June Med Svcs v. Phillips ( 2022 )

Case: 21-30001 Document: 00516158702 Page: 1 Date Filed: 01/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 7, 2022
No. 21-30001 Lyle W. Cayce
Clerk
June Medical Services, L.L.C., on behalf of its patients, physicians,
and staff, doing business as Hope Medical Group for Women;
John Doe 1, M.D.; John Doe 2, M.D.; Dr. John Doe 3,
M.D.,
Plaintiffs—Appellees,
versus
Courtney Phillips, in her official capacity as Secretary of the Louisiana
Department of Health and Hospitals; Jeff Landry, in his official capacity
as Attorney General of Louisiana; James E. Stewart, Sr., in his official
capacity as District Attorney for Caddo Parish,
Defendants—Appellants,
versus
Leroy Brinkley; John Doe 5,
Movants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:16-CV-444
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Before Smith, Elrod, and Oldham, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Louisiana1 appeals the district court’s order denying in part
Louisiana’s motion to vacate the district court’s sealing orders. Among the
sealed or redacted documents are a transcript of proceedings held in open
court, a famous Pennsylvania grand jury report that is available as a book on
www.amazon.com and that was adapted as a motion picture, an arrest report
from a police department’s public website, articles from The New York Times
and Rolling Stone, and an obituary from a public website. We hold that the
district court erred in sealing and ordering redaction of voluminous
documents without a proper legal basis. We VACATE the sealing orders
and issue a LIMITED REMAND for the district court to evaluate the
sealing orders under the proper legal standard within 30 days.
I.
The plaintiffs are an abortion clinic and three doctors who provide
abortions in Louisiana. In 2016, the plaintiffs filed this lawsuit challenging
seven Louisiana laws that regulate abortion, including a law that requires
doctors who provide abortions to be board-certified in obstetrics and
gynecology or family medicine. The three doctor–plaintiffs simultaneously
moved for an order allowing them to use pseudonyms. The district court
granted that motion and entered a pseudonym order. The district court also
entered a stipulated blanket protective order intended to “protect[] the
confidentiality of information and facilitat[e] the exchange of documents and
information between the parties.” The protective order covers information
“about the Plaintiffs . . . that could jeopardize the privacy of the staff,
physicians, patients, and others associated with Plaintiffs,” and “information
1
The defendants are the Secretary of the Louisiana Department of Health and
Hospitals, the Attorney General of Louisiana, and the District Attorney for Caddo Parish.
Because these individuals are sued in their official capacities, we refer to them collectively
as “Louisiana.”
2
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related to investigations conducted by or legal, disciplinary or other actions
taken by the Louisiana Department of Health.”
In 2018, Louisiana moved in the district court to review a magistrate
judge’s order quashing a subpoena to the Louisiana State Board of Medical
Examiners. In a memorandum supporting its motion, Louisiana described
and referred to publicly available documents that allegedly indicate that
Louisiana doctors who provide abortions have high rates of professional
disciplinary action. The plaintiffs responded by filing an emergency motion
to strike, arguing that Louisiana had unlawfully “disclos[ed] the names and
identities of two current Louisiana abortion providers” who were not
subjects of the district court’s pseudonym order.
The district court denied the plaintiffs’ motion to strike, but
summarily sealed Louisiana’s filing (the first sealing order) and admonished
Louisiana for its “carelessness.” The documents sealed by the district court
were a memorandum of law; a transcript of proceedings in open court; a
Pennsylvania grand jury report that was unsealed and filed as a public record
in Pennsylvania, that is available as a book on www.amazon.com, and that
was adapted as a motion picture; public disciplinary orders available on the
Board of Medical Examiners’ website; an arrest report from the website of
the Morgan City Police Department; and a license verification from the
Board of Medical Examiners’ website.
Louisiana moved to vacate the district court’s sealing order and unseal
the documents. It argued that public information was not sealable, that
seeking to seal publicly available information constitutes sanctionable
conduct, and that the district court erred by failing to evaluate the specific
documents under the proper legal standards for protective orders and sealing
orders.
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The district court denied Louisiana’s motion to vacate and unseal.
The district court explained that Federal Rule of Civil Procedure 26(c) allows
it to “seal documents” for “good cause.” See Fed. R. Civ. P. 26(c)(1).
Louisiana had “offered no explanation why it [was] necessary for these
[publicly available] documents to remain unsealed, given the potential harm
that may result” to the non-party physicians identified in the public
documents if “their names [were] publicized.” In other words, the district
court denied Louisiana’s motion because Louisiana had failed to show why
publicly available information should not be sealed.
