AMERGEN ENERGY COMPANY, LLC v. USA
REPORTED OPINION denying 96 Motion to Maintain Certain Filings Under Seal Pursuant to Protective Order. The Clerk's Office is directed to enter judgment in favor of defendant on Counts I-IV of the complaint, for the reasons stated in the c ourts opinion and order of September 17, 2013. The Clerks Office is directed to ENTER final judgment on Count V of the complaint, pursuant to the parties settlement and AmerGens Tax Matters Partners stipulation regarding Count V. Each party shall b ear its own costs.Unless otherwise directed by the court, the Clerks Office is directed to UNSEAL docket entries 1, 52, 53, 56, 58, 91, 92, and 93 on April 10, 2014. In the event that the parties agree that some exception to the unsealing of the abo ve-listed docket entries is warranted, the parties shall jointly FILE a Notice to that effect on or before April 3, 2014. In addition, on or before April 3, 2014, the parties shall jointly FILE, as separate docket entries, agreed-upon Redacted Versions of any sealed filing(s) that the parties agree should be excepted from the unsealing of the above-listed docket entries. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.
In the United States Court of Federal Claims
No. 09-108 T
(Filed March 13, 2014)
AMERGEN ENERGY CO., LLC by and
through EXELON GENERATION CO.,
LLC, tax matters partner,
THE UNITED STATES,
Tax; Sealing of Judicial
Terri L. Mascherin, Chicago, IL, for plaintiff. John J. Hamill and Kaija K.
Hupila, Chicago, IL, of counsel.
Cory A. Johnson, United States Department of Justice Tax Division, with
whom were Kathryn Keneally, Deputy Assistant Attorney General, David I.
Pincus, Chief, Court of Federal Claims Section, Mary M. Abate, Assistant Chief, S.
Starling Marshall, Trial Attorney, Washington, DC, for defendant.
OPINION AND ORDER
Now pending before the court is plaintiff’s Motion to Maintain Certain
Filings under Seal Pursuant to Protective Order. In its motion, which has been
fully briefed, plaintiff requests an order preventing the disclosure of portions of
various exhibits and deposition testimony which were provisionally designated as
confidential during discovery pursuant to a blanket protective order and thereafter
filed with the court under seal in connection with the parties’ cross-motions for
summary judgment. For the reasons set forth below, plaintiff’s motion is denied.
A detailed description of the factual background and procedural history of
this case is provided in Amergen Energy Co. v. United States, 113 Fed. Cl. 52
(2013) (Amergen I). The court will summarize below only those facts most
pertinent to the motion currently before the court.
This is a readjustment of partnership items case under the Tax Equity and
Fiscal Responsibility Act of 1982 (TEFRA), codified at 26 U.S.C. §§ 6221-6234
(2012). Plaintiff is AmerGen Energy Company, LLC (AmerGen), by and through
Exelon Generation Company, LLC (Exelon), AmerGen’s tax matters partner. In
its complaint filed under seal on February 20, 2009, AmerGen sought to include in
its tax basis certain decommissioning liabilities it assumed when it acquired three
nuclear power plants in 1999 and 2000.
In resolving the parties’ cross-motions for summary judgment with respect
to each of AmerGen’s claims, the court addressed only the threshold legal issue of
whether, under the Internal Revenue Code (IRC or Code), AmerGen may include
decommissioning liabilities in the cost bases of the nuclear power plants it
acquired in 1999 and 2000. In its opinion – issued under seal on September 17,
2013, and filed publicly on October 8, 2013 – the court answered that question in
the negative.1 Amergen I, 113 Fed. Cl. at 70-73.
Despite the court’s decision on the merits of AmerGen’s claims, disputes
remain concerning the proper treatment of discovery materials filed with the court
in connection with the parties’ cross-motions for summary judgment. Those
disputes center on a protective order entered by the court during discovery in this
case pursuant to Rule 26(c) of the Rules of the United States Court of Federal
/ All references in this opinion to the Internal Revenue Code (IRC) point to the 2012
version of Title 26 of the United States Code.
AmerGen initially sought entry of a protective order on May 3, 2010.
Although the government did not oppose plaintiff’s request for a protective order,
the court rejected the proposed order as unworkable and requested that the parties
propose a modified version of the court’s standard protective order used primarily
in procurement protest cases. The court ordered the parties to confer and jointly
file a proposed protective order that would meet their respective needs and also
address the need for a public record of this case. See Order of May 5, 2010. After
failing to reach agreement on appropriate adaptations to the court’s standard
protective order, the parties subsequently submitted two proposed orders for the
court’s consideration. On August 13, 2010, the Court entered a blanket protective
order which incorporated portions of each party’s proposed protective order.
The protective order adopted by the court allows the parties to designate
information as confidential for discovery purposes, and sets forth a procedure by
which the parties may object to each other’s confidentiality designations and
present any unresolved disputes about such designations to the court. Protective
Order ¶ 2. The order defines “protected information” as “sensitive and nonpublic
technical, commercial, financial, personal, trade secret or government information
contained in . . . (a) any document . . . produced, filed, or served by a party to this
litigation; or (b) any deposition, sealed testimony or argument, declaration, or
affidavit taken or provided during this litigation.” Id. ¶ 1. Protected information
properly designated as confidential “may be used solely for the purposes of this
litigation,” id. ¶ 3, and may be disclosed only to specified persons, id. ¶ 5. In
addition, the protective order sets forth procedures by which the parties may file
documents containing protected information with the court under seal to be
followed by the filing of unsealed but redacted versions of such documents, id. ¶¶
7-9, and by which the parties may present any unresolved disputes concerning
redactions to the court for resolution, id. ¶ 9(d).
During discovery in this case, the government objected to many of
AmerGen’s confidentiality designations as beyond the scope of the protective
order. See Def.’s Resp. Ex. C. The parties, after failing to reach agreement with
respect to the propriety of plaintiff’s confidentiality designations, initially proposed
presenting their dispute to the court before filing their motions for summary
judgment. See Joint Status Report dated March 23, 2012. The parties
subsequently reconsidered that procedure, however, and suggested that the
sequence be reversed – i.e., that the parties first complete briefing of their
respective motions for summary judgment and thereafter seek resolution of any
remaining disputes regarding confidentiality designations. See Joint Status Report
dated March 30, 2012. Pursuant to this agreed-upon procedure, the parties filed
their cross-motions for summary judgment, along with numerous exhibits, under
seal, after which AmerGen filed its pending motion to seal.
The court issued its opinion under seal on September 17, 2013. Pursuant to
paragraph 4 of the ordering language in that opinion, the parties were directed to
identify proprietary or confidential material in that opinion subject to redaction on
the basis that the material was protected. The parties notified the court that no
redactions were necessary. See Joint Status Report dated October 3, 2013. The
court therefore issued a public version of its opinion on October 8, 2013 which
differed from the sealed version only with respect to the publication date.
