NO. 12-2209 UNITED STATES COURT OF APPEALS FOR...

NO. 12-2209

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

_______________

COMPANY DOE,

Plaintiff - Appellee,

v.

PUBLIC CITIZEN; CONSUMER FEDERATION OF

AMERICA; and CONSUMERS UNION,

Parties-in-Interest - Appellants,

and

INEZ TENENBAUM, in her official capacity as Chairwoman of the

Consumer Product Safety Commission; and CONSUMER

PRODUCT SAFETY COMMISSION,

Defendants.

_______________

On appeal from the U.S. District Court for the District of Maryland

(Hon. Alexander Williams, Jr., U.S. District Judge)

_______________

RESPONSE IN OPPOSITION TO PLAINTIFF-APPELLEE’S

MOTION TO DISMISS

_______________

Scott Michelman

Allison M. Zieve

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

Counsel for Appellants

January 31, 2013

Appeal: 12-2209 Doc: 62 Filed: 01/31/2013 Pg: 1 of 26

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION ..................................................................................................... 1

BACKGROUND ....................................................................................................... 3

ARGUMENT ............................................................................................................. 5

I. THIS APPEAL IS NOT MOOT .................................................................... 5

II. CONSUMER GROUPS ARE PROPER PARTIES TO THE

APPEAL ....................................................................................................... 12

A. The Revocation Of Intervention Was An Abuse Of

Discretion .......................................................................................... 12

B. Regardless Of Their Intervenor Status, Consumer Groups

Are Entitled To Appeal As Non-Parties Who Participated

In The Sealing Litigation Below And Are Bound By The

Adverse Decision .............................................................................. 18

CONCLUSION ........................................................................................................ 20

CERTIFICATIONS ................................................................................................. 21


ii

TABLE OF AUTHORITIES

CASES

Aikens v. Ingram,

652 F.3d 496 (4th Cir. 2011) ......................................................................... 13

Beckman Industries, Inc. v. International Insurance Co.,

966 F.2d 470 (9th Cir. 1992) ................................................................... 14, 16

Black v. Central Motor Lines, Inc.,

500 F.2d 407 (4th Cir. 1974) ................................................................... 17, 18

Bridges v. Department of Maryland State Police,

441 F.3d 197 (4th Cir. 2006) ........................................................................... 7

Brown v. Advantage Engineering, Inc.,

960 F.2d 1013 (11th Cir. 1992) ............................................................... 14, 16

CNF Constructors, Inc. v. Donohoe Construction Co.,

57 F.3d 395 (4th Cir. 1995) ........................................................................... 12

Davis v. Scott,

176 F.3d 805 (4th Cir. 1999) ......................................................................... 18

EEOC v. National Children’s Center, Inc.,

146 F.3d 1042 (D.C. Cir. 1998) ......................................................... 14, 16, 17

Gould v. Alleco, Inc.,

883 F.2d 281 (4th Cir. 1989) ......................................................................... 17

Hill v. Western Electric Co.,

672 F.2d 381 (4th Cir. 1982) ........................................................................... 7

Houston General Insurance Co. v. Moore,

193 F.3d 838 (4th Cir. 1999) ......................................................................... 17

In re Associated Press,

162 F.3d 503 (7th Cir. 1998) ............................................................. 13, 14, 15


iii

In re State-Record Co.,

917 F.2d 124 (4th Cir. 1990) ........................................................................... 9

Kenny v. Quigg,

820 F.2d 665 (4th Cir. 1987) ........................................................... 2, 6, 12, 18

Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc.,

823 F.2d 159 (6th Cir. 1987) ......................................................................... 14

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)....................................................................................... 11

