United States Court of Appeals, District of Columbia Circuit
January 18, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-00045)
Stephen W. Hall argued the cause for appellant Better
Markets, Inc. With him on the briefs were Dennis M. Kelleher
and Austin W. King.
L. Weismann was on the brief for amici curiae Campaign for
Accountability, et al. in support of intervenor-appellant.
C. Tayrani argued the cause for appellee MetLife, Inc. With
him on the brief was Eugene Scalia. Ashley S. Boizelle and
Indraneel Sur entered appearances.
Nicolas Riley, Attorney, U.S. Department of Justice, argued
the cause for federal appellee. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Mark B. Stern and Daniel Tenny, Attorneys.
Before: Garland, Chief Judge, and Kavanaugh and Srinivasan,
GARLAND, CHIEF JUDGE
underlying question in this case is whether the Dodd-Frank
Act abrogates the common-law right of public access to
judicial records. The appellees maintain that it does. In
their view, the Act categorically requires courts to seal
parts of briefs and appendices containing information that a
nonbank financial company has submitted to the Financial
Stability Oversight Council for its use in deciding whether
to designate the company for enhanced supervision by the
disagree. The right of public access is a fundamental element
of the rule of law, important to maintaining the integrity
and legitimacy of an independent Judicial Branch. Although
the right is not absolute, there is a strong presumption in
its favor, which courts must weigh against any competing
interests. There is nothing in the language of Dodd-Frank to
suggest that Congress intended to displace the long-standing
balancing test that courts apply when ruling on motions to
seal or unseal judicial records. Accordingly, because the
district court did not apply that test to the motion to
unseal the records at issue here, but instead ruled that they
were categorically exempt from disclosure, we vacate its
judgment and remand the case for further proceedings.
passed the Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010),
to mitigate the risks that certain financial institutions
could pose to the stability of the national financial system.
S. Rep. No. 111-176, at 2 (2010). The Act tasks the Financial
Stability Oversight Council (FSOC) with carrying out that
objective. Among other powers, FSOC may designate a
"nonbank financial company" for enhanced
supervision by the Federal Reserve System's Board of
Governors if the Council determines that "material
financial distress" at the company "could pose a
threat to the financial stability of the United States."
12 U.S.C. § 5323(a)(1). To assist it in making
designation decisions, FSOC may require nonbank financial
companies to submit financial data and information to the
Council. Id. § 5322(d)(3)(A). FSOC must
"maintain the confidentiality of any data, information,
and reports" that a company submits. Id. §
2013, FSOC notified MetLife, Inc. that it was considering the
company for designation. Over the course of the next year,
MetLife voluntarily submitted over 21, 000 pages of documents
to FSOC to help it reach a determination. In December 2014,
FSOC determined that "material financial distress"
at MetLife "could pose a threat to the financial
stability of the United States, " id. §
5323(a)(1), and therefore designated MetLife for supervision.
to 12 U.S.C. § 5323(h), MetLife challenged FSOC's
designation determination in district court. That section
authorizes a nonbank financial company to seek judicial
review of a final determination by the Council. The
court's review is "limited to whether the final
determination . . . was arbitrary and capricious."
the ensuing summary-judgment briefing, MetLife and FSOC
worked together to prepare redacted and unredacted versions
of their briefs and 16-volume joint appendix. Some redactions
were of portions of FSOC's final determination
designating MetLife; others were of data and information that
MetLife had voluntarily submitted to FSOC. Both parties
sought leave to file their unredacted briefs and unredacted
joint appendix under seal. The district court granted their
requests. Thereafter, the parties filed the unredacted
documents under seal and made the redacted versions publicly
available. Before the district court issued its ruling on the
merits, MetLife filed new versions of its briefs and the
joint appendix with fewer redactions.
redacted a total of approximately 22 lines from the final,
public versions of its opening and reply briefs. See
J.A. 73-80; MetLife Br. 9, 23. FSOC redacted approximately
the same number of lines from the public versions of its
briefs. See J.A. 59-72. Those public briefs
contained 90 citations to sealed portions of the joint
appendix. Better Markets Br. 5. All together, over 1, 900
pages of the joint appendix -- more than two-thirds of the
total -- were redacted from the public version. Id.
Markets, Inc. is a "nonpartisan, nonprofit,
public-interest organization" focused on the United
States financial system. Better Markets Br. at iii. Pursuant
to Federal Rule of Civil Procedure 24(b), the organization
moved to intervene in the district court litigation and to
unseal the briefs and joint appendix. Before ruling on those
motions, the court granted MetLife's summary-judgment
motion and rescinded FSOC's designation of MetLife on the
ground that it was arbitrary and capricious. See MetLife,
Inc. v. Fin. Stability Oversight Council, 177 F.Supp.3d
219, 242 (D.D.C. 2016). The court initially entered its opinion
under seal and allowed the parties to suggest redactions.
