MetLife, Inc. v. Financial Stability Oversight Council , 865 F.3d 661 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2017 Decided August 1, 2017
No. 16-5188
METLIFE, INC.,
APPELLEE
v.
FINANCIAL STABILITY OVERSIGHT COUNCIL,
APPELLEE
BETTER MARKETS, INC.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00045)
Stephen W. Hall argued the cause for appellant Better
Markets, Inc. With him on the briefs were Dennis M. Kelleher
and Austin W. King.
Anne L. Weismann was on the brief for amici curiae
Campaign for Accountability, et al. in support of intervenor-
appellant.
Amir C. Tayrani argued the cause for appellee MetLife, Inc.
With him on the brief was Eugene Scalia. Ashley S. Boizelle
and Indraneel Sur entered appearances.
2
Nicolas Riley, Attorney, U.S. Department of Justice, argued
the cause for federal appellee. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Mark B. Stern and Daniel Tenny, Attorneys.
Before: GARLAND, Chief Judge, and KAVANAUGH and
SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: The underlying question in this
case is whether the Dodd-Frank Act abrogates the common-law
right of public access to judicial records. The appellees
maintain that it does. In their view, the Act categorically
requires courts to seal parts of briefs and appendices containing
information that a nonbank financial company has submitted to
the Financial Stability Oversight Council for its use in deciding
whether to designate the company for enhanced supervision by
the Federal Reserve.
We disagree. The right of public access is a fundamental
element of the rule of law, important to maintaining the integrity
and legitimacy of an independent Judicial Branch. Although the
right is not absolute, there is a strong presumption in its favor,
which courts must weigh against any competing interests. There
is nothing in the language of Dodd-Frank to suggest that
Congress intended to displace the long-standing balancing test
that courts apply when ruling on motions to seal or unseal
judicial records. Accordingly, because the district court did not
apply that test to the motion to unseal the records at issue here,
but instead ruled that they were categorically exempt from
disclosure, we vacate its judgment and remand the case for
further proceedings.
3
I
Congress passed the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376
(2010), to mitigate the risks that certain financial institutions
could pose to the stability of the national financial system. S.
Rep. No. 111-176, at 2 (2010). The Act tasks the Financial
Stability Oversight Council (FSOC) with carrying out that
objective. Among other powers, FSOC may designate a
“nonbank financial company” for enhanced supervision by the
Federal Reserve System’s Board of Governors if the Council
determines that “material financial distress” at the company
“could pose a threat to the financial stability of the United
States.” 12 U.S.C. § 5323(a)(1). To assist it in making
designation decisions, FSOC may require nonbank financial
companies to submit financial data and information to the
Council. Id. § 5322(d)(3)(A). FSOC must “maintain the
confidentiality of any data, information, and reports” that a
company submits. Id. § 5322(d)(5)(A).
In July 2013, FSOC notified MetLife, Inc. that it was
considering the company for designation. Over the course of the
next year, MetLife voluntarily submitted over 21,000 pages of
documents to FSOC to help it reach a determination. In
December 2014, FSOC determined that “material financial
distress” at MetLife “could pose a threat to the financial stability
of the United States,” id. § 5323(a)(1), and therefore designated
MetLife for supervision.
Pursuant to 12 U.S.C. § 5323(h), MetLife challenged
FSOC’s designation determination in district court. That section
authorizes a nonbank financial company to seek judicial review
of a final determination by the Council. The court’s review is
“limited to whether the final determination . . . was arbitrary and
capricious.” Id.
4
During the ensuing summary-judgment briefing, MetLife
and FSOC worked together to prepare redacted and unredacted
versions of their briefs and 16-volume joint appendix. Some
redactions were of portions of FSOC’s final determination
designating MetLife; others were of data and information that
MetLife had voluntarily submitted to FSOC. Both parties
sought leave to file their unredacted briefs and unredacted joint
appendix under seal. The district court granted their requests.
Thereafter, the parties filed the unredacted documents under seal
and made the redacted versions publicly available. Before the
district court issued its ruling on the merits, MetLife filed new
versions of its briefs and the joint appendix with fewer
redactions.
MetLife redacted a total of approximately 22 lines from the
final, public versions of its opening and reply briefs. See J.A.
73-80; MetLife Br. 9, 23. FSOC redacted approximately the
same number of lines from the public versions of its briefs. See
J.A. 59-72. Those public briefs contained 90 citations to sealed
portions of the joint appendix. Better Markets Br. 5. All
together, over 1,900 pages of the joint appendix -- more than
two-thirds of the total -- were redacted from the public version.
Id. at 4.
Better Markets, Inc. is a “nonpartisan, nonprofit, public-
interest organization” focused on the United States financial
system. Better Markets Br. at iii. Pursuant to Federal Rule of
Civil Procedure 24(b), the organization moved to intervene in
the district court litigation and to unseal the briefs and joint
appendix. Before ruling on those motions, the court granted
MetLife’s summary-judgment motion and rescinded FSOC’s
designation of MetLife on the ground that it was arbitrary and
capricious. See MetLife, Inc. v. Fin. Stability Oversight Council,
5
177 F. Supp. 3d 219, 242 (D.D.C. 2016).1 The court initially
entered its opinion under seal and allowed the parties to suggest
redactions. After neither party requested any, the court unsealed
the opinion in its entirety.