Norfolk Southern Railway Co. v. City of Alexandria,

608 F.3d 150 (4th Cir. 2010) ........................................................................... 5

Pansy v. Borough of Stroudsburg,

23 F.3d 772 (3d Cir. 1994) ...................................................................... 14, 16

Public Citizen v. Liggett Group, Inc.,

858 F.2d 775 (1st Cir. 1988).............................................................. 14, 16, 17

Rosenfeld v. Montgomery County Public Schools,

25 F. App’x 123 (4th Cir. 2001) ...................................................................... 8

Rushford v. New Yorker Magazine, Inc.,

846 F.2d 249 (4th Cir. 1988) ................................................................. 5, 6, 19

RZS Holdings AVV v. PDVSA Petroleo S.A.,

506 F.3d 350 (4th Cir. 2007) ......................................................................... 13

Safety-Kleen, Inc. v. Wyche,

274 F.3d 846 (4th Cir. 2001) ........................................................................... 7

Smith v. Pennington,

352 F.3d 884 (4th Cir. 2003) ........................................................................... 7

Stone v. University of Maryland Medical System Corp.,

855 F.2d 178 (4th Cir. 1988) ..................................................................passim


iv

Stuart v. Huff,

___ F.3d ___, 2013 WL 265083 (4th Cir. Jan. 24, 2013) ............................... 7

United Nuclear Corp. v. Cranford Insurance Co.,

905 F.2d 1424 (10th Cir. 1990) ............................................................... 14, 16

Virginia Department of State Police v. Washington Post,

386 F.3d 567 (4th Cir. 2004) ................................................................. 5, 9, 19

Whitney v. California,

274 U.S. 357 (1927)....................................................................................... 11

STATUTES AND REGULATIONS

15 U.S.C. § 2055a .................................................................................................... 10

16 C.F.R. § 1102.26 ................................................................................................. 10

RULES

Fed. R. Civ. P. 60(b) ................................................................................................ 13

D. Md. Loc. R. 105(11) ...................................................................................... 17, 19


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INTRODUCTION

Appellants Public Citizen, Consumer Federation of America, and

Consumers Union (collectively, “Consumer Groups”) oppose Appellee Company

Doe’s motion to dismiss. Having failed twice to delay this case — this Court

denied both Company Doe’s December 10, 2012, motion to stay briefing and its

January 16, 2013, motion to hold the case in abeyance — Company Doe now seeks

dismissal based on mootness. Because a live controversy continues to exist

between the parties, the motion must be denied.

Mootness means the absence of a case or controversy on which the Court

can grant relief. Both the principal question in this appeal — the propriety of the

district court’s sweeping sealing ruling — and the threshold question of

intervention remain live controversies, and the Court has the power to grant relief

to Consumer Groups by reversing the order that sealed the case and allowed

Company Doe to litigate under a pseudonym. The fact that the bulk of Company

Doe’s arguments concern not mootness but the first issue on appeal, intervention,

underscores the presence of a sharp dispute about the merits that warrants this

Court’s plenary consideration, rather than summary disposition.

The Company’s few mootness arguments are easily refuted. Contrary to the

Company’s suggestion, it is black-letter law that a prospective intervenor may

appeal the denial of intervention. And the Company’s claim that sealing was


2

inextricably intertwined with the underlying judgment does not implicate appellate

jurisdiction because, as this Court has held, judicial secrecy questions may be

adjudicated independently from the claims in the underlying case.

Although Company Doe argues at length about intervention — an issue that

has been presented by this appeal from the beginning and on which briefing has

already begun — that issue should be addressed with the rest of the case on the

merits. Bifurcating an appeal simply because one of the issues on appeal is a

threshold issue would be inefficient and unusual.

In any event, Company Doe’s position on intervention is wrong. The district

court’s revocation of intervention was an abuse of discretion because it did not

apply the proper legal standard for motions to reconsider; because it was based on

the erroneous legal conclusion that the case is moot; and because, as every other

circuit to address the question has recognized, intervention is appropriate when a

party seeks to challenge court secrecy. Additionally, regardless of their intervenor

status, Consumer Groups are entitled to appeal under Kenny v. Quigg, 820 F.2d

665, 668 (4th Cir. 1987), because they have participated in this case from the

outset and are bound by the district court’s adverse decision.

