Simpson v. Technology Service Corporation

Filing 67

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/22/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
KIMBERLY SIMPSON
:
v.

:

Civil Action No. DKC 14-1968

:
TECHONOLOGY SERVICE CORPORATION
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination

case

is

a

motion

to

seal

documents

filed

by

Defendant Technology Service Corporation (“Defendant” or “TSC”).
(ECF No. 61).

The issue has been fully briefed, and the court

now rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, Defendant’s motion to seal documents
will be denied.
I.

Background
On September 8, 2015, the court issued a memorandum opinion

and order entering summary judgment in favor of Defendant on
several retaliation and gender discrimination claims brought by
Plaintiff Kimberly Simpson (“Plaintiff”).

(ECF Nos. 59; 60).

The facts of this case are contained in that memorandum opinion
and will not be recounted here.
The memorandum opinion and order also granted Plaintiff’s
motion to unseal Plaintiff’s Exhibits 25 and 26 submitted in

opposition

to

Defendant’s

motion

for

summary

judgment.

Plaintiff’s motion was granted without prejudice to Defendant
filing a properly supported motion to seal.
to

file

a

motion

to

seal

comporting

with

If Defendant failed
Local

Rule

105.11

within fourteen (14) days of the memorandum opinion and order,
the exhibits filed under seal would have been ordered unsealed
at that time.

(ECF No. 59, at 33).

On September 21, 2015,

Defendant timely filed a motion to seal Plaintiff’s Exhibits 25
and 26.

(ECF No. 61).

Plaintiff responded in opposition (ECF

No. 62), and Defendant replied (ECF No. 66).

On October 8,

shortly after Plaintiff filed her response in opposition, she
filed a notice of appeal from this court’s order on the motion
for summary judgment.
Plaintiff

expressly

(ECF No. 63).
stated

that

In her notice of appeal,

she

“does

not

appeal

the

[m]emorandum [o]pinion and [o]rder insofar as [they] concern[]
sealing documents.”
II.

(Id. at 1).

Authority to Rule on Defendant’s Motion to Seal
As a threshold matter, the court must determine whether it

has jurisdiction to adjudicate Defendant’s motion to seal in
light of Plaintiff’s filing of a notice of appeal to the United
States Court of Appeals for the Fourth Circuit.

“Generally, a

timely filed notice of appeal transfers jurisdiction of a case
to

the

court

of

appeals

and

strips

a

district

court

of

jurisdiction to rule on any matters involved in the appeal.”
2

Doe v. Pub. Citizen, 749 F.3d 246, 258 (4th Cir. 2014) (citing
Griggs

v.

(1982)).

Provident

Consumer

Discount

Co.,

459

U.S.

56,

58

“This rule fosters judicial economy and guards against

the confusion and inefficiency that would result if two courts
simultaneously were considering the same issues.”
omitted).

Id. (citation

The Fourth Circuit has:
recognized limited exceptions to the general
rule that permit district courts to take
subsequent
action
on
matters
that
are
collateral
to
the
appeal,
Langham–Hill
Petroleum Inc. v. S. Fuels Co., 813 F.2d
1327, 1330–31 (4th Cir. 1987), or to take
action that aids the appellate process,
Grand Jury Proceedings Under Seal v. United
States, 947 F.2d 1188, 1190 (4th Cir. 1991).

Pub. Citizen, 749 F.3d at 258.

Fourth Circuit case law confines

these exceptions “to a narrow class of actions that promote
judicial efficiency and facilitate the division of labor between
trial and appellate courts.”
“The

filing

jurisdictional

of

a

Id. (citations omitted).

notice

significance

—

it

of

appeal

confers

is

an

event

jurisdiction

on

of
the

court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.”
459 U.S. at 58 (emphasis added).
“retains
modifying

jurisdiction,
or

granting

for

Griggs,

The district court, however,

example,

injunctions,

to

issue

to

direct

orders
the

staying,

filing

of

supersedeas bonds, and to issue orders affecting the record on
appeal, the granting of bail and matters of a similar nature.”
3

Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988)
(citations omitted).
The [Griggs divestiture] rule is a
judge-made,
rather
than
a
statutory,
creation that is founded on prudential
considerations.
It is designed to prevent
the confusion and inefficiency that would
result if both the district court and the
court of appeals were adjudicating the same
issues simultaneously.
As a prudential
doctrine, the rule should not be applied
when to do so would defeat its purpose of
achieving judicial economy.
Id.

(citations

omitted).

Here,

the

sealing

of

Plaintiff’s

Exhibits 25 and 26 is not designated as an issue for appeal to
the Fourth Circuit.