The district court next ruled on Better Markets’ motions.
Although the court permitted Better Markets to intervene, it
denied the motion to unseal. See MetLife, Inc. v. Fin. Stability
Oversight Council, 2016 WL 3024015, No. 15-0045 (D.D.C.
May 25, 2016). The court concluded that Dodd-Frank’s
confidentiality provision, 12 U.S.C. § 5322(d)(5)(A), required
that the relevant portions of the briefs and joint appendix remain
sealed because they included data, information, and reports
MetLife submitted to FSOC. MetLife, 2016 WL 3024015, at *6.
Dodd-Frank, the court said, “supersedes the multi-factor inquiry
prescribed by the D.C. Circuit” for ruling on motions to seal or
unseal judicial records. Id. at *5 (referencing United States v.
Hubbard, 650 F.2d 293 (D.C. Cir. 1980)). The court further
suggested that the briefs and appendix may not qualify as
“judicial records” in any event. See id. at *6-7.
Better Markets now appeals the denial of its motion to
unseal.2
1
FSOC appealed, and that matter is pending before another panel
of this court. MetLife, Inc. v. Fin. Stability Oversight Council, No. 16-
5086 (D.C. Cir. filed Apr. 20, 2016).
2
Better Markets also asks us to review the standard the district
court applied in granting its motion to intervene. Because the district
court granted that motion, we decline to take up Better Markets’
challenge to the court’s reasoning. See Camreta v. Greene, 563 U.S.
692, 702 (2011) (noting that a court will usually decline “review of a
prevailing party’s challenge even when he has the requisite stake” in
the appeal).
6
II
Almost 40 years ago, the Supreme Court said it was “clear
that the courts of this country recognize a general right to
inspect and copy public records and documents, including
judicial records and documents.” Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 597 (1978) (internal citation omitted). Two
years later, in United States v. Hubbard, our court likewise
“recogniz[ed] this country’s common law tradition of public
access to records of a judicial proceeding,” noting that “[a]ccess
to records serves the important functions of ensuring the
integrity of judicial proceedings in particular and of the law
enforcement process more generally.” 650 F.2d at 314-15.
“This common law right,” we explained, “is fundamental to a
democratic state”:
As James Madison warned, “A popular Government
without popular information, or the means of acquiring
it, is but a Prologue to a Farce or a Tragedy: or
perhaps both. . . . A people who mean to be their own
Governors, must arm themselves with the power which
knowledge gives.” Like the First Amendment, then,
the right of inspection serves to produce “an informed
and enlightened public opinion.” Like the public trial
guarantee of the Sixth Amendment, the right serves to
“safeguard against any attempt to employ our courts as
instruments of persecution,” to promote the search for
truth, and to assure “confidence in . . . judicial
remedies.”
7
Id. at 315 n.79 (quoting United States v. Mitchell, 551 F.2d
1252, 1258 (D.C. Cir. 1976), rev’d on other grounds sub nom.
Nixon, 435 U.S. 589).3
In light of these considerations, there is a “strong
presumption in favor of public access to judicial proceedings.”
Hubbard, 650 F.2d at 317; see Hardaway v. D.C. Housing Auth.,
843 F.3d 973, 980 (D.C. Cir. 2016). That presumption may be
outweighed in certain cases by competing interests. In
Hubbard, we crafted a six-factor test to balance the interests
presented by a given case. See 650 F.2d at 317-22. Specifically,
when a court is presented with a motion to seal or unseal, it
should weigh: “(1) the need for public access to the documents
at issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected to disclosure,
and the identity of that person; (4) the strength of any property
and privacy interests asserted; (5) the possibility of prejudice to
those opposing disclosure; and (6) the purposes for which the
documents were introduced during the judicial proceedings.”
EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C.
Cir. 1996) (citing Hubbard, 650 F.2d at 317-22). A seal may be
maintained only “if the district court, after considering the
relevant facts and circumstances of the particular case, and after
weighing the interests advanced by the parties in light of the
public interest and the duty of the courts, concludes that justice
so requires.” In re Nat’l Broad. Co., 653 F.2d 609, 613 (D.C.
Cir. 1981) (internal quotation marks and citations omitted).
3
See also Nixon, 435 U.S. at 598 (noting that the right of access
promotes “the citizen’s desire to keep a watchful eye on the workings
of public agencies”); Cowley v. Pulsifer, 137 Mass. 392, 394 (1884)
(Holmes, J.) (“[I]t is of the highest moment that those who administer
justice should always act under the sense of public responsibility, and
that every citizen should be able to satisfy himself with his own eyes
as to the mode in which a public duty is performed.”).
8
In subsequent cases involving motions to seal or unseal
judicial records, the Hubbard test has consistently served as our
lodestar because it ensures that we fully account for the various
public and private interests at stake. See, e.g., Hardaway, 843
F.3d at 980; Primas v. District of Columbia, 719 F.3d 693, 698-
99 (D.C. Cir. 2013); Nat’l Children’s Ctr., 98 F.3d at 1409-11;
Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277
& n.14 (D.C. Cir. 1991).