The motion to dismiss should be denied. Briefing should recommence

forthwith so that the court-transparency issues of constitutional magnitude raised in

this appeal may be resolved without further delay.


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BACKGROUND

This appeal concerns secret court proceedings. In the underlying action, filed

in October 2011, Company Doe sued the Consumer Product Safety Commission

(CPSC) to keep a report about one of the Company’s products from being

published in the online consumer product database the CPSC maintains pursuant to

the Consumer Product Safety Improvement Act (CPSIA). The Company also

moved to litigate the case under seal and under a pseudonym. Under a local rule of

the district court permitting members of the public to object to motions to seal,

Consumer Groups objected to the motion to seal (including the request to proceed

under a pseudonym), asserting their First Amendment and common-law rights of

access to judicial proceedings. The district court did not rule on the motion for nine

months; in the interim, it conducted secret proceedings on the merits.

On July 31, 2012, in a sealed opinion and without notice to the public, the

district court granted summary judgment to Company Doe and granted the

Company’s motion to seal the case and proceed pseudonymously. After the court

apprised Consumer Groups that it had decided the case, Consumer Groups moved

to intervene for the purpose of appealing the order sealing the case and allowing

the Company to litigate under a pseudonym. Company Doe did not object, but

suggested that it might want to object in the future. On September 28, one business

day before the deadline to file an appeal, Consumer Groups appealed the district


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court’s rulings regarding sealing and pseudonymity, as well as the court’s

constructive denial of intervention by not acting on the motion before the deadline

to appeal. The CPSC also appealed, though it later dismissed its appeal. On

October 9, the court granted Consumer Groups’ motion to intervene nunc pro tunc.

On October 22, the district court’s July 31 decision was made available to

the public with the name of the plaintiff, the facts of the case, and the court’s

application of law to fact redacted. As of this filing, only 8 documents in this year-

long litigation before the district court are publicly available, though the docket

numbering indicates that at least 86 documents have been filed.

On December 10, three days before Consumer Groups’ opening brief was

due in this Court, Company Doe moved to stay appellate briefing because it

planned to move the district court to reconsider intervention. This Court promptly

denied the motion, and Consumer Groups filed their brief on schedule on

December 13.

On December 20, Company Doe moved the district court for reconsideration

of its order granting intervention. On January 14, 2013, the district court granted

that motion and reversed its prior decision granting intervention. See Mot. To

Dismiss, App. 3. Despite the existence of a live controversy over the propriety of

the court’s secrecy orders, the district court held that intervention was

inappropriate on the theory that Consumer Groups’ objection to sealing


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“effectively became moot” when the court ruled for Company Doe on the merits of

its underlying claim against the CPSC. Id. at 2. To ensure that all the district

court’s rulings on intervention come within the scope of this appeal, Consumer

Groups filed a protective amended notice of appeal on January 17 incorporating

the district court’s January 14 ruling, as the Fourth Circuit’s public docket reflects.

ARGUMENT

I. THIS APPEAL IS NOT MOOT.

Company Doe’s contention that the appeal regarding sealing has become

moot because its underlying challenge to publication in the CPSC database has

been resolved is based on a fundamental misunderstanding of mootness. A

controversy is moot when it is no longer “live,” meaning that the parties lack a

legally cognizable interest in the outcome or there is no relief that a court can

grant. E.g., Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.

2010). That condition is not met here. The parties continue to dispute whether the

court properly sealed the case and allowed the Company to litigate under a

pseudonym. Consumer Groups have a legally cognizable interest — specifically,

rights under the First Amendment and the common law — in access to the court

documents, see, e.g., Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575

(4th Cir. 2004) (“VDSP”); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178,

180 (4th Cir. 1988); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253


6

(4th Cir. 1988), and the Court has the power to grant relief by reversing the seal

and pseudonym rulings.

The district court’s reconsideration of intervention does not affect Consumer

Groups’ interest in this appeal or this Court’s ability to grant relief. When

Consumer Groups filed this appeal, they included intervention among the issues

appealed, so that issue has been in the case all along. Although the court granted

intervention nunc pro tunc on October 9, Consumer Groups argued in their

December 13 opening brief that, in case the district court had lacked jurisdiction to

grant intervention after the filing of the appeal, the constructive denial of

intervention was an abuse of discretion. See Opening Br. of Appellants 16-19.