(See

sealing

is

of

exhibits

a

ECF No. 63, at 1).
collateral

issue

implicate the merits of the issues on appeal.

Rather, the

that

does

not

“Thus, there is

no chance that two courts would be considering the same issue
simultaneously.
persuaded

that

Under
the

these

circumstances,

prudential

concern

of

the

[c]ourt

promoting

is

judicial

efficiency weighs in favor of employing an exception to the
divestiture rule.”

Kirschling v. Atl. City Bd. of Educ., No.

11-4479 NLH/JS, 2014 WL 5320162, at *2 (D.N.J. Oct. 17, 2014);
see also Alward v. Burrelle’s Info. Servs., No. CV-00-365-PHXROS, 2001 WL 1708779, at *10 (D.Ariz. Dec. 5, 2001); Colombini
v. Members of Bd. of Directors of Empire Coll. Sch. of Law, No.
C9704500CRB, 2001 WL 1006785, at *12 (N.D.Cal. Aug. 17, 2001),
aff’d sub nom. Colombini v. Members of Bd. of Directors, 61
4

F.App’x

387

requests
motion

(9th

that

to

Cir.

the

seal

2003).

court

until

Moreover,

stay

after

review

appeal.

here,

neither

party

of

Defendant’s

pending

The

court

retains

thus

jurisdiction to consider Defendant’s motion to seal documents.
III. Defendant’s Motion to Seal
A.
At

Standard of Review
issue

in

any

request

to

seal

are

the

principles

of

common-law access and the more rigorous First Amendment analysis
that applies to judicial records.

The Fourth Circuit recently

reminded us that:
It is well settled that the public and
press have a qualified right of access to
judicial documents and records filed in
civil
and
criminal
proceedings.
See
Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 580 n.17 (1980); Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597
(1978); Media Gen. Operations, Inc. v.
Buchanan, 417 F.3d 424, 428 (4th Cir. 2005).
The right of public access springs from the
First Amendment and the common-law tradition
that court proceedings are presumptively
open to public scrutiny. Va. Dep’t of State
Police v. Wash. Post, 386 F.3d 567, 575 (4th
Cir. 2004).
“The distinction between the
rights of access afforded by the common law
and the First Amendment is significant,
because the common law does not afford as
much substantive protection to the interests
of the press and the public as does the
First Amendment.”
In re United States for
an Order Pursuant to 18 U.S.C. Section
2703[(D)], 707 F.3d 283, 290 (4th Cir. 2013)
(quoting Va. Dep’t of State Police, 386 F.3d
at 575) (internal quotation marks omitted).
The common-law presumptive right of access
extends
to
all
judicial
documents
and
5

records, and the presumption can be rebutted
only
by
showing
that
“countervailing
interests
heavily
outweigh
the
public
interests in access.”
Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th
Cir.
1988).
By
contrast,
the
First
Amendment secures a right of access “only to
particular judicial records and documents,”
Stone v. Univ. of Md. Med. Sys. Corp., 855
F.2d 178, 180 (4th Cir. 1988), and, when it
applies, access may be restricted only if
closure is “necessitated by a compelling
government interest” and the denial of
access is “narrowly tailored to serve that
interest.”
In re Wash. Post Co., 807 F.2d
383, 390 (4th Cir. 1986) (quoting Press–
Enter. Co. v. Superior Court, 464 U.S. 501,
510
(1984)
(internal
quotation
marks
omitted)).
Pub. Citizen, 749 F.3d at 265-66.

“[D]ocuments filed with the

court

they

are

‘judicial

records’

if

play

a

role

in

adjudicative process, or adjudicate substantive rights.”
U.S. for an Order, 707 F.3d at 290.

the

In re

The First Amendment test

for access to judicial records extends to “‘dispositive’ civil
motions,

such

as

a

motion

for

successful either in full or part.”

summary

judgment

that

is

Allstate Ins. Co. v. Warns,

No. CCB–11–1846, 2012 WL 681792, at *17 (D.Md. Feb. 29, 2012)
(emphasis added); see Rushford, 846 F.2d at 252-53.

That is,

“the First Amendment right of access attaches to materials filed
in connection with a summary judgment motion.”