Relying on the common-law right of public access to
judicial records, Better Markets contends that the district court
improperly sealed parts of the summary-judgment briefs and
joint appendix because it did so without applying the Hubbard
test.4 MetLife and FSOC respond with two principal
contentions: (1) those documents do not qualify as judicial
records subject to the common-law right; and (2) even if they
do, the Dodd-Frank Act supersedes that right. We address these
contentions in the following two Parts of this opinion. Both are
subject to de novo review. See Ctr. for Nat’l Sec. Studies v.
DOJ, 331 F.3d 918, 920, 936-37 (D.C. Cir. 2003); United States
v. El-Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997).
4
Amici curiae supporting Better Markets ask us to hold that the
public has not only a common-law right, but also a First Amendment
right of access to the records in this case. Better Markets adopts this
argument in its reply brief. The question, however, is not properly
before us. Better Markets disavowed any First Amendment claim
before the district court, see Better Markets Mot. to Intervene at 21
n.10, and the claim is therefore waived, see Potter v. District of
Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009). Nor may amici
expand an appeal’s scope to sweep in issues that a party has waived.
See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001).
9
III
We begin with common ground. “[N]ot all documents filed
with courts are judicial records.” SEC v. Am. Int’l Grp., 712 F.3d
1, 3 (D.C. Cir. 2013). Rather, “whether something is a judicial
record depends on ‘the role it plays in the adjudicatory
process.’” Id. (quoting El-Sayegh, 131 F.3d at 163).
On appeal, FSOC does not dispute that the documents at
issue here, whether sealed (redacted) or not, qualify as judicial
records.5 MetLife, however, does. In its view, the sealed parts
of those documents did not play a sufficient role in the
adjudicatory process to qualify as judicial records because the
district court’s opinion granting summary judgment, which is
publicly available in its entirety, did not quote or cite any of
those sealed (redacted) parts.
On this we disagree. At the outset, we note that MetLife’s
claim is inconsistent with the seminal Hubbard case itself.
Hubbard involved the sealing of documents that had been seized
pursuant to a search warrant and that were the subject of a
motion to suppress. 650 F.2d at 300-02 & n.22. We treated
those documents as judicial records, subject to the balancing test
described above, notwithstanding that their “contents were not
specifically referred to or examined upon during the course of
those proceedings and [their] only relevance to the proceedings
derived from the defendants’ contention that many of them were
not relevant to the proceedings, i.e., that the seizure exceeded
the scope of the warrant.” Id. at 316; see id. at 300 (noting that
“only a small number of the documents were referred to
individually by nature or content by either witnesses in the
5
FSOC took a different position in the district court. See FSOC
Response to Motion to Intervene at 6-7.
10
suppression hearing or by the trial judge in his ultimate decision
on the motion”).
A brief (or part of a brief) can affect a court’s
decisionmaking process even if the court’s opinion never quotes
or cites it. To affect the court’s decision, after all, is the reason
parties file briefs. “The premise of our adversarial system is that
appellate courts do not sit as self-directed boards of legal inquiry
and research, but essentially as arbiters of legal questions
presented and argued by the parties before them.” Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). There is no doubt,
then, that parties’ briefs play a central role in the adjudicatory
process.
So, too, the joint appendix. Just as our adversarial system
relies on the arguments presented in the parties’ briefs, our
system of judicial review of agency action requires the court to
consider the record upon which an agency made its decision.
FSOC uses the information it collects from a nonbank financial
company to determine whether the company should be
designated for supervision because “material financial distress
at the . . . company . . . could pose a threat to the financial
stability of the United States.” 12 U.S.C. § 5323(a)(1). When,
pursuant to 12 U.S.C. § 5323(h), a court reviews a designation
determination to decide whether it was “arbitrary and
capricious,” the court must examine the administrative record
upon which the Council based its decision. See Camp v. Pitts,
411 U.S. 138, 142 (1973) (“In applying [the arbitrary and
capricious] standard, the focal point for judicial review should
be the administrative record already in existence . . . .”).6
6
See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The
grounds upon which an administrative order must be judged are those
upon which the record discloses that its action was based.”); John
Doe, Inc. v. DEA, 484 F.3d 561, 570 (D.C. Cir. 2007) (“We review the
11
Indeed, “[n]ormally, an agency rule would be arbitrary and
capricious if the agency has [inter alia] . . . offered an
explanation for its decision that runs counter to the evidence
before the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Under the district court’s local rules, the joint appendix is
the place the court will look to find the administrative record.
In “cases involving the judicial review of administrative agency
actions,” those rules require counsel to “provide the Court with
an appendix containing copies of those portions of the
administrative record that are cited or otherwise relied upon in
any memorandum in support of or in opposition to any
dispositive motion.” U.S. Dist. Ct. for D.C. Local R. 7(n)(1).
Thus, by definition, the joint appendix contains information with
which the parties hope to influence the court, and upon which
the court must base its decision. See Wash. Legal Found. v. U.S.
Sentencing Comm’n, 89 F.3d 897, 906 (D.C. Cir. 1996) (“[T]he
meaning and legal import of a judicial decision is a function of
the record upon which it was rendered.”).
MetLife notes that, in SEC v. American International
Group, this court found that an independent consultant’s reports
were “not judicial records subject to the right of access because
the district court made no decisions about them or that otherwise
relied on them.” 712 F.3d at 3-4. It maintains that the same is
true here. It is not. Although the reports at issue in American
International Group were prepared pursuant to the court’s
consent decree, they were never filed with it. Id. at 4. Because
those reports never became part of the district court’s docket and
[agency’s] rationale for denying [the] permit under the APA’s familiar
arbitrary and capricious standard. In conducting our judicial review,
we focus on the administrative record that formed the basis for the
agency’s decision . . . .” (internal citation omitted)).