During a deposition in March 2019, Doe 2 admitted to failing to report
the forcible rape of a fourteen-year-old girl, performing an abortion on a
minor without parental consent or judicial bypass, and failing to maintain
medical records. Louisiana alleged that Doe 2 admitted to multiple violations
of Louisiana law, see La. Stat. Ann. § 14:403 (requiring mandatory reporters
to report sexual abuse of a minor); La. Stat. Ann. § 40:1061.14 (requiring
parental consent for abortions performed on minors); La. Stat. Ann.
§ 40:1061.19 (explaining records requirements for abortion facilities), and
also that Doe 2 stated that Doe 5 had violated the standard of care for second-
trimester abortions. Louisiana moved to de-designate portions of Doe 2’s
testimony as “confidential” pursuant to the district court’s protective order.
Louisiana argued that unsealing the deposition was in the public’s interest
and that Louisiana was required to refer evidence of criminal and professional
misconduct to the appropriate authorities. The plaintiffs opposed
Louisiana’s motion to de-designate and moved to seal their opposition brief.
Louisiana wanted to add public documents to the record for evidence
and argument but did not want to contravene the district court’s
interpretation of its sealing, protective, and pseudonym orders and also did
not want to be sanctioned for seeking to seal public documents. So, Louisiana
subsequently filed pro forma motions to seal the documents that it wanted to
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add to the judicial record, outlined the governing legal standards, and argued
that its pro forma motions should be denied and that the documents should
not be sealed.
A magistrate judge entered a sealing order (the second sealing order).
The sealed documents include public records, many of which are freely
accessible online, judicial records that are accessible via PACER, articles
from the Journal of Medical Regulation, Christian Science Monitor, Rolling
Stone, New York Times, and The Advocate, excerpts from a book, a public order
entered by the Eastern District of Louisiana in a related subpoena
enforcement action, blank consent forms from a closed clinic, and
correspondence regarding deposition scheduling. The magistrate judge also
sealed a redacted brief that Louisiana proffered for public filing and publicly
filed federal district court complaints submitted by Louisiana to show that
doctors who provide abortions in surrounding states routinely litigate in their
own names.
Two days after the magistrate judge’s first bulk sealing order, the
Supreme Court granted certiorari in June Medical Services L.L.C. v. Gee, 905
F.3d 787 (5th Cir. 2018), rev’d, 140 S. Ct. 2103 (2020). 140 S. Ct. 35 (2019)
(granting certiorari).2 Louisiana moved the district court for limited relief
from the protective order to submit information to the Supreme Court
relevant to the case and requested an expedited ruling. As the Supreme
Court briefing deadline approached and the district court had not ruled,
Louisiana petitioned this court for a writ of mandamus. While that petition
was pending, the district court denied Louisiana’s substantive motion for
relief from the protective order. A panel of this court denied mandamus
2
On January 25, 2019, this court denied Louisiana’s motion to unseal the entire
record. Order issued Jan. 25, 2019, June Med. Servs. L.L.C., 905 F.3d 787 (No. 17-30397).
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because the district court’s order was a directly appealable collateral order.
In re Gee, No. 19-30953, slip op. at 1 (5th Cir. Nov. 27, 2019).
Louisiana sought collateral review in this court of the district court’s
denial of Louisiana’s motion for limited relief. We declined to decide for the
Supreme Court what documents it “should consider in deciding” June
Medical, 140 S. Ct. 2103, because “[t]hat decision is within the purview and
prerogative of the [Supreme] Court.” June Med. Servs., L.L.C. v. Gee, 788
F. App’x 280, 281 (5th Cir. 2019). We also noted, however, the “overbroad
nature of the district court’s protective order.” Id.In January 2020, the magistrate judge entered another bulk sealing
order (the third sealing order), which sealed briefing on Doe 5’s motion to
quash. Louisiana opposed the motion, and because it supported its
opposition with publicly available documents about doctors who provide
abortions, Louisiana again—to comply with the protective order—moved pro
forma to seal its own filings. Louisiana argued that Doe 5 publicly identified
himself as an abortion provider in speeches, on his own website, to the press,
and as a testifying expert in an abortion case.
The magistrate judge sealed all of the documents at issue, including
newspaper articles, online news reports, public records available from the
Board of Medical Examiners’ website about non-party abortion providers, a
journal article, a public court order, the sealing order itself, and a pleading
that no one asked be sealed. Louisiana moved in the district court for review
of the magistrate judge’s sealing order because, as Louisiana argued, the
sealing order reflected “a per se abuse of discretion by sealing vast swaths of
documents without the required factual findings, legal analysis, or weighing
of the public’s right of access to judicial records,” and because sealing of
public information is not supported by law.