Consumer Groups also argued that, regardless of their intervenor status, they are

entitled to appeal because they have participated in this case from the outset and

are bound by the district court’s adverse decision. See id. at 19-20 (citing Kenny v.

Quigg, 820 F.2d 665 (4th Cir. 1987)). Although the opening brief was filed before

the district court’s reconsideration order, it nonetheless explicitly addressed the

possibility that the district court’s order granting intervention might subsequently

be revoked by that court. See id. at 16-17 (“[I]f the district court’s order came too

late and thus the motion for intervention was constructively denied (or if the

district court revokes its grant of intervention on Company Doe’s motion for

reconsideration), the denial of intervention was an abuse of discretion.”).


7

Notwithstanding the district court’s reconsideration of intervention, these

arguments remain in the case, see infra Part II, and this Court has the power to

grant the relief requested. The fact that Company Doe’s motion to dismiss

primarily defends the substance of the district court’s order on intervention rather

than arguing mootness reflects the existence of a live controversy and underscores

the presence of a dispute requiring this Court’s resolution.

What few mootness arguments the Company offers are easily refuted. First,

citing a non-precedential opinion of this Court, the Company suggests that if a

district court has not abused its discretion in denying permissive intervention, “no

appeal lies” at all. Mot. To Dismiss 8 (citations and internal quotation marks

omitted). The district court did abuse its discretion, see infra Part II.A, but more

importantly for the purpose of mootness, this Court’s precedential opinions have

repeatedly treated a denial of permissive intervention as a proper subject of appeal.

See Stuart v. Huff, ___ F.3d ___, 2013 WL 265083, at *9 (4th Cir. Jan. 24, 2013)

(adjudicating appeal from denial of permissive intervention); Smith v. Pennington,

352 F.3d 884, 891-96 (4th Cir. 2003) (same); Safety-Kleen, Inc. v. Wyche, 274 F.3d

846, 867-68 (4th Cir. 2001) (same); Hill v. W. Elec. Co., 672 F.2d 381, 385-86 (4th

Cir. 1982) (reversing denial of permissive intervention); see also Bridges v. Dep’t

of Md. State Police, 441 F.3d 197, 207 (4th Cir. 2006) (noting that a denial of

permissive intervention “would be treated as a final judgment that is appealable”).


8

Moreover, as Consumer Groups argued in their opening brief, regardless of

intervention, they may appeal under Kenny v. Quigg. See infra Part II.B.

The Company’s other mootness argument is that the appeal regarding

sealing has become moot because the controversy over publication in the CPSC

database has been resolved.1 This position, which was also the basis for the district

court’s reconsideration decision, see Mot. To Dismiss, App. 2, wrongly conflates

two distinct controversies. Although the controversy between Company Doe and

the CPSC over whether the CPSC could include a report about Company Doe’s

product in the CPSC database has been resolved, a controversy still exists between

Company Doe and Consumer Groups over the extent to which the court documents

and the name of the plaintiff should be available to the public. The resolution of

the controversy regarding the database does not negate the presence of the

controversy regarding the public right of access to court records.

Though Company Doe tries to minimize the sealing question as “ancillary”

to the case, Mot. To Dismiss 1, sealing is a distinct issue on which this Court may

rule (as it has done in the past) without touching the underlying judgment on the

1 Company Doe notes that “Consumer Groups have never claimed that they have

standing to appeal the District Court’s order on the merits.” Mot. To Dismiss 11.

The more important point is that the Company has never claimed that Consumer

Groups lack standing to challenge the seal. Nor could it. See Rosenfeld v.

Montgomery Cnty. Pub. Schs., 25 F. App’x 123, 131 (4th Cir. 2001) (collecting

cases demonstrating that a third party has standing to challenge sealing orders).