Pub. Citizen,

749 F.3d at 267 (citation omitted).
In addition, a motion to seal must comply with Local Rule
105.11, which provides that:
6

Any motion seeking the sealing of
pleadings, motions, exhibits or other papers
to be filed in the Court record shall
include (a) proposed reasons supported by
specific factual representations to justify
the sealing and (b) an explanation why
alternatives to sealing would not provide
sufficient protections.
The Court will not
rule upon the motion until at least 14 days
after it is entered on the public docket to
permit
the
filing
of
objections
by
interested parties.
Materials that are the
subject
of
the
motion
shall
remain
temporarily sealed pending a ruling by the
Court.
If the motion is denied, the party
making
the
filing
will
be
given
an
opportunity to withdraw the materials.
This Local Rule endeavors to protect the common-law right to
inspect and copy judicial records and documents, Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978), while recognizing that
competing

sometimes

outweigh

the

public’s

right

of

In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir.

access.
1984).

interests

Before sealing any documents, the court must provide the

non-moving

party

with

notice

opportunity to object.
satisfied

by

either

of

Id.

the

request

to

seal

and

an

This notice requirement may be

notifying

the

persons

present

in

the

courtroom or by docketing the motion “reasonably in advance of
deciding the issue.”

Id. at 234.

Finally, the court should

consider less drastic alternatives to sealing, such as filing
redacted versions of the documents.
sealing

is

appropriate,

it

should

If the court decides that
also

provide

reasons,

supported by specific factual findings, for its decision to seal
7

and for rejecting alternatives.

Id. at 235; see Ashcraft v.

Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
B.

Analysis

Defendant
submitted

in

argues

that

opposition

Plaintiff’s

to

Exhibits

Defendant’s

25

motion

for

and

26,

summary

judgment and currently filed under seal, should remain under
seal.

(ECF No. 61, at 1).
1.

Plaintiff’s Exhibit 25

Defendant contends that Exhibit 25, a letter generated and
sent by the Defense Security Service (“DSS”) to Defendant, is
designated

“FOR

OFFICIAL

USE

ONLY”

(“FOUO”)

and

contains

information concerning the outcome of the DSS investigation into
a potential security breach and related remedial measures.
at 3).

(Id.

Defendant asserts that the government’s interest in the

protecting

this

sensitive

information

interest in access to the document.

outweighs

(Id.)

the

public

Plaintiff responds

that the FOUO designation “is simply not enough,” and that the
document in question “contains nothing more than run of the mill
discussion about the incident that forms one of the central
factual areas of this case.”
“Without

an

(ECF No. 62, at 3).

explanation

tailored

to

the

specific

information at issue, [courts] are left with no way to determine
whether

[the

document]

warrants

protection

accept the government’s own designation.”
8

-

other

than

to

Parhat v. Gates, 532

F.3d 834, 853 (D.C. Cir. 2008).

In determining the propriety of

sealing, “[i]t is the court, not the [g]overnment, that has
discretion

to

seal

a

judicial

record,

which

the

ordinarily has the right to inspect and copy.”

public

Bismullah v.

Gates, 501 F.3d 178, 188 (D.C. Cir. 2007) (citations omitted)
(rejecting

the

blanket

sealing

of

documents

designated

“For

Official Use Only” and requiring the government to provide a
basis for withholding them from public view).
argument

emphasizing

the

“highly

Here, Defendant’s

sensitive

nature

of

the

Department of Defense’s investigation into a potential security
violation”

is

particular

security

throughout

the

opinion.

unpersuasive.

(ECF

record

incident
and

is

in

No.

66,

at

described

the

court’s

2).

This

and

referenced

prior

memorandum

(See, e.g., ECF No. 59, at 6).

The government’s

interest in protecting this information does not outweigh the
public

interest

in

access

to

Plaintiff’s

Exhibit

25.

Accordingly, this document will be ordered unsealed.
2.

Plaintiff’s Exhibit 26

Defendant argues that Exhibit 26 should remain under seal
because it “contains as an attachment a PowerPoint presentation
containing
Navy’s

very

specific

classified

security
Defendant,

program.”
the

Air

program

and
(ECF

presentation

information

Missile
No.

Defense

61-1,

includes
9

at

regarding

Radar

3).

[(“AMDR”)]

According

descriptions

the

of

to

various

AMDR tasks, tasking priorities, staffing, and related government
contracts.

(Id.).

The Navy provided this presentation directly

to Defendant, which asserts that “[t]he government’s interest in
protecting information regarding its planning, priorities, and
staff for a classified program outweighs the public interest in
access to this document.”
specific

AMDR

program

(Id. at 4).

information

is

Plaintiff disputes that
contained

within

the

presentation’s slides and contends that “[t]he document contains
numerous references to government programs that could easily be
redacted.”

