In Re Special Proceedings
As thе Court finds that Defendant conducted an adequate search with respect to Plaintiff‘s FOIA request, the Court will grant Defendant‘s Motion for Summary Judgment. A separate Order consistent with this Opinion will issue this day.
In re SPECIAL PROCEEDINGS.
Misc. No. 09-0198(EGS).
United States District Court, District of Columbia.
Feb. 27, 2012.
twelve years to make his next FOIA request to USPS. Should he now make a request of the NRC, armed with this Court‘s decision, it seems unlikely that agency would refer him elsewhere.
MEMORANDUM OPINION
On February 8, 2012, 842 F.Supp.2d 232, 2012 WL 386471 (D.D.C.2012) this Court issued a Memorandum Opinion and Order denying two motions to permanently seal from public disclosure the Report to the Honorable Emmet G. Sullivan of Investigation Conducted Pursuаnt to the Court‘s April 7, 2009 Order (“Mr. Schuelke‘s Report” or “Report“). In that Order, the Court provided the six attorneys who were the subject of Mr. Schuelke‘s investigation (“subject attorneys“) with the opportunity to submit their comments related to the Report by no later than March 8, 2012, and ordered Mr. Schuelke to file his Report on the public docket on March 15, 2012, including any submissions by the subject attorneys to be attached as addenda to the Report.
Edward P. Sullivan, one of the subject attorneys, now moves this Court to stay the February 8, 2012 Order pеnding an appeal to the U.S. Court of Appeals for the District of Columbia Circuit (“Motion to Stay“). He also moves to file his Notice of Appeal and his Motion to Stay under seal. Senator Stevens‘s attorneys oppose the motions, and Mr. Sullivan has filed a reply to their opposition.
Upon consideration of the motions, opposition and reply thereto, and for the reasons discussed herein, the Court DENIES the Motion to Stay, and GRANTS IN PART AND DENIES IN PART the Motions to Seal. Mr. Sullivan‘s Memorandum in Support of his Motion to Stay аnd his Reply in Support of Motion to Stay shall remain sealed until Mr. Schuelke‘s Report is publicly filed on March 15, 2012. Mr. Sullivan‘s Notice of Appeal and Motion
I. DISCUSSION
A. Motion to Stay
1. Standard of Review
In determining whether to stay an order pending appeal, the Court considers the same four factors as it would in resolving a motion for a preliminary injunction: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreрarably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 1761, 173 L.Ed.2d 550 (2009) (citations omitted); see also Wash. Metro. Area Transit Comm‘n v. Holiday Tours, 559 F.2d 841, 842, n. 1, 843 (D.C.Cir.1977). On a motion to stay, “it is the movant‘s obligation to justify the court‘s exercise of such an extraordinary remedy.” Cuomo v. United States Nuclear Regulatory Comm‘n, 772 F.2d 972, 978 (D.C.Cir.1985).
The four factors have typically been evaluated on a “sliding scale,” whereby if the movant makes an unusually strong showing on one of the factors, then he does not necessarily have to make as strong a showing on another factor. Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011) (citing Davenport v. Int‘l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C.Cir.1999)). While it is unclear whether the “sliding scale” is still controlling in light of the Supreme Court‘s decision in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), the Court need not decide that issue because Mr. Sullivan‘s request for a stay fails even under the less demanding “sliding scale” analysis of Davenport. See Sherley, 644 F.3d at 393.
2. Analysis of the Four Factors Relevant to a Motion to Stay
a. Likelihood of Success on the Merits
Mr. Sullivan advances three arguments which, he asserts, “raise[] serious legal questions” related to his ability to demonstrate a likelihood of success on the merits. Mot. to Stay at 8, citing Holiday Tours, 559 F.2d at 844-45, see also Reply at 5-6. As an initial matter, the Court is not persuaded that merely raising a “serious legal question” on the merits is sufficient for Mr. Sullivan to obtain a stay based on this factor. Typically, a movant must show a likelihood of success on the merits to achieve a stay. It is only when the other three factors tip sharply in the movant‘s favor that the standard for success on the merits changes. “An order maintaining the status quo is approрriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant.” Holiday Tours, 559 F.2d at 844; see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009). As discussed infra, Mr. Sullivan has not met his burden as to the other three factors; accordingly, the Court considers whether he has demonstrated “probable success” on the merits. Id. (quoting Charlie‘s Girls, Inc. v. Revlon, Inc., 483 F.2d 953, 954 (2d Cir. 1973)).