In its motion, AmerGen seeks to prevent the disclosure of information
contained in exhibits and deposition testimony designated as confidential during
discovery and filed with the court under seal in connection with the parties’ crossmotions for summary judgment. AmerGen does not seek to seal all of the
information filed in connection with the parties’ cross-motions; rather, plaintiff
seeks to “redact” from the public record a subset of the exhibits and deposition
testimony filed. See Pl.’s Mot. at 14. AmerGen divides this subset of exhibits and
testimony into six “categories” which the court describes in detail below. See Pl.’s
Mot. at 3-11 & Ex. B1; Pl.’s Reply at 8-15 & Ex. 2. In support of its motion to
seal, AmerGen offers the declarations of two Exelon employees: Jeffrey Dunlap,
Manager of Spent Fuel and Decommissioning; and David Leckie, Tax Manager for
Audit and Appeals. See Pl.’s Mot. Exs. B2-B3. Mr. Dunlap and Mr. Leckie both
assert that the exhibits and deposition testimony identified in AmerGen’s motion
contain information that is “financially and commercially sensitive and nonpublic.” Pl.’s Mot. Exs. B2 ¶ 5, B3 ¶ 5.
The government objects to AmerGen’s motion in its entirety, arguing that
“AmerGen has failed to demonstrate that there are compelling reasons to seal
evidence that would outweigh the common law and First Amendment rights of
access to this Court’s records.” Def.’s Resp. at 9.
The court’s analysis begins, as it must, with recognition of the strong
presumption in favor of public access to court proceedings. In re Violation of Rule
28(d), 635 F.3d 1352, 1356 (Fed. Cir. 2011) (citing Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 597-99 (1978)); see also Baystate Techs., Inc. v. Bowers, 283 F.
App’x 808, 810 (Fed. Cir. 2008) (citing Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9
(1st Cir. 1998), and Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir.
1993)). This presumption applies to materials submitted to the court in all civil
adjudicatory proceedings, including materials submitted in support of or in
opposition to motions for summary judgment. See, e.g., Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006) (“[D]ocuments submitted to a
court for its consideration in a summary judgment motion are – as a matter of law
– judicial documents to which a strong presumption of access attaches . . . .”);
Rushford v. New Yorker Magazine, 846 F.2d 249, 252 (4th Cir. 1988) (“Because
summary judgment adjudicates substantive rights and serves as a substitute for a
trial, we fail to see the difference between a trial and the situation before us now.”
(citing cases)); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653,
661 (3d Cir. 1991) (Westinghouse) (stating that the presumption of public access
applies to all materials filed in connection with a motion for summary judgment)
(citations omitted); Pratt & Whitney Canada, Inc. v. United States, 14 Cl. Ct. 268,
273-74 (1988) (citing Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982), and In Re
Coordinated Pretrial Proceedings, 101 F.R.D. 34, 42-43 (C.D. Cal. 1984)
(Coordinated)). The exhibits and testimony AmerGen seeks to redact from the
public record, all of which were filed with the court in connection with the parties’
cross-motions for summary judgment, are therefore judicial records subject to the
common law presumption of public access.
The presumption of public access to judicial proceedings and records,
although strong, “‘is not absolute.’” In re Violation of Rule 28(d), 635 F.3d at
1356 (quoting Nixon, 435 U.S. at 598). The United States Supreme Court has
stated that the decision regarding access to judicial records is “one best left to the
sound discretion of the trial court . . . in light of the relevant facts and
circumstances of the particular case.” Nixon, 435 U.S. at 599. In exercising its
discretion in this regard, this court must weigh the private interests advanced by
the parties against the public’s interest in access to judicial proceedings. In re
Violation of Rule 28(D), 635 F.3d at 1356-57 (quoting Nixon, 435 U.S. at 602); see
also Baystate, 283 F. App’x at 810 (remanding to the trial court to conduct the
requisite balancing of private and public interests).
Access to judicial records has been denied where, for example, disclosure of
such records might harm a litigant’s competitive standing by revealing trade
secrets or other confidential business information. In re Violation of Rule 28(d),
635 F.3d at 1356 (citing Nixon, 435 U.S. at 598); see also Apple Inc. v. Samsung
Elecs. Co., 727 F.3d 1214, 1221 (Fed. Cir. 2013) (“One factor that weighs in favor
of sealing documents is when the release of the documents will cause competitive
harm to a business.”); Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,
1179 (9th Cir. 2006) (stating that compelling reasons sufficient to outweigh the
public’s interest in disclosure of court records “exist when such court files might
have become a vehicle for improper purposes, such as the use of records to . . .
release trade secrets”) (citations and internal quotation marks omitted);
Westinghouse, 949 F.2d at 662 (recognizing that denial of access to judicial
records may be proper when such records contain confidential business
information that might harm a litigant’s competitive standing) (citation omitted).
Accordingly, in deciding which, if any, of AmerGen’s proposed redactions are
appropriate, the court must balance the public’s interest in access against any
putative private interest in maintaining the confidentiality of the information in
question, including AmerGen’s interest in avoiding the disclosure of information
which could give its competitors an unfair advantage in the marketplace.
In balancing the competing public and private interests at play in this
dispute, the court is mindful that the United States Court of Appeals for the Federal
Circuit has stated that “‘the ordinary showing of good cause which is adequate to
protect discovery materials from disclosure cannot alone justify protecting such
material after it has been introduced at trial.’” In re Violation of Rule 28(D), 635
F.3d at 1358 (quoting Poliquin, 989 F.2d at 533). To establish good cause for a
protective order to prevent the disclosure of discovery material pursuant to RCFC
26(c), a party must demonstrate that specific prejudice or harm will result if no
protective order is granted. Id. at 1357-58 (citation omitted); 2 Forest Prods. Nw.,
Inc. v. United States, 62 Fed. Cl. 109, 114 (2004) (Forest Products) (“A party
establishes good cause by specifically demonstrating that ‘disclosure will cause a
/ Although the Federal Circuit in In re Violation of Rule 28(D) was concerned with the
application of Federal Rule of Civil Procedure 26(c), that rule is nearly identical to RCFC 26(c).
This court therefore refers in this opinion to cases interpreting both rules.
clearly defined and serious injury.’” (quoting Glenmede Trust Co. v. Thompson, 56
F.3d 476, 483 (3d Cir. 1995))), aff’d, 453 F.3d 1355 (Fed. Cir. 2006).