(ECF No. 62, at 3).1

A court record subject to the First Amendment right of
public access may be sealed “only on the basis of a compelling
governmental interest, and only if the denial [of access] is
narrowly tailored to serve that interest.”
180 (citation omitted).2

Stone, 855 F.2d at

Before a district court seals any court

1

In fact, the parties previously agreed to redact other
documentation supporting Plaintiff’s opposition to Defendant’s
summary judgment motion. (See ECF Nos. 58-16; 58-17; 58-18; 5826; 58-27; 58-28; 58-29; 58-30; 58-31; 58-32; 58-33).
These
redactions were found to be reasonable and narrowly tailored to
maintain the confidentiality of sensitive information belonging
to the Navy and DSS, while also permitting the public to view
the information relevant to the current dispute.
(ECF No. 59,
at 33).
2

Plaintiff submitted Exhibits 25 and 26 in support of her
opposition to Defendant’s motion for summary judgment.
In
addition, she cited Exhibit 26 in her opposition brief,
asserting that “the documents show that [Plaintiff] was replaced
on the [AMDR] contract by a man, Malcolm Clark.” (ECF No. 58-1,
10

document, it “must consider alternatives to sealing . . . which
may include giving the public access to some of the documents or
releasing

a

redacted

version

of

the

subject of the . . . motion to seal.”

documents

procedure

serves

to

ensure

are

the

Buchanan, 417 F.3d at 429

(citation and internal quotation marks omitted).
this

that

that

the

“Adherence to

decision

to

seal

materials will not be made lightly and that it will be subject
to meaningful appellate review.”
F.3d

at

576.

Here,

Defendant

Va. Dep’t of State Police, 386
asserts

that

Exhibit

26

“replete with very specific [AMDR] program information.”
No.

66,

at

presentation

3).

Defendant

containing

points
tasking

to

precise

pages

information,

of

is

(ECF
the

tasking

prioritization, and the identities of individuals assigned to
work

on

the

project.

(Id.).

Defendant,

however,

does

not

at 20). Accordingly, the right of access provided by the First
Amendment applies.
Here, the court’s prior memorandum opinion did not cite
Exhibits 25 or 26, but it did observe that “[t]he existence of
the exhibits is mentioned in the motion papers [even though]
most of the contents are not.” (ECF No. 59, at 32). Defendant
argues that, as a result, “the continued sealing of these
documents will not impair the public’s ability to access []
materials critical to . . . the outcome of this case.” (ECF No.
61-1). This argument, however, is unavailing because “the First
Amendment right of access attaches to materials filed in
connection with a summary judgment motion.”
Pub. Citizen, 749
F.3d at 267 (citation omitted). It is of no moment whether the
court relied on the exhibits at issue; rather, the rigorous
right of access provided by the First Amendment applies because
the exhibits were “made part of a dispositive motion” in a civil
case.
Va. Dep’t of State Police, 386 F.3d at 576 (citing
Rushford, 846 F.2d at 253).
11

provide

specific

factual

redactions

or

would

not

protect

Local

Rule

tasks,

other

less

the

105.11.

tasking

representations

restrictive

sensitive

Sensitive

priorities,

alternatives

information,

information

and

explaining

as

to

sealing

required

regarding

government

why

programs

by

specific
may

be

redacted appropriately, but information regarding the identities
of

individuals

assigned

to

the

program

and

referenced

by

Plaintiff in her opposition brief should be made available as
part of the public record.
presentation’s

personnel

Defendant fails to explain how the
allocation

chart,

for

example,

implicates a governmental interest such as a “risk[] to national
security.”

Pub. Citizen, 749 F.3d at 269 (citations omitted).

The arguments Defendant advances in support of its motion to
seal Exhibit 26 in its entirety are not narrowly tailored to
serve a compelling governmental interest, in part because less
drastic alternatives to sealing are available.

See Bureau of

Nat. Affairs v. Chase, No. ELH-11-1641, 2012 WL 3065352, at *2
(D.Md.

July

Targeted

25,

2012);

redactions

Kirschling,

to

Exhibit

26

2014
will

WL

5320162,

balance

the

at

*3.

public’s

right of access with the government’s interest in protecting
sensitive information.
Accordingly, the court is not persuaded that the entire
PowerPoint
remain

presentation,

under

seal.

let

alone

Defendant
12

Exhibit

will

be

26

in

ordered

full,
to

must

redact

appropriate information, consistent with this opinion, and file
the redacted document within fourteen (14) days.

If Defendant

fails to do so, Exhibit 26 will be unsealed at that time.
IV.

Conclusion
For

documents

the
will

foregoing
be

reasons,

denied.

Defendant’s

Plaintiff’s

motion

Exhibit

25

to

seal

will

be

unsealed, and Defendant will have fourteen (14) days to file a
redacted version of Plaintiff’s Exhibit 26.

A separate order

will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

13