United States of America et al v. Apothetech RX Specialty Pharmacy Corp. et al

Filing 20

ORDER denying 16 Motion to Seal Case. Signed by District Judge Carlton W. Reeves on 3/20/17. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
UNITED STATES OF AMERICA;
JEREMY WESTFALL; RUSSELL
BOURLAND; RICHI LESLEY

PLAINTIFFS

V.

CAUSE NO. 3:15-CV-00588-CWR-FKB

APOTHETECH RX SPECIALTY
PHARMACY CORP.; CANCER
SPECIALISTS, LLC; JOHN DOES 1-10

DEFENDANTS

ORDER
Before the Court is a motion by plaintiff-relators to seal the entire record of this qui tam
action or, in the alternative, to unseal a redacted version of the record. The Government responds
in opposition, asking the Court to unseal (1) Relators’ Complaint; (2) Relators’ Notice of
Voluntary Dismissal; (3) the United States’ Notice of Consent to Relators’ Voluntary Dismissal;
(4) the Court’s Order dismissing the case; and (5) all matters occurring in this action after the
date of that Order. The Government requests that all other papers on file in this action remain
under seal, because they contain sensitive information about ongoing civil and criminal
investigations.
I.

Legal Standard
“It is clear that the courts of this country recognize a general right to inspect and copy

public records and documents, including judicial records and documents.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978); see also Sec. and Exch. Comm’n v. Van
Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993); L.U.Civ.R. 76(a) (court records are
presumptively in the public domain). “[H]owever . . . the right to inspect and copy judicial
records is not absolute.” Nixon, 435 U.S. at 598.

“[A] court must use caution in exercising its discretion to place records under seal. Its
decision must be made in light of the strong presumption that all trial proceedings should be
subject to scrutiny by the public.” United States v. Holy Land Found. for Relief and Dev., 624
F.3d 685, 689-90 (5th Cir. 2010) (quotation marks and citations omitted). “Closed proceedings,
although not absolutely precluded, must be rare and only for cause shown that outweighs the
value of openness.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509
(1984). “In determining whether to restrict the public’s access to court documents, the court must
‘weigh[] the interests advanced by the parties in light of the public interest and duty of the
courts.’” In re Violation of Rule 28(D), 635 F.3d 1352, 1356-57 (Fed. Cir. 2011) (quoting Nixon,
435 U.S. at 602). “The principle of public access to judicial records furthers not only the interests
of the outside public, but also the integrity of the judicial system itself.” Holy Land, 624 F.3d at
690 (citation omitted); see also United States v. Nix, 976 F. Supp. 417, 420 (S.D. Miss. 1997)
(“‘People in an open society do not demand infallibility from their institutions, but it is difficult
for them to accept what they are prohibited from observing.’”) (quoting Press-Enterprise, 464
U.S. at 509).
II.

Discussion
Relators argue that placing this case under seal is the only way to avoid damaging their

hard earned reputations within the healthcare industry and protect themselves and their families
from retaliatory action. These concerns may be well founded, but alone they are insufficient to
overcome the public right to access judicial records.
“In general, courts refuse to allow a party to proceed anonymously simply because of
fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups.”

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United States ex rel. Grover v. Related Companies, LP, 4 F. Supp. 3d 21, 29 (D.D.C. 2013)
(quotation marks and citation omitted).
[T]he Court does not believe that Plaintiff-Relator’s fear of retaliation by her
current employer or future employers is sufficient to overcome the strong
presumption in favor of access to judicial records. Indeed, to conclude otherwise
would ignore that Plaintiff-Relator’s amorphous concern is no different from the
concern any employee may have when she sues her employer for whatever reason.
Furthermore, should Plaintiff-Relator be retaliated against by her current employer
or future employers for filing this qui tam action, she is not without legal recourse.
United States ex rel. Herrera v. Bon Secours Cottage Health Servs., 665 F. Supp. 2d 782, 785-86
(E.D. Mich. 2008) (quotation marks, brackets, and citation omitted).
Here too relators’ concerns are generalized apprehensions of future retaliation. Each of
these three relators submitted a nearly identical declaration to the Court, containing imprecise
concerns of reprisal from employers in the healthcare industry at large. They each fear the loss of
indefinite future employment opportunities, but do not specify how they would suffer such loss
aside from damaging a professional relationship with a single healthcare industry recruiter—a
non-party to this suit. Importantly, as noted in Herrera, relators are not without legal remedies.
For example, in the event of retaliation by current or future employers, relators may turn to the
False Claims Act itself for legal recourse. See 31 U.S.C. § 3730(h); see also United States v. ex
rel. Permison v. Superlative Tech., Inc., 492 F. Supp. 2d 561, 564 (E.D. Va. 2007) (“[T]he law
provides other possible remedies, including tortious interference with contract or business
relations, and defamation, in the event [defendants] were to attempt to poison the industry waters
for [relators].”). Relators’ concerns do not overcome the strong presumption in favor of public
access to court records. Accordingly, the Court denies relators’ motion to seal the case.
Relators’ alternative request—to allow them to submit a redacted complaint devoid of all
personally identifying information—would achieve the same effect of sealing the case. See, e.g.,

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Herrera, 665 F. Supp. 2d at 786 (“Plaintiff-Relator’s request for a wholesale redaction of all
identifying information is tantamount to maintaining a permanent seal over all of the documents
filed in this action.”). Therefore, the reasons discussed above apply with equal force to relators’
alternative request.
III.

Conclusion
Relators’ motion to seal or in the alternative submit a redacted complaint for publication

is denied. Docket No. 16. By Order entered August 30, 2016, this Court unsealed: (1) Relators’
Complaint; (2) Relators’ Notice of Voluntary Dismissal; (3) the United States’ Notice of Consent
to Relators’ Voluntary Dismissal; and (4) the Court’s Order of August 30, 2016. Therein, the
Court maintained under seal all other papers in this action filed prior to that Order. Having
denied relators’ present motion, the Order of August 30, 2016 shall take effect this day.1
IT IS FURTHER ORDERED that all matters occurring in this action after the Order of
August 30, 2016 be unsealed and made public.
SO ORDERED, this the 20th day of March, 2017.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

1

On the evening of August 30, 2016, the Court re-sealed the entire record to allow relators adequate time to brief
and file papers concerning their present motion to seal.

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