In re: Sealed Case, 00-5116
| Decision Date | 26 January 2001 |
| Docket Number | No. 00-5116,00-5116 |
| Parties | (D.C. Cir. 2001) In re: Sealed Case 00-5116 Consolidated with 00-5302 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted]
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[Copyrighted Material Omitted] Appeals from the United States District Court for the District of Columbia (No. 00ms00162)
Thomas W. Kirby argued the cause for appellants. With him on the briefs was Jan Witold Baran.
David Kolker, Attorney, Federal Election Commission, argued the cause for appellee. With him on the brief were Lawrence M. Noble, General Counsel, and Richard B. Bader, Associate General Counsel.
Before: Edwards, Chief Judge, Sentelle and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
In conjunction with an ongoing investigation of Appellants, the Federal Election Commission ("FEC" or "Commission") issued a subpoena to a third-party witness. When the witness refused to comply with the subpoena, the FEC petitioned the district court to enforce it. As part of the petition, the FEC included a number of exhibits providing information about the ongoing investigation. Immediately after the FEC filed its petition, Appellants moved to intervene and asked the court to place the enforcement action under seal pursuant to 2 U.S.C. § 437g(a)(12)(A). After a brief hearing, the district court denied Appellants' motion.
On appeal, Appellants argue that the district court abused its discretion in refusing to seal the case. They submit that § 437g(a)(12)(A) plainly protects the confidentiality of the subjects of ongoing FEC investigations. In response, the Commission contends that we do not have jurisdiction over this case because (1) Appellants did not properly intervene and (2) the district court's denial of Appellants' motion was not a final, appealable judgment. The Commission also suggests that the statutory context, the legislative history, and an FEC regulation demonstrate that § 437g does not protect subjects' confidentiality in the context of subpoena enforcement actions.
For reasons more fully set out below, we conclude that this Court has jurisdiction over Appellants' case. Furthermore, we hold that the FEC failed to act in accordance with law by submitting the exhibits on the public record. The district court's decision is therefore reversed.
Appellants are the focus of an ongoing FEC investigation concerning alleged violations of the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq. During the course of its investigation, the FEC issued a subpoena to a third-party witness seeking information concerning Appellants' activities. After the third party declined to comply with the subpoena, the FEC decided to petition the district court for an order enforcing it. On March 16, 2000, FEC counsel notified Appellants that it planned to file the petition. That filing would include a number of exhibits containing information about the ongoing investigation. The next morning, Friday March 17, Appellants asked the FEC to refrain from disclosing the information or to file it under seal. The FEC refused and later that afternoon filed the petition and exhibits. Among the exhibits, the FEC included a copy of the complaint that prompted the investigation, an FECprepared "Factual and Legal Analysis" detailing Appellants' alleged FECA violations, an FEC certification finding "reason to believe" that Appellants had violated FECA, and information referencing a separate FEC investigation that had no bearing on the subpoena enforcement action or the investigation of Appellants.
Within moments of the petition being filed, Appellants filed an Emergency Motion to seal the case. In support of this motion, Appellants argued that by placing the exhibits in the public record the Commission violated the broad confidentiality federal law affords the subjects of FEC investigations. After holding an abbreviated hearing that same afternoon, the district court denied Appellants' motion. Contending that public disclosure of the exhibits would be irrevocable, Appellants immediately moved for "an administrative ruling holding this matter" so that they could appeal the court's decision. The court denied this motion as well.
Fortunately for Appellants, the hearing ended after the district court clerk's office had closed for the weekend. As a result, the exhibits would not be available to the public until Monday afternoon, March 20. Appellants took advantage of "this fortuitous de facto stay of disclosure" by filing a notice of appeal. Appellants' Brief at 10. They also filed an emergency motion asking this Court to seal the case to permit the parties to file briefs on the merits of the appeal. Meanwhile, the district court issued two written orders addressing the same questions decided at the March 17 hearing. The first order denied Appellants' Emergency Motion. The second order denied what the court described as Appellants' "certification for interlocutory appeal." That same day, in response to Appellant's motion to this Court, we ordered the district court to place the case under seal pending our consideration of the merits of Appellants' motion. Subsequently, on June 7, the district court issued a final order enforcing the subpoena against the third-party witness. In due course, the FEC obtained the information it sought from the witness.
Appellants appeal from the district court's decision not to seal the subpoena enforcement action. They argue that because 2 U.S.C. § 437g(a)(12)(A) provides that information concerning an ongoing investigation "shall not" be made public, the district court abused its discretion in denying their Emergency Motion.
The FEC asserts that we lack jurisdiction to consider this case. Its assertion is based on two separate premises. First, the FEC suggests that Appellants were not parties to the subpoena enforcement action and did not seek to intervene. See Fed. R. Civ. P. 24(c). The FEC claims that because Appellants did not move to intervene, the district court did not deny any motion from which Appellants could appeal. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896 & n.5 (1990). Second, the FEC submits that Appellants seek review of the district court's March 17 and March 20 orders, which simply declined Appellants' motion to place the case under seal. According to the FEC, these decisions are not appealable because they did not "end[ ] the litigation on the merits"--that is, they did not address the underlying subpoena enforcement action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (internal quotes omitted). In relying on these premises, the FEC misconstrues the facts of this case and misapprehends the law in this area.
This Court unquestionably has jurisdiction to hear the present case. Appellants attempted to intervene, and the district court effectively--and erroneously--denied that attempt. Even if Appellants had not intervened, they could, and did, bring a simple motion to preserve their rights as contemplated in United States v. Hubbard, 650 F.2d 293 (1980). Under either approach, Appellants properly appealed from the district court's denial of its Emergency Motion pursuant to the collateral order doctrine.
Appellants' March 17 Emergency Motion expressly stated that Appellants
"move[] for leave to intervene in the FEC subpoena enforcement action for the limited purpose of preventing unauthorized disclosures." Emergency Motion to Place Under Seal and for All Other Appropriate Relief at 2, In re Sealed Case, No. 00-MS-162 (D.D.C. Mar. 17, 2000). Both the district court and the FEC were aware of Appellants' desire to intervene. The March 17 Motion was entered on the district court's docket sheet as a motion "to intervene." Likewise, at the March 17 hearing, FEC counsel argued that Appellants were "not a party" and should not be permitted to intervene because they must "show harm to intervene." Transcript of Emergency Hearing at 18, In re Sealed Case, No. MISC. 00-162 (D.D.C. Mar. 17, 2000).
At the close of the hearing, the district court denied Appellants' motion to seal the record in the subpoena enforcement action. Three days later, the court issued a written order memorializing that decision. See Order, In re Sealed Case, No. 00-162 (D.D.C. Mar. 20, 2000). Although neither the court's oral nor written order specifically addressed Appellants' motion to intervene, they both denied the Emergency Motion as a whole, thereby effectively denying the intervention motion.
Under Rule 24(a) of the Federal Rules of Civil Procedure, an applicant may intervene as of right when it "claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest." Fed. R. Civ. P. 24(a). An applicant does not possess a right to intervene, however, if its "interest is adequately represented by existing parties." Id.
Appellants readily meet the basic requirements necessary to intervene as of right. First, Appellants have a protected interest in the "transaction which is the subject of the action." As we explain below in more detail, they have a legally cognizable interest in maintaining the confidentiality of the documents the FEC seeks to disclose in the public record. See 2 U.S.C. § 437g(a)(12)(A); cf. United States v. AT&T, 642 F.2d 1285, 1292 (D.C. Cir. 1980) ().
Second, if the FEC's enforcement action were allowed to proceed on the public docket, then "as a practical matter" Appellants' ability to...
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