12
were produced after the court’s decision, the decision was not
“about them” and the court could not have “relied on them” in
adjudicating the case. Id.; see id. (noting that “the independent
consultant had no relationship with the court”).
Here, by contrast, the briefs and appendix were filed before
the district court’s decision and were intended to influence it.
We have no doubt that the court read the briefs, including the
parts it did not cite or quote. And it was required by Supreme
Court precedent to examine the appendix, including the sealed
portions, because the appendix contained the administrative
record upon which the court’s review had to be based. See
supra note 6. The fact that the court did not cite or quote
portions of those documents does not mean that it did not “rely”
on them -- if only to determine that they did not dissuade it from
its bottom-line conclusion. And the court certainly made
“decisions about them”: it decided that MetLife’s briefs
persuaded it while FSOC’s did not; and it decided that FSOC’s
designation determination was arbitrary and capricious in light
of the administrative record contained in the joint appendix.7
In suggesting that the sealed materials are not judicial
records, the district court emphasized that its opinion -- “‘the
quintessential business of the public’s institution[],’ . . . -- is
7
In United States v. El-Sayegh, we held that a plea agreement
submitted to the court only to allow it to rule on the government’s
motion to seal that agreement was not a judicial record. 131 F.3d at
163. Reasoning that the concept of judicial records “assumes a
judicial decision,” the court concluded that the unconsummated plea
agreement could not be a judicial record because “[t]he only judicial
act related to [that] document [was] the district court’s determination
to release it.” Id. at 162. Here, of course, the pertinent judicial act
related to the briefs and appendix was not the decision whether to
release them, but rather the decision to vacate FSOC’s designation
determination.
13
entirely unsealed.” MetLife, 2016 WL 3024015, at *6 (quoting
Nat’l Children’s Ctr., 98 F.3d at 1409). The issuance of a
completely public opinion contributes significantly to the
transparency of the court’s decisionmaking process. But the fact
that one judicial record is public does not determine whether
other documents qualify as judicial records as well. Without
access to the sealed materials, it is impossible to know which
parts of those materials persuaded the court and which failed to
do so (and why). For that reason, we have no doubt that an
appellate court reviewing the district court’s decision to vacate
FSOC’s determination would want to examine all of the
materials -- sealed and unsealed -- to determine whether the
court correctly concluded that the agency’s decision was
arbitrary and capricious.8 And that is more than enough to make
them judicial records.
Finally, it is important to understand the implications of
adopting MetLife’s contrary view. Carried to its logical
conclusion, that view would permit the redaction of every page
of a brief or joint appendix that a court opinion did not cite or
quote -- without any analysis under Hubbard -- because such
pages would not qualify as judicial records. Needless to say,
this would greatly diminish the common-law right of access.
The reader of the current opinion has likely noticed that no
part of it is redacted, and that we have not cited or quoted every
8
We note that, at the oral argument of the appeal from the district
court’s decision regarding FSOC’s designation of MetLife, there was
in fact a discussion of a study contained in a sealed portion of the joint
appendix. See Oral Arg. Tr. at 29, MetLife, Inc. v. Fin. Stability
Oversight Council, No. 16-5086 (addendum to Better Markets Reply
Br.).
14
page of the parties’ appellate briefs or joint appendix. We
assure the reader, however, that we have read those documents
(including the parts not cited), that we have “relied” on them in
reaching our decision (sometimes being persuaded, sometimes
not), and that our decision is “about them” taken as a whole.
We have no doubt that those documents, too, are judicial
records.
IV
MetLife and FSOC contend that, even if the sealed
materials qualify as judicial records subject to the common-law
right of access, the Dodd-Frank Act supersedes that right. The
district court agreed, holding that Dodd-Frank renders Hubbard
inapplicable. Although it is true that the Hubbard inquiry must
yield to a statute “when Congress has spoken directly to the
issue at hand,” Ctr. for Nat’l Sec. Studies, 331 F.3d at 937, the
Dodd-Frank Act is not such a statute.
A
The Dodd-Frank provision upon which the district court
relied is 12 U.S.C. § 5322(d)(5). Subsection (A) states: “[t]he
Council, the Office of Financial Research, and the other member
agencies shall maintain the confidentiality of any data,
information, and reports submitted under this subchapter.” 12
U.S.C. § 5322(d)(5)(A). MetLife argues that this language
“categorically protects” the sealed portions of the briefs and
joint appendix from public disclosure without the need for a
Hubbard analysis. MetLife Br. 16. But even assuming that all
of the sealed materials constitute confidential “data, information,
and reports” that were submitted to FSOC -- a fact that Better
Markets disputes -- subsection (A) requires only that “[t]he
Council, the Office of Financial Research, and the other member
15
agencies” keep those materials confidential.9 It imposes no such
obligation on -- and does not even mention -- the courts.
