Osama Elfeky v. Secretary United States Depart ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3476
_____________
OSAMA “SAM” ELFEKY,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
ATTORNEY GENERAL UNITED STATES OF AMERICA;
DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;
EVANGELIA KLAPAKIS, Director, Philadelphia Field Office,
United States Citizenship and Immigration Services;
LAURA B. ZUCHOWSKI, Director, Vermont Service Center,
United States Citizenship and Immigration Services
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. Action No. 2-15-cv-03442)
District Judge: Honorable Jan E. DuBois
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 27, 2018
_____________
Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges
(Opinion Filed: October 19, 2018)
_____________
OPINION*
_____________
GREENAWAY, JR., Circuit Judge.
After filing a complaint and amended complaint in the District Court pursuant to
the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), Osama “Sam” Elfeky
voluntarily disclosed several decisions made by the United States Citizenship and
Immigration Services (“USCIS” or the “agency”), which determined that he had entered
into a fraudulent marriage with a United States citizen to evade immigration laws. He
now appeals from the District Court’s order denying his petition to seal those judicial
records. We will affirm.
I. Facts & Procedural Background
Elfeky commenced this action in 2015 to challenge numerous adverse decisions
made by USCIS as arbitrary and capricious, in violation of the APA, 5 U.S.C.
§ 706(2)(A). The complaint was a result of USCIS’s determination that Elfeky had
entered into a marriage with a United States citizen, Kimberly D., “for the sole purpose of
evading immigration laws.” SA103. In initiating suit, Elfeky filed a complaint and
amended complaint that described his immigration status, the various forms of relief he
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
had petitioned for, and the several agency adjudications forming the basis of his
complaint. These pleadings were filed on the public docket.
Subsequently, the parties filed a joint motion requesting the District Court to seal
the administrative record. The parties reasoned that the record should be sealed because
it contained “2,789 pages of sensitive personal information relating to Elfeky, including
information that underlies the agency’s conclusion that he committed marriage fraud.”
SA55. They acknowledged that “[m]uch of this information would require redaction
under Local Rule of Civil Procedure 5.1.3, including personal identifiers such as Social
Security numbers, dates of birth, financial account numbers, and tax records.” SA55-56.
The parties agreed that, “[t]o ensure maximum public access to these proceedings,” they
would file the agency decisions with their motions for summary judgment and would
make summary judgment briefing “available to the public.” SA56. They also agreed that
the District Court’s decision on summary judgment would “fully inform the public of the
nature of the proceeding, further diminishing the public interest in the administrative
record standing alone.” SA56. The District Court granted the motion to seal the
administrative record, permitting the parties to proceed to summary judgment.
After reviewing the papers, the District Court issued a memorandum opinion and
order entering judgment in favor of USCIS. The opinion was published in the Federal
Supplement. Elfeky v. Johnson, 232 F. Supp. 3d 695 (E.D. Pa. 2017). In the opinion, and
pertinent to this case, the District Court noted, inter alia, that “USCIS possessed
3
substantial evidence that Elfeky’s marriage to Kimberly D. was fraudulent, including
Kimberly D.’s own admission against interest, detailed testimony concerning the
circumstances of the marriage, Elfeky’s use of an attorney who engaged in a marriage
fraud scheme, and evidence that Elfeky and Kimberly D. never cohabitated.” Id. at 706.
The District Court also determined that Elfeky “committed fraud and willfully
misrepresented a material fact” when he filed an application before USCIS. Id. at 707.
Elfeky did not appeal this decision.
Instead, nearly eight months later, Elfeky filed a petition in the District Court to
seal the record, docket, and all filings. Elfeky averred that the aforementioned opinion
was “available not only on the publicly accessible electronic docket; but also on the
internet upon a rudimentary search” of his name, and that the “publicly available”
opinion, docket, and pleadings “have caused [him] harm and prejudice.” SA194. As a
result, Elfeky continued, he has suffered “[l]ost business opportunities both in the United
States and abroad” and “[r]isk to his personal safety because of [his] asylum status being
public information.” Id.
The District Court denied Elfeky’s petition. In an order, the court noted that
Elfeky “voluntarily placed the issues on the public docket when he filed his Complaint
and Amended Complaint,” and emphasized that what he “seeks is contrary to what was
agreed to in the joint motion of the parties to seal the administrative record.” App. 5-6.
The District Court, nonetheless, carefully weighed the factors relevant to granting orders
4
of confidentiality. Accordingly, it concluded that Elfeky “ha[d] failed to establish good
cause for sealing under [our] framework.” App. 5. The District Court also rejected
Elfeky’s argument “regarding the need to seal the record based on his asylum status”
because he had “disclosed his asylum status years ago when he filed this lawsuit.” App.
6. This timely appeal followed.
II. Jurisdiction
The District Court had jurisdiction arising under 28 U.S.C. § 1331 and 5 U.S.C.
§ 706. We have jurisdiction pursuant to 28 U.S.C. § 1291.
III. Discussion
At the outset, we note that it appears Elfeky conflates his arguments that the
District Court erred in denying his petition to seal the judicial records and in deciding the
petition without a hearing. We therefore begin by analyzing the issue of whether the
District Court erred in denying the petition to seal the judicial records and then proceed to
determine if the District Court erred in deciding the petition without a hearing.
