Motion to Intervene is a Right of The Press and the Public

LIT COMMENTARY

When the CFPB, the consumer watchdog which is aggressively objecting to one of it’s owns consumers and siding with the opposition writes an unbelievable story in their brief at the Eleventh Circuit Court of Appeals, it should be called out for it’s total incompetence in law. This also clarifies why these private citizens cannot rely upon an unconstitutional agency from representing them in the civil action in Florida. Here is the relevant part of the Consumer Financial Protection Bureau’s (“CFPB”) brief:

Judge Jill A. Pryor, Court of Appeals for the Eleventh Circuit

Giroux v. Foley 

US District Court, Vermont

Originally published; Feb 12, 2020

Motion to Intervene, to Unseal, to Consider the Matter on an Expedited Basis, and (in the Alternative) to Clarify the Sealing Order

Eugene Volokh moves to intervene to unseal the documents in this case, and to have this request considered on an expedited basis. Volokh is a professor at UCLA School of Law, and publishes a blog at the Reason Magazine site, reason.com Volokh, where he often writes about First Amendment matters and in  particular about public access to court documents. (He is filing this motion solely in his personal capacity, as is customary for professors, and not on behalf of UCLA.) Volokh would like to write about this case , but he cannot do so effectively because of the sealing order.

Volokh also asks that, if this Court denies his motion to intervene or to unseal, it clarify whether the sealing order prevents Volokh from publishing or discussing cop­ ies of documents that he had downloaded before the sealing order was entered .

Memorandum of Law in Support of the Motion

1. Volokh should be allowed to intervene

Volokh is moving to assert his own First Amendment and common-law rights of access.

“Representatives of the press . . . must be given an opportunity to be heard on the question of their exclusion from a court proceeding, and we have recognized  a similar right of news media to intervene in this Court to seek unsealing of documents filed in a court proceeding.” Trump v. Deutsche Bank AG, 940 F.3d 146, 150 (2d Cir. 2019) (internal quotation marks and citations omitted). Indeed, the  right  of  access is that of “both the public and the press,” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004). In  either capacity, he is allowed to intervene pro se to assert his own rights. See, e.g., Bonner v. Justia Inc., No. 3:18-cv-9187,  2019 WL 3892858, *2 (D.N.J. Aug. 19, 2019).

(authorizing such pro se intervention); Grube v. Trader, 142 Haw. 412, 428-29, 420 P.3d 343, 359-60 (2018) (same).

II.       Whether this case is sealed is governed by federal common law and the First Amendment, not the Vermont statute to which the Motion to Seal appeals

The docket entry for Defendant’s Motion to Seal suggests that  defendant  is relying on Vermont’s statute that calls for mandatory sealing (whether temporary or  perma­nent) of documents in childhood sexual abuse cases, 12 V.S.A. § 522(b). But  “[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law,” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); the rules controlling  access to court files are  procedural,  not substantive. And, of course, even if the Vermont statute did apply in  federal court, it  would  be trumped by the First Amendment right of access. See, e.g., Burkle v. Burkle, 135 Cal. App. 4th 1045, 1048, 1070, 37 Cal. Rptr. 3d 805, 808, 827 (2006)  (statute  requiring “a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabil­ities of the parties” “is unconstitutional on its face as an undue burden on the First Amendment right of public access to court records”).

III.   The public has a presumptive right of access to complaints, court or­ders, motions to seal, and the docket

Complaints: Under both federal common law and the First Amendment, the public has a presumptive right of access to complaints. Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132, 140-41 (2d Cir. 2016). “‘A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court’s decision.”‘ at 140 (quoting FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013)).

“Public access to complaints allows the public to understand the activity of the federal courts, enhances the court system’s accountability and legitimacy, and in­ forms the public of matters of public concern.” Id. at 141. “Of all the records that may come before a judge, a complaint is among the most likely to affect judicial proceed­ings. It is the complaint that invokes the powers of the court, states the causes of action, and prays for relief.” Id. at 142. And “the utility of the complaint to those who monitor the work of the federal courts” further supports the presumption in favor of access. Id. at 143.

Indeed, there is a right of access even as to complaints in cases in which the parties have settled before an answer was filed. Id. at 140. “[P]leadings are considered judicial records ‘even when the case is pending before judgment or resolved by settle­ment.”‘ Id. (citation omitted). The public thus has a right to access complaints in pending cases, in the weeks before an answer is filed, in the months while a motion to dismiss may be pending, and after any motion to dismiss is granted.

Court orders: The right of access is especially strong for court orders-“it should go without saying that the judge’s opinions and orders belong in the public domain.” Union Oil of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); Doe v. Public Citizen, 749 F.3d 246, 267 (4th Cir. 2014) (quoting Union Oil on this point).

Motions to seal: The right of access also applies “to all material filed in con­nection with nondiscovery pretrial motions, whether these motions are case disposi­tive or not ” Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir. 1993). “The common law right of access … encompasses all ‘judicial records and documents.’ It includes ‘transcripts, evidence, pleadings, and other materials submitted by litigants ….”‘ United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (citations omitted). This covers motions to seal.

The docket: The case appears to be entirely sealed on PACER, so it is impos­sible to even view the docket entries. (Volokh has been able to access the entries because they are still visible on Bloomberg ) Yet “the public and press enjoy a qual­ified First Amendment right of access to docket sheets.” Hartford Courant Co., 380 F.3d at 86.

VI.     If the documents are not unsealed, Volokh asks this Court to clarify whether he is restrained from publishing or discussing the copy of the Notice of Removal and the Complaint that he obtained before they were sealed

Volokh also asks that, if the Court denies the motion to unseal, it inform Volokh whether this sealing order prevents him from publishing or discussing copies of the Notice of Removal, of the Complaint, and of the docket, all of which he downloaded before they were sealed. Volokh has researched whether such sealing orders preclude authors-including those who are members of the media but also members of a  bar, as he is-from writing about material that they had lawfully  downloaded  before it was sealed; but he has not been able to find a clear answer.

Florida Star u. B.J.F., 491 U.S. 524, 536 (1989), suggests that he would not be bound by such an order: That case holds that members of the media have a First Amendment right to publish government records they have lawfully obtained, even when state law expressly says otherwise, and even when the records had been erroneously released to them. It follows that the right would be even clearer when the records had been properly released (by being posted on PACER before any sealing was imposed) but a court later sought to recall them using a sealing order.

But Florida Star does not speak to whether the same rule applies to writers who , though not involved as lawyers in the underlying litigation, are nonetheless members of a bar. Volokh would like to clearly understand what his obligations are, in the event that his motion to unseal is denied.

Conclusion

For these reasons, Volokh asks to be allowed to intervene, and asks that all the sealed documents in this case be expeditiously unsealed.

Dated November 4, 2019 , Los Angeles , California .

Respectfully submitted,

Eugene Volokh
UCLA School of Law
385 Charles E. Young Dr.
E. Los Angeles,
CA 90095

Judge Britt Grant, Court of Appeals for the Eleventh Circuit and FedSociety.com Member