West v. United States Navy

Filing 26

ORDER AND REASONS grenting 17 MOTION to Remove Court-Martial Summary Transcript and Verbatim Transcript From the Public Record and to File Under Seal, or Alternatively, to Replace with Redacted Versions; R. Doc. No 5-3, R. Doc. No. 11-3, R. Doc. No. 12-5, and R. Doc. No. 14-3 be and hereby are SEALED. The government shall file redacted copies of the above documents into the record no later than 6/2/2017. The government shall not redact any information that has been made available without objection in E.D. La. No. 15-2512 or 5th Cir. No. 16-30919. Signed by Judge Lance M Africk on 4/26/2017.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LUKE WEST

CIVIL ACTION

VERSUS

No. 17-1294

JAMES CRAWFORD, III

SECTION I
ORDER AND REASONS

The government’s motion 1 to seal presents the question of what this Court
should do about potentially sensitive, yet nonetheless minimally relevant documents
attached to a frivolous mandamus petition.

The government argues that the

potentially sensitive documents should be sealed or, at the very least, redacted to
remove sensitive information.
A bit of background is helpful when evaluating the present motion. Luke
West’s mandamus petition sought relief—federal court intervention in his ongoing
military justice proceedings—that was barred by Supreme Court precedent. See
Schlesinger v. Councilman, 420 U.S. 738, 758 (1975) (“[W]hen a serviceman charged
with crimes by military authorities can show no harm other than that attendant to
resolution of his case in the military court system, the federal district courts must
refrain from intervention, by way of injunction or otherwise.”).

This Court, as

precedent required, dismissed West’s petition without prejudice. See R. Doc. No. 15.
That brings us to the motion before the Court. The parties dispute whether
this Court should seal certain ancillary documents to West’s quixotic filings. In

1

R. Doc. No. 17.

particular, the government argues that the transcript and summary of West’s
military justice proceedings should remain under seal due to personally identifiable
information in the documents.

The government suggests that the filing of the

unredacted transcript into the record violated the Privacy Act and certain other
regulations. West counters that release of the transcript is critical to his counsel’s
ability to zealously defend West and that the transcript is of interest to the public so
that they can understand and evaluate the military justice proceedings. West also
argues that the filing of the unredacted documents was in full compliance with all
applicable laws and regulations.
West’s first justification—that the release of the transcript and the summaries
is critical to his ability to zealously defend his client—fails to persuade. After all,
even if the transcripts were filed under seal (as the government repeatedly requested)
that would not prevent this Court from reviewing each and every word in the
transcripts.
To the extent that West wants to rely on filing the documents publically to
advance his client’s case, that largely leads back to West’s contention that the public
interest favors the public release of the documents. On that point, the Court certainly
agrees with West in part: “[T]he public has a common law right to inspect and copy
judicial records,” SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993), and
that right of access is critical to ensuring public confidence in both the civilian and
military judicial processes. Nonetheless, the presumption of a right of access “is not

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absolute” and this Court has the discretion to prevent its docket from being used as
“a vehicle for improper purposes.” Id. (internal quotation marks omitted).
After considering all the applicable factors as well as the record here, the Court
concludes that its docket is being used by West for improper purposes. Two primary
factors drive the Court’s conclusion that sealing is appropriate.
First, the documents at issue are minimally relevant to the merits of the
mandamus petition. It is the procedural posture of West’s military justice
proceedings—and not their content—that dictates the outcome of this matter. See,
e.g., Councilman, 420 U.S. at 759-60 (“[Petitioner] was on active duty when the
charges against him were brought. There is no question that he is subject to military
authority and in proper cases to disciplinary sanctions levied through the military
justice system. We see no injustice in requiring [petitioner] to submit to a system
established by Congress and carefully designed to protect not only military interests
but his legitimate interests as well.”). Public review of the contents of the transcripts
is not necessary or even particularly useful if a member of the public wanted to
evaluate the correctness of this Court’s dismissal of West’s petition.
Second, West’s petition is frivolous and asks for relief that this Court could not
possibly grant under Schlesinger. Indeed, this Court has substantial concerns that
the entire mandamus petition was a subterfuge to obtain discovery and then to use
the Court’s docket to publically release documents.
Not sealing the documents would improperly permit West to circumvent the
military court system. This Court abstained from addressing the merits of West’s

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petition under Councilman “to prevent unnecessary friction between the civilian and
military court systems.” R. Doc. No. 15, at 2. Yet, resolving the sealing dispute in
West’s favor would again require this Court to thrust itself into the middle of live
disputes arising out of West’s military proceedings. Compare, e.g., R. Doc. No. 22, at
5-7 (arguing about the proper interpretation of JAG professional conduct rules), with
R. Doc. No. 20, at 11-12 (same). This Court is not the proper body to be resolving
those issues in the first instance. Those determinations, as with all others in West’s
case, properly belongs to the military. Cf. Councilman, 420 U.S. at 758 (“[I]mplicit in
the congressional scheme embodied in the Code is the view that the military court
system generally is adequate to and responsibly will perform its assigned task. We
think this congressional judgment must be respected . . . .”).
The Court finds that the need to prevent abuse of its docket and circumvention
of the military court system outweighs the public’s interest in learning more about
West’s military justice proceedings. Thus, although West may well be correct that
many pieces of information that the government seeks to seal here may already be
available publically, see R. Doc. No. 25 at 10, this proceeding—which should never
have begun in the first place—remains an inappropriate vehicle for West to smuggle
new information into the public record.
The Court will grant the government’s motion to seal. 2 Nonetheless, because
the government represented to the Court that the government would be amendable

A final warning is appropriate. This order merely limits public access to the precise
documents that were filed into the record (i.e., the final documents with the ECF
stamps on them). This Court has not entered a protective order concerning any

2

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to filing redacted versions of the documents into the record, R. Doc. No. 17-1, at 4, the
Court will so order so as to avoid unnecessarily shielding information from public
scrutiny.
Accordingly,
IT IS ORDERED that the government’s motion to seal, R. Doc. No. 17, is
GRANTED. R. Doc. No 5-3, R. Doc. No. 11-3, R. Doc. No. 12-5, and R. Doc. No. 14-3
be and hereby are SEALED. The government shall file redacted copies of the above
documents into the record no later than June 2, 2017. The government shall not
redact any information that has been made available without objection in E.D. La.
No. 15-2512 or 5th Cir. No. 16-30919.
New Orleans, Louisiana, April 26, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

documents that the government voluntarily gave to West’s counsel. Nor has this
Court resolved the parties’ dispute regarding the applicability of the Privacy Act or
any other regulation.
Thus, even after this order, this Court will have imposed no legal limit on
counsel’s ability to disseminate documents in his possession—other than the final
filed versions of the documents sealed in this matter—to anyone, whether it be the
New York Times or whatever other medium counsel chooses. However, should
counsel do so, he should be aware that he acts at his own legal risk.
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