Shandell Bradley v. Louis Ackal

Case: 18-31052 Document: 00515355433 Page: 1 Date Filed: 03/23/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2020
No. 18-31052
Lyle W. Cayce
Clerk
SHANDELL MARIE BRADLEY, Tutrix on behalf of her minor child AJW,
Plaintiff - Appellee
v.
LOUIS M. ACKAL, Individually and in his official capacity; JUSTIN ORTIS,
Individually and in his official capacity; XYZ DEPUTIES, Individually and in
their official capacity; XYZ INSURANCE COMPANY, on behalf of Sheriff’s
Office Iberia Parish,
Defendants - Appellees
v.
CAPITAL CITY PRESS, L.L.C., doing business as The Advocate; KATC
COMMUNICATIONS, L.L.C.,
Movants - Appellants
Appeal from the United States District Court
for the Western District of Louisiana
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Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Appellants Capital City Press, L.L.C., doing business as The Advocate,
and KATC Communications, L.L.C. appeal from the district court’s order
denying vacatur of sealing orders. We REVERSE and VACATE the sealing
orders in their entirety.
I. BACKGROUND
Iberia Parish, Louisiana, sheriff’s deputies arrested and handcuffed
Victor White III, then placed him in the back seat of a patrol car. White was
then driven to the Iberia Parish Sheriff’s Patrol Center parking lot where he
died from a single gunshot to the right side of his chest. White was still in
custody, handcuffed, and in the patrol car when he was shot. The coroner’s
report associated with White’s death states that White committed suicide. A
Louisiana Department of Public Safety and Corrections shooting report states
that White produced the gun he allegedly shot himself with while he was in
the patrol car. However, prior to his being handcuffed, White was patted down.
Nonetheless, the report stated that the sheriff’s deputy who conducted the pat
down “just overlooked finding [the gun] during the pat-down searches.”
Following White’s death, Appellee Shandell Marie Bradley filed this
lawsuit on behalf of her and White’s minor child, AJW 1—bringing claims under
federal and state law for alleged violations of White’s and AJW’s rights 2—
against Defendants Iberia Parish Sherriff Louis M. Ackal and Deputy Sherriff
1 Although Bradley amended her original complaint to include White’s parents—
Victor White, Sr. and Vanessa White—as plaintiffs, White’s parents were subsequently
dismissed from the action.
2 Specifically, Bradley brought 42 U.S.C. § 1983 claims, alleging that Defendants
subjected White to excessive force and acted with deliberate indifference to his medical needs
in violation of the Fourth, Eighth, and Fourteenth Amendments, and that Defendants
deprived AJW of the right to familial relations. Additionally, Bradley asserted wrongful
death, survival, negligence, and assault and battery claims under Louisiana state law.
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Justin Ortis in their official and individual capacities. Notably, Bradley
contended that White “was killed at the hands of Iberia Parish Sheriff’s
Deputies” and did not commit suicide.
The case was initially assigned to U.S. District Court Judge Rebecca F.
Doherty. With the parties’ consent, Judge Doherty referred the case to
Magistrate Judge Patrick J. Hanna “to conduct all further proceedings and the
entry of judgment.” Subsequently, Defendants moved for summary judgment.
The district court granted, in part, and denied, in part, the motion. 3
Prior to the trial date, Magistrate Judge Carol B. Whitehurst conducted
a settlement conference at which the parties settled the case. After the
settlement conference, the parties stated, on the record, the terms of the
settlement, including the settlement amount. During this post-conference
meeting, Magistrate Judge Whitehurst ascertained Bradley’s competence and
the parties further agreed that they would keep the settlement terms
confidential. Magistrate Judge Whitehurst then issued a confidentiality order
from the bench, preventing White’s parents—non-parties who were present at
the post-conference meeting—from sharing the terms of the settlement
agreement. 4 At the request of Bradley’s counsel, Magistrate Judge Whitehurst
also sealed the recording of the post-conference meeting, and later entered
sealed minutes regarding the settlement conference and post-conference
meeting. The parties did not file a written settlement agreement with the
court. Following the post-conference meeting, Magistrate Judge Hanna
dismissed the case.
The district court granted the motion only as to Bradley’s Eighth Amendment claim.
3
The motion was otherwise denied.
4 Magistrate Judge Whitehurst specified that the confidentiality order applies to
White’s parents and did not state that the order applies to anyone else.
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Appellants moved to intervene. Magistrate Judge Hanna granted the
motion following a hearing. Appellants then moved to vacate the district
court’s orders “sealing the record and minutes” of the post-conference meeting
under the Louisiana Public Records Law, La. Rev. Stat. Ann. § 44:1, et seq.,
and First Amendment and common law rights-of-access doctrine. Appellants
sought to vacate the sealing orders so that they could obtain the settlement
amount through a public records request.
It is undisputed that Appellants were unable to obtain the settlement
amount through a previously-filed public records request. Specifically, a
reporter for The Advocate sought “an accounting record of the check issued in
full and final settlement of this matter” from the Louisiana Sheriffs’ Law
Enforcement Program, which Appellants posit is the official public records
custodian of the check. In response, the reporter received a copy of (1) a
“Receipt and Release,” which noted that the settlement terms were contained
within the sealed record of the district court, and (2) the settlement check that
was issued to Bradley’s counsel with the amount redacted. Appellants
represented that counsel for the Louisiana Sheriffs’ Law Enforcement Program
“suggested that the amount was required to be redacted due to [the district
court’s orders] sealing the record and minutes” of the post-settlement
conference meeting.
