In re: Sealed Case (PUBLIC) ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 7, 2020
Reissued August 20, 2020
No. 19-1216
IN RE: SEALED CASE
On Joint Motion to Enter Proposed Protective Order with
Separate Statements and
Motion to Proceed Under a Pseudonym
Before: TATEL, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: An oil refinery applied to the
Environmental Protection Agency for a waiver of certain
statutory obligations involving the use of renewable fuels. That
Refinery then filed a petition for review of the EPA’s decision
in this court.
By separate order issued today, we grant the parties’ joint
motion for a protective order governing confidential business
information in this case. This opinion concerns only the
Refinery’s separate motion to keep its identity under seal and
to proceed under a pseudonym while litigating its petition for
2
review. Because there is a strong presumption of openness in
judicial proceedings and the Refinery has offered no sufficient
basis for closing the public’s eyes to its identity, the motion to
proceed pseudonymously is denied.
I
The Clean Air Act’s Renewable Fuel Standard Program,
42 U.S.C. § 7545(o), was enacted in 2005 “[t]o move the
United States toward greater energy independence and
security,” and “to increase the production of clean renewable
fuels.” Energy Independence and Security Act of 2007, Pub.
L. No. 110-140, preamble, 121 Stat. 1492, 1492. To achieve
those goals, Congress set annual benchmarks for the amount of
renewable fuel to be included in transportation fuel sold or
introduced into commerce in the United States. See 42 U.S.C.
§ 7545(o)(2)(A)(i).
The benchmarks apply to both refineries and fuel
importers. 42 U.S.C. § 7545(o)(3)(B)(ii)(I). For small
refineries, the statute allows the EPA to grant or to extend
individual exemptions if compliance would impose a
“disproportionate economic hardship[.]” Id. § 7545(o)(9)(A)–
(B). In evaluating those petitions, the EPA is required to
consult with the Department of Energy and to consider “other
economic factors.” Id. § 7545(o)(9)(B)(ii).
The Refinery is a small, privately owned company that
operates an oil refinery. In 2018, it petitioned the EPA for an
exemption from its 2018 renewable fuels obligation. The
Refinery subsequently filed a petition for review with this court
from the EPA’s decision. See Petition for Review, In re Sealed
Case, No. 19-1216 (D.C. Cir. Oct. 21, 2019). The Refinery
also filed a motion to maintain the entire case under seal.
3
On March 3, 2020, this court denied the motion to
maintain the entire case under seal, and the parties were
ordered to submit a proposed protective order limited to
justifiably confidential material. See Order, In re Sealed Case,
No. 19-1216 (D.C. Cir. March 3, 2020). In response, the
Refinery and the EPA proposed a joint protective order to seal
only the confidential business information in the case. In
addition to that joint request, the Refinery requested that it be
allowed to proceed pseudonymously. The EPA did not join
that portion of the motion.
II
This court has jurisdiction to review a “final action” taken
by the EPA under 42 U.S.C. § 7607(b)(1), and to make any
procedural rulings related to the adjudication of a petition
seeking review of challenged EPA action.
III
The presumption of openness in judicial proceedings is a
bedrock principle of our judicial system. See Courthouse News
Serv. v. Planet, 947 F.3d 581, 589 (9th Cir. 2020) (“The
presumption of access to judicial proceedings flows from an
‘unbroken, uncontradicted history’ rooted in the common law
notion that ‘justice must satisfy the appearance of justice.’”)
(quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
573–574 (1980) (plurality opinion)). That presumption is both
“customary and constitutionally-embedded[.]” In re Sealed
Case, 931 F.3d 92, 96 (D.C. Cir. 2019) (quoting United
States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir.
1995)). The courts’ emphasis on transparency “stems from the
general public interest in the openness of governmental
processes and, more specifically, from the tradition of open
judicial proceedings[.]” Id. (formatting modified).
4
With open doors as our starting point, we generally require
“parties to a lawsuit [to] openly identify themselves * * * to
‘protect[] the public’s legitimate interest in knowing all of the
facts involved, including the identities of the parties.’”
Microsoft, 56 F.3d at 1463 (quoting Doe v. Frank, 951 F.2d
320, 322 (11th Cir. 1992)); see Doe v. Public Citizen, 749 F.3d
246, 273 (4th Cir. 2014) (“Pseudonymous litigation
undermines the public’s right of access to judicial
proceedings.”); Doe v. Blue Cross & Blue Shield United of
Wis., 112 F.3d 869, 872 (7th Cir. 1997) (“Identifying the
parties to the proceeding is an important dimension in
publicness. The people have a right to know who is using their
courts.”).1
In light of that deeply rooted tradition, parties who seek to
proceed pseudonymously seek a “rare dispensation” from the
court. Microsoft, 56 F.3d at 1464 (quoting James v. Johnson,
6 F.3d 233, 238 (4th Cir. 1993)). The moving party bears the
weighty burden of both demonstrating a concrete need for such
secrecy, and identifying the consequences that would likely
befall it if forced to proceed in its own name. See In re Chiquita
Brands Int’l, Inc. Alien Tort Statute & Shareholder Derivative
Litig., __F.3d__, No. 19-11494, 2020 WL 4013070, at *6 (11th
Cir. July 16, 2020) (holding that the plaintiffs seeking to
proceed under a pseudonym “bore the burden to establish * * *
that their privacy rights outweigh the presumption”);
1
When pseudonymous status hides the suing party’s identity
from the defendant, that lack of openness can implicate significant
due process concerns. Microsoft, 56 F.3d at 1463. In such a case, a
court ruling on a request to proceed anonymously “should take into
account the risk of unfairness to the opposing party.” Id. at 1464.
And if proceeding pseudonymously is allowed, the court must
provide appropriate procedures to ensure full fairness in the process.
Because the EPA is aware of the Refinery’s identity, that concern is
not implicated in this case.
5
Plaintiff B v. Francis, 631 F.3d 1310, 1315 (11th Cir. 2011)
(moving party must “show[] * * * he ‘has a substantial privacy
right’”) (quoting Doe v. Frank, 951 F.2d 320, 323 (11th Cir.
1992)). Speculative assertions of harm will not suffice.
Once a legitimate showing of need has been made, the
court must then “balance the litigant’s legitimate interest in
anonymity against countervailing interests in full disclosure.”
In re Sealed Case, 931 F.3d at 96. This balancing test is
necessarily flexible and fact driven. As a starting point, we
weigh the following five non-exhaustive factors:
[1] whether the justification asserted by the requesting
party is merely to avoid the annoyance and criticism
that may attend any litigation or is to preserve privacy
in a matter of [a] sensitive and highly personal nature;
[2] whether identification poses a risk of retaliatory
physical or mental harm to the requesting party or
even more critically, to innocent non-parties;
[3] the ages of the persons whose privacy interests are
sought to be protected;
[4] whether the action is against a governmental or
private party; and, relatedly,
[5] the risk of unfairness to the opposing party from
allowing an action against it to proceed anonymously.
Id. at 97 (alterations in original) (quoting James, 6 F.3d at 238).
None of those factors, or any others, weigh in favor of
maintaining the Refinery’s anonymity during proceedings in
this court.
6
First, the Refinery has failed to demonstrate that requiring
it to proceed in its own name will risk the disclosure of
“sensitive and highly personal” information, In re Sealed Case,
931 F.3d at 97. To the extent that confidential business
information is implicated, the parties’ joint protective order,
which we grant today, protects against that harm.
Beyond those traditionally confidential business records,
the Refinery has made no showing that its mere identity in this
litigation is a sensitive or highly personal matter. That factor
commonly involves intimate issues such as sexual activities,
reproductive rights, bodily autonomy, medical concerns, or the
identity of abused minors. See, e.g., Francis, 631 F.3d at 1316–
1318 (protecting plaintiffs’ identities in case involving sexual
abuse of minors); see also Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001) (terming
“abortion as the paradigmatic example of the type of highly
sensitive and personal matter that warrants a grant of
anonymity”).
The Refinery’s asserted interests bear no resemblance to
those types of intimate or sensitive personal information. For
starters, it is far from clear whether companies even have
“personal” privacy rights beyond the traditional privileges for
confidential business documents, attorney-client
communications and work product, and trade secrets. Cf.
FCC v. AT&T Inc., 562 U.S. 397, 406 (2011) (noting in a
Freedom of Information Act exemption case that “the specific
concept of ‘personal privacy,’ at least as a matter of common
law, did not apply to corporations”) (citing RESTATEMENT
(SECOND) OF TORTS § 652I, cmt. c (AM. LAW INST. 1976)).
