Callahan v. United Network for Organ Sharing

• Decision Date: 17 November 2021
• Docket Number: No. 20-13932,20-13932
• Citation: 17 F.4th 1356
• Parties: Randall CALLAHAN, Katryna Grisson, Candice Seaman, Michael Wingate, Emory University, d.b.a. Emory University Hospital, Henry Ford Health System, Indiana University Health, Oregon Health & Science University, Piedmont Healthcare, the Rector and Visitors of the University of Virginia, on behalf of its Medical Center, The Regents of the University of Michigan, on behalf of its academic medical center, Michigan Medicine, Saint Luke's Hospital of Kansas City, University of Iowa, University of Kansas Hospital Authority, a body politic and corporate and an independent instrumentality of the State of Kansas, University of Kentucky, Vanderbilt University Medical Center, Virginia Commonwealth University Health System Authority, the Washington University, Barnes-Jewish Hospital, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

17 F.4th 1356

Randall CALLAHAN, Katryna Grisson, Candice Seaman, Michael Wingate, Emory University, d.b.a. Emory University Hospital, Henry Ford Health System, Indiana University Health, Oregon Health & Science University, Piedmont Healthcare, the Rector and Visitors of the University of Virginia, on behalf of its Medical Center, The Regents of the University of Michigan, on behalf of its academic medical center, Michigan Medicine, Saint Luke's Hospital of Kansas City, University of Iowa, University of Kansas Hospital Authority, a body politic and corporate and an independent instrumentality of the State of Kansas, University of Kentucky, Vanderbilt University Medical Center, Virginia Commonwealth University Health System Authority, the Washington University, Barnes-Jewish Hospital, et al., Plaintiffs-Appellees,

v.UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant.

No. 20-13932

United States Court of Appeals, Eleventh Circuit.

Filed: November 17, 2021

Peter Canfield, Jones Day, Atlanta, GA, Jacob Roth, John M. Majoras, Jones Day, Washington, DC, Courtney A. Carrell, Jones Day, Dallas, TX, Glenn Lorin Krinsky, Jones Day, Los Angeles, CA, William Roquemore Taylor, Blank Rome LLP, Houston, TX, for Plaintiff-Appellee Randall Callahan.

Peter Canfield, Jones Day, Atlanta, GA, Courtney A. Carrell, Jones Day, Dallas, TX, Glenn Lorin Krinsky, Jones Day, Los Angeles, CA, John M. Majoras, Jones Day, Washington, DC, William Roquemore Taylor, Blank Rome LLP, Houston, TX, for Plaintiffs - Appellees Katryna Grisson, Candice Seaman, Michael Wingate, Emory University, Henry Ford Health System, Indiana University Health, Oregon Health & Science University, Piedmont Healthcare, The Rector and Visitors of the University of Virginia, The Regents of the University of Michigan, Saint Luke's Hospital of Kansas City, University of Iowa, University of Kansas Hospital Authority, University of Kentucky, Vanderbilt University Medical Center, Virginia Commonwealth University Health System Authority, The Washington University, Barnes-Jewish Hospital.

Linda T. Coberly, Sean H. Suber, Thomas G. Weber, Winston & Strawn, LLP, Chicago, IL, Sara Anderson Frey, Gordon Rees Scully Mansukhani, LLP, Philadelphia, PA, Lauren Gailey, Winston & Strawn, LLP, Washington, DC, Kimberly C. Sheridan, Gordon Rees Scully Mansukhani, LLP, Atlanta, GA, for Defendant-Appellant.

KatieLynn Boyd Townsend, Reporters Committee for Freedom of the Press, for Amicus Curiae Washington, DC, Reporters Committee for Freedom of the Press.

Before Branch, Grant, and Julie Carnes, Circuit Judges.

Grant, Circuit Judge:

Judicial records are open to the public, and for good reason—access to judicial proceedings is crucial to our tradition and history, as well as to continued public confidence in our system of justice. This Circuit has been resolute in our enforcement of that presumption of public access.

The appellants here, preferring to avoid the release of embarrassing internal communications that were attached to briefing in the district court, seek to persuade us that we should weaken our rule. They urge us to evaluate the functional purpose of the documents at issue rather than their categorical status as judicial records. Our precedents, however, permit no such shift. The documents here are plainly judicial records and the appellants have not shown good cause to keep them sealed. We affirm.

I.

Organ donation saves lives—but whose? To ensure a uniform national policy answering this question, Congress enacted the National Organ Transplant Act, which authorizes a partnership between the federal government and private professionals involved in organ donation. 42 U.S.C. §§ 273 – 274g. For the past thirty-five years, the United Network for Organ Sharing has overseen that partnership through a contract with the United States Department of Health and Human Services. In this unique role, UNOS works with the organ transplant community to generate policies that will equitably allocate organs among potential recipients.