Bradley opposed Appellants’ motion for vacatur. No other party opposed
the motion. Magistrate Judge Hanna denied the motion.
II. JURISDICTION
Despite Bradley’s arguments to the contrary, we have jurisdiction over
this appeal under 28 U.S.C. § 1291, which provides, “The courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of the district courts
of the United States[.]” Under the collateral order doctrine, “certain decisions
of the district court are final in effect although they do not dispose of the
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litigation.” Davis v. East Baton Rouge Par. Sch. Bd., 78 F.3d 920, 925 (5th Cir.
1996). Appealable collateral orders include “those district court decisions that
are conclusive, that resolve important questions completely separate from the
merits, and that would render such important questions effectively
unreviewable on appeal from final judgment in the underlying action.” Id.(quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)).
An appealable collateral order must resolve a question that is not only
“important or serious,” but also “unsettled.” Chaves v. M/V Medina Star, 47
F.3d 153, 155 (5th Cir. 1995). A decision that an order is “effectively
unreviewable” on appeal must be made “on a categorical basis, looking only at
whether the class of claims, taken as a whole, can be vindicated by other means
than immediate appeal.” Vantage Health Plan, Inc. v. Willis-Knighton Med.
Ctr., 913 F.3d 443, 449 (5th Cir. 2019) (citation and internal quotation marks
omitted). “Sealing and unsealing orders . . . are reviewable . . . under the
collateral order doctrine.” Id. at 448 (“Equally pertinent to this case, non-
litigant parties lack appellate remedies available to the contenders in
litigation.”); see also Davis, 78 F.3d at 926 (holding, in the First Amendment
context, that “members of the news media, although not parties to litigation,
can appeal court closure orders or confidentiality orders under the collateral
order doctrine.”); In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir.
2011) (same).
Here, the decision denying vacatur of the sealing orders is appealable
under the collateral order doctrine. First, the decision is conclusive. Second,
the decision addresses important and unsettled questions of law concerning
the Louisiana Public Records Law and Appellants’ First Amendment and
common law rights to access settlement agreement information contained in a
sealed court recording and sealed minutes, particularly where a minor’s
privacy interests are involved. And the subject of the decision is completely
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separable from the merits of the litigation. Third, the decision would be
effectively unreviewable on appeal from final judgment. The decision resolves
Appellants’ motion to vacate sealing orders and Appellants are members of the
news media. For these reasons, the court has jurisdiction over this appeal
under the collateral order doctrine.
Bradley nonetheless argues that the court lacks jurisdiction over this
appeal because Magistrate Judge Hanna could only make recommendations to
a district court judge. Bradley argues that, to establish jurisdiction, Appellants
should have filed objections to Magistrate Judge Hanna’s order pursuant to
Federal Rule of Civil Procedure 72 so that the presiding district court judge
could rule on them. These arguments are unavailing.
Upon the parties’ consent, Judge Doherty referred the case to Magistrate
Judge Hanna “to conduct all further proceedings and the entry of judgment.”
The Federal Magistrate Act of 1979 provides that, “[u]pon the consent of the
parties, a full-time United States magistrate judge or a part-time United
States magistrate judge . . . may conduct any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the case, when
specially designated to exercise such jurisdiction by the district court or courts
he serves.” 28 U.S.C. § 636(c)(1). “Unlike nonconsensual referrals of pretrial
but case-dispositive matters under § 636(b)(1), which leave the district court
free to do as it sees fit with the magistrate judge’s recommendations, a §
636(c)(1) referral gives the magistrate judge full authority over dispositive
motions, conduct of trial, and entry of final judgment, all without district court
review.” Roell v. Withrow, 538 U.S. 580, 585 (2003). “A judgment entered by
‘a magistrate judge designated to exercise civil jurisdiction under [§ 636(c)(1)]’
is to be treated as a final judgment of the district court, appealable ‘in the same
manner as an appeal from any other judgment of a district court.’” Id. (quoting
§ 636(c)(3)). In short, Magistrate Judge Hanna’s order denying vacatur should
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be treated the same as a district court judge’s order for the purposes of
appealability.
To the extent that Bradley further argues that Magistrate Judge Hanna
did not have the authority to vacate Magistrate Judge Whitehurst’s sealing
orders, this argument is also unavailing. See FED. R. CIV. P. 60(b) (“[T]he court
may relieve a party or its legal representative from a final judgment, order, or
proceeding . . . .”); Deloach v. Delchamps, Inc., 897 F.2d 815, 826 (5th Cir. 1990)
(“A court is free to vacate an interlocutory order on its own motion.”); see also
Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 291 (5th Cir. 2016) (“It is
well established that a federal court may consider collateral issues after an
action is no longer pending[.]”) (citation and internal quotation marks omitted);
Gambale v. Deutsche Bank AG, 377 F.3d 133, 141–42 (2d Cir. 2004) (“A district
court that concludes that there is a public right of access to judicial documents
. . . acts within its jurisdiction when it modifies or vacates a protective order to
allow that access, irrespective of whether it does so before or after a stipulation
of dismissal has been filed.”) (collecting cases).