There is no reason to read the statute atextually to include
such an obligation. See, e.g., Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253-54 (1992) (“[C]ourts must presume that a
legislature says in a statute what it means and means in a statute
what it says there. When the words of a statute are
unambiguous, then, this first canon is also the last: ‘judicial
inquiry is complete.’” (internal citations omitted)). To the
contrary, we can reasonably assume that Congress would not
have overturned the longstanding presumption favoring judicial
transparency by a provision that mentions executive agencies
but not the judiciary. Cf. Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1390 (2014) (“Congress, we
assume, is familiar with the common-law rule and does not
mean to displace it sub silentio.”).
The remaining two subsections of § 5322(d)(5) reinforce
our conclusion that subsection (A) was not meant to
categorically bar disclosure by courts.
First, subsection (B) provides that “[t]he submission of any
nonpublicly available data or information under this subsection
. . . shall not constitute a waiver of, or otherwise affect, any
privilege arising under Federal or State law (including the rules
of any Federal or State court) to which the data or information
is otherwise subject.” 12 U.S.C. § 5322(d)(5)(B). This
subsection plainly refers to privileges against disclosure that
parties may have in litigation. But if subsection (A) meant that
9
No party disputes that § 5322(d)(5)(A) applies to information
that a nonbank financial company voluntarily submits to FSOC, see
12 U.S.C. § 5322(a)(2)(A), as well as to information that such a
company is required to submit to FSOC, see id. § 5322(d)(3)(A).
 16
the submission of material to FSOC categorically protects it
from disclosure by a court, there would be no need to mention
other privileges against disclosure (or the waiver of such
privileges). Hence, the appellees’ construction of subsection (A)
would render subsection (B) superfluous, contravening the
principle that “[a] statute should be construed so that effect is
given to all its provisions.” Hibbs v. Winn, 542 U.S. 88, 101
(2004) (internal quotation marks omitted).10
Second, subsection (C) states that the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, “including the
exceptions thereunder, shall apply to any data or information
submitted under this subsection.” 12 U.S.C. § 5322(d)(5)(C).
By virtue of this provision, all data and information that MetLife
submitted to FSOC must be released by the Council if requested
under FOIA, see 5 U.S.C. § 552(a)(3)(A), unless one of that
statute’s enumerated exemptions protects it, see id. § 552(b); see
also DOJ v. Tax Analysts, 492 U.S. 136, 150-51 (1989). To be
sure, some of that data and information may well be covered by
FOIA exemptions that preclude disclosure.11 But by subjecting
10
Moreover, as discussed in Part II, the only “privilege” against
disclosure that MetLife has with respect to judicial records is defined
by the Hubbard analysis, and subsection (B) provides that this
“privilege” is not “affect[ed]” by Metlife’s submission of information
to FSOC. We also note that subsection (B) only protects the
submission of “nonpublicly available data or information.” In this
way as well, the statute does not contemplate the categorical judicial
protection for which MetLife argues.
11
See, e.g., 5 U.S.C. § 552(b)(4) (exempting “trade secrets and
commercial or financial information obtained from a person and
privileged or confidential”); id. § 552(b)(8) (exempting information
“contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency responsible for
the regulation or supervision of financial institutions”).
17
that material to FOIA at all, Congress made clear that it did not
intend that the information be absolutely exempt from
disclosure. And it seems unlikely that Congress would have
wanted some submitted material to be available upon a FOIA
request to the agency, but wholly unavailable upon a motion to
unseal judicial records filed in a court.
B
The district court and appellees have raised a number of
extra-textual arguments for concluding that the Dodd-Frank Act
displaces the common-law right of access to judicial records.
We address those arguments in this subpart. See NLRB v. SW
General, Inc., 137 S. Ct. 929, 942 (2017) (“The text is clear, so
we need not consider this extra-textual evidence. In any event,
[that] evidence is not compelling.”).
1. Noting that Dodd-Frank provides a right to judicial
review of designation determinations, the district court regarded
it as “unthinkable that Congress would condition the
confidential treatment of a company’s information on that
company’s refraining from seeking judicial review expressly
afforded to it by the same statute.” MetLife, 2016 WL 3024015,
at *6. Similarly, FSOC argues that “[a] nonbank financial
company does not forfeit the protections of [§ 5322(d)(5)(A)] by
seeking judicial review of a designation.” FSOC Br. 11; see
also MetLife Br. 19. We reject this argument for several
reasons.
First, it assumes what it must prove: applying Hubbard
cannot be said to require a company to “forfeit” the protections
of § 5322(d)(5)(A) unless those protections apply not only to
FSOC but also to the courts. But as we have said above, the
language of § 5322(d)(5) does not make those protections
18
applicable to the latter. Nor do the appellees cite any legislative
history that suggests Congress wanted them to be.
Second, a company does not in fact surrender (or “forfeit”)
the confidentiality of its information by seeking judicial review.
Instead, Hubbard directs courts to weigh the importance of
confidentiality, requiring them to take into account “the fact that
someone has objected to disclosure,” “the strength of any
property and privacy interests asserted,” and “the possibility of
prejudice to those opposing disclosure.” Nat’l Children’s Ctr.,
98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317-22). For
documents containing sensitive business information and trade
secrets, those factors often weigh in favor of sealing and, as
Hubbard itself noted, courts commonly permit redaction of that
kind of information.12 Moreover, it is important to remember
that, even while a company’s information is solely in FSOC’s
hands, its confidentiality is not categorically protected because
Dodd-Frank renders it subject to FOIA. See 12 U.S.C.