About three years ago, UNOS developed and approved a new liver allocation policy that changed the geographic parameters guiding which patients received donated organs. UNOS says the policy is intended to provide more liver transplants to the patients in greatest need, even if they are farther away from donors. Its opponents say the policy will result in fewer transplants, especially in socioeconomically disadvantaged areas.

No matter which side has the better of the argument, every rule change has winners and losers. And the new organ transplant policy meant a shift in who would receive donated organs—ultimately, a change in which patients would live and which patients would die. Hospitals and patients who were on the losing end of that equation did not accept it quietly. A few months after the new liver policy was approved, they sued UNOS and HHS, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The hospitals also sought preliminary injunctive relief, which the district court denied based on its review of one of the APA claims. On interlocutory appeal, this Court affirmed that denial. Callahan v. U.S. Dep't of Health & Hum. Servs. , 939 F.3d 1251, 1257, 1266 (11th Cir. 2019). We then remanded the case for the district court to consider the remaining claims. Id. at 1266.

The district court ordered limited discovery on remand, but UNOS repeatedly failed to live up to its production obligations. Indeed, it took two specific and successive orders from the court before UNOS produced requested communications between its top-level personnel and outside policymakers. These documents included, among other things, several unguarded emails expressing personal opinions about the relative merits of living in different regions of the United States.

After the documents were finally produced, the district court allowed the hospitals to file a ten-page follow-up brief in support of their request for a preliminary injunction. The hospitals argued that the new documents exposed "bad faith and improper behavior" in UNOS's policymaking process and should be considered as proof that the policy change was arbitrary, capricious, and the result of a denial of due process. Pending its own review, the court put both the supplemental briefing and attached documents under provisional seal, restricting them to "parties and Court users only."

The district court ultimately excluded the documents from the administrative record for the APA claim against HHS because it concluded that even if the documents showed bad faith on the part of UNOS, they did not do so for HHS. Callahan v. U.S. Dep't of Health & Hum. Servs. , 434 F. Supp. 3d 1319, 1356 (N.D. Ga. 2020). The court went on to deny the preliminary injunction, but emphasized that the documents were "still part of [the] Court's record" and could potentially inform judicial inquiry into the remaining issues in the case. Id. at 1356, 1373. The court also noted that the documents included "colorable evidence of animosity and even some measure of regional bias"—what it characterized in a later order as "inadvisable ‘hot takes,’ " "inflammatory remarks," and "clear preferences for policy outcomes." Id. at 1363.

Following the district court's ruling, the hospitals moved to unseal the supplemental briefs with the appended documents. The district court granted the motion, concluding that the documents were judicial records and that UNOS had not shown good cause to seal them. UNOS now appeals.

II.

"Whether a document is a ‘judicial record’ subject to the common law right of access is a question of law we review de novo." Comm'r, Alabama Dep't of Corr. v. Advance Loc. Media, LLC , 918 F.3d 1161, 1165 (11th Cir. 2019). But we review a district court's decision about whether to unseal documents for abuse of discretion. Id. A district court abuses its discretion when it "applies an incorrect legal standard," "follows improper procedures in making the determination," "makes findings of fact that are clearly erroneous," or "commits a clear error of judgment." United States v. Harris , 989 F.3d 908, 911–12 (11th Cir. 2021) (quotation omitted).

III.

We first need to consider whether we have jurisdiction; we cannot reach the merits of UNOS's interlocutory appeal if not. Hall v. Flournoy , 975 F.3d 1269, 1274 (11th Cir. 2020). Circuit courts generally have appellate jurisdiction to review only "final decisions of the district courts"—that is, decisions that resolve all litigation on the merits and leave "nothing for the court to do but execute the judgment." 28 U.S.C. § 1291 ; Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (quotation omitted). This limitation preserves the independence and authority of the district courts, reduces vexatious litigation, and promotes judicial efficiency. See Firestone Tire , 449 U.S. at 374, 101 S.Ct. 669.

But the rule is not ironclad. Under the collateral order doctrine, we may review decisions of issues apart from—"collateral to"—the merits of a case when effective review would be impossible after a final decision on the merits. Hall , 975 F.3d at 1274. For the collateral order doctrine to apply, a decision must "(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." Id. (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ). We have previously held that orders granting motions to seal and orders denying motions to unseal pass this test and are thus "appealable as collateral to the underlying action." Romero v. Drummond Co., Inc. , 480 F.3d 1234, 1242 (11th Cir. 2007). But the order on appeal here is different. It is an order granting a motion to unseal, and we have never ruled on whether that kind of decision is reviewable...