For the foregoing reasons, we have jurisdiction over this appeal.
III. STANDARD OF REVIEW
We review a district court’s denial of a motion to vacate a confidentiality
or sealing order for abuse of discretion. See Vantage Heath Plan, Inc., 913 F.3d
at 450; Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); S.E.C. v.
Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). “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.” Allen v.
C&H Distribs., L.L.C., 813 F.3d 566, 572 (5th Cir. 2015) (quoting McClure v.
Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003)).
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IV. ANALYSIS
Appellants argue that the district court erred in failing to properly
consider Appellants’ rights of access to the sealed recording and minutes under
common law, the Louisiana Public Records Law, and the First Amendment.
Because we conclude that the district court abused its discretion in its
consideration of Appellants’ common law right of access, we do not address
Appellants’ additional arguments.
The public “has a common law right to inspect and copy judicial records.”
Van Waeyenberghe, 990 F.2d at 848. This right “promotes the trustworthiness
of the judicial process, curbs judicial abuses, and provides the public with a
better understanding of the judicial process, including its fairness[, and] serves
as a check on the integrity of the system.” United States v. Sealed Search
Warrants, 868 F.3d 385, 395 (5th Cir. 2017) (citation, internal quotation
marks, and brackets omitted); see also United States v. Amodeo, 71 F.3d 1044,
1048 (2d Cir. 1995) (“[T]he bright light cast upon the judicial process by public
observation diminishes the possibilities for injustice, incompetence, perjury,
and fraud. Furthermore, the very openness of the process should provide the
public with a more complete understanding of the judicial system and a better
perception of its fairness.”) (quoting Leucadia, Inc. v. Applied Extrusion Techs.,
Inc., 998 F.2d 157, 161 (3d Cir. 1993)). The public’s common law right of access
is not absolute, however, and the “common law merely establishes a
presumption of public access to judicial records.” Van Waeyenberghe, 990 F.2d
at 848. This circuit has not assigned a particular weight to the presumption.
Id. at 848 n.4. Nor has this court interpreted the presumption in favor of access
as creating a burden of proof. See Vantage Health Plan, Inc., 913 F.3d at 450
(stating that the parties “dispute whether this presumption . . . equates to a
burden of proof, and if so, who bears the burden” and refusing to hold that the
presumption creates a burden of proof). In any case, “[t]he district court’s
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discretion to seal the record of judicial proceedings is to be exercised charily.”
Fed. Savings & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987); cf.
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“Every court has
supervisory power over its own records and files, and access has been denied
where court files might have become a vehicle for improper purposes.”).
“In exercising its discretion to seal judicial records, the court must
balance the public’s common law right of access against the interests favoring
nondisclosure.” Van Waeyenberghe, 990 F.2d at 848. But, “‘[t]he presumption
however gauged in favor of public access to judicial records[]’ [is] one of the
interests to be weighed on the [public’s] ‘side of the scales.’” Belo Broad. Corp.
v. Clark, 654 F.2d 423, 434 (5th Cir. Unit A Aug. 1981) (quoting Nixon, 435
U.S. at 602); see also Van Waeyenberghe, 990 F.2d at 848 n.4 (same). 5 The
“relevant facts and circumstances of the particular case” inform the factors
that a court weighs on both sides. Belo Broadcasting Corp., 654 F.2d at 430(quoting Nixon, 435 U.S. at 599).
Not every document, however, is a judicial record subject to the common
law right of access. Two records are the subject of this appeal: (1) the sealed
court recording of the post-conference meeting and (2) the sealed minutes
5 In Sealed Search Warrants, this court stated that it “has not assigned a weight to
the presumption in favor of access, unlike some other circuits which have characterized it as
‘strong’ or others which reduce it to ‘one of the interests to be weighed.’” 868 F.3d at 393–94.
Notwithstanding this statement, this court follows its decision in Belo Broadcasting Corp.,
which held that the presumption in favor of public access to judicial records is “one of the
interests to be weighed on the [public’s] ‘side of the scales.’” 654 F.2d at 434 (quoting Nixon,
435 U.S. at 602); see Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000)
(“[U]nder the rule of orderliness, to the extent that a more recent case contradicts an older
case, the newer language has no effect.”). Moreover, that the presumption in favor of public
access is one of possibly multiple factors is not at odds with this court not assigning a weight
to the presumption. See Belo Broad. Corp., 654 F.2d at 434 (“‘[T]he presumption however
gauged in favor of public access . . .’ [is] one of the interests . . . .”) (quoting Nixon, 435 U.S.
at 602) (emphasis added).
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regarding the settlement conference and post-conference meeting. We address
each in turn.
