Amergen Energy Co. Ex Rel. Exelon Generation Co. v. United States
115 Fed. Cl. 132
| Fed. Cl. | 2014Background
- AmerGen (through Exelon as tax matters partner) sued the United States under TEFRA seeking to include decommissioning liabilities in the tax basis of nuclear plants acquired in 1999–2000; cross-motions for summary judgment were filed under seal pursuant to a blanket protective order.
- The court issued a merits opinion (Amergen I) rejecting AmerGen’s tax-basis claims; thereafter AmerGen moved to keep numerous exhibits and deposition excerpts filed with the summary judgment papers under seal.
- The protective order allowed parties to designate discovery as confidential and to file materials under seal, but contemplated court resolution of disputes and filing of redacted public versions.
- The government opposed sealing, arguing AmerGen had not shown compelling reasons to overcome the common-law and First Amendment presumption of public access to judicial records.
- The court applied the strong presumption of access to dispositive motion materials and required AmerGen to show compelling reasons (or at least particularized good cause) for continued sealing.
- The court analyzed six categories of requested redactions (financial/business planning, tax, asset retirement, decommissioning planning, settlement information, and technical safety-related testimony) and denied the motion in full for failure to articulate specific, concrete harms; ordered unsealing unless parties jointly identified limited agreed redactions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents filed with cross-motions for summary judgment may remain sealed based on prior blanket protective order | Protective order permitting confidential designation and sealed filing justifies continued sealing without further showing | Blanket protective order does not overcome public presumption; movant must show compelling reasons to seal judicial records | Denied: prior protective order does not dispense with requirement to show compelling reasons to seal judicial records |
| Standard required to seal exhibits filed in support of dispositive motions | Sealing may be appropriate without compelling showing because much material was irrelevant to the purely legal ruling | Materials submitted on summary judgment are judicial records and require compelling reasons for sealing | Held that dispositive-motion materials attract strong presumption of access; compelling reasons (not mere irrelevance) required |
| Whether AmerGen’s category-based, generalized assertions of competitive harm satisfy the burden | Broad categories and declarations asserting commercial sensitivity suffice to prevent competitive harm | Vague, non-specific assertions do not identify concrete, present harm; age and prior public disclosures weigh against confidentiality | Held insufficient: AmerGen failed to specify particular information and concrete harms; did not meet either good-cause or compelling-reasons standard |
| Whether specific safety-related testimony (location of spent fuel pools) should be sealed | Even limited testimony about pool locations raises safety concerns and should be sealed | Testimony is general; NRC public materials contain equal/greater detail; no showing of present danger | Denied: court skeptical that testimony posed safety risk but held AmerGen failed to show present, specific danger warranting sealing |
Key Cases Cited
- In re Violation of Rule 28(d), 635 F.3d 1352 (Fed. Cir.) (distinguishing discovery protections from public access to judicial records and requiring stronger showing to seal records introduced in dispositive proceedings)
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (strong presumptive public right of access to judicial records)
- Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (compelling reasons needed to seal records attached to dispositive motions)
- Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (documents submitted on summary judgment are judicial records entitled to a strong presumption of access)
- Apple Inc. v. Samsung Electronics Co., 727 F.3d 1214 (Fed. Cir. 2013) (competitive harm can justify sealing, but context-specific; non-precedential in some circuits and factually distinguishable)
- Westinghouse Electric Corp. v. United States, 949 F.2d 653 (3d Cir. 1991) (papers filed with motions for summary judgment are not entitled to shielding merely because the motion was denied)