428 F. App'x 60
2d Cir.2011Background
- Roe, an attorney, appeals district court injunctions and scheduling orders restraining dissemination of sealed materials from John Doe’s criminal case.
- Judge Glasser initially ordered Roe to show cause and temporarily restrain dissemination of sealed materials, including Doe’s 2004 Pre-Sentence Report (PSR).
- At a June 21, 2010 hearing, Glasser issued a permanent injunction against disseminating the PSR and extended TROs for other sealed documents.
- Roe appealed; the panel later remanded to enforce its February 14, 2011 mandate and address unsealing and related sealed-document issues.
- Judge Cogan later ordered Roe to destroy/return remaining copies and addressed Roe’s requests about unsealing and information within sealed materials.
- The Second Circuit ultimately affirmed the permanent injunction on the PSR, dismissed certain appeals for lack of jurisdiction or waiver, and remanded remaining matters for district-court proceedings consistent with its order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PSR injunction violated First Amendment rights | Roe argues the injunction infringes free-speech rights. | Government/ Doe contends injunction is proper to protect sealed information. | Affirmed injunction; no abuse of discretion. |
| Whether the TROs on other sealed documents were appealable | Roe challenges TROs as improper restraints. | TROs are not final judgments; appellate review limited. | Appeal dismissed for lack of finality/pendent deprecation. |
| Whether Roe waived challenge to Judge Cogan's April 1 and April 4, 2011 orders | Roe preserved arguments but did not raise them in reply brief. | Waiver due to failure to raise in opening/reply or seek leave. | Waiver and dismissal of those challenges. |
| Whether the March 23, 2011 scheduling order is a final order or subject to review | Roe seeks review of the scheduling order. | March 23 order is not a final judgment and not subject to review. | No jurisdiction over March 23, 2011 order; dismissed. |
| Whether the May 13, 2011 Cogan order denying disclosures was proper | Roe sought permission to disclose more details from sealed materials. | Disclosures would violate sealing orders and injunctions. | Affirmed Cogan; disclosures denied. |
Key Cases Cited
- Charmer Indus., Inc. v. United States, 711 F.2d 1164 (2d Cir. 1983) (PSR access requires a compelling showing of ends of justice)
- Roach v. Morse, 440 F.3d 53 (2d Cir. 2006) (abuse of discretion standard for injunctions)
- Sims v. Blot, 534 F.3d 117 (2d Cir. 2008) (abuse of discretion framework for injunctions and remedies)
- In re Zyprexa Injunction, 474 F. Supp. 2d 385 (E.D.N.Y. 2007) (court authority to enforce sealing orders)
- United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994) (retention of jurisdiction over related appeals)
- Swint v. Chambers Cnty. Com’n, 514 U.S. 35 (1995) (final judgment rule and exceptions)
- Gen. Motors Corp. v. Gibson Chem. & Oil Corp., 786 F.2d 105 (2d Cir. 1986) (preliminary injunction standards and discretion)
- Reiss v. Societe Centrale Du Gruope Des Assurances Nationales, 235 F.3d 738 (2d Cir. 2000) (final judgment rule and exceptions)
- In re Wireless Data, Inc., 547 F.3d 484 (2d Cir. 2008) (waiver principles on appeal)