Simpson v. Technology Service Corporation
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
Civil Action No. DKC 14-1968
TECHONOLOGY SERVICE CORPORATION
Presently pending and ready for review in this employment
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.
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
Plaintiff’s motion was granted without prejudice to Defendant
filing a properly supported motion to seal.
If Defendant failed
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
(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.
(ECF No. 63).
In her notice of appeal,
[m]emorandum [o]pinion and [o]rder insofar as [they] concern
(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.
timely filed notice of appeal transfers jurisdiction of a case
jurisdiction to rule on any matters involved in the appeal.”
Doe v. Pub. Citizen, 749 F.3d 246, 258 (4th Cir. 2014) (citing
“This rule fosters judicial economy and guards against
the confusion and inefficiency that would result if two courts
simultaneously were considering the same issues.”
The Fourth Circuit has:
recognized limited exceptions to the general
rule that permit district courts to take
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.”
Id. (citations omitted).
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).
The district court, however,
supersedeas bonds, and to issue orders affecting the record on
appeal, the granting of bail and matters of a similar nature.”
Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988)
The [Griggs divestiture] rule is a
creation that is founded on prudential
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
As a prudential
doctrine, the rule should not be applied
when to do so would defeat its purpose of
achieving judicial economy.
Exhibits 25 and 26 is not designated as an issue for appeal to
the Fourth Circuit.
ECF No. 63, at 1).
implicate the merits of the issues on appeal.
“Thus, there is
no chance that two courts would be considering the same issue
efficiency weighs in favor of employing an exception to the
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
jurisdiction to consider Defendant’s motion to seal documents.
III. Defendant’s Motion to Seal
Standard of Review
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
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
“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
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
records, and the presumption can be rebutted
interests in access.”
Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th
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
In re Wash. Post Co., 807 F.2d
383, 390 (4th Cir. 1986) (quoting Press–
Enter. Co. v. Superior Court, 464 U.S. 501,
Pub. Citizen, 749 F.3d at 265-66.
“[D]ocuments filed with the
adjudicative process, or adjudicate substantive rights.”
U.S. for an Order, 707 F.3d at 290.
The First Amendment test
for access to judicial records extends to “‘dispositive’ civil
successful either in full or part.”
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.
“the First Amendment right of access attaches to materials filed
in connection with a summary judgment motion.”
749 F.3d at 267 (citation omitted).
In addition, a motion to seal must comply with Local Rule
105.11, which provides that:
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
The Court will not
rule upon the motion until at least 14 days
after it is entered on the public docket to
Materials that are the
temporarily sealed pending a ruling by the
If the motion is denied, the party
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
In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir.
Before sealing any documents, the court must provide the
opportunity to object.
This notice requirement may be
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.
If the court decides that
supported by specific factual findings, for its decision to seal
and for rejecting alternatives.
Id. at 235; see Ashcraft v.
Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
judgment and currently filed under seal, should remain under
(ECF No. 61, at 1).
Plaintiff’s Exhibit 25
Defendant contends that Exhibit 25, a letter generated and
sent by the Defense Security Service (“DSS”) to Defendant, is
information concerning the outcome of the DSS investigation into
a potential security breach and related remedial measures.
Defendant asserts that the government’s interest in the
interest in access to the document.
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.”
(ECF No. 62, at 3).
information at issue, [courts] are left with no way to determine
accept the government’s own designation.”
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
ordinarily has the right to inspect and copy.”
Gates, 501 F.3d 178, 188 (D.C. Cir. 2007) (citations omitted)
Official Use Only” and requiring the government to provide a
basis for withholding them from public view).
Department of Defense’s investigation into a potential security
(See, e.g., ECF No. 59, at 6).
interest in protecting this information does not outweigh the
Accordingly, this document will be ordered unsealed.
Plaintiff’s Exhibit 26
Defendant argues that Exhibit 26 should remain under seal
because it “contains as an attachment a PowerPoint presentation
AMDR tasks, tasking priorities, staffing, and related government
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.”
(Id. at 4).
Plaintiff disputes that
presentation’s slides and contends that “[t]he document contains
numerous references to government programs that could easily be
(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
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).
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,
Plaintiff submitted Exhibits 25 and 26 in support of her
opposition to Defendant’s motion for summary judgment.
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,
document, it “must consider alternatives to sealing . . . which
may include giving the public access to some of the documents or
subject of the . . . motion to seal.”
Buchanan, 417 F.3d at 429
(citation and internal quotation marks omitted).
materials will not be made lightly and that it will be subject
to meaningful appellate review.”
Va. Dep’t of State Police, 386
“replete with very specific [AMDR] program information.”
prioritization, and the identities of individuals assigned to
at 20). Accordingly, the right of access provided by the First
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
Va. Dep’t of State Police, 386 F.3d at 576 (citing
Rushford, 846 F.2d at 253).
redacted appropriately, but information regarding the identities
Plaintiff in her opposition brief should be made available as
part of the public record.
Defendant fails to explain how the
implicates a governmental interest such as a “risk to national
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
right of access with the government’s interest in protecting
Accordingly, the court is not persuaded that the entire
appropriate information, consistent with this opinion, and file
the redacted document within fourteen (14) days.
fails to do so, Exhibit 26 will be unsealed at that time.
unsealed, and Defendant will have fourteen (14) days to file a
redacted version of Plaintiff’s Exhibit 26.
A separate order
DEBORAH K. CHASANOW
United States District Judge
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