After neither party requested any, the court unsealed the
opinion in its entirety.
district court next ruled on Better Markets' motions.
Although the court permitted Better Markets to intervene, it
denied the motion to unseal. See MetLife, Inc. v. Fin.
Stability Oversight Council, 2016 WL 3024015, No.
15-0045 (D.D.C. May 25, 2016). The court concluded that
Dodd-Frank's confidentiality provision, 12 U.S.C. §
5322(d)(5)(A), required that the relevant portions of the
briefs and joint appendix remain sealed because they included
data, information, and reports MetLife submitted to FSOC.
MetLife, 2016 WL 3024015, at *6. Dodd-Frank, the
court said, "supersedes the multi-factor inquiry
prescribed by the D.C. Circuit" for ruling on motions to
seal or unseal judicial records. Id. at *5
(referencing United States v. Hubbard, 650 F.2d 293
(D.C. Cir. 1980)). The court further suggested that the
briefs and appendix may not qualify as "judicial
records" in any event. See id. at *6-7.
Markets now appeals the denial of its motion to
40 years ago, the Supreme Court said it was "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) (internal
citation omitted). Two years later, in United States v.
Hubbard, our court likewise "recogniz[ed] this
country's common law tradition of public access to
records of a judicial proceeding, " noting that
"[a]ccess to records serves the important functions of
ensuring the integrity of judicial proceedings in particular
and of the law enforcement process more generally." 650
F.2d at 314-15. "This common law right, " we
explained, "is fundamental to a democratic state":
As James Madison warned, "A popular Government without
popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy: or perhaps both. . . . A
people who mean to be their own Governors, must arm
themselves with the power which knowledge gives." Like
the First Amendment, then, the right of inspection serves to
produce "an informed and enlightened public
opinion." Like the public trial guarantee of the Sixth
Amendment, the right serves to "safeguard against any
attempt to employ our courts as instruments of persecution,
" to promote the search for truth, and to assure
"confidence in . . . judicial remedies."
Id. at 315 n.79 (quoting United States v.
Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976),
rev'd on other grounds sub nom. Nixon, 435 U.S.
light of these considerations, there is a "strong
presumption in favor of public access to judicial
proceedings." Hubbard, 650 F.2d at 317; see
Hardaway v. D.C. Housing Auth., 843 F.3d 973, 980 (D.C.
Cir. 2016). That presumption may be outweighed in certain
cases by competing interests. In Hubbard, we crafted
a six-factor test to balance the interests presented by a
given case. See 650 F.2d at 317-22. Specifically,
when a court is presented with a motion to seal or unseal, it
should weigh: "(1) the need for public access to the
documents at issue; (2) the extent of previous public access
to the documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the strength
of any property and privacy interests asserted; (5) the
possibility of prejudice to those opposing disclosure; and
(6) the purposes for which the documents were introduced
during the judicial proceedings." EEOC v. Nat'l
Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir.
1996) (citing Hubbard, 650 F.2d at 317-22). A seal
may be maintained only "if the district court, after
considering the relevant facts and circumstances of the
particular case, and after weighing the interests advanced by
the parties in light of the public interest and the duty of
the courts, concludes that justice so requires." In
re Nat'l Broad. Co., 653 F.2d 609, 613 (D.C. Cir.
1981) (internal quotation marks and citations omitted).
subsequent cases involving motions to seal or unseal judicial
records, the Hubbard test has consistently served as
our lodestar because it ensures that we fully account for the
various public and private interests at stake. See,
e.g., Hardaway, 843 F.3d at 980; Primas v.
District of Columbia, 719 F.3d 693, 698-99 (D.C. Cir.
2013); Nat'l Children's Ctr., 98 F.3d at
1409-11; Johnson v. Greater Se. Cmty. Hosp. Corp.,
951 F.2d 1268, 1277 & n.14 (D.C. Cir. 1991).
on the common-law right of public access to judicial records,
Better Markets contends that the district court improperly
sealed parts of the summary-judgment briefs and joint
appendix because it did so without applying the
Hubbard test. MetLife and FSOC respond with two
principal contentions: (1) those documents do not qualify as
judicial records subject to the common-law right; and (2)
even if they do, the Dodd-Frank Act supersedes that right. We
address these contentions in the following two Parts of this
opinion. Both are subject to de novo review. See Ctr. for
Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 920, 936-37
(D.C. Cir. 2003); United States v. El-Sayegh, 131
F.3d 158, 160 (D.C. Cir. 1997).
begin with common ground. "[N]ot all documents filed
with courts are judicial records." SEC v. Am.
Int'l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013). Rather,
"whether something is a judicial record depends on
'the role it plays in the adjudicatory