than a common sense feeling about what harm may befall
Company Doe. It requires concrete proof of a high likelihood of
63
substantial and irreparable economic harm. Because Company Doe
failed to present such concrete proof to the district court, we
are left only with a common sense feeling of what may occur,
which simply is not enough to support the sealing of a record.
Without a doubt, the district court’s heart was in the right
place, and it is regrettable that the majority opinion
acknowledges neither the difficult task confronted by the
district court, nor the care and genuine concern displayed by
such court in ruling on the motion to seal.
64