First, the sealed court recording containing the settlement amount is a
judicial record. “Once a settlement is filed in district court, it becomes a
judicial record. The presumption in favor of the public’s common law right of
access to court records therefore applies to settlement agreements that are
filed and submitted to the district court for approval.” Van Waeyenberghe, 990
F.2d at 849 (citation omitted) 6; cf. Gambale, 377 F.3d at 143 (collecting cases
and concluding that “[t]here is no established presumption of access” to
information contained in settlement documents that were “entered into on a
confidential basis between the parties and are not themselves a part of the
court record”). Here, no written settlement agreement was filed with the
district court and Bradley represents that there “was no written settlement
agreement” at all. Nonetheless, the parties read the settlement terms,
including the settlement amount, into the district court’s record at the post-
conference meeting. While Bradley suggests that Magistrate Judge
Whitehurst simply allowed the parties to memorialize the terms of the
6 There are two possible interpretations of the quoted language from Van
Waeyenberghe. First, that a settlement agreement becomes a judicial record if two conditions
are met: (1) it is filed in district court, and (2) the district court must take some additional
action related to the settlement agreement, such as approving the settlement agreement.
Second, that a settlement agreement becomes a judicial record if it is filed in district court.
In other words, under the second interpretation, the district court need not take some
additional action related to the settlement agreement for it to become a judicial record so long
as the settlement agreement is filed with the court. We do not and need not choose between
these interpretations in this appeal because the settlement agreement at issue satisfies the
criteria under both interpretations. Cf. Enprotech Corp. v. Renda, 983 F.2d 17, 20–21 (3d
Cir. 1993) (concluding that a settlement agreement that had not been “filed with the district
court, and [had] never been interpreted or ordered enforced by the district court” was not a
judicial record and further concluding that a settlement agreement “will not become part of
the public record unless and until the district court may order the parties to comply with its
terms”); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994) (same).
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settlement on the record, Magistrate Judge Whitehurst did more. 7 As
explained, it appears that the parties effectively filed and submitted their
settlement agreement for approval at the district court.
Listed in chronological order, at the post-conference meeting, Magistrate
Judge Whitehurst (1) had Bradley sworn in to testify as to her background and
competence; (2) asked the parties to put the terms of the settlement on the
record; (3) asked Bradley’s counsel if they agreed to the terms of the settlement,
after counsel for Defendants stated the terms; (4) entered a confidentiality
order preventing White’s parents—non-parties—from disclosing the terms of
the settlement agreement sua sponte; (5) asked Bradley if she agreed with the
terms of the settlement; and (6) sealed the recording of the meeting after
Bradley’s counsel requested that Magistrate Judge Whitehurst do so.
The parties did not simply submit to the district court that they settled
the case. The recorded transactions between the parties and the district court
are unlike a stipulation of dismissal that is filed after an agreement is reached
between parties and which does not require court approval. FED. R. CIV. P.
41(a)(1)(A) (providing for voluntary dismissal without a court order); Bechuck,
814 F.3d at 291 (“The notice of dismissal is self-effectuating and terminates
the case in and of itself; no order or other action of the district court is
required.”) (citation and internal quotation marks omitted). Instead, the
district court effectively approved the settlement agreement by confirming that
7 The decision denying vacatur states, without citing to the record, that “the
settlement terms were placed on the record as a means of quickly memorializing them
without having to confect a written document at the conclusion of the settlement conference.”
However, the decision appears to contradict itself, stating that the district court was “[n]ot .
. . privy to the details of the proceeding [before Magistrate Judge Whitehurst] as it was
ongoing” and that, “since the parties requested that the record be sealed, it may be that Judge
Whitehurst’s order was nothing more than recognition of an agreement between the parties.
If so, then there may be no basis on which this Court is authorized to step in and alter the
parties’ agreement.” (Emphasis added.)
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Bradley was of sound mind, asking the parties to state the terms of the
settlement, ensuring that each party agreed to the terms, and entering—
unprompted—a confidentiality order. The court recording of the settlement
terms is, thus, a judicial record subject to the common law right of access. 8 See
Van Waeyenberghe, 990 F.2d at 849.
Second, the sealed minutes are also a judicial record. While this court
has not generally defined “judicial record” or yet interpreted minutes as a
judicial record, it would defy commonsense if the minutes in this case did not
qualify as a judicial record. See In re United States for an Order Pursuant to
18 U.S.C. Section 2703(D), 707 F.3d at 290 (“Although we have never explicitly
defined ‘judicial records,’ it is commonsensical that judicially authored or
8 Even if the settlement terms were not submitted for the district court’s approval at
the post-conference meeting, the recording may remain a judicial record. See supra n.6; see
also Gambale, 377 F.3d at 143 (“Of course, the statements at the conference, including the
settlement amount, having been reduced to transcript form and filed, were part of a judicial
record to which some presumption of openness, however gauged, may have therefore
attached,” although the settlement documents were “entered into on a confidential basis
between the parties” and were “not themselves part of the court record”); cf. City of Greenville,
Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014) (“Once filed with the
court, . . . documents that affect the disposition of federal litigation are presumptively open
to public view . . . unless a statute, rule, or privilege justifies confidentiality.”) (citation,
internal quotation marks, and brackets omitted); In re United States for an Order Pursuant
to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013) (“Although we have never
explicitly defined ‘judicial records,’ it is commonsensical that judicially authored or created
documents are judicial records.”); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119
(2d Cir. 2006) (“In order to be designated a judicial document, the item must be relevant to
the judicial function and useful in the judicial process.”) (citation and internal quotation
marks omitted); In re Boston Herald, Inc., 321 F.3d 174, 189 (1st Cir. 2003) (“In cases
considering the common law right, this court has often used a definition of ‘judicial record’
which refers to materials on which a court relies in determining the litigants substantive
rights. . . . [W]e have applied this definition to documents on which a court relied in approving
a consent decree because that approval settled a civil enforcement action.”) (citation and
internal quotation marks omitted); In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)
(“The status of a document as a ‘judicial record’ . . . depends on whether a document has been
filed with the court, or otherwise somehow incorporated or integrated into a district court’s
adjudicatory proceedings. While filing clearly establishes such status, a document may still
be construed as a judicial record, absent filing, if a court interprets or enforces the terms of
that document, or requires that it be submitted to the court under seal.”) (citation omitted).
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created documents are judicial records.”). Notably, while Bradley objected to
Appellants’ motion for vacatur because it would unseal the settlement terms,
the minutes do not contain the terms, including the settlement amount.
We now turn to the factors the district court considered in balancing
Appellants’ common law right of access to the sealed recording and minutes.
The district court weighed, on the one hand, “the child’s privacy interest in
being protected from financial predators or others who would harass the child
simply because they know the amount received when the suit was settled, the
protection of the judicial process in permitting orders to be sealed, and the
chilling effect that the public’s knowledge of the settlement might have on
settlement negotiations and jury deliberations in upcoming similar cases[.]”
On the other hand, the district court weighed “the media’s interest in releasing
a sensational story regarding the amount of money paid to resolve the lawsuit
without knowing anything about how the decisions were ultimately reached in
the parties’ settlement negotiations.” The district court appeared to place the
most weight on the child’s privacy interest, finding that “the minor child’s
privacy interest outweighs the public’s right to know the amount paid to settle
the case.”
While the district court did not balance this possible factor, the district
court also considered that “keeping the settlement terms confidential [might
have been] a factor in the parties’ decision to settle.” The district court did not
give this potentiality any weight because the record does not state whether
keeping the settlement terms confidential was such a factor. Nor do we.
Although the parties agreed to keep the settlement terms confidential at the
post-conference meeting, it is unclear whether this agreement was a factor in
the parties’ decision to settle. Cf. Seals v. Herzing Inc.–New Orleans, 482 Fed.
App’x 893, 896 (5th Cir. 2012) (unpublished) (“In light of the parties’ agreement
to maintain confidentiality, the express statement that the confidentiality was
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a material inducement for [a party] to settle, the fact that public policy favors
voluntary settlements, and the limitation of the district court’s order to . . .
three exhibits [(i.e., two confidential consent awards and an arbitration
transcript)], we conclude that the district court did not abuse its discretion in
ordering these exhibits sealed.”) (citation and internal quotation marks
omitted); LEAP Sys., Inc. v. MoneyTrax, Inc., 638 F.3d 216, 222 (3d Cir. 2011)
(holding that a district court “[cannot] rely on the general interest in
encouraging settlement to justify the sealing of an agreement which the parties
mistakenly believed would remain confidential”) (citation and internal
quotation marks omitted).
At the district court, Bradley did not argue in her opposition to the
motion to vacate that keeping the settlement terms confidential was a factor
in the parties’ decision to settle, that such a factor should affect the outcome of
the motion, or that the district court assured the parties of confidentiality at
the post-conference meeting. 9 In re Novack, 639 F.2d 1274, 1276–77 (5th Cir.
Unit B Mar. 1981) (“As a general rule, appellate courts refuse to consider an
issue raised for the first time on appeal.”). Nor does Bradley argue the same
on appeal. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)
(“It has long been the rule in this circuit that any issues not briefed on appeal
are waived.”). Instead, on appeal, Bradley argues that “it appears that all
9 This last possible argument would be at odds with the order of events at the post-
conference meeting: Bradley requested that the district court seal the recording of the post-
conference meeting at the end of the meeting, after the parties already disclosed the
settlement terms and agreed to them. Cf. LEAP Sys., Inc., 638 F.3d at 222 (“[W]e find LEAP’s
reliance on the District Court’s assurances of confidentiality reasonable and sufficient to
outweigh the public’s common law right of access” where “LEAP would not have entered into
the settlement agreements but for the Court’s assurance of confidentiality.”) (emphasis in
original); Gambale, 377 F.3d at 143–44 & n.8 (holding that the details of a confidential
settlement agreement disclosed during “a relatively informal conference relating to
settlement,” on the basis of the court’s “assurances of confidentiality,” warranted only a
“weak” presumption of public access).
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Judge Whitehurst did was memorialize a mutual confidentiality agreement”
(emphasis added), and that Appellants do not “show whether Judge
Whitehurst made any ruling at all.” 10 But it is undisputed that Magistrate
Judge Whitehurst sealed the court recording containing the settlement
amount and the minutes regarding the settlement conference and post-
conference meeting.
We now address each factor the district court balanced and, additionally,
consider the following factors in favor of disclosure: (1) that the settlement
agreement involves public officials and matters of legitimate public concern
and (2) the presumption of the public’s right of access.
First, the district court weighed in favor of non-disclosure “the child’s
privacy interest in being protected from financial predators or others who
would harass the child simply because they know the amount received when
the suit was settled.” However, it is public information that a settlement was
reached in this case and that Bradley, AJW’s mother and sole living parent, is
in control of AJW’s property. Pursuant to Louisiana law, “Each parent has the
right and the obligation to administer the property of the child. The parent
must do so as a prudent administrator and is answerable for any damage
caused by his fraud, fault, default, or neglect.” LA. CIV. CODE ANN. ART. 229.