9

merits of the case that has been sealed. See, e.g., VDSP, 386 F.3d at 570; In re

State-Record Co., 917 F.2d 124, 125 (4th Cir. 1990). In Stone v. University of

Maryland Medical System Corp., this Court explicitly rejected the notion that a

decision on the underlying case moots the question whether the case was properly

sealed. There, after the court granted the parties’ joint motion to seal and granted

summary judgment for the defendant, the plaintiff appealed, and the Baltimore Sun

intervened to challenge the seal. 855 F.2d at 180. In separate opinions, this Court

affirmed summary judgment and ordered the district court to reconsider the seal.

See id. at 180 & n.*, 182. The Court explained: “The affirmance of the summary

judgment order in this case does not moot the Sun’s motion to unseal, because the

right of access to judicial records and documents is independent of the disposition

of the merits of the case.” Id. at 180 n.*.

Likewise, here, the district court could have enjoined the CPSC from

publishing the report about Company Doe’s product in the database and also

denied the motion to seal, thus enabling public access to the court records. The

court did not do so because it thought that the seal was required by the judgment.

See Mot. To Dismiss 13-14. This view is incorrect, as Consumer Groups

demonstrate below and in their opening brief, see Opening Br. of Appellants 31-

34, but, more importantly for present purposes, it is a point that goes to the merits

of the sealing controversy, not to its mootness. See Stone, 855 F.2d at 180 n.*. If an


10

appeal about sealing became moot when a district court rules that sealing and the

underlying judgment are intertwined, then district courts could immunize their own

sealing orders from appellate review by third parties, leaving the public no means

to vindicate their First Amendment and common-law rights of access to judicial

proceedings if the original parties do not appeal the sealing order.

The argument that sealing and the underlying judgment are intertwined is

not only irrelevant to mootness; it is also incorrect. The relief that Company Doe

sought in its complaint was an injunction barring the CPSC from including a

particular product safety report in the CPSC database. That relief is different from

and far narrower than an order barring the public from access to the facts and court

records of the litigation over the report. The district court itself understood

Company Doe’s lawsuit as asserting its “right . . . to prevent a materially

inaccurate report from appearing on the database.” See Revised Mem. Op., Dkt.

74, at 60-61 (D. Md. Oct. 22, 2012) (emphasis added). And the district court

located that right in provisions of the CPSIA and its implementing regulations that

discuss the CPSC’s duties regarding what information belongs or does not belong

in the database. See id. at 58 (citing 15 U.S.C. § 2055a(c)(4)(A) and 16 C.F.R.

§ 1102.26(g)). Yet the district court equated the right to avoid publication of a

report in the database with the right to avoid public discussion of both the report

and the Company’s lawsuit about it — because, according to the court, if the facts


11

of the case were public, Company Doe would be powerless to protect itself against

the report’s charge that its product caused harm. See id. at 49 (“[A]lthough Plaintiff

could publicly comment on the report’s inaccuracy, ordinary consumers would

likely dismiss this measure as disingenuous damage control.”) The First

Amendment rejects this attitude of distrust toward the marketplace of ideas. As

Justice Brandeis explained, the possibility of “falsehood and fallacies” in our

discourse does not justify prior restraint; rather, our Constitution teaches that “the

remedy to be applied is more speech, not enforced silence.” Whitney v. California,

274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see also N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 271-72 (1964) (“[E]rroneous statement is inevitable in free

debate, and . . . it must be protected if the freedoms of expression are to have the

breathing space that they need to survive[.]” (citations and internal quotation marks

omitted)). Furthermore, the district court’s summary judgment opinion vindicates

the Company’s safety record, see Revised Mem. Op., Dkt. 74, at 69; thus, the seal

no longer serves even the reputational interest that purportedly justified it.