Regardless, the Refinery has not even made a colorable
showing of injury to a privacy interest. The Refinery simply
alleges that “[u]nveiling [its] identity would” reveal
7
information “to its competitors, creditors and suppliers.” Joint
Motion to Enter Proposed Protective Order with Separate
Statements at 3, In re Sealed Case, No. 19-1216 (D.C. Cir.
April 2, 2020) (“Joint Motion”). But the Refinery offers
nothing concrete to establish that revealing its identity would
cause it any cognizable harm.
At most, the Refinery argues that its “creditors and
suppliers could take adverse action by increasing the cost and
reducing the availability of unsecured credit associated with a
perceived increase in risk.” Declaration of Robert Winchester,
Joint Motion, Ex. 3, Attachment A at 2 ¶ 3 (“Winchester
Decl.”) (emphasis added). There is no showing of a substantial
risk of privacy injury that would occur. For example, the
Refinery fails to explain why it would not already have to
disclose its financial condition to potential creditors, or even
how the conferral of an economic hardship exemption would
implicate any financial information different from what
creditors would already know or be able to access.
The Refinery also asserts that its “competitors * * * could,
for example, use the information as leverage against [the
Refinery], or to encroach on [the Refinery]’s supply or
customer base, or to inform pricing of fuel at various times
throughout the year.” Winchester Decl. at 2 ¶ 4 (emphasis
added). That harm, it is asserted, “could have devastating
consequences for [the Refinery] and would be a threat to its
ongoing viability.” Id. at 2 ¶ 5.
Those claims, however, not only are hypothesized harms,
but also are presented in entirely conclusory form, devoid of
factual corroboration or elucidation. What leverage the mere
fact of an exemption decision would provide to competitors
and how it would harm the Refinery is not explained. Nor are
we given any hint as to how an exemption application or
8
decision would affect supplies or customers, let alone inform
fuel pricing, Winchester Decl. at 2 ¶ 4. Especially because the
litigation concerns a requested 2018 exemption and so, on the
record and declarations before us, pertains not to the Refinery’s
current economic status, but to its condition two years ago.
While the Refinery peppers its argument with the term
“hardship,” competitors and customers presumably are already
aware that the Refinery is a small refinery. And among small
refineries, applications for exemptions in 2018 appear to have
been the norm—not the exception. In 2018, the EPA received
applications for exemptions from 44 small refineries. See RFS
Small Refinery Exemptions, ENVIRONMENTAL PROTECTION
AGENCY (July 16, 2020), https://www.epa.gov/fuels
-registration-reporting-and-compliance-help/rfs-small-refinery
-exemptions. Information from the Energy Information
Administration indicates that, as of January 1, 2019, there were
only 53 refineries that met the statutory definition of a “small
refinery,” which is a necessary predicate for eligibility for the
small refinery exemption. See KELSI BRACMORT, CONG.
RESEARCH SERV., R46244, THE RENEWABLE FUEL STANDARD
(RFS): FREQUENTLY ASKED QUESTIONS ABOUT SMALL
REFINERY EXEMPTIONS (SRES) 4 (2020). That means that
approximately 83% of small refineries applied for exemptions.
The Refinery’s application would put it in the mainstream, not
in some sensitive outlier status.
On top of that, the standards applied by the EPA in 2018
in ruling on exemption applications revealed little information
about the specifics of a refinery’s financials. In a memorandum
announcing the 31 exemptions granted in 2018, the EPA
explained the terms for receiving an exemption. The EPA’s
position was that a small refinery could receive an exemption
if it experienced either disproportionate impacts or viability
impairment. See Advanced Biofuels Ass’n v. EPA, 792 F.
9
App’x 1, 4 (D.C. Cir. 2019) (citing Anne Idsal, Acting
Assistant Administrator, Office of Air & Radiation, Decision
on 2018 Small Refinery Exemption Petitions at 1 (Aug. 9,
2019)). The EPA also announced that it was granting full
exemptions in cases where the Department of Energy
recommended only partial exemptions. Id. As a result, the
Refinery’s application for an exemption in 2018 does not
reveal whether it claimed that the fuel standards simply had a
disproportionate impact on it, or actually impaired its viability.