Elfeky contends that he has proffered sufficient evidence to show good cause to
seal the judicial records and that, in balancing the Pansy factors, the privacy interests are
in his favor. He also argues that the District Court erred in placing weight on the fact
“that the parties had previously agreed to lift the seal that had been in place.” Elfeky Br.
7. According to him, the harm he alleges was not discovered until the seal was lifted.
5
We review a district court’s decision to seal judicial records for abuse of
discretion. See EEOC v. Kronos Inc., 694 F.3d 351, 361 (3d Cir. 2012). “Courts have
‘inherent equitable power’ to grant orders of confidentiality upon a showing of good
cause.” EEOC v. Kronos Inc., 620 F.3d 287, 302 (3d Cir. 2010) (quoting Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 785–86 (3d Cir. 1994)). Good cause is proven by
a showing that “disclosure will work a clearly defined and serious injury to the party
seeking closure.” Id. (quoting Pansy, 23 F.3d at 786). The allegations articulated must
be specific and sufficiently detailed: “‘[b]road allegations of harm, unsubstantiated by
specific examples or articulated reasoning,’ do not support a good cause showing.” Id.
(alteration added) (quoting Pansy, 23 F.3d at 786). The party petitioning the court bears
the burden of justifying confidentiality. Kronos, 620 F.3d at 302.
In Pansy, we set out a non-exhaustive list of factors that balance public interest
against private interest in deciding whether a party has established good cause to seal
judicial records. 23 F.3d at 787–89. The following are several factors we consider as
part of a showing of good cause:
1) whether disclosure will violate any privacy interests;
2) whether the information is being sought for a legitimate
purpose or an improper purpose;
3) whether disclosure of the information will cause a party
embarrassment;
4) whether confidentiality is being sought over information
important to public health and safety;
6
5) whether the sharing of information among litigants will
promote fairness and efficiency;
6) whether a party benefitting from the order of confidentiality
is a public entity or official; and
7) whether the case involves issues important to the public.
Kronos, 620 F.3d at 302 (quoting Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d
Cir. 1995)). A district court abuses its discretion when it fails to conduct a good cause
balancing test before adjudicating the matter. Pansy, 23 F.3d at 792.
The District Court properly set forth the Pansy factors and explained how they
weighed in this case. The court found that Elfeky “failed to establish good cause for
sealing” under the Pansy framework in part because he “voluntarily placed” the
information on the public docket when he filed the complaints and “again when he filed
his motion for summary judgment.” App. 5. The District Court rejected Elfeky’s
averments related to “unspecified ‘lost business opportunities’” and his personal safety as
“insufficient to warrant sealing,” reasoning that the “public is entitled to know about a
case that involves public officials, a federal agency, and the [District] Court’s resolution
of a dispute concerning immigration issues.” App. 5-6. Moreover, the District Court
highlighted that Elfeky’s request was “contrary to what was agreed to in the” parties’
motion to seal the administrative record. App. 6. Similarly, the District Court overruled
Elfelky’s argument on the need to seal based on his asylum status, explaining that he had
already “disclosed his asylum status years ago when he filed this lawsuit,” and that
7
Federal Rule of Civil Procedure 5.1 “exempts immigration cases, including this one, from
electronic public access.” Id.
We discern no abuse of discretion in the District Court’s conclusion that Elfeky
failed to establish good cause under the Pansy framework. We agree that the record
demonstrates several instances where Elfeky affirmatively discloses information he now
attempts to seal. Furthermore, we also concur with the District Court’s determination
that Elfeky’s unspecified allegations of lost business opportunities and fear for his
personal safety were insufficient to establish good cause because “‘[b]road allegations of
harm, unsubstantiated by specific examples or articulated reasoning,’ do not support a
good cause showing.” Kronos, 620 F.3d at 302 (alteration added) (quoting Pansy, 23
F.3d at 786). Indeed, Elfeky has not clearly defined or articulated a particularized
example of the harm he has suffered due to this information being available to the public.
Accordingly, we conclude that the District Court exercised appropriate discretion in
denying Elfeky’s petition.
Elfeky further argues that the District Court’s resolution is “problematic because
[he] was never given [the] opportunity” of a hearing. Elfeky Br. 8. He contends that he
was not given an opportunity to respond to the Government’s assertions because the
District Court decided the petition three days after the Government’s response.
We acknowledge that district courts have broad discretion to decide a motion with
or without oral argument, and our review of those decisions is for an abuse of that broad
8
discretion. See Fed. R. Civ. P. 78(b); Rose v. Bartle, 871 F.2d 331, 340 n.4 (3d Cir.
1989). Here, Elfeky does not point to anything in the record to demonstrate how the
District Court abused its discretion in not holding oral argument to decide the petition or
in deciding the motion three days after the Government filed its response. Likewise, our
independent review satisfies us that the District Court acted well within its discretion to
decide the motion without oral argument and in an appropriate timeframe.
Thus, we will affirm.
IV. Conclusion
For the foregoing reasons, we shall affirm the order of the District Court denying
Elfeky’s petition to seal the record, docket, and all filings in this matter.
9