In sum, because there remains a live controversy, because the district court’s

reconsideration of intervention does not affect Consumer Groups’ ability to appeal,

and because Company Doe’s theory that sealing is necessary to implement the

underlying judgment is irrelevant to mootness (and also incorrect), the case is not

moot, and the motion to dismiss should be denied. Additionally, since merits


12

briefing on the intervention question is already underway, bifurcation of the appeal

would be inefficient, so this Court should consider the intervention issue on the

merits with the rest of the case rather than decide the appeal in piecemeal fashion.

II. CONSUMER GROUPS ARE PROPER PARTIES TO THE APPEAL.

Although the presence of a live controversy is sufficient reason to deny the

motion to dismiss, and this Court need not delve into the merits at this time,

Company Doe’s position on intervention is incorrect. The district court abused its

discretion in granting the motion to reconsider and revoking its grant of

intervention. In addition, regardless of their intervention status, Consumer Groups

are proper appellants under Kenny v. Quigg, 820 F.2d 665 (4th Cir. 1987), because

they participated in the sealing litigation and are bound by the adverse result.

A. The Revocation Of Intervention Was An Abuse Of Discretion.

Assuming it had jurisdiction to rule on a motion for reconsideration filed

after this appeal was underway, the district court abused its discretion in three

respects when it revoked intervention. First, the court abused its discretion by

granting a motion for reconsideration that did not satisfy the standard for such

motions.2 Rule 60(b) permits reconsideration for specific reasons, including

mistake, new evidence, fraud, voidness of judgment, and satisfaction of judgment,

2 The disposition of a motion to reconsider is reviewed for abuse of discretion. See

CNF Constructors, Inc. v. Donohoe Const. Co., 57 F.3d 395, 401 (4th Cir. 1995).


13

or for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Neither the

court nor the Company claimed that one of the five enumerated circumstances

applied, so relief could be granted (if at all) only under the final, catch-all clause.

But that provision “may be invoked in only ‘extraordinary circumstances.’” Aikens

v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011) (en banc). The strict application of

Rule 60 “is essential if the finality of judgments is to be preserved.” Id. at 501

(citation omitted). Here, the district court failed to find, implicitly or explicitly, any

extraordinary circumstance justifying reconsideration.

Second, the court abused its discretion when it relied on an erroneous

conclusion of law. See RZS Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350,

356 (4th Cir. 2007) (“By definition, a district court abuses its discretion when it

makes an error of law.”). The court reversed itself on intervention because it

thought that the controversy over sealing became “moot” when the court ruled for

Company Doe on its underlying substantive claim. Mot. To Dismiss, App. 2. As

discussed above, that contention is incorrect. See supra Part I; Stone, 855 F.2d at

180 n.*. The district court’s error of law on mootness undermines its decision to

reconsider its prior grant of intervention.

Third, the courts of appeals are in broad agreement that permissive

intervention is appropriate where a third party seeks to obtain access to judicial

records. See, e.g., In re Assoc. Press, 162 F.3d 503, 507 (7th Cir. 1998) (“[T]he


14

most appropriate procedural mechanism [to enable third parties to obtain access to

court proceedings and documents] is by permitting those who oppose the

suppression of the material to intervene for that limited purpose.”); EEOC v. Nat’l

Children’s Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (“[E]very circuit court

that has considered the question has come to the conclusion that nonparties may

permissively intervene for the purpose of challenging confidentiality orders.”);

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994); Beckman

Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472-73 (9th Cir. 1992); Brown v.

Advantage Eng’g, Inc., 960 F.2d 1013, 1015-16 (11th Cir. 1992); United Nuclear

Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990); Public Citizen v.

Liggett Group, Inc., 858 F.2d 775, 783-84 (1st Cir. 1988); Meyer Goldberg, Inc. of

Lorain v. Fisher Foods, Inc., 823 F.2d 159, 162 (6th Cir. 1987).

Providing “full protection” for the public rights of access “requires that the

issue be examined in a procedural context that affords the court an opportunity for

due deliberation.” In re Assoc. Press, 162 F.3d at 507 (emphasis added).