§ 5322(d)(5)(C).
Finally, there is nothing “unthinkable” about declining to
grant categorical protection from disclosure to material that
12
See Hubbard, 650 F.2d at 315 & n.81 (noting that “[t]he public
has in the past been excluded, temporarily or permanently, from court
proceedings or the records of court proceedings to protect private as
well as public interests[,] [including] to protect trade secrets” (citing
cases)); accord Nixon, 435 U.S. at 598 (“[T]he common-law right of
inspection has bowed before the power of a court to insure that its
records are not . . . [used] as sources of business information that
might harm a litigant’s competitive standing.”); see also, e.g., Suture
Express, Inc. v. Owens & Minor Distrib., Inc., 851 F.3d 1029, 1046-47
(10th Cir. 2017); Rudd Equip. Co. v. John Deere Constr. & Forestry
Co., 834 F.3d 589, 593 (6th Cir. 2016); Apple Inc. v. Samsung Elecs.
Co., 727 F.3d 1214, 1226, 1228 (Fed. Cir. 2013); Pepsico, Inc. v.
Redmond, 46 F.3d 29, 31 (7th Cir. 1995).
19
constitutes the record on review and that may be necessary to
understand the basis of a court’s decision. To the contrary,
noncategorical balancing tests analytically similar to Hubbard’s
are the standard for ruling on motions to seal or unseal judicial
records in every Circuit.13
2. In a related vein, FSOC worries that applying Hubbard
to the judicial records at issue here “would discourage nonbank
financial companies and third parties from sharing confidential
information with the Council, thereby undermining the
Council’s ability to perform its core functions under
Dodd-Frank.” FSOC Br. 12. As just discussed, continued
confidential treatment of sensitive information is still possible
under Hubbard. In addition, companies will still have reason to
voluntarily provide information that they think will help them
avoid designation (and likewise, will have the same incentive
they had before to resist providing information they think will
make designation more likely). Finally, in the end Dodd-Frank
gives FSOC the trump card: the Act grants the Council the
power to require companies to turn over the financial
information the Council needs for its work, regardless of the
companies’ predilections. See 12 U.S.C. § 5322(d)(3)(A).
13
See Siedle v. Putnam Investments, Inc., 147 F.3d 7, 10 (1st Cir.
1998); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d
Cir. 2006); In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001);
Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir.
2004); SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993);
In re Knoxville News-Sentinel Co., 723 F.2d 470, 474 (6th Cir. 1983);
United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989); Webster
Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th
Cir. 1990); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
1135 (9th Cir. 2003); Mann v. Boatright, 477 F.3d 1140, 1149 (10th
Cir. 2007); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263
F.3d 1304, 1311 (11th Cir. 2001).
20
3. FSOC also contends that Better Markets’
§ 5322(d)(5)(C) right to seek access to information through
FOIA negates any right to seek access through a motion to
unseal. But FOIA applies solely to information in the hands of
executive agencies and expressly excludes federal courts from
its domain. See 5 U.S.C. § 551(1)(B) (excluding “the courts of
the United States” from the definition of “agency”); id. § 552(a)
(providing that “[e]ach agency shall make available to the public
information as follows”) (emphasis added). It is therefore “clear
that [FOIA] was not intended to restrict the federal courts.”
Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165
1177 (6th Cir. 1983). And again, there are no words in
§ 5322(d)(5)(C), or any legislative history, to the contrary.
4. The appellees rely on several cases for their extra-textual
reading of § 5322(d)(5), none of which supports their position.
FSOC argues that Nixon v. Warner Communications, 435
U.S. 589, “stands for the principle that a statutory disclosure
scheme preempts the common law right of access to public
records,” and thus establishes that Dodd-Frank’s incorporation
of FOIA’s disclosure scheme preempts that right here. FSOC
Br. 12-13 (internal quotation marks omitted). FSOC overreads
the case.
The statute at issue in Nixon, the Presidential Recordings
and Materials Preservation Act, Pub. L. No. 93-526, 88 Stat.
1695 (1974), “created an administrative procedure for
processing and releasing to the public . . . all of petitioner’s
Presidential materials of historical interest, including recordings
of the conversations at issue” -- the Nixon tapes. Nixon, 435
U.S. at 603. “Considering all the circumstances of this
concededly singular case,” the Court held “that the common-law
right of access to judicial records [did] not authorize release of
21
the tapes in question from the custody of the District Court.” Id.
at 608.
The administrative procedure for processing and releasing
materials created by the Presidential Recordings Act did not
exclude the courts from its coverage. Id. at 603. By contrast,
the administrative procedure that Dodd-Frank incorporates --
FOIA -- does so expressly. See 5 U.S.C. § 551(1)(B). Further,
the Supreme Court described the Presidential Recordings Act’s
procedure as “unique.” Nixon, 435 U.S. at 603. But there is
nothing unique about FOIA, which applies to every record of
almost every Executive Branch agency. If FOIA’s disclosure
scheme preempted the common-law right of access to judicial
records, there would be little left of that right in litigation
involving the federal government; agencies could simply seal all
materials that would qualify as “agency records” under FOIA.