There is no evidence AJW would face financial predation where Bradley is the
property’s steward.
Further, Bradley does not show or argue that Bradley or AJW has
experienced any financial predation or financially-motivated harassment since
the settlement was reached approximately two years ago. The district court
10 As stated supra, this court has not interpreted the common law right of access as
requiring a party to carry a burden of proof. See Vantage Health Plan, Inc., 913 F.3d at 450;
cf. In re Cendant Corp., 260 F.3d at 194 (“The burden is on the party who seeks to overcome
the presumption of access to show that the interest in secrecy outweighs the presumption.”)
(citation and internal quotation marks omitted).
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and Bradley merely speculate that disclosing the settlement amount would
increase the possibility of financial predation and related harassment and do
not appear to account for the already publicly available information, namely,
that a settlement was reached in this case and that Bradley is the steward of
the settlement property. Nor do they cite any authority that supports the
proposition that disclosing a settlement amount increases the possibility of
financial predation or related harassment or show that any court has weighed
such a possibility in favor of nondisclosure. Nor is that proposition necessarily
true as a matter of common sense: an effort to keep undisclosed a settlement
amount where it is known that a settlement was reached and who the steward
of the settlement amount is might increase the possibility of financial
predation or related harassment because a financial predator might suspect
that the settlement amount is much larger than the actual amount. See, e.g.,
Tomas Well, More than $6M paid out by sheriffs’ offices in judgments,
settlements since 2015; attorney fees add another $1.4M, LOUISIANA VOICE
(July 16, 2018), https://louisianavoice.com/2018/07/16/more-than-6m-paid-out-
by-sheriffs-offices-in-judgments-settlements-since-2015-attorney-fees-add-
another-1-4m/ (speculating on the settlement amount in this case).
Moreover, lifting the seals here would not reveal AJW’s name or other
information that has been identified as warranting nondisclosure in cases
involving a minor. See, e.g., FED. R. CIV. P. 5.2 (stating only the initials of a
person “known to be a minor” may be provided in court filings); Globe
Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 607 (1982)
(holding, in the First Amendment context, that “safeguarding the physical and
psychological well-being of a minor” who is a sex crime victim in a criminal
case is a “compelling” interest); Jaufre ex rel. Jaufre v. Taylor, 351 F. Supp. 2d
514, 516–19 (E.D. La. 2005) (collecting cases where a minor’s information—
such as the minor’s name and confidential documents from child protective
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proceedings—was protected, and sealing certain judicial records because they
variously contained “detailed descriptions of [the minor’s] behavioral
problems” and medical and emotional conditions, “pictures of [the minor’s]
injuries that could be humiliating or stigmatizing,” and the names of other
children not parties to the lawsuit). For these reasons, this factor does not
weigh in favor of non-disclosure.
Second, the district court weighed in favor of non-disclosure “the
protection of the judicial process in permitting orders to be sealed.” The district
court, however, did not elaborate on this factor or cite any case where this was
considered a factor. “Every court has supervisory power over its own records
and files, and access has been denied where court files might have become a
vehicle for improper purposes.” Nixon, 435 U.S. at 598. This power, however,
is not an interest, and there is a presumption in favor of disclosure. See Van
Waeyenberghe, 990 F.2d at 848. The court must weigh the interests in favor of
and against disclosure to determine how to exercise its power. See id. To hold
otherwise would enshrine a circular logic according to which a district court’s
sealing order is appropriate because the district court has the power to issue
the sealing order. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d
Cir. 1994) (“[S]imply because courts have the power to grant orders of
confidentiality does not mean that such orders may be granted arbitrarily.”).
For these reasons, “the protection of the judicial process in permitting orders
to be sealed” carries no weight and should not factor into the analysis at all.
Third, the district court weighed in favor of non-disclosure “the chilling
effect that the public’s knowledge of the settlement might have on settlement
negotiations and jury deliberations in upcoming similar cases.” The district
court noted that, at the time of its order, other civil cases alleging violations
similar to those alleged in this case were pending against the Iberia Parish
Sheriff’s Office. The district court does not explain how disclosing the
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settlement amount would have a “chilling effect” on negotiations and jury
deliberations in similar cases. “Chilling effect” is a compound noun, the legal
definition of which is “a usually undesirable discouraging effect or influence.”
Chilling effect, THE MERRIAM-WEBSTER.COM LEGAL DICTIONARY,
https://www.merriam-webster.com/legal/chilling%20effect (last visited Nov.
25, 2019). The noun is “used especially of First Amendment violations.” Id.;
see, e.g., Laird v. Tatum, 408 U.S. 1, 2 (1972). The settlement amount’s
disclosure presumably might expose the Iberia Parish Sheriff’s Office to
additional liability and litigation and, as such, might cause cases to settle
differently than they would otherwise, but it is unclear how these possibilities
would lead to or result from a chilling effect. In any case, that disclosure might
harm the Iberia Parish Sheriff’s Office, its sheriff, or sheriff’s deputies by
exposing them to additional liability and litigation is of no consequence; “a
litigant is not entitled to the court’s protection from this type of harm” where
it arises solely because of the common law right of access. Foltz v. State Farm
Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003); cf. Herrnreiter v.