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In November 2020, the district court entered the order at issue in this
appeal—a ruling on Louisiana’s challenges to the first, second, and third
sealing orders. The district court acknowledged our description of its
protective order as “overbroad,” then-recent decisions of this court stressing
the public’s “common law right to inspect and copy judicial records,”
Bradley ex rel. AJW v. Ackal, 954 F.3d 216, 224 (5th Cir. 2020) (citation
omitted), and this court’s precedents requiring district courts to exercise
their discretion to seal “charily,” id. at 225 (citation omitted). The district
court also explained the need to balance the “legitimate public concern”
attendant to “litigation regarding access to abortion services” with the
“genuine need to protect the identities of the abortion providers in this
case.”
The district court identified twenty different categories of disputed
sealed documents. It then separated the categories into two groups. The first
group contained these categories: court filings in this case, a transcript of
proceedings in this case, correspondence between counsel, publicly available
articles, documents from the Louisiana Secretary of State’s website,
information regarding published books, orders from the district court for the
Eastern District of Louisiana, court documents from other cases, online
information regarding abortion clinics, a publication from the Knights of
Columbus, a public records request, and a Declaration of a Records
Custodian.
Even though, as the district court acknowledged, “[m]uch of this
information is already publicly available,” the district court ordered
substantial redaction of the documents in this group. For example, Louisiana
was required to redact “sensitive information that could jeopardize the
privacy of the staff, physicians, patients, and others associated with
Plaintiffs.” Louisiana had sixty days to comply with the redaction
requirements, and it did comply.
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The district court’s second group of documents was composed of
these categories: a public obituary for a doctor who provided abortions, arrest
reports available on public websites, deposition testimony, documents from
the Louisiana Department of Health and Hospitals, documents from the
Louisiana State Board of Medical Examiners, documents identifying abortion
providers or staff, documents regarding medical information of patients, and
an incident investigation report. For documents within this group, the
district court ordered that they “remain sealed as information falling squarely
within the Protective Order.”
Louisiana appealed.3
II.
We have jurisdiction over this interlocutory appeal for two
independent reasons. First, we have jurisdiction because “sealing and
unsealing orders . . . are reviewable . . . under the collateral order doctrine.”
3
Notably, although Louisiana asks us to order the district court to unseal certain
documents, it has not sought to unseal those documents directly in this court. When
presented with an appeal, we routinely unseal documents that were sealed in the district
court when those documents are used on appeal and there is no legal basis for sealing. See,
e.g., Order issued Nov. 13, 2019, Landreneau v. Baker Hughes A G E Co., 801 F. App’x 919
(5th Cir. 2020) (No. 19-30512). Indeed, we often do this sua sponte. See, e.g., id. In
Landreneau, the district court sealed parts of the record pursuant to a stipulated protective
order “in an effort to accommodate the defendant’s concerns about its trade secrets
becoming public.” Appellant’s Letter filed Oct. 10, 2019, at 1, Landreneau, 801 F. App’x
919 (No. 19-30512). Notwithstanding the stipulated protective order in that case, this court
denied the appellant’s unopposed motion to place record excerpts under seal and ordered
that the record excerpts be unsealed. See Order, Landreneau, supra. Indeed, when parties
in this court seek to file documents under seal on appeal, the clerk’s office sends them a
standard letter that requires them to “explain in particularity the necessity for sealing in
this court. Counsel do not satisfy this burden by simply stating that the originating court
sealed the matter, as the circumstances that justified sealing in the originating court may
have changed or may not apply in an appellate proceeding.” BP Expl. & Prod., Inc. v.
Claimant ID 100246928, 920 F.3d 209, 211 (5th Cir. 2019).
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Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th
Cir. 2019); see also Bradley, 954 F.3d at 223 (explaining that appeals of sealing
and unsealing orders fall within the collateral-order doctrine). Second, we
have jurisdiction under the law-of-the-case doctrine. “The law-of-the-case
doctrine ‘posits that when a court decides upon a rule of law, that decision
should continue to govern the same issue in subsequent stages in the same
case.’” Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011)
(quoting United States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999)). In a prior
dispute regarding one of the orders at issue in this appeal, we noted that the
district court’s order was “directly reviewable on appeal.” In re Gee, No. 19-
30953, slip op. at 1 (5th Cir. Nov. 27, 2019). We therefore have jurisdiction
over this direct appeal of the district court’s order at this “subsequent
stage[].” Med. Ctr. Pharmacy, 634 F.3d at 834 (citation omitted).
III.
