E.E.O.C. v. National Children's Center, Inc.

• Decision Date: 17 July 1998
• Docket Number: No. 97-5209,97-5209
• Citation: 146 F.3d 1042
• Parties: , 41 Fed.R.Serv.3d 231 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. NATIONAL CHILDREN'S CENTER, INC., Appellee. Lillie Grier, Individually and as Mother and Next Friend of Linita Grier, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1042

146 F.3d 1042

331 U.S.App.D.C. 101, 41 Fed.R.Serv.3d 231

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. NATIONAL CHILDREN'S CENTER, INC., Appellee.

Lillie Grier, Individually and as Mother and Next Friend of

Linita Grier, Appellant

No. 97-5209.

United States Court of Appeals, District of Columbia Circuit.

Argued May 4, 1998.

Decided July 17, 1998.

Appeal from the United States District Court for the District of Columbia (No. 94cv00642).

Melissa Rhea argued the cause for appellant. James W. Taglieri was on the brief.

Alan D. Titus argued the cause for appellees. H. Alan Young, Thomas L. McCally and William J. Carter were on the brief.

Before: EDWARDS, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.

SENTELLE, Circuit Judge:

Lillie Grier appeals from the district court's denial of her motion to intervene for the limited purpose of obtaining access to documents under seal and to depositions covered by a protective order. We conclude that the district court abused its discretion in denying the motion, and accordingly vacate and remand.

I.

On March 10, 1995, Grier filed suit in the Superior Court of the District of Columbia against the National Children's Center ("NCC" or "Center"), Steve Austin (a bus driver employed by NCC), and the District of Columbia. The complaint stemmed from an alleged sexual assault of Grier's blind and mentally handicapped daughter, who received care at the Center. Grier alleged that Austin, when he was supposed to be driving the younger Grier to her home, sexually assaulted her while she was in the supervision of the Center on July 24, 1994. Grier sought recovery from the defendants based on claims of assault, battery, negligence, and intentional infliction of emotional distress.

Upon agreement of all parties, the District was dismissed as a party shortly after the filing of the complaint. Following discovery, the Superior Court granted NCC's motion for summary judgment, concluding that Grier had failed to offer any evidence that Austin had acted within the scope of employment.

A few months later, we issued our decision in EEOC v. National Children's Center, Inc., 98 F.3d 1406 (D.C.Cir.1996) ("NCC "). The underlying suit was a Title VII action brought against NCC in response to allegations of sexual harassment, including both quid pro quo and hostile work environment. After the filing of EEOC's action, two employees of the Center intervened as plaintiffs and alleged violations of Title VII and state law. The parties eventually settled all suits, and a consent decree was entered in the EEOC action. Over the Commission's objection, the district court sealed the consent decree and portions of the record, and also issued a protective order that prohibited the use of the depositions taken in the case. Upon review, we reversed the district court's order sealing the consent decree, and remanded the case so that the district court could explain both its decision to seal portions of the record and its decision to issue a protective order as to the depositions. Specifically, we required the district court to articulate its reasons for sealing the record in light of the six factors delineated in United States v. Hubbard, 650 F.2d 293 (D.C.Cir.1980), and to consider whether "good cause" existed for issuance of a protective order as explained in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

After becoming aware of our ruling while reading The Daily Washington Law Reporter, Grier suspected that there might be additional information as to whether NCC knew or should have known about the misconduct of its employees. Grier searched through portions of the record not covered by the district court's order, and discovered that Ron Austin, NCC's Transportation Director and the brother of Steve Austin, had been the subject of a number of sexual harassment complaints in connection with his work at NCC. Grier also learned that three former employees had filed sexual harassment claims of their own against NCC. Based on this new information, Grier filed a motion with the Superior Court to vacate the order of summary judgment. The court granted the motion, observing that it appeared from the motion and the attachments that NCC "may have been aware of complaints about Defendant Steve Austin prior to the filing of the instant action."