By contrast, a party seeking to prevent disclosure of information submitted
as evidence in dispositive judicial proceedings, whether at trial or in connection
with a motion for summary judgment, must demonstrate compelling reasons for
keeping such information out of public view. In re Violation of Rule 28(D) at 1358
(stating that “an even stronger showing of prejudice or harm may be required to
warrant limitations on disclosure” of information actually introduced at trial); see
also Miller-Holzwarth, Inc. v. United States, 44 Fed. Cl. 153, 154 (1999)
(recognizing the “compelling justification” standard applicable to motions to
prevent disclosure of judicial records) (citations omitted); Black v. United States,
24 Cl. Ct. 461, 464 (1991) (distinguishing between discovery materials, which
“themselves are not subject to the common law right of access,” and court
documents, which can be sealed only upon a “showing of a compelling
justification or the need to protect trade secrets”) (citations omitted); Pratt &
Whitney Canada, 14 Cl. Ct. at 274 (same) (citations omitted).3
AmerGen advances two arguments in an apparent attempt to avoid having to
demonstrate compelling reasons for the redactions it seeks. First, plaintiff suggests
that the court’s protective order, by allowing the parties to designate information as
confidential and to file such information with the court under seal, settles the issue
of whether confidential information may be permanently sealed. See Pl.’s Reply at
4-5. Plaintiff’s assertions in this regard are without merit.
/ Other circuits have likewise noted the distinction between discovery materials and
judicial records. See, e.g., Kamakana, 447 F.3d at 1180 (“A good cause showing will not,
without more, satisfy a compelling reasons test. Different interests are at stake with the right of
access than with Rule 26(c); with the former, the private interests of the litigants are not the only
weights on the scale. Unlike private materials unearthed during discovery, judicial records are
public documents almost by definition, and the public is entitled to access by default. This fact
sharply tips the balance in favor of production when a document, formerly sealed for good cause
under Rule 26(c), becomes part of a judicial record.”) (citations and internal quotation marks
omitted); Rushford, 846 F.2d at 252 (noting that “discovery, which is ordinarily conducted in
private, stands on a wholly different footing than does a motion filed by a party seeking action by
the court” (citing Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d
339, 343 (3d Cir. 1986)))
Blanket or umbrella protective orders, such as the one entered in this case,
are frequently employed by this court and others to facilitate discovery in complex
cases. E.g., Jicarilla Apache Nation v. United States, 60 Fed. Cl. 413, 414 (2004);
Rice v. United States, 39 Fed. Cl. 747, 749-52 (1997); Speller v. United States, 14
Cl. Ct. 170, 175-77 (1988); see also Cipollone v. Liggett Group, 785 F.2d 1108,
1122 (3rd Cir. 1986). However, such orders “‘should not substantively expand the
protection provided by Rule 26(c) or countenanced by the common law of
access.’” Lugosch, 435 F.3d at 126 (quoting Coordinated, 101 F.R.D. at 43-44);
see also Kamakana, 447 F.3d at 1179, 1183 (concluding that “[a]lthough the
magistrate judge expressly approved and entered the [blanket] protective order, the
order contained no good cause findings as to specific documents that would justify
reliance by the United States” and, therefore, “the claimed reliance on the order is
not a compelling reason that rebuts the presumption of access”) (citations and
internal quotation marks omitted). Accordingly, the presumption of access to court
records is not rebutted merely because the court has previously entered a blanket
protective order. See, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
1136, 1138 (9th Cir. 2003) (applying the “compelling reasons” standard to a
party’s opposition to motions to unseal documents previously filed under seal
pursuant to a blanket protective order, and holding that non-movant could not
reasonably rely upon the order to “hold these records under seal forever”)
Indeed, as previously noted, the protective order entered in this case
expressly contemplates the court’s involvement in resolving disputes as to the
designation of confidential information and the sealing and/or redaction of
documents filed with the court. See Protective Order ¶¶ 2, 9(d). As both parties
acknowledge, the court has yet to resolve the remaining disputes regarding the
propriety of AmerGen’s confidentiality designations and proposed redactions. For
the court to grant AmerGen’s motion solely because the information AmerGen
seeks to redact from the public record was provisionally designated as confidential
pursuant to a blanket protective order would be to improperly “‘abdicate [the
court’s] responsibility . . . to determine whether filings should be made available to
the public.’” 4 In re Violation of Rule 28(d), 635 F.3d at 1358 (quoting Procter &
Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996)).
/ The court also rejects AmerGen’s related argument, based upon this court’s decision in
Sikorsky Aircraft Corp. v. United States, 112 Fed. Cl. 313 (2013), that the government, in
(continued . . .)
AmerGen’s second argument is that the exhibits and testimony it seeks to
redact from the public record “are largely irrelevant to the Court’s ultimate ruling
on a primarily legal question concerning application of [IRC] § 461(h).” Pl.’s
Reply at 5. Plaintiff’s argument in this regard is not entirely clear. AmerGen
appears to suggest that the weight of any presumption favoring public access to
judicial records diminishes when such records do not form the basis of a
determination on the merits. The court finds this argument to be similarly
In support of its argument, AmerGen cites to the Federal Circuit’s recent
decision in Apple Inc. v. Samsung Electronics Co., 727 F.3d 1214, 1226 (Fed. Cir.
2013). See Pl.’s Reply at 5-6. In Apple, both parties argued on appeal that the
district court had abused its discretion in refusing to redact portions of various
documents filed as exhibits to pre- and post-trial motions. 727 F.3d at 1223-28.
With regard to the parties’ “detailed product-specific financial information,
including costs, sales, profits, and profit margins” contained in exhibits filed in
connection with the parties’ pre-trial motions, the Federal Circuit noted that “none
of the documents [containing the financial information at issue] were introduced
into evidence” and, “[t]hus, the financial information at issue was not considered
by the jury and is not essential to the public’s understanding of the jury’s damages
award.” Id. at 1226. Because the particular financial information at issue was not
necessary to the public’s understanding of the case, the court concluded that the
public’s interest in accessing this information was negligible and was outweighed
opposing permanent redaction of the information identified in AmerGen’s motion, must
demonstrate “changed circumstances that would warrant departure from the procedure that the
Court already established” in its protective order entered on August 13, 2010. See Pl.’s Reply at
5 (citing Sikorsky, 112 Fed. Cl. at 316). In Sikorsky, this court characterized the government’s
motion to unseal virtually all of the sealed portions of the trial record as a motion to modify a
previously entered protective order, and concluded that “no showing of . . . changed
circumstances ha[d] been made” to justify modifying the protective order. 112 Fed. Cl. at 316.