“Appellate review of a motion to seal or unseal documents is for abuse
of discretion.” Vantage Health Plan, 913 F.3d at 450. “A district court
abuses its discretion if it: (1) relies on clearly erroneous factual findings;
(2) relies on erroneous conclusions of law; or (3) misapplies the law to the
facts.” Bradley, 954 F.3d at 224 (citation omitted). We have held that a
district court abuses its discretion in sealing or unsealing documents when it
fails to identify and apply the proper legal standard and when it fails to
provide sufficient reasons for its decision to enable appellate review. See
United States v. Sealed Search Warrants, 868 F.3d 385, 396–97 (5th Cir. 2017);
S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848–49 (5th Cir. 1993).
Here, the district court failed to heed our instructions. First, the
district court misapprehended the nature and extent of the public’s right to
judicial records. “Judicial records belong to the American people; they are
public, not private, documents.” Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d
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410, 417 (5th Cir. 2021). And “[t]he public’s right of access to judicial
records is a fundamental element of the rule of law.” Leopold v. United States
(In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders), 964
F.3d 1121, 1123 (D.C. Cir. 2020). “The public has an interest in transparent
court proceedings that is independent of the parties’ interests.” In re Gee,
No. 19-30953, slip op. at 8 (5th Cir. Nov. 27, 2019) (Elrod, J., concurring)
(emphasis omitted). This right “serves to promote trustworthiness of the
judicial process, to curb judicial abuses, and to provide the public with a more
complete understanding of the judicial system, including a better perception
of its fairness.” BP Expl. & Prod., Inc. v. Claimant ID 100246928, 920 F.3d
209, 210 (5th Cir. 2019) (quoting United States v. Holy Land Found. for Relief
& Dev., 624 F.3d 685, 690 (5th Cir. 2010)). Accordingly, we heavily disfavor
sealing information placed in the judicial record. See Vantage, 913 F.3d at
450–51.4
“[T]he rationale for public access is even greater” where, as here, the
case “involve[s] matters of particularly public interest.” Bradley, 954 F.3d
at 233 (citation omitted); see also Shane Grp. v. Blue Cross Blue Shield of Mich.,
825 F.3d 299, 305 (6th Cir. 2016) (“[T]he greater the public interest in the
litigation’s subject matter, the greater the showing necessary to overcome the
presumption of access.”).5
In the context of publicly available documents, those already belong to
the people, and a judge cannot seal public documents merely because a party
4
See also the Hon. Gregg Costa, Federal Appellate Judge: Too Many Sealed
Documents, Nat’l Law J. (Feb. 15, 2016) (“[The] unjustified sealing of court records
happens all too often.”).
5
The party doctors’ request for anonymity is itself an unusual practice. Abortion
providers regularly litigate under their own names. See, e.g., Planned Parenthood of Wis.,
Inc. v. Kaul, 384 F. Supp. 3d 982, 984 (W.D. Wis. 2019), aff’d, 942 F.3d 793 (7th Cir. 2019)
(involving a case brought by Dr. Kathy King, Natalee Hartwig, Sara Beringer, and
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seeks to add them to the judicial record. We require information that would
normally be private to become public by entering the judicial record. How
perverse it would be to say that what was once public must become private—
simply because it was placed in the courts that belong to the public. See Le,
990 F.3d at 421. We will abide no such absurdity.
Publicly available information cannot be sealed. In so holding, we
align with the Supreme Court and our sister circuits. See Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 34 (1984) (“[A] protective order prevents a party
from disseminating only that information obtained through use of the
Katherine Melde, on behalf of themselves and their patients); Little Rock Fam. Plan. Servs.
v. Rutledge, 397 F. Supp. 3d 1213, 1220 (E.D. Ark. 2019) (granting preliminary injunction
to Dr. Thomas Tvedten, on behalf of himself and his patients), aff’d, 984 F.3d 682 (8th
Cir. 2021), petition for cert. filed, No. 20-1434 (U.S. Apr. 13, 2021); Robinson v. Marshall,
415 F. Supp. 3d 1053, 1055 (M.D. Ala. 2019) (granting injunction to Dr. Yashica Robinson,
on behalf of her patients); Whole Woman’s Health v. Paxton, No. 17-CV-690, 2017 WL
11606683, at *1–2 (W.D. Tex. Aug. 15, 2017) (denying pseudonym request and noting that
“[w]hat transpires in the courtroom is public property” (alteration in original) (quoting
Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981))). They also—as licensed professionals—
operate under their own names and are often already known or knowable by other means.
For example, Doe 2 acknowledged in his deposition that “you can find out from the
internet that [he provides] abortions” and he has submitted public declarations in past
abortion litigation.