Before responding to our decision, the district court ruled on a motion to intervene filed by the three women who had brought sexual harassment claims against NCC. The movants sought access to the sealed documents and to the depositions covered by the protective order in NCC. The court first granted their motion to intervene, observing that "[i]ntervention is the proper vehicle by which third parties should seek to alter protective orders and obtain access to sealed documents even after a case is over...." The court then ruled that they should have access to the documents and depositions, subject to a protective order that restricted their use and prohibited their public dissemination. The court explained that the movants were "pursuing nearly identical litigation against the same defendant in this Court and have a significant interest in obtaining access to the documents in the instant case." Granting access to the materials, the court added, would "serve[ ] the interests of justice as well as judicial economy, since plaintiff-intervenors might reasonably seek to re-depose the participants in this case if they were denied access."

Upon remand, the district court decided that a majority of the Hubbard factors weighed in favor of keeping the documents under seal, except for three exhibits that it decided to release. The court also found that good cause existed for issuing the protective order, reasoning that the release of untested allegations of wrongdoing would serve no useful purpose and would invade the personal privacy of the individuals who were involved. Neither the EEOC nor NCC appealed the court's order.

Shortly thereafter, Grier filed a motion with the district court to intervene in NCC. Like the three movants who had successfully intervened before her, Grier sought intervention so that she could obtain access to the documents under seal and to the depositions covered by the protective order. The district court denied her motion without explanation.

Grier filed a timely notice of appeal.

II.

Third parties who seek to intervene in an action in federal court must proceed according to Rule 24 of the Federal Rules of Civil Procedure. Rule 24 outlines two different avenues by which a court can allow an outsider to intervene--intervention of right, and permissive intervention. Fed.R.Civ.P. 24. This case involves only a motion for permissive intervention, as Grier has never asserted that she had a right to intervene in theNCC action.

Before addressing the issue of whether the district court should have granted Grier's particular motion to intervene, we pause to address the anterior question of whether intervention is a procedurally appropriate course for third-party challenges to confidentiality orders.

A.

Rule 24(b) sets the basic parameters for permissive intervention: "Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common." Fed.R.Civ.P. 24(b). When "exercising its discretion," the district court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id.

On its face, Rule 24(b) would appear to be a questionable procedural basis for a third-party challenge to a confidentiality order. Absent a statutory basis for intervention, Rule 24(b) requires that the would-be intervenor advance a "claim or defense" that shares a common question with the claims of the original parties, with the apparent goal of disposing of related controversies together. See Diamond v. Charles, 476 U.S. 54, 76, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (O'Connor, J., concurring) ("The words 'claim or defense' manifestly refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or impending law suit ...."); see also Security Insurance Co. v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir.1995) ("Perhaps the most obvious benefits of intervention in general are the efficiency and consistency that result from resolving related issues in a single proceeding."). Rule 24(c), which establishes the procedure for intervention, similarly requires the movant to "serve a motion to intervene upon the parties," and to include "a pleading setting forth the claim or defense for which intervention is sought." Fed.R.Civ.P. 24(c). This language appears to limit permissive intervention to circumstances in which the putative intervenor seeks to become involved in an action in order to litigate a legal claim or defense on the merits. Intervenors such as Grier, however, do not seem to fit within these parameters. Grier does not seek to resolve an issue on the merits that is in common with the claims of parties to the main action, but simply wants access to materials gathered or prepared by the original parties in the course of their litigation. Nonetheless, despite the lack of a clear fit with the literal terms of Rule 24(b), every circuit court that has considered the question has come to the conclusion that nonparties may permissively intervene for the purpose of challenging confidentiality orders. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir.1988); Martindell v. International Telephone and Telegraph Corp., 594 F.2d 291, 294 (2nd Cir.1979); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3rd Cir.1994); In re Beef Industry Antitrust Litigation, 589 F.2d 786, 789 (5th Cir.1979); Meyer Goldberg, Inc. v. Fisher...