The court finds Sikorsky to be inapposite because the protective order at issue in that case had
been narrowly drawn to shield information which the court had already concluded would cause
substantial competitive harm if made publicly available. Id. at 317. Here, by contrast, the court
has yet to assess whether any of the information identified in AmerGen’s motion is deserving of
protection from disclosure.
by the parties’ “strong interest in keeping their detailed financial information
AmerGen’s reliance upon Apple is misplaced in this case. That decision,
aside from being non-precedential in this circuit insofar as it applies the law of the
regional circuit in which the district court sat (there, the Ninth Circuit), is factually
distinguishable. Unlike in Apple, where none of the information subject to the
parties’ motions to seal had been introduced to the jury at trial, all of the
information that AmerGen seeks to redact from the public record was filed with the
court as attachments to the parties’ cross-motions for summary judgment. 5
AmerGen has cited no legal authority holding that the presumption of public
access is rebutted or diminished where, as here, a court resolves a plaintiff’s claims
on purely legal grounds without consideration of any of the allegedly protected
information before the court. Nor has the court located any such legal authority.
Moreover, plaintiff’s argument appears to be contrary to the weight of authority on
this issue. See, e.g., United States v. Kravetz, 706 F.3d 47, 58 (1st Cir. 2013)
(rejecting the notion that the presumption of public access turns on whether the
documents at issue “actually played a role in the court’s deliberations” (citing Fed.
Trade Comm’n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987)));
Kamakana, 447 F.3d at 1179 (“[T]he strong presumption of access to judicial
records applies fully to dispositive pleadings, including motions for summary
judgment and related attachments.”) (citations omitted); Lugosch, 435 F.3d at 123
(finding error in the district court’s suggestion that “different types of documents
might receive different weights of presumption based on the extent to which they
were relied upon in resolving the motion,” and stating that “‘[i]f the rationale
behind access is to allow the public an opportunity to assess the correctness of the
/ Neither the Ninth Circuit nor the Federal Circuit has squarely addressed the issue of
whether the public’s right to access to judicial documents is diminished if a court has not cited
those documents in a ruling on the merits. Furthermore, the Ninth Circuit, whose law the
Federal Circuit was applying in Apple, does not appear to have identified any distinction, for the
purposes of the presumption of public access, between dispositive motion exhibits submitted and
cited versus those submitted but not cited. See, e.g., Kamakana, 447 F.3d at 1179 (“[T]he strong
presumption of access to judicial records applies fully to dispositive pleadings, including
motions for summary judgment and related attachments.” (citing Foltz v. State Farm Mut. Auto.
Ins. Co., 331 F.3d 1122, 1136, 1138 (9th Cir. 2003), and San Jose Mercury News, Inc. v. U.S.
Dist. Ct., 187 F.3d 1096, 1102 (9th Cir. 1999))).
judge’s decision . . . documents that the judge should have considered or relied
upon, but did not, are just as deserving of disclosure as those that actually entered
into the judge’s decision’” (quoting Coordinated, 101 F.R.D. at 43)); cf.
Westinghouse, 949 F.2d at 661 (concluding that “papers filed in connection with a
motion for summary judgment are not entitled to be shielded from public access
merely because the district court denied the motion rather than granted it”).
Accordingly, AmerGen must show compelling reasons to overcome the strong
presumption in favor of access with respect to the information identified in its
With these overarching principles in mind, the court now turns to an analysis
of the six categories of information AmerGen seeks to redact from the public
record of this case. As explained below, the court concludes that AmerGen has
failed to satisfy even the less stringent good cause standard under RCFC 26(c), let
alone the more arduous compelling reasons standard for the sealing of judicial
records, because AmerGen fails to explain the specific harm that will result from
“Financial and Business Planning Information”
The first category of information AmerGen seeks to protect, which
AmerGen labels “financial and business planning information pertaining to its
1999-2000 plant acquisitions and other prospective business ventures,” consists of
portions of deposition testimony provided by AmerGen’s financial analysts and
other personnel involved in the acquisitions, as well as certain exhibits from those
depositions which were attached as exhibits to the parties’ cross-motions for
summary judgment. See Pl.’s Mot. at 3-5 & Ex. B2 (Dunlap Decl.) ¶ 6(a); Pl.’s
Reply at 12-14. Those exhibits include copies of the purchase agreements whereby
AmerGen acquired the nuclear power plants at issue in this lawsuit; internal
memoranda describing AmerGen’s due diligence and financial assumptions with
respect to the proposed purchases; and an affidavit by Adam Levin, Exelon’s
Director of Spent Fuel and Decommissioning, describing AmerGen’s cost
estimates with respect to the proposed purchases. See Pl.’s Mot. at 3-5 & Ex. B2
(Dunlap Decl.) ¶ 6(a).
Relying upon Mr. Dunlap’s declaration, AmerGen asserts that these
materials are confidential because they include “internal discussions and strategies,
including financial and performance analyses, that reflect Exelon’s (and
AmerGen’s, whose tax rights Exelon invokes here) internal considerations and
assessments of its cost structures, business opportunities, and market situations.”
Pl.’s Mot. at 4 (citing Pl.’s Mot. Ex. B2 (Dunlap Decl.) ¶ 6(a)). Plaintiff claims
that if these materials were disclosed, AmerGen “would run the risk of its
competitors acquiring and potentially using its sensitive information to their
competitive advantage.” Id.
The government responds by arguing that AmerGen has not demonstrated
compelling reasons to seal this information because AmerGen “fails to identify the
specific business and financial information that it is concerned about, or the
specific harm that would result from its disclosure.” Def.’s Resp. at 13. The court
As noted supra, a party seeking protection under RCFC 26(c) must
specifically demonstrate that discovery or disclosure will cause a clearly defined
and serious injury. “[B]road allegations of harm, unsubstantiated by specific
examples, are insufficient.” Estate of Rubinstein v. United States, 96 Fed. Cl. 640,
647 (2011) (citing Cipollone, 785 F.2d at 1121, and Forest Products, 62 Fed. Cl. at
114); Wall Indus., Inc. v. United States, 5 Cl. Ct. 485, 487 (1984) (“[I]t is
axiomatic that nebulous and conclusory allegations of confidentiality and business
harm are insufficient to carry the movant’s burden.”) (citations omitted); 8A
Charles Alan Wright et al., Federal Practice & Procedure § 2035, at 157-58 (3d
ed. 2010). A fortiori, such allegations are insufficient to meet the more stringent
compelling reasons standard required to rebut the presumption of public access
with respect to judicial records.
Applying this standard, it is evident that AmerGen has not made the
requisite particularized showing of harm to prevent disclosure of the “financial and
business planning information” identified above. AmerGen simply provides a
chart listing citations to exhibit numbers and testimony falling within this broad
category of information, see Pl.’s Reply Ex. 2, and asserts that disclosure of these
materials may reveal AmerGen’s “internal considerations and assessments of its
cost structures, business opportunities, and market situations,” see Pl.’s Mot. at 4.
Yet AmerGen makes no effort to identify specific information in these materials
that would cause specific harm to its competitive interests if publicly released.
Moreover, the court is aware of no per se “internal operations” exception to the
presumed right of public access, and observes that such an exception would
swallow the presumption of public access in most cases. See, e.g., Gelb v. Am. Tel.
& Tel. Co., 813 F. Supp. 1022, 1035 (S.D.N.Y. 1993) (“Internal corporate
documents do not automatically merit protective orders, nor is a party entitled
under Rule 26(c) to keep documents under seal in order to shield the party from
Furthermore, as defendant notes, the age of the information in this category,
nearly all of which came into existence before the year 2000, weighs in favor of
requiring disclosure even if the court were to accept as true AmerGen’s speculative
assertions that the materials at issue contain confidential commercial information
otherwise deserving of protection. See Def.’s Resp. at 13 (citing United States v.
Exxon Corp., 94 F.R.D. 250, 251-52 (D.D.C. 1981), and Zenith Radio Corp. v.
Matsushita Elec. Indus. Co., 529 F. Supp. 866, 891 (E.D. Pa. 1981)). In general,
information may lose its confidential nature once it becomes stale. Avtel Servs.,
Inc. v. United States, 70 Fed. Cl. 173, 191 (2006) (citing cases), appeal dismissed,
501 F.3d 1259 (Fed. Cir. 2007); see also Deford v. Schmid Prods. Co., 120 F.R.D.
648, 653 (D. Md. 1987) (“Even assuming that the information Schmid seeks to
protect generally falls within the category of confidential commercial information,
only a speculative showing of potential harm has been made. The bulk of the
documents sought are over ten years old.”); Zenith, 529 F. Supp. at 891 (“An
attempt to show that disclosure will indeed work a competitive disadvantage might
be undermined if the information sought to be protected were stale.”); United
States v. Int’l Bus. Machs. Corp., 67 F.R.D. 40, 49 (S.D.N.Y. 1975) (IBM)
(denying a motion to maintain under seal testimony and exhibits containing noncurrent information).
Although the application of this general rule is necessarily case-specific, it is
clear that vague and speculative allegations of injury from the disclosure of yearsold information are not sufficient to overcome the strong presumption favoring
public access. See, e.g., Deford, 120 F.R.D. at 654 (“While staleness of the
information sought to be protected is not an absolute bar to issuance of an order, it
is a factor which must be overcome by a specific showing of present harm.” (citing
Exxon, 94 F.R.D. at 252, Zenith, 529 F. Supp. at 891, Parsons v. Gen. Motors
Corp., 85 F.R.D. 724, 726 (N.D. Ga. 1980), and IBM, 67 F.R.D. at 47-49).
AmerGen claims that “strategic planning that was relevant in the 1999-2000
era for these assets remains relevant today,” see Pl.’s Mot. at 4, but it fails to
demonstrate how the particular materials at issue reveal anything about its
contemporary operations such that their disclosure would harm its competitive
standing. AmerGen has therefore failed to demonstrate either good cause or
compelling reasons to justify non-disclosure of the “financial and business
planning information” described above.6
The second category of information AmerGen seeks to protect, which
AmerGen describes as “tax information” containing “tax advice, analysis and
reporting,” includes copies of AmerGen’s tax returns for the years 2001 through
2003; private letter rulings by the Internal Revenue Service (IRS) as well as
AmerGen’s written requests for such rulings; internal memoranda and
correspondence regarding tax and accounting matters; related deposition testimony
provided by AmerGen personnel as well as AmerGen’s tax and accounting
advisers; an affidavit by David Leckie, Exelon’s Tax Manager for Audit and
Appeals, describing AmerGen’s schedule of damages submitted to the court in
connection with its motion for summary judgment; and two pages from the
government’s brief in support of its motion for summary judgment in which the
government described the IRS private letter rulings obtained by AmerGen. See
Pl.’s Mot. at 5-6 & Ex. B3 (Leckie Decl.) ¶ 6(a); Pl.’s Reply at 10-12.
AmerGen asserts, in language taken nearly verbatim from Mr. Leckie’s
declaration, that “[t]hese materials are financially sensitive because they identify
the advice and internal considerations and analyses that underlie Exelon’s tax
liabilities and accounting methodologies.” Pl.’s Mot. at 6 (citing Pl.’s Mot. Ex. B3
(Leckie Decl.) ¶ 6(a)). Plaintiff elaborates that “[w]hile Exelon files its returns
/ With respect to the purchase agreements identified above, the government opposes
AmerGen’s request to seal on the additional ground that AmerGen failed to designate the
agreements as confidential during discovery. See Def.’s Resp. at 13 n.12. Defendant makes a
similar argument with respect to other materials identified in AmerGen’s motion. See id. at 1011. However, as plaintiff correctly notes, the protective order provides that “[a] designation of
confidential information may be made at any time.” Protective Order ¶ 2 (emphasis added); see
Pl.’s Reply at 13. AmerGen’s decision to wait until now to seek protection for such documents
is therefore immaterial.
with the [IRS], Exelon does not provide its internal analyses and advice to any
parties with which it does not have a confidential arrangement, and Exelon keeps
its tax returns confidential and does not make them available to the public at
large.” Id. Nor, plaintiff claims, does it disclose the “underlying analyses and
inputs that support its accounting and financial reporting disclosures.” Id.
AmerGen therefore contends that “[t]hese materials contain information that would
be valuable to Exelon’s competitors, including Exelon’s valuation of its assets,
power purchase agreement terms, and other proprietary information and strategic
considerations underlying Exelon’s business, tax, and financial planning.” Id.
The government argues, first, that tax proceedings are “presumptively open”
under IRC 6103(h)(4). Def.’s Resp. at 14 (citing Willie Nelson Music Co. v.
Comm’r, 85 T.C. 914, 919 (1985)). However, as AmerGen notes, the plain
language of that Code section contradicts defendant’s argument. See Pl.’s Reply at
11. IRC 6103(a) provides that income tax “[r]eturns and return information shall
be confidential” and shall not be disclosed except as statutorily authorized.
Although IRC 6103(h)(4) permits the disclosure of such information “in a Federal
or State judicial or administrative proceeding pertaining to tax administration,” its
language is permissive, not mandatory. Therefore, the Code neither requires nor
prohibits disclosure of tax returns or related information in tax proceedings such as
these. Instead, the same strong (but rebuttable) presumption of access applies in
tax cases as applies in all other civil proceedings. See, e.g., Anonymous v.
Comm’r, 127 T.C. 89, 91 (2006); Willie Nelson, 85 T.C. at 919.