The legal arguments in Mr. Sullivan‘s Motion to Stay and his Reply are identical to the arguments he asserted in his Motion to Pеrmanently Seal the Report, all of which the Court carefully and thoroughly considered and ultimately rejected in its February 8, 2012 Opinion. In his Motion to Stay, Mr. Sullivan has offered neither new argument nor new support for his previously-raised arguments.
The Court is likewise unpersuaded by Mr. Sullivan‘s claim that the “unique circumstances” of this case present a “novel and admittedly difficult legal question that weighs in favor of a stay.” Mot. to Stay at 9 (citing Ctr. For Int‘l Envtl. Law v. Office of U.S. Trade Rep., 240 F.Supp.2d 21, 22 (D.D.C.2003)); see also Reply at 9. In its February 8, 2012 Opinion, after a thorough analysis of the facts and the law, the Court concluded that “the public has an overriding and compelling right to access the Report, and that right is protected by the First Amendment.” February 8, 2012 Opinion, 842 F.Supp.2d at 238, 2012 WL 386471, *4, 2012 U.S. Dist. LEXIS 15656, *14. Nowhere in its Opinion does the Court state or indicate that the decision was a close call.
To the contrary, the Court found that Mr. Schuelke‘s Report fits squarely within the category of criminal judicial proceedings to which the First Amendment provides a clear and long-standing public right of access. Id. 237-39, *4, 2012 U.S. Dist. LEXIS 15656 *16 (collecting cases finding a right of access to pre- and post-trial proceedings), 239-41, *5-6, 2012 U.S. Dist. LEXIS 15656 *Í8-22 (detailing public interest in, and access to, all aspects of the Stevens proceedings), 241, *6, 2012 U.S. Dist. LEXIS 15656 *24 (explaining that the Report addresses the prosecutors’ conduct throughout the investigation and prosecution of Senator Stevens, and therefore “relates and pertains’ to the Stevens [U.S. v. Stevens, 2009 WL 6525926 (D.D.C. Apr. 7, 2009)] prosecution.“). The Court likewise concluded that one of the core purposes of the First Amendment right of access—“monitoring prosecutorial or judicial misconduct“—compels public access to the Report. Id. 242, *7, 2012 U.S. Dist. LEXIS 15656 *26 (quoting Washington Post v. Robinson, 935 F.2d 282, 288 (D.C.Cir.1991)). Finally, the Court found that access to the Report would inform the public about still-unrevealed events in the Stevens case, shed light on this Court‘s decision not to initiate criminаl contempt proceedings, aid public understanding of criminal trials, and safeguard against further prosecutorial misconduct. Id. 241-46, *7-10, 2012 U.S. Dist. LEXIS 15656 *26-37.
After concluding that the First Amendment protects public access to the Report, the Court‘s February 8, 2012 Opinion went on to consider the opposing attorneys’ argument—primarily advanced by Mr. Sullivan—that the investigation conducted by Mr. Schuelke was “substantially the same as a grand jury proceeding and should be bound by the same secrecy rules governing grand jury investigations.” Id. 246, *11, 2012 U.S. Dist. LEXIS 15656 *40 (quoting Mr. Sullivan‘s Motion to Permanently Seal Report at 6). The Court squarely rejected this argument, finding that Mr. Schuelke‘s investigation differed from a grand jury proceeding in many important respects, id. 247-50, *12-13, 2012 U.S. Dist. LEXIS 15656 *47-48, and further finding that most reasons for grand jury secrecy, such as protecting witnesses from intimidation and mitigating the risk that targets of investigation would flee, were not relevant to Mr. Schuelke‘s investigation. Id. 249-50, *13, 2012 U.S. Dist. LEXIS 15656 *49-50. Finally, the Court concluded that under the circumstances of this case, any claimed prejudice to the subject attorneys from disclosure of the Report was significantly less than potential prejudice to unindicted targets of grand jury investigations. Id. 251-55, *15-17, 2012 U.S. Dist.