Intervention is just such a procedural context, see id.; without it, the public rights

of access under the First Amendment and common law would often go

unrepresented. This Court’s procedural requirements for sealing — including

notice to the public and opportunity to object, see, e.g., Stone, 855 F.2d at 181 —

attest to the importance of these rights. See also Br. of Amici Curiae Media Org.’s


15

in Support of Parties-In-Interest-Appellants, at 6 (filed Dec. 20, 2012) (“This

appeal concerns one of the most fundamental rights in our democracy — access by

the public and press to court proceedings and judicial records.”).

Attempting to avoid this substantial and broad body of case law, Company

Doe asserts, first, that this case is unique because “the sealing order [is] necessary

to effectuate the underlying judgment in the case.” Mot. To Dismiss 15. But this

characterization assumes the correctness of Company Doe’s position on the merits

of sealing, which is both irrelevant to the threshold question of intervention and

also substantively incorrect. See supra Part I. Next, the Company tries to limit the

reach of the federal appellate case law because the individual cases involved either

an intervenor with a “particularized interest” in the court records at issue or

original parties that had agreed to a seal. Mot. To Dismiss 15-16. Both distinctions

are irrelevant. Company Doe cites no authority holding either that the right of

access to judicial proceedings is limited to members of the public with a

“particularized interest” in court records or that the public loses that right if one of

the original parties opposes restrictions on access. Moreover, Consumer Groups do

have a particularized interest in this case because it is the first challenge to the

implementation of a consumer product database whose creation Consumer Groups

advocated to address shortcomings in the CPSC’s ability to protect the public from

product safety hazards. See Opening Br. of Appellants 6. Just as a group of public


16

health organizations intervened in Public Citizen, 858 F.2d 775, seeking access to

court records about tobacco-related litigation, Consumer Groups here seek court

records from litigation regarding consumer product safety.

Company Doe is incorrect that the resolution of the underlying dispute

between the parties renders untimely a later motion to intervene to challenge a

court secrecy order. Federal courts of appeals have repeatedly allowed intervention

in such circumstances, see, e.g., Beckman, 966 F.2d at 471, 473-75; Brown, 960

F.2d at 1014-16; United Nuclear, 905 F.2d at 1426, in some cases explicitly

rejecting Company Doe’s timeliness argument, see, e.g., Pansy, 23 F.3d 778-80;

Public Citizen, 858 F.2d at 784-87; see generally Nat’l Children’s Ctr., 146 F.3d at

1047 (noting appellate consensus that post-judgment intervention to challenge seal

is proper). These cases permitting post-judgment intervention to challenge sealing

orders also refute the Company’s argument that prejudice to the original parties

under Rule 24(b)(3) results whenever intervention requires “additional litigation,”

Mot. To Dismiss 11 — a dangerously broad proposition that, if accepted, would

mean intervention is never appropriate when sought for the purpose of appeal.

For the proposition that the pendency of an underlying action is a

prerequisite to intervention, Company Doe cites cases far removed from the

context of a third party’s assertion of constitutional and common-law rights of

access to judicial records. See Mot. To Dismiss 9-11. But context matters: the


17

courts of appeals have consistently recognized that Rule 24 must be interpreted

flexibly in sealing disputes “because of the need for ‘an effective mechanism for

third-party claims of access to information generated through judicial

proceedings.’” Nat’l Children’s Ctr., 146 F.3d at 1045 (quoting Public Citizen, 858

F.2d at 783, and discussing additional court of appeals cases).

Company Doe’s cases about timeliness are distinguishable in other respects,

as well. For instance, Black v. Central Motor Lines, Inc., 500 F.2d 407 (4th Cir.

1974), involved attempted intervention almost one year after judgment, by parties

apparently brand new to the litigation. See id. at 408; see also Houston Gen. Ins.

Co. v. Moore, 193 F.3d 838, 840 (4th Cir. 1999) (attempted intervention after

deadline for appeal had expired); Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir.