The government next argues that much of the tax-related information
identified by AmerGen is already in the public domain and therefore is not
confidential. See Def.’s Resp. at 2-3, 14. Specifically, defendant notes that the
IRS private letter rulings, and AmerGen’s written requests for such rulings, were
filed publicly by AmerGen earlier in these proceedings in connection with
AmerGen’s motion to compel admissions by the United States. See id. at 2-3. The
government also asserts that AmerGen already disclosed the tax advice it received
in 1999 and 2000 in the body of its summary judgment briefs as well as
attachments thereto. Id. at 14; see also id. at 3 (“[AmerGen] wants to seal the nonprivileged tax advice it received in 1999 and 2000. How disclosure of this 14-year
old advice – that was shared with third-parties long ago and confirmed by this
Court – could now lead to serious injury is left unexplained.” (citing AmerGen I,
113 Fed. Cl. at 56)).
AmerGen admits that it already disclosed several of the aforementioned IRS
private letter rulings, as well as AmerGen’s written requests for such rulings, and
“agrees that the prior public filing of those materials . . . obviates the need for any
further protection.” Pl.’s Reply at 10. AmerGen therefore withdraws its request to
seal those documents. Id. & Ex. 2 (revised chart of allegedly confidential
materials). AmerGen maintains, however, that “there are still other [private letter
ruling] materials on other issues and for other years in the summary judgment
appendices that AmerGen believes should still be under seal.” Id. at 10 n.6.
AmerGen also asserts that its disclosure of “the bottom line” regarding the tax
advice it received in 1999 and 2000 “does not mean that otherwise confidential
documents conveying such advice somehow lose their protectable nature.” Id. at
Although the court acknowledges that a taxpayer may, in certain
circumstances, lose any privacy interest in otherwise confidential tax information
that is disclosed in court, the court need not resolve AmerGen’s request to seal tax
records on that basis. Instead, the court need only observe that, as with the
“financial and business planning information” discussed above, AmerGen has
made no attempt to specifically identify how disclosure of particular tax
information will harm its competitive interests. As previously noted, broad and
conclusory allegations of harm, unsubstantiated by specific examples, cannot
establish good cause or compelling reasons to overcome the strong presumption in
favor of public access, particularly where, as here, the information at issue came
into existence years ago.
“Asset Retirement Information”
The third category of information AmerGen seeks to protect, which
AmerGen describes as “asset retirement information” relating to “calculation of its
asset retirement obligations for financial reporting purposes,” includes internal
memoranda, correspondence, and slide presentations describing AmerGen’s
calculation of its asset retirement obligations; related deposition testimony
provided by AmerGen personnel; and four pages of the government’s reply brief in
support of its motion for summary judgment in which the government described
AmerGen’s calculation of its asset retirement obligations. See Pl.’s Mot. at 7-8 &
Ex. B2 (Dunlap Decl.) ¶ 6(b); Pl.’s Reply at 14.
Relying again upon Mr. Dunlap’s declaration, AmerGen claims that, in
calculating annually its asset retirement obligations in accordance with public
financial accounting standards, it “review[s] many potential scenarios for retiring
assets, projecting the cash flows associated with each of those scenarios, and
assess[es] the probability of each of those scenarios occurring.” Pl.’s Mot. at 7.
Plaintiff asserts that “the materials generated in those reviews contain extensive
private and sensitive financial information that Exelon does not make public.” Id.
(citing Pl.’s Mot. Ex. B2 (Dunlap Decl.) ¶ 6(b)); see also id. at 8.
Defendant responds by noting that plaintiff’s asset retirement obligations are
calculated according to publicly promulgated financial accounting standards, and
that “Exelon itself discloses its process for calculating these obligations in its
publically filed 10-Ks.” Def.’s Resp. at 15 & Exs. D-E (Forms 10-K for fiscal
years 2003 and 2009). AmerGen, in reply, avers that it discloses the “ultimate
result” of each year’s asset retirement obligation calculation but does not disclose
the “underlying workpapers and analyses that it prepares.” Pl.’s Reply at 14.
Regardless of whether the “asset retirement information” identified by
AmerGen has already been publicly disclosed, the court concludes that AmerGen
has not made a particularized showing of harm necessary to prevent disclosure of
this information. Although plaintiff alludes to “extensive private and sensitive
financial information that Exelon does not make public,” see Pl.’s Mot. at 7, it fails
to specifically identify what this information consists of. In addition, AmerGen
does not even attempt to explicate the specific harm that would befall it were such
information to be disclosed. Instead, in its reply brief, AmerGen merely asserts
that this information should be protected “for largely the same reasons as its
financial planning information.” Pl.’s Reply at 14. In so doing, AmerGen appears
to expect the court to pinpoint such information by reviewing the hundreds of
pages of exhibits and deposition testimony identified in plaintiff’s motion. The
court cannot, and will not, engage in such guesswork. In short, plaintiff has failed
to demonstrate good cause or compelling reasons to prevent the disclosure of the
“asset retirement information” described above.
“Decommissioning Preparation and Planning Information”
The fourth category of information AmerGen seeks to protect, which
AmerGen labels as “decommissioning preparation and planning information,”
includes internal memoranda, correspondence, and meeting minutes describing
AmerGen’s estimates of its potential decommissioning costs with respect to the
nuclear power plants at issue, as well as related deposition testimony provided by
AmerGen personnel and external decommissioning consultants. See Pl.’s Mot. at
8-9 & Ex. B2 (Dunlap Decl.) ¶ 6(c); Pl.’s Reply at 14-15.
Mr. Dunlap states in his declaration that these materials “pertain to Exelon’s
analysis of and preparations and plans for decommissioning its fleet of plants,
including its funding preparations,” none of which is generally shared with
competitors. Pl.’s Mot. Ex. B2 (Dunlap Decl.) ¶ 6(c). Mr. Dunlap concludes that
these materials are “sensitive because they address the company’s business and
financial strategies and considerations that would be used by a competitor to its
advantage.” Id. Relying upon Mr. Dunlap’s declaration, AmerGen argues that “as
with the similar category of asset retirement information, public disclosure of
AmerGen’s decommissioning preparation and planning information would be to its
competitors’ advantage.” Pl.’s Mot. at 9.
The government argues, first, that this sort of information is “routinely
publicly disclose[d]” to the Nuclear Regulatory Commission (NRC) pursuant to 10
C.F.R. § 50.75 (2013), and therefore is not confidential. Def.’s Resp. at 16.
Defendant also contends that AmerGen has itself disclosed such information in its
filings with the Securities and Exchange Commission as well as on its own
website. See id. & Exs. F-G. Plaintiff, although conceding that it “might publicize
some information regarding its decommissioning planning and estimates,” argues
that it does not publicize the “details and underlying documentation for its
‘analysis of and preparations and plans for decommissioning its fleet of plants.’”
Pl.’s Reply at 15 (quoting Dunlap Dec. ¶ 6(c)).