Furthermore, this court does not usually allow parties to proceed anonymously
based on generalized concerns. For example, we affirmed this district court’s denial of a
police officer’s request to proceed as an anonymous plaintiff. See Doe v. Mckesson, 945 F.3d
818, 835 n.12 (5th Cir. 2019), vacated on other grounds, 141 S. Ct. 48 (2020). That officer
argued that “the public nature of his job put[] him and his family in danger of additional
violence,” and he listed examples of acts of violence perpetrated against police officers for
political reasons. Id. That was not enough. We approved of the district court’s rejection
of that argument because “the incidents Officer Doe listed did not involve Officer Doe and
were not related to this lawsuit.” Id. Indeed, “Officer Doe conceded that he had received
no particularized threats of violence since filing his lawsuit.” Id.The district court went even further in this case. It also sealed or redacted
information related to non-parties, including doctors, without a showing that their interests
in anonymity outweigh the First Amendment interests at stake.
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discovery process. Thus, [a litigant] may disseminate the identical
information covered by the protective order as long as the information is
gained through means independent of the court’s processes.” (emphasis
added)); United States v. Pearson, 340 F.3d 459, 465 (7th Cir. 2003) (“[O]nce
the identity of the unindicted coconspirator became [publicly] known, the
indictment should have been unsealed . . . .”), vacated on other grounds sub
nom. Hawkins v. United States, 543 U.S. 1097 (2005); Washington Post v.
Robinson, 935 F.2d 282, 291–92 (D.C. Cir. 1991) (vacating order granting a
motion to seal where the information was publicly available); see also In re
Violation of Rule 28(D), 635 F.3d 1352, 1359–60 (Fed. Cir. 2011) (sanctioning
counsel for seeking to seal information that was publicly available). On
remand, the district court shall not seal or order redaction of any publicly
available documents or information.
The district court here also used the wrong legal standard for sealing
documents. Different legal standards govern protective orders and sealing
orders. Protective orders require a finding of “good cause” by the district
court and apply to documents produced in discovery. Le, 990 F.3d at 419
(quoting Fed. R. Civ. P. 26(c)(1)). “At the discovery stage, when parties are
exchanging information, a stipulated protective order under Rule 26(c) may
well be proper.” Id. at 420. “But at the adjudicative stage, when materials
enter the court record, the standard for shielding records from public view is
far more arduous.” Id. Sealing judicial records and blocking public access
require a “stricter balancing test.” Id. at 419. To decide whether something
should be sealed, the court must undertake a “‘document-by-document,’
‘line-by-line’ balancing of ‘the public’s common law right of access against
the interests favoring nondisclosure.’” Id. (quoting Vantage, 913 F.3d at 451;
Bradley, 954 F.3d at 225). “Under both standards, the working presumption
is that judicial records should not be sealed.” Le, 990 F.3d at 419. “[C]ourts
should be ungenerous with their discretion to seal judicial records . . . .” Id.
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at 418. And, to the extent that any sealing is necessary, it must be “congruent
to the need.” Id. at 420.
Here, the district court’s only justification for sealing entire categories
of documents was that those documents “fall[] squarely within the Protective
Order.” That a document qualifies for a protective order under Rule 26(c)
for discovery says nothing about whether it should be sealed once it is placed
in the judicial record. See Le, 990 F.3d at 420. The district court thus
provided no valid legal basis for sealing these documents. By failing to
“articulate any reasons that would support sealing” those documents, the
district court erred. Id. at 419 (quoting Van Waeyenberghe, 990 F.2d at 849).
The district court also erred by failing to evaluate all of the documents
individually. See id. It is the solemn duty of the judge to scrupulously
examine each document sought to be sealed. See Leopold, 964 F.3d at 1134(“Providing public access to judicial records is the duty and responsibility of
the Judicial Branch.”).6 It is not easy, but it is fundamental.
* * *
The district court’s sealing orders are VACATED. We issue a
LIMITED REMAND for the district court to evaluate the sealing orders
under the proper legal standard within 30 days of the issuance of this opinion.
We will retain jurisdiction over this case pending the district court’s
resolution of this dispute.
6
With regard to deposition testimony, the district court should reconsider its
blanket sealing order and instead consider the option to unseal the testimony with
appropriate redactions. Cf. Order issued Aug. 30, 2017, Planned Parenthood of Greater Tex.
Fam. Plan. & Preventative Health Servs., Inc. v. Smith, 913 F.3d 551 (5th Cir. 2017) (No. 17-
50282) (granting motion to unseal in part and ordering party to file redacted version of
video that “blurs the faces of individuals who are not Planned Parenthood staff members”).
13