We do not think the Court contemplated such a result in ruling
on the “singular” case of the Nixon tapes.14
14
Three other cases that FSOC cites for the “principle that a
statutory disclosure scheme preempts the common law right of access
to public records” are plainly inapposite. FSOC Br. 13 (internal
quotation marks omitted). Center for National Security Studies v.
DOJ involved a FOIA request to the Department of Justice for records
in the Department’s possession; it did not involve a conflict between
FOIA and the common-law right of access to judicial records. See 331
F.3d at 936-37. United States v. El-Sayegh held that “[t]he appropriate
device” for obtaining access to an unconsummated plea agreement
was “a Freedom of Information Act request addressed to the relevant
agency,” but it did so only after concluding that the plea agreement
did not constitute a judicial record subject to a public right of access.
131 F.3d at 163; see supra note 7. Finally, In re Motions of Dow
Jones & Co. held that, “even if there were once a common law right
of access to [materials relating to grand jury proceedings], the
common law has been supplanted by Rule 6(e)(5) and Rule 6(e)(6) of
the Federal Rules of Criminal Procedure.” 142 F.3d at 504. But those
22
The appellees also argue that In re Sealed Case, 237 F.3d
657 (D.C. Cir. 2001), stands for the proposition that, when a
statute requires an agency to preserve the confidentiality of
administrative materials, the statute supersedes the Hubbard test
and requires that agency materials be sealed during litigation.
MetLife Br. 14-15; see also FSOC Br. 14-15. We do not read
Sealed Case so broadly.
In Sealed Case, the Federal Election Commission (FEC)
petitioned a district court to enforce a third-party subpoena. In
connection with its petition, the FEC publicly filed exhibits
containing information about an ongoing investigation, despite
the agency’s statutory mandate to keep the information
confidential. 237 F.3d at 661, 665. The subject of the
investigation filed a motion to seal the exhibits, which the
district court denied. Id. at 661.
On appeal, we explained that, “[i]f this were a typical
case . . . looking simply at whether court records should be
sealed,” we would have held that the district court should have
considered the Hubbard factors (which it had failed to do). Id.
at 666. We found, however, that this was not a case about
“whether court records should be sealed.” Id. “Rather, the
question before us [was] more properly posed as whether the
FEC has the authority to file information concerning an ongoing
investigation on the public record when it seeks to enforce a
subpoena.” Id. Holding that the Federal Election Campaign Act
and FEC regulations “plainly prohibit the FEC from” making
such a disclosure, we “conclud[ed] that the FEC failed to act in
accordance with law” when it filed “the subpoena enforcement
action on the public docket.” Id. at 667.
rules, unlike § 5322(d)(5), expressly govern the federal courts. See
FED. R. CRIM. P. 1(a)(1).
23
In short, Sealed Case does not stand for the broad
proposition that whenever a statute commands an agency to
keep materials confidential, the statute bars courts from applying
the Hubbard analysis when considering whether to unseal those
materials. It held only that the FEC violated the Campaign Act
and FEC regulations by unilaterally filing the information on the
public record, and that such agency action had to be overturned.
Sealed Case did not reach the Hubbard issue, other than to say
that the statutory and regulatory scheme in that case “create[d]
an extraordinarily strong privacy interest in keeping the records
sealed[,] . . . [s]o strong . . . that only rarely, if ever, might the
remaining five Hubbard factors counterbalance the strength of
the privacy interests asserted.” Id. at 666 (internal quotation
marks and alterations omitted).15
In the case now before us, FSOC -- unlike the FEC in
Sealed Case -- did not violate its governing statute. Rather, it
consistently joined MetLife’s efforts to seal the relevant records.
Per Sealed Case, then, this case presents only the “typical”
question of whether a court should unseal those records -- a
question governed by Hubbard. See id.
MetLife further maintains that Congress drafted
§ 5322(d)(5)(A) against the backdrop of Sealed Case, and that
it therefore must have intended that provision to limit courts as
well as FSOC. Oral Arg. Recording at 36:32-38. There is no
legislative history to support that claim and no evidence that
Congress construed the case as MetLife does, rather than as we
do. Nor is there any evidence that Congress was aware of the
15
The court noted that, under the provisions of the Campaign Act
relating to pending investigations, “secrecy is vital to protect [an]
innocent accused who is exonerated from disclosure of the fact that he
has been under investigation.” In re Sealed Case, 237 F.3d at 667
(internal quotation marks omitted).
24
case at all. If Congress were aware of any law on this subject,
we expect it would have been the longstanding common-law
right of public access to judicial records -- a right that “antedates
the Constitution,” El-Sayegh, 131 F.3d at 161, and is enshrined
in a series of cases in the Supreme Court, this court, and each of
the other circuits.16 Thus, if any canon of construction applies,
it is that “[s]tatutes which invade the common law . . . are to be
read with a presumption favoring the retention of
long-established and familiar principles, except when a statutory
purpose to the contrary is evident.” United States v. Texas, 507
U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 343
U.S. 779, 783 (1952)). No such purpose is evident in the Dodd-
Frank Act.
C
In sum, we conclude that Dodd-Frank does not displace the
common-law right of public access to judicial records, or the
Hubbard test that courts in this Circuit apply when asked to seal
or unseal such records.