Regardless of whether the totality of the “decommissioning preparation and
planning information” identified by plaintiff has already been publicly disclosed,
the court must again conclude that plaintiff has not made a particularized showing
of harm with respect to this information. Indeed, AmerGen makes no attempt to
explain how disclosure of this information, most of which appears to have come
into existence more than ten years ago, would harm its competitive standing, and
instead simply incorporates the same arguments by reference as were made with
respect to the “financial and business planning information” discussed supra. See
Pl.’s Reply at 15. The court has already found such arguments insufficient to
demonstrate good cause or to establish compelling reasons to overcome the
presumption of public access.
“Confidential Lawsuit Resolution Information”
The fifth category of information AmerGen seeks to protect, which
AmerGen describes as “lawsuit resolution information” pertaining to a settlement
of AmerGen’s 2004 lawsuit against the Department of Energy (DOE) in
connection with a contract for the disposal of spent nuclear fuel, includes a slide
presentation concerning the details of the settlement whereby AmerGen was to
receive reimbursement for spent nuclear fuel management costs; portions of the
government’s reply brief in support of its motion for summary judgment which
describe the settlement; and related deposition testimony provided by AmerGen
personnel. See Pl.’s Mot. at 9-10 & Ex. B2 (Dunlap Decl.) ¶ 6(d); Pl.’s Reply at 89.
AmerGen argues, again relying upon Mr. Dunlap’s declaration, that these
materials contain confidential information because they set forth “the details of the
reimbursement of certain spent nuclear fuel storage costs in connection with
resolution of the DOE lawsuit.” Pl.’s Mot. at 10 (citing id. Ex. B2 (Dunlap Decl.)
¶ 6(d)). Plaintiff asserts that “[t]he public disclosure of that information would be
prejudicial both to AmerGen and DOE in that it would expose their private and
sensitive commercial and financial information.” Id.
The government responds that these materials are not confidential because
the settlement agreement does not contain a confidentiality clause. Def.’s Resp. at
16. Additionally, defendant argues that plaintiff has already disclosed the
settlement’s terms in publicly-filed financial statements as well as on plaintiff’s
counsel’s website. Id. at 16-17 (citing id. Exs. A (Form 10-K for fiscal year 2006),
B (website describing the settlement)); see also id. at 3.
AmerGen admits that the settlement agreement “does not include the title
‘confidential’ or any similar term,” but nevertheless asserts that the agreement
itself forbids disclosure of its terms in the course of this litigation. Pl.’s Reply at 9.
Without providing the court with a copy of the agreement, AmerGen purports to
quote from a certain provision of the agreement which allegedly provides that the
agreement “shall not bind the parties, nor shall it be cited or otherwise referred to,
in any proceedings, whether judicial or administrative in nature, in which the
parties or counsel for the parties have or may acquire an interest, except as is
necessary to effect the terms of the Agreement[.]” Id. at 8. AmerGen contends
that this language “forbids AmerGen (and the United States) from even referring to
[the settlement] in other lawsuits.” Id. at 8. In contrast, plaintiff asserts that the
above-quoted language “do[es] not forbid the type of non-litigation disclosures”
made by plaintiff in its publicly-filed financial statements and on its counsel’s
website. Id. at 9.
The court rejects AmerGen’s request to seal materials relating to its
settlement with DOE. As an initial matter, the court is unable to assess the validity
of AmerGen’s claims with respect to the confidentiality of the settlement
agreement itself because neither AmerGen nor the government has submitted the
agreement to the court. Yet even if the court were to accept AmerGen’s assertions
in that regard, they would have no bearing on the court’s analysis because the
information AmerGen seeks to seal is already in the public record. Specifically,
the court’s unsealed opinion referred to the settlement and even cited the portions
of the government’s reply brief that AmerGen now seeks to seal. See Amergen I,
113 Fed. Cl. at 58. Plaintiff was afforded an opportunity to seek redaction of this
reference but chose not to do so. See Joint Status Report dated October 3, 2013
(advising the court that “no redactions need to be made to the Court’s Opinion and
Order to make it available as part of the public record; it can be unsealed”).
Having made that choice, plaintiff cannot now be heard to argue that its 2004
settlement with DOE is somehow confidential.
Moreover, the court agrees with defendant that “AmerGen has not
demonstrated any concrete, serious injury that would override the rights of public
access” with respect to information concerning its settlement with DOE. See
Def.’s Resp. at 17. The bulk of the material in this category appears to merely set
forth basic facts concerning the settlement – facts which AmerGen itself has
already disclosed. And plaintiff has made absolutely no effort to specifically
delineate the “private and sensitive commercial and financial information” it
claims should be redacted, see Pl.’s Mot. at 10, nor has it explained how disclosure
of such information would harm its competitive standing. The court therefore
concludes that AmerGen has failed to demonstrate good cause or compelling
reasons to prevent disclosure of the settlement information described above.
“Technical Safety-Related Information”
The final category of information AmerGen seeks to protect, which
AmerGen describes as “technical safety-related information” regarding the
location of spent fuel pools in AmerGen’s nuclear power plants, consists of seven
lines of deposition testimony provided by Francis Seymore, one of AmerGen’s
decommissioning consultants. See Pl.’s Mot. at 10-11 & Ex. B2 (Dunlap Decl.) ¶
6(e); Pl.’s Reply at 9-10.
Relying again upon Mr. Dunlap’s declaration, AmerGen argues that
“[t]estimony concerning the location of spent fuel pools is nonpublic, sensitive,
technical information,” the release of which “not only would reveal AmerGen’s
proprietary technical information, but . . . could also create a public danger.” Pl.’s
Mot. at 11; see also id. Ex. B2 (Dunlap Decl.) ¶ 6(e).
In response, the government asserts that this information is already in the
public domain, and therefore is not confidential. See Def.’s Resp. at 17. As
support for its argument, defendant submits a copy of a letter dated February 28,
2013 from Exelon to the NRC describing Exelon’s plans with respect to the
management of spent fuel pools at one of its power plants. See id. Ex. H.
Defendant claims that this letter “is available to the public on the [NRC’s] website”
and “provid[es] considerably more detail about the . . . spent fuel pool . . . and its
location” than does Mr. Seymore’s deposition. See Def.’s Resp. at 17. The
government also asserts that it has “confirmed with the NRC that the disclosure of
the very general testimony submitted is not prohibited.” Id.
In reply, AmerGen asserts that sealing the above-mentioned portions of Mr.
Seymore’s testimony “seems proper . . . because the actual location of the spent
nuclear fuel pool does raise safety issues and really has nothing to do with
AmerGen’s claims or the government’s defenses.” Pl.’s Reply at 9-10. In
AmerGen’s view, sealing this testimony is the more prudent course in light of what
AmerGen refers to as “an overall safety-based regulatory regime that espouses a
policy of limiting access to information regarding the location of critical energy
infrastructure.” Id. at 10 n.5 (citing 18 C.F.R. § 388.113 (2013)).