Chicago Hous. Auth., 281 F.3d 634, 637 (7th Cir. 2002) (concluding that a
party’s “desire to keep the amount of its payment quiet (perhaps to avoid
looking like an easy mark, and thus drawing more suits) is not nearly on a par
with national security and trade secret information,” which are traditionally
kept secret for important policy reasons). Further, it is unclear how the risk
of jury prejudice would lead to or result from a chilling effect. And in any event,
any risk of jury prejudice because of the settlement amount’s disclosure is
addressable through voir dire.
Notably, Defendants did not oppose Appellants’ motion for vacatur.
Thus, they did not argue that disclosure would cause a chilling effect in similar
cases involving them or the Iberia Parish Sheriff’s Office, nor did they argue
that disclosure would otherwise prejudice them. Indeed, any such argument—
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even if legally supportable—would be unconvincing considering the public
availability of numerous other settlement amounts in similar civil suits filed
against the Iberia Parish Sheriff’s Office, its sheriff, or sheriff’s deputies since
Ackal began serving as sheriff in 2008. See John Simerman, The Advocate,
KATC challenge sealing of Iberia Parish sheriff’s settlement over gun death in
patrol car, THE ACADIANA ADVOCATE (July 19, 2018),
https://www.theadvocate.com/acadiana/news/article_f553600e-8b5f-11e8-
92ec-0b8bcffe3b28.html (“Settlements of those claims against Ackal, not
including Bradley’s, totaled $2.96 million[.]”); Nathaniel Rich, The Preacher
and the Sheriff, N.Y. TIMES MAGAZINE (Feb. 8, 2017),
https://www.nytimes.com/2017/02/08/magazine/the-preacher-and-the-
sheriff.html (“[Whitney] Lee has filed a civil suit against Ackal and two of his
deputies, one of 30 or so that have been filed since he took office; at least 10
have been settled, for a cumulative sum of about $1.1 million.”); Tomas Well,
More than $6M paid out by sheriffs’ offices in judgments, settlements since 2015;
attorney fees add another $1.4M, LOUISIANA VOICE (July 16, 2018),
https://louisianavoice.com/2018/07/16/more-than-6m-paid-out-by-sheriffs-
offices-in-judgments-settlements-since-2015-attorney-fees-add-another-1-4m/
(compiling settlement amounts in similar civil cases filed against Ackal). For
the reasons above, this factor does not weigh in favor of disclosure.
Fourth, and finally, the district court weighed in favor of disclosure “the
media’s interest in releasing a sensational story regarding the amount of
money paid to resolve the lawsuit without knowing anything about how the
decisions were ultimately reached in the parties’ settlement negotiations.”
This statement of the factor does not adequately address Appellants’ interest
in this case. While the facts of this case may be “sensational,” the media’s
interest in judicial records and proceedings is generally more important than
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the district court’s characterization would imply. The Supreme Court has
stated:
A responsible press has always been regarded as the handmaiden
of effective judicial administration, especially in the criminal field.
Its function in this regard is documented by an impressive record
of service over several centuries. The press does not simply
publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism. . . .
[W]e have consistently required that the press have a free hand,
even though we sometimes deplored its sensationalism.
Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). Nonetheless, “[t]he Supreme
Court has made it plain that all persons seeking to inspect and copy judicial
records stand on an equal footing, regardless of their motive for inspecting such
records.” Leucadia, Inc., 998 F.2d at 167 (“[T]he press has no greater right of
access than does the general public[.]”) (citing Nixon, 435 U.S. at 609).
Appellants and the amici 11 argue that White’s death and the
circumstances around it—particularly, the allegations that an Iberia Parish
sheriff’s deputy shot White and then covered it up—are matters of local and
national concern. We agree. See, e.g., Michael Kunzelman, Settlement resolves
suit in handcuffed man’s shooting death in Lafayette, THE ACADIANA ADVOCATE
(Mar. 16, 2018),
https://www.theadvocate.com/acadiana/news/courts/article_c929bf86-294f-
11e8-8e02-e78485ca840d.html; Nathaniel Rich, The Preacher and the Sheriff,
N.Y. TIMES MAGAZINE (Feb. 8, 2017),
https://www.nytimes.com/2017/02/08/magazine/the-preacher-and-the-
sheriff.html; Jonathan Capehart, Victor White’s unbelievable ‘Houdini
The amici are The Reporters Committee for Freedom of the Press, The Joseph L.
11
Brechner Center for Freedom of Information, and thirty-two other media or media-related
organizations.