Finally, in its February 8, 2012 Opinion, the Court looked to In re North, 16 F.3d 1234 (D.C.Cir.1994), in which the D.C. Circuit weighed whether to publicly release the Independent Counsel‘s report on the Iran-contra affair. Acknowledging the differences between this case and North, the Court nevertheless found the case “instructive” because it squarely addressed the propriety of releasing a report containing allegations of wrongdoing when those allegations would not be thе subject of future criminal proceedings. Id. 252-55, *16-17, 2012 U.S. Dist. LEXIS 15656 *62. The Court found that the factors considered by the court in North “overwhelmingly weigh in favor of disclosure” of Mr. Schuelke‘s Report. Id. 253-54, 253-56, *17, *17-18, 2012 U.S. Dist. LEXIS 15656 *64, *65-70 (the subjects of investigation are publicly known; the Report addresses a trial about which much is known, and much is incorrectly known, therefore disclosure will help set the record straight; the Report will shed light on information which should be publicly available to facilitate understanding of the Stevens case in particular and prosecutorial misconduсt in general.)
In short, while the specific circumstances of this case may be unusual, the application of those circumstances to controlling, well-established law do not present the degree of difficulty or novelty required to meet the movant‘s heavy burden to obtain a stay.1
b. Irreparable Harm
As discussed supra, Mr. Sullivan has not established a likelihood of success on the merits. Accordingly, he must show a high degree of irreparable harm to justify the granting of a stay. “Probability of success is inversely proportional to the degrеe of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa.” Cuomo, 772 F.2d at 974. Moreover, to establish irreparable harm, “[a] party moving for a stay is required to demonstrate that the injury claimed is ‘both certain and great.‘” Id. at 976 (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985)). Mr. Sullivan has not established any irreparable harm, much less one that is “certain and great.”
Mr. Sullivan claims that his professional reputation will be irreparably harmed by publication of the Report. This argument is unavailing, especially in light of Mr. Sullivаn‘s own submissions and
Mr. Sullivan nevertheless argues that, regardless of his own exoneration in the Report, he will be irreparably harmed “through unwarranted association with the alleged conduct and decision-making of” the other subject attorneys. Mot. to Stay at 6; see also Reply at 3-4. Again, this argument is unavailing. For years, Mr. Sullivan has been widely identified as one of the prosecutors responsible for the investigation and prosecution of Senator Stevens. Mr. Sullivan‘s name has been associated with the other prosecutors, in an undifferentiated fashion, in a case which has come “to symbolize the dangers of an overzealous prosecution and the risks inherent when the government does not abide by its discovery obligations.” February 8, 2012 Opinion, 842 F.Supp.2d at 245, at *9, 2012 U.S. Dist. LEXIS 15656 at *35 (collecting citations). To the extent the Report exonerates Mr. Sullivan and distinguishes his conduct from the other subject attorneys’ as he claims, publication оf the Report would presumably help, not harm, his professional reputation.3 This is particularly true because the Court‘s February 8, 2012 Order provides him, as well as the other subject attorneys, with the “opportunity to submit comments on the Report. These comments shall be published with the Report, to enable the public to consider the subject attorneys’ comments simultaneously with the Report.” February 8, 2012 Opinion, 842 F.Supp.2d at 253-55, at *16-17, 2012 U.S. Dist. LEXIS 15656 at *62; see also North, 16 F.3d at 1237 (providing for the subjects of the Independent Counsel‘s Report to file comments on the Report, which would be appended to the Report and serve as “the final word on the merits of the [] investigation.“).
Publication of the Report itself, which Mr. Sullivan maintains “exonerates” him, combined with his own, unedited com-
Deprived of his argument that release of the Report will irreparably harm his professional reputation, Mr. Sullivan is left only with his claim that a stay is justified because once the Report is released, with his comments, the appellate court will not be able to “unring the bell” on appeal. Mot. to Stay at 7 (quoting Maness v. Meyers, 419 U.S. 449, 460, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975)). The Court is not persuaded that this argument is sufficient to warrant a stay in this case, where, as discussed throughout, the movant has not demonstrated a serious question on the merits, the balаnce of harms favors disclosure, and the public interest weighs heavily in support of release.4
с. Harm to Other Interested Parties
Mr. Sullivan argues that no party will be harmed by a stay. The Court disagrees. Senator Stevens‘s attorneys have persuasively argued that the Senator‘s family and former staff, colleagues and close friends, who suffered the effects of the prosecution along with him, have not been permitted to review the Report. Opp‘n to Motion for Stay Pending Appeal at 9. Moreover, one subject attorney “welcоmes the release” of the Report. See Brenda Morris Concurs with the Court‘s Intent, as Stated in Its November 21, 2011 Order, 825 F.Supp.2d 203 (D.D.C.2011) to Release the Full Report. Accordingly, the Court finds the balance of harms tips in favor of disclