United States v. Pickard

• Decision Date: 05 November 2013
• Docket Number: 12–3143.,Nos. 12–3142,s. 12–3142
• Citation: 733 F.3d 1297
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. William Leonard PICKARD, and Clyde Apperson, Defendants–Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

733 F.3d 1297

UNITED STATES of America, Plaintiff–Appellee,

v.William Leonard PICKARD, and Clyde Apperson, Defendants–Appellants.

Nos. 12–3142, 12–3143.

United States Court of Appeals, Tenth Circuit.

Nov. 5, 2013.

William K. Rork, Rork Law Office, Topeka, KS, for Defendants–Appellants.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before TYMKOVICH, EBEL, and MATHESON, Circuit Judges.

EBEL, Circuit Judge.

Defendants–Appellants William Pickard and Clyde Apperson appeal the district court's decision to deny their motion to unseal the Drug Enforcement Administration (“DEA”)'s file on one of its confidential informants. Having jurisdiction under 28 U.S.C. § 1291, we conclude the district court erred in the manner in which it denied Defendants' motion to unseal the file, for three reasons: The court 1) failed to require the United States to articulate a significant interest in continuing to keep the DEA records sealed; 2) did not apply the presumption that judicial records should be open to the public; and 3) did not consider whether unsealing a redacted version of the DEA records would adequately serve the as yet unarticulated government interest in keeping the records sealed. For these three reasons, we reverse the district court's decision to deny Defendants' motion to unseal the records and remand for the district court's further consideration of that motion.

I. BACKGROUND

In 2003, a jury convicted Defendants of several drug offenses. See United States v. Apperson, 441 F.3d 1162, 1175 (10th Cir.2006). At the trial, one of Defendants' accomplices, Gordon Todd Skinner, testified against them. Id. at 1175–77, 1210. Skinner had acted as a confidential informant for the DEA during part of the time that he was involved with Defendants in their criminal conduct. Id. at 1175–77. The Government filed the DEA's confidential informant file on Skinner with the district court and, during the trial, the court ordered the Government to turn that file over to the defense. At the same time, the court ordered the DEA file sealed.¹ Eight years later, in March 2011, Defendants filed the motion at issue here, seeking to have the DEA file on Skinner unsealed so they could use this information, among other ways, as exhibits in ongoing litigation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

Defendants properly made their motion to unseal to the district court. A court has authority to seal documents before it, based upon the court's inherent supervisory authority over its own files and records. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 689–90 (5th Cir.2010); Gambale v. Deutsche Bank AG, 377 F.3d 133, 140–41 (2d Cir.2004). A court can order documents sealed if the party moving for sealing is able to show “some significant interest that outweighs the presumption” in favor of open access to judicial records. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir.2012) (internal quotation marks omitted). Once a court orders documents before it sealed, the court continues to have authority to enforce its order sealing those documents, as well as authority to loosen or eliminate any restrictions on the sealed documents. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427–28 (10th Cir.1990); see also Gambale, 377 F.3d at 141 (2d Cir.) (citing Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir.1993)). This is true even if the case in which the documents were sealed has ended. See United Nuclear Corp., 905 F.2d at 1427–28;see also Gambale, 377 F.3d at 141–42 (2d Cir.).

In this case, the district court, although acknowledging that at least some of the sealed information had already been made public, nevertheless denied Defendants' motion to unseal the DEA records. Defendants appeal that decision.²

II. THRESHOLD JURISDICTIONAL QUESTIONS

As threshold matters, the United States argues that Defendants lack Article III standing to seek to have the DEA records unsealed and that that motion is, in any event, moot. We disagree.

Standing “requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013). Mootness is standing in the context of time, requiring that “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout [the litigation's] existence.” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

Here, Defendants have alleged an actual injury: they cannot use the information in the sealed documents. And they want to use that information in a variety of ways.³ That injury is traceable to the district court's order sealing the DEA records during Defendants' trial. And an order from the district court unsealing the documents will redress Defendants' injury. This is sufficient to establish Defendants' standing to seek to have the DEA documents unsealed. See United States v. Pickard, 676 F.3d 1214, 1218 n. 2 (10th Cir.2012) (holding, in mandamus action in these same proceedings, that “there is little doubt that Defendants have Article III standing to seek the unsealing of documents in the file because [Defendants] claim a First Amendment interest in communicating information that they already have”) (citing In re Special Grand Jury 89–2, 450 F.3d 1159, 1172–73 (10th Cir.2006)).

The Government complains that Defendants do not intend to use the unsealed documents in any proceedings in their criminal case. Nevertheless, Defendants must seek redress for their injury—the inability to use this sealed information—through a motion to the court that sealed the documents, asking that court to unseal them. See United Nuclear Corp., 905 F.2d at 1427.

The Government further contends that Defendants' motion to unseal the DEA documents is moot because Defendants already have the sealed information. Even if that is correct, Defendants remain bound by the district court's order sealing the documents and so they still cannot use that information until the court unseals the documents. Therefore, their motion to unseal the documents is not moot. See Ameziane v. Obama, 620 F.3d 1, 4–5 (D.C.Cir.2010). Because Defendants, thus, have standing to move the district court to unseal the DEA documents, and because their request is not moot, we turn to the district court's denial of the motion to unseal.

III. DISCUSSION

A. Standard of review

We review for an abuse of discretion the district court's decisions regarding whether to seal or unseal documents. See Colony Ins., 698 F.3d at 1241 n. 28 (10th Cir.) (decision to seal); see also Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir.2011) (decision to unseal). But we review de novo the legal principles that the district court applied in considering such a motion. See United States v. Wecht, 484 F.3d 194, 208 (3d Cir.2007); see also Ameziane, 620 F.3d at 5 (D.C.Cir.). Of course, applying incorrect legal principles is an abuse of discretion. See ClearOne Commc'ns, Inc. v. Bowers, 643 F.3d 735, 773 (10th Cir.2011).

B. Common law right of access to judicial documents generally⁴

“Courts have long recognized a common-law right of access to judicial records.” ⁵Colony Ins., 698 F.3d at 1241 (internal quotation marks omitted). Although this “right is not absolute,” id. (internal quotation marks omitted), there is a “strong presumption in favor of public access,” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.2007). That is particularly so where the district court used the sealed documents “to determine litigants' substantive legal rights.” Colony Ins., 698 F.3d at 1242. Here, at the very least, the court appeared to have had some familiarity with Skinner's file when it ruled on evidentiary objections to Skinner's testimony. Nevertheless, this strong presumption of openness can “be overcome where countervailing interests heavily outweigh the public interests in access” to the judicial records. Id. at 1241 (internal quotation marks omitted). Therefore, the district court, in exercising its discretion, must “weigh the interests of the public, which are presumptively paramount, against those advanced by the parties.” Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir.2011) (internal quotation marks omitted).

“The party seeking to overcome the presumption of public access to the documents bears the burden of showing some significant interest that outweighs the presumption.” Id. (internal quotation marks omitted); see also Colony Ins., 698 F.3d at 1241. Consistent with this presumption that judicial records should be open to the public, the party seeking to keep records sealed bears the burden of justifying that secrecy, even where, as here, the district court already previously determined that those documents should be sealed. See Riker v. Fed. Bureau of Prisons, 315 Fed.Appx. 752, 753–55 (10th Cir.2009) (unpublished); see also United States v. Antar, 38 F.3d 1348, 1362–63 (3d Cir.1994); cf. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1181–82 (9th Cir.2006) (party opposing unsealing of sealed documents filed pursuant to stipulated protective order bears burden of showing why documents should remain sealed); Gambale, 377 F.3d at 142 (2d Cir.) (same). But see Fed. Trade Comm'n v. Abbvie Prods. LLC, 713 F.3d 54, 66 (11th Cir.2013) (holding that a party seeking to modify a protective order to unseal documents had the burden of demonstrating good cause for doing so); Cnty. Materials Corp. v. Allan Block Corp., 502 F.3d 730, 739–40 (7th Cir.2007) (holding that a party seeking to have documents unsealed had the burden of...