1989) (intervention sought “at the last possible moment”). By contrast, here

Consumer Groups promptly filed objections to the Company’s original motion to

seal under local rule, and then promptly moved to intervene once the motion to seal

was granted. Company Doe misleadingly implies that Consumer Groups sat on

their rights because they did not seek intervention until after judgment. Mot. To

Dismiss 9. But because Local Rule 105(11) allowed Consumer Groups to

participate in the district court litigation about the motion to seal, they had no

reason to intervene before the court granted that motion. And Black itself explicitly

distinguished the category of cases (like this one) in which “intervention was


18

permitted so that the intervenor could prosecute an appeal which an existing party

had decided not to take.” 500 F.2d at 408. Thus, Company Doe’s authorities do not

justify, let alone compel, this Court’s breaking from the consensus view among the

courts of appeals that intervention is appropriate for a third-party challenge to a

sealing order.

B. Regardless Of Their Intervenor Status, Consumer Groups Are

Entitled To Appeal As Non-Parties Who Participated In The Sealing

Litigation Below And Are Bound By The Adverse Decision.

As this Court has recognized, non-parties may appeal where they have

participated in the proceedings below and they have a substantial interest in the

outcome of the proceedings. See Kenny v. Quigg, 820 F.2d 665, 668 (4th Cir.

1987); see also Davis v. Scott, 176 F.3d 805, 807 (4th Cir. 1999) (reaffirming and

applying the Kenny standard).

Here, Consumer Groups participated in the proceedings below, pursuant to

local rule, by objecting to the Company’s motion to seal at the outset of the

litigation and filing their own motion to unseal. Company Doe tries to minimize

Consumer Groups’ participation by noting that they do not have a private right of

action and did not participate in the litigation on the Company’s underlying claims.

Mot. To Dismiss 4. But Consumer Groups have participated in the litigation on the

issue of sealing, the issue they now appeal, to the maximum extent possible, and

the court’s decision to conduct the remaining proceedings under seal obviously


19

barred any further participation. Company Doe’s observation that Local Rule

105(11), under which Consumer Groups objected to the seal, “does not purport to

provide anyone with appeal rights,” Mot. To Dismiss 17 n.3, misses the point. The

local rule is not what authorizes appeal; it is what authorized Consumer Groups to

participate in the sealing litigation. This participation and the binding effect of the

sealing order justify appeal under Kenny.

Consumer Groups have a substantial interest because they are bound by the

seal, which deprives them of access to meaningful parts of the district court

opinion and record in violation of their constitutional and common-law rights. See,

e.g., VDSP, 386 F.3d at 575; Rushford, 846 F.2d at 253; Stone, 855 F.2d at 180.

This Court has recognized the importance of these rights by setting up prophylactic

procedures to protect them. For instance, “a court must first give the public notice

of a request to seal and a reasonable opportunity to challenge it.” Stone, 855 F.2d

at 181. Local Rule 105(11), under which Consumer Groups participated below,

implements this directive. It would be anomalous to provide an opportunity for

interested parties to object to a proposed seal and then deny them the opportunity

to seek review of an adverse decision. Such an arrangement would render the

public’s right of access to court proceedings — perhaps alone among all

constitutional claims — unappealable by those who assert it. Instead, a First

Amendment right-of-access claim by interested third parties would depend entirely


20

on the decision of a single judge. Although the right of access might incidentally

be vindicated on appeal where one of the original parties appeals a sealing order, in

many cases the parties jointly agree to seal a case, and in any event the parties

generally have little incentive to appeal a sealing order that covers material they

have already seen. See, e.g., Stone, 855 F.2d at 180, 182 (ordering district court to

reconsider sealing decision where both parties had jointly sought seal). This Court

should not allow orders barring public access to court records — access guaranteed

under the First Amendment and common law — to evade appellate review.

CONCLUSION

Company Doe’s motion to dismiss should be denied, and merits briefing

should promptly recommence.

Dated: January 31, 2013 Respectfully submitted,

/s/ Scott Michelman

Scott Michelman

Allison M. Zieve

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

Counsel for Appellants


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CERTIFICATION OF SERVICE

I certify that on January 31, 2013, I served this brief by ECF on all registered

counsel for appellees.

/s/ Scott Michelman


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