Based on the seemingly routine nature of requests for
exemptions and the EPA’s approach to exemptions in 2018, the
Refinery’s conclusory and unexplained claims that its identity
is a sensitive or personal matter provide far too frail a basis on
which to confer the rare dispensation of pseudonymous status.2
Second, the Refinery itself faces no risk of physical or
mental harm either. The asserted injuries are purely economic,
and speculative at that. “[C]ourts consistently have rejected
anonymity requests to prevent speculative and unsubstantiated
claims of harm to a company’s reputational or economic
interests[.]” Public Citizen, 749 F.3d at 274; see also National
Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245
(10th Cir. 1989) (per curiam) (same). With its confidential
business information separately protected from disclosure by
the protective order, the Refinery has provided no basis for
concluding that disclosure of its business name will lead to the
type of harm that could support pseudonymous status.
Third, the Refinery has chosen to sue a government agency
regarding the operation of a statutory program and, in
particular, applications for special exemptions from the law’s
obligations. As many courts have recognized, there is a
2
Our discussion here is merely descriptive of the EPA’s
approach to exemptions in 2018, and reflects no views on the merits
of any challenges to the EPA’s process.
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heightened public interest when an individual or entity files a
suit against the government. See Public Citizen, 749 F.3d at
274; see also Doe v. Megless, 654 F.3d 404, 411 (3d Cir. 2011)
(stating that the public interest is heightened “because
[d]efendants are public officials and government bodies”)
(formatting modified); cf. FTC v. Standard Fin. Mgmt. Corp.,
830 F.2d 404, 410 (1st Cir. 1987) (“The appropriateness of
making court files accessible is accentuated in cases where the
government is a party: in such circumstances, the public’s right
to know what the executive branch is about coalesces with the
concomitant right of the citizenry to appraise the judicial
branch.”).
That public interest is intensified when, as here, the party
asking to proceed anonymously seeks to alter the operation of
public law both as applied to it and, by virtue of the legal
arguments presented, to other parties going forward. The
Renewable Fuel Standard is a creature of statute, and its terms
have been carefully formulated by Congress. See 42 U.S.C.
§ 7545(o). The framework for exemptions is similarly set out
in the statute and agency regulations. See id. § 7545(o)(9).
Given that the subject matter of the suit is whether the agency
has reasonably and evenhandedly applied the statutory and
regulatory scheme, the public interest in open and transparent
proceedings far outweighs the Refinery’s conclusory assertions
of factually unsubstantiated economic harms.
In short, none of the factors commonly involved in
analyzing a request to proceed anonymously weigh in the
Refinery’s favor. And the Refinery’s additional arguments add
nothing to its side of the scale either.
For starters, the Refinery points out that the EPA treats
applications and exemption decisions as confidential. That is
true. But agency choices do not dictate judicial procedures.
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And for whatever it is worth, the EPA has not supported
extending its confidentiality to the Refinery’s litigation of its
petition for review here.
The Refinery also points out that the Ninth Circuit
permitted its duplicate petition in that circuit to proceed under
seal pending a decision on the merits. See Refinery Rule 28(j)
Letter at 1 (Dec. 6, 2019). But the Ninth Circuit has simply left
the question of anonymity “subject to further review by the
merits panel.” Id. at 2. It has not agreed that proceeding
pseudonymously is warranted. The Ninth Circuit, in short,
decided only not to decide right now. We conclude that the
time for decision is ripe.
Lastly, we note that another small refinery that challenges
the EPA’s exemption decisionmaking has proceeded in its own
name in this court. See Petition for Review, Wynnewood
Refining Co. v. EPA, No. 20-1099 (D.C. Cir. March 26, 2020).
There also are numerous other named petitioners before this
court challenging a variety of other small refinery exemption
decisions by the EPA. See, e.g., Sinclair Wyoming Refining
Co. v. EPA, No. 19-1196; Renewable Fuels Ass’n v. EPA,
No. 19-1220. In all of those cases, the petitioners contend that
they should receive an undue economic hardship exemption.
Yet none of them has found it necessary to proceed
anonymously. To permit the Refinery to proceed
pseudonymously would treat it differently than its similarly
situated counterparts. The Refinery has offered no persuasive
reason why we should accord it that special treatment.
IV
Weighing the markedly thin showing of potential injury by
the Refinery against the substantial public interest in
transparency and openness in cases involving the government’s
administration of an important statutory and regulatory
12
scheme, we conclude that the Refinery has not overcome the
“customary and constitutionally-embedded presumption of
openness in judicial proceedings,” In re Sealed Case, 931 F.3d
at 96 (quoting Microsoft, 56 F.3d at 1464). The motion to
proceed under a pseudonym is denied. The Refinery must,
within 14 days of this order, either file an unsealed version of
its petition or dismiss the petition for review.
So ordered.