Our conclusion is further confirmed by considering the
logical consequence that would result from instead adopting the
appellees’ position. As both MetLife and FSOC forthrightly
acknowledged at oral argument, accepting their view would also
require a court to redact portions of its own opinion that discuss
data or information submitted by a company to the Council --
even key applications of law to fact. Oral Arg. Recording at
41:51-42:05 (MetLife); id. at 43:33-44:36 (MetLife); id. at
48:10-31 (FSOC). That requirement would be categorical:
16
See Nixon, 435 U.S. 589; Hubbard, 650 F.2d 293; cases cited
supra note 13; cf. Dixon v. United States, 548 U.S. 1, 13-14 (2006)
(“[W]e can safely assume that . . . Congress was familiar with . . . the
long-established common-law rule . . . .”).
25
redaction would be mandatory, without the balancing
contemplated by Hubbard, and without regard for how central
the redacted material is to explaining the opinion’s rationale. Id.
at 41:05-42:05 (acknowledgment by MetLife that redaction
would be required, even if the public could not understand an
opinion without reference to the redacted information).17 Such
a requirement would contradict a fundamental norm of our
judicial system: that judges’ decisions and their rationales must
be available to the public. See Matter of Krynicki, 983 F.2d 74,
75 (7th Cir. 1992) (“Judges deliberate in private but issue public
decisions after public arguments based on public records.”). We
would not expect Congress to upset such a norm without saying
so.18
V
Because the common-law right of public access applies to
the briefs and appendix filed in this case, and because Dodd-
Frank does not supersede that right, the district court was
required to apply the Hubbard test in resolving Better Markets’
motion to unseal the redacted portions of those documents. The
court did state that it had “reviewed the record and all of the
17
We recognize that the district court’s opinion in this case
contains no redactions, and that MetLife and FSOC voluntarily strove
to redact as little as they thought possible from their briefs and
appendices. See MetLife, 2016 WL 3024015, at *6 (noting that “the
parties have been entirely forthcoming, even volunteering to lift
redactions previously made”). But the decision we reach today will
apply not only to this case, but also to future cases in which the
relevant players may be less diligent or conscientious than those
involved here.
18
We take no position on the extent to which Congress could
constitutionally mandate the sealing of judicial records or opinions.
We conclude only that § 5322(d)(5) does not embody such a mandate.
26
briefs . . . and [found] that large parts of the administrative
record and the briefs should be redacted from public view.”
MetLife, 2016 WL 3024015, at *6. In context, however, it is
clear that the court’s finding was based not on an application of
Hubbard, but rather on its conclusion that Dodd-Frank
“supersedes the multi-factor inquiry prescribed by [the court] in
Hubbard.” Id. at *5.19
We therefore remand the case to the district court to apply
the Hubbard analysis. Remanding is our normal course when a
district court does not adequately articulate its reasons for
sealing judicial records. See, e.g., Primas, 719 F.3d at 699;
Nat’l Children’s Ctr., 98 F.3d at 1410; Johnson, 951 F.2d at
1277-78. We see no reason to distinguish those cases from this
one, where the court did not apply Hubbard at all. See United
States v. Peyton, 745 F.3d 546, 557 (D.C. Cir. 2014) (noting that
“[w]e are a court of review, not of first view”). In applying
Hubbard on remand, the district court must supply its reasoning
“with specific reference to the particular documents or group of
documents to which each reason is applicable.” 650 F.2d at 324.
Dodd-Frank’s confidentiality provision should weigh heavily in
that analysis. Although § 5322(d)(5)(A) does not categorically
protect the sealed information, it does represent a congressional
judgment about the importance of maintaining the
confidentiality of nonpublic information submitted to FSOC.
Cf. In re Sealed Case, 237 F.3d at 666 (noting that the
confidentiality provision of the Federal Election Campaign Act
would “create an extraordinarily strong privacy interest in
keeping . . . records sealed” under Hubbard).
19
See MetLife, 2016 WL 3024015, at *4 (“Ordinarily courts
apply a six-factor framework to decide whether the public right is
overcome by private interest . . . . For the reasons stated below, the
Court does not reach that framework in this case.”).
27
Pointing to Hardaway v. District of Columbia Housing
Authority, MetLife argues that we should apply Hubbard on our
own accord and conclude that all currently sealed records should
remain so. In Hardaway, we held that “given the clarity of the
issue,” we could deviate from our normal practice of remanding
and conclude as a matter of law that “the single medical form
currently in the record, and all future medical records describing
[the plaintiff’s] disability, must be sealed.” 843 F.3d at 980-81.
But whereas Hardaway involved a single record document, there
are almost two thousand sealed pages in the 16-volume joint
appendix in this case. The parties have not even submitted that
appendix for our review. And whereas Hardaway involved only
one category of possible future records -- medical forms
describing the plaintiff’s disability -- this case involves a diverse
array of financial data, some of which may include sensitive
business information, some of which may not. Applying
Hubbard to the records in this case will require a more complex
and intensive analysis than was required in Hardaway, and the
district court is best suited to conduct that analysis given its
considerable familiarity with those records.
VI
For the foregoing reasons, we conclude that the records at
issue in this case are judicial records, and that the Dodd-Frank
Act does not displace the common-law right of public access to
those records. The traditional Hubbard balancing test therefore
governs the question of whether to unseal them. Because the
district court is best positioned to undertake that inquiry in the
first instance, the case is remanded for further proceedings
consistent with this opinion.
Reversed and remanded.