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handcuff’ suicide, WASH. POST (Sept. 2, 2014),
https://www.washingtonpost.com/blogs/post-partisan/wp/2014/09/02/victor-
whites-unbelievable-houdini-handcuff-suicide/. Further, as the district court
noted, this and similar civil cases were “play[ing] out against the backdrop of
the recent criminal prosecution of the [Iberia Parish] sheriff himself[, who was
a defendant in this case,] and the guilty pleas of several of his deputies with
regard to the use of excessive force in making arrests and during the
incarceration of prisoners in the parish jail.” These prosecutions are also of
local and national interest. See, e.g., Nathaniel Rich, The Preacher and the
Sheriff, N.Y. TIMES MAGAZINE (Feb. 8, 2017),
https://www.nytimes.com/2017/02/08/magazine/the-preacher-and-the-
sheriff.html; Bryn Stole & Jim Mustian, Ruled not guilty, Iberia Sherriff Louis
Ackal says ‘I’m not a crook,’ vows to clean out ‘rouges’, THE ACADIANA ADVOCATE
(Nov. 4, 2016),
https://www.theadvocate.com/acadiana/news/courts/article_1f35ff7e-a2b6-
11e6-920f-3b82c2c4ee1c.html. Public access to the settlement amount will
shed light on the resolution of a case that is of local and national interest and
related to the criminal prosecutions of the Iberia Parish sheriff and sheriff’s
deputies for allegedly violating the law in ways similar to those that were
alleged in this case—prosecutions that are also of local and national interest.
For these reasons, this factor considered by the district court represents a
mischaracterization of the public’s right of access. Therefore, we consider in
its place the two factors discussed below.
First, the settlement agreement involves public officials or parties of a
public nature and matters of legitimate public concern. The district court
declined to balance this factor. As the Third Circuit in Pansy stated:
If a settlement agreement involves public officials or parties of a
public nature, and involves matters of legitimate public concern,
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that should be a factor weighing against entering or maintaining
an order of confidentiality. On the other hand, if a case involves
private litigants, and concerns matters of little legitimate public
interest, that should be a factor weighing in favor of granting or
maintaining an order of confidentiality.
Pansy, 23 F.3d at 788 (citation and footnote omitted). 12 The district court
discounted this opinion, stating that Pansy stands for the proposition that
“disclosure should be favored when it is a public person or governmental entity
that is seeking to prevent disclosure of the settlement agreement,” which is not
the case here. 13 While the Pansy court concluded that a party’s “privacy
interests are diminished” when that party is a public person, 23 F.3d at 787, it
also stated, “The public’s interest is particularly legitimate and important
where, as in this case, at least one of the parties to the action is a public entity
or official.” Id. at 786. In other words, the district court conflated the Pansy
court’s discussion of a public person’s privacy interests with its discussion of
12 The Pansy court used the term “confidentiality order” to liberally refer to “any court
order which in any way restricts access to or disclosure of any form of information or
proceeding, including but not limited to . . . ‘sealing orders[.]’” Pansy, 23 F.3d at 777 n.1.
13 The Pansy court concluded that the media-intervenors who sought access to a
settlement agreement that was subject to a district court confidentiality order did not have a
common law right of access to the settlement agreement because the settlement agreement
was not filed with the district court and was therefore not a judicial record. Pansy, 23 F.3d
at 780–783. (As determined supra, the same is not true here: the court recording of the
settlement terms and the minutes regarding the settlement conference and recorded meeting
are judicial records.) Nonetheless, the Pansy court concluded that the media-intervenors
“ha[d] an interest in vacating the Order of Confidentiality even though [the court had]
rejected their attempt to obtain the Settlement Agreement under the right of access doctrine.”
Id. at 784. This interest stemmed from the district court’s “power to modify or lift
confidentiality orders that it has entered.” Id. The Pansy court adopted a “balancing process”
to address whether “good cause” existed for the confidentiality order. Id. at 786–87.
Similarly, here, “In exercising its discretion to seal judicial records, the court must balance
the public’s common law right of access against the interests favoring nondisclosure.” Van
Waeyenberghe, 990 F.2d at 848. Given the similarity between the inquiry here and the
inquiry that was before the Pansy court, consideration of the Pansy court’s reasoning for
establishing as a balancing factor whether a party to a settlement agreement is a public
official and involves matters of legitimate public concern is appropriate here. In any case, as
discussed infra, other courts have applied rules similar or identical to the rule in Pansy in
considering a party’s common law right of access.
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the public’s interest in disclosure. Other courts have applied rules similar or
identical to the rule in Pansy in considering a party’s common law right of
access. See, e.g., Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th
Cir. 2007) (“In balancing the public interest in accessing court documents
against a party’s interest in keeping the information confidential, courts
consider, among other factors, . . . whether the information concerns public
officials or public concerns[.]”); Under Seal v. Under Seal, 27 F.3d 564, 1994
WL 283977, at *2 (4th Cir. 1994) (unpublished) (“Courts have also recognized
that when cases involve matters of particularly public interest, such as
misspent government funds, the rationale for public access is even greater.”)
(collecting cases). Here, at least one of the parties is a public official or party
of a public nature, and the public’s interest in the settlement amount is
particularly legitimate and important, not least because disclosure will allow
the public to monitor the expenditure of taxpayer money. For these reasons,
this factor weighs in favor of disclosure.
Second, it does not appear that the district court weighed as a factor in
favor of disclosure the presumption of the public’s right of access. See Belo
Broad. Corp., 654 F.2d at 434. Ultimately, this factor alone outweighs any
interest favoring nondisclosure.
V. CONCLUSION
The district court abused its discretion in denying Appellants’ motion for
vacatur by relying on erroneous conclusions of law and misapplying the law to
the facts. See Allen, 813 F.3d at 572. Accordingly, we REVERSE and VACATE
the sealing orders in their entirety. 14
14 Specifically, we vacate the orders sealing the (1) court recording containing the
settlement amount and (2) minutes regarding the settlement and recorded meeting.
23