Although the court finds it conceivable that disclosure of the precise location
of spent nuclear fuel or similar radioactive waste could, in certain circumstances,
pose a public danger sufficient to overcome the presumption of access, 7 the court
nevertheless concludes that AmerGen has not demonstrated good cause or a
compelling need to seal the specific portion of Mr. Seymore’s testimony identified
above. As an initial matter, Mr. Seymore testified regarding AmerGen’s spent
nuclear fuel pools only in very general terms. See Def.’s Mot. for Summary
Judgment Ex. 32 at A01655 (noting that spent fuel at one plant is “isolated from
most of the plant” and is “right in the middle of the building” at another plant).
AmerGen does not attempt to explain how disclosure of the general location of its
nuclear fuel pools could present a current threat to public safety which could
constitute a compelling reason to overcome the strong presumption of public
access, particularly in light of AmerGen’s previous public disclosure of far more
detailed information concerning spent fuel pools at one of AmerGen’s plants.
Furthermore, the court notes that AmerGen’s reliance upon 18 C.F.R. §
388.113 is unavailing. That section governs access to “critical energy
infrastructure information,” which is defined as “specific engineering,
vulnerability, or detailed design information about proposed or existing critical
infrastructure” that . . . (i) [r]elates details about the production, generation,
transportation, transmission, or distribution of energy; (ii) [c]ould be useful to a
person in planning an attack on critical infrastructure; (iii) is exempt from
mandatory disclosure . . . ; and (iv) [d]oes not simply give the general location of
the critical infrastructure.” 18 C.F.R. § 388.113(a),(c)(1). By its terms, therefore,
18 C.F.R. § 388.113 does not apply to Mr. Seymore’s testimony concerning the
general location of AmerGen’s nuclear fuel pools.
/ Several courts have recognized that a risk of physical harm can, in certain
circumstances, be a compelling interest sufficient to overcome the presumption of public access.
See, e.g., United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995); United States v. Raffoul, 826
F.2d 218, 226 (3d Cir. 1987) (stating “[t]he risk of physical harm (in this case death) is the best
example one could imagine of an overriding interest”); Ashworth v. Bagley, 351 F. Supp. 2d 786,
789 (S.D. Ohio 2005) (recognizing that “the degree of danger to the petitioner or other persons
mentioned in the materials” is an interest to be weighed in considering the common law right of
access to judicial proceedings and documents) (citation omitted).
Rather than articulate the specific prejudice or harm that will flow from
disclosure of specific confidential or proprietary information, plaintiff has instead
grouped hundreds of pages of exhibits and testimony into general categories and
offered broad, vague, and conclusory generalizations with respect to these
materials, all “for administrative efficiency.” See Pl.’s Reply at 6. This falls short
of meeting plaintiff’s burden to demonstrate good cause pursuant to RCFC 26(c),
and cannot meet plaintiff’s more stringent burden to demonstrate compelling
reasons to overcome the strong presumption in favor of public access to these
judicial records. Plaintiff’s motion is therefore denied.8
Having denied plaintiff’s motion to maintain certain specified filings under
seal, the court assumes that the parties have no further dispute as to the sealing or
unsealing of judicial records in this case. 9 The court therefore directs the Clerk’s
Office to unseal every sealed filing in this case on April 10, 2014. Should the
parties agree that some exception to the global unsealing of sealed filings in this
case is warranted, the parties must jointly file a notice to that effect on or before
April 3, 2014. At the same time, the parties shall file, as separate docket entries,
agreed-upon redacted versions of any sealed filing(s) that the parties agree should
be excepted from the global unsealing of sealed filings in this case.
Accordingly, it is hereby ORDERED that
/ The court also notes that AmerGen, in the conclusion to its motion, requests that the
court “enjoin the United States from using AmerGen’s sensitive and non-public commercial and
financial business information except as permitted by the Protective Order.” Pl.’s Mot. at 14. To
the extent that this request could be deemed a request for injunctive relief that is separate from,
and in addition to, AmerGen’s requested redactions to the parties’ summary judgment
submissions, that request is denied because AmerGen identifies no legal basis for such relief.
/ The court makes this assumption based upon the parties’ joint status report of March
30, 2012, in which the parties described their agreement to present all disputes regarding
AmerGen’s confidentiality designations to the court after the completion of briefing on the
parties’ cross-motions for summary judgment. This agreed-upon procedure, the parties then
noted, was designed to narrow the materials under dispute. See Joint Status Report dated March
30, 2012, at 2. The court therefore assumes that the materials in dispute are limited to those
identified in plaintiff’s pending motion to seal.
Plaintiff’s Motion to Maintain Certain Filings under Seal Pursuant to
Protective Order, filed September 5, 2013, is DENIED;
The Clerk’s Office is directed to ENTER final judgment in favor of
defendant on Counts I-IV of the complaint, for the reasons stated in
the court’s opinion and order of September 17, 2013, as follows:
IT IS ORDERED AND ADJUDGED this date, pursuant to
Rule 58, that (i) the adjustments set forth in the Notices of Final
Partnership Administrative Adjustment for AmerGen Energy
Company LLC for tax years 2001, 2002 and 2003, dated
November 24, 2008, are correct and sustained in full; and (ii)
plaintiff’s requests for adjustment of partnership items set forth
in Counts I-IV of the complaint are denied;
The Clerk’s Office is directed to ENTER final judgment on Count V
of the complaint, pursuant to the parties’ settlement and AmerGen’s
Tax Matters Partner’s stipulation regarding Count V, as follows:
IT IS ORDERED AND ADJUDGED this date, pursuant to
Rule 58, that AmerGen is allowed as an adjustment to
partnership items for tax year 2002 an additional $2,547,718 of
deductions for prepaid insurance. Together with the deductions
claimed on its original return ($4,364,493), AmerGen is
allowed a total of $6,912,211 of deductions for prepaid
insurance for 2002;
Each party shall bear its own costs;
Unless otherwise directed by the court, the Clerk’s Office is directed
to UNSEAL docket entries 1, 52, 53, 56, 58, 91, 92, and 93 on April
10, 2014; and
In the event that the parties agree that some exception to the unsealing
of the above-listed docket entries is warranted, the parties shall jointly
FILE a Notice to that effect on or before April 3, 2014. In addition,
on or before April 3, 2014, the parties shall jointly FILE, as separate
docket entries, agreed-upon Redacted Versions of any sealed
filing(s) that the parties agree should be excepted from the unsealing
of the above-listed docket entries.
/s/Lynn J. Bush
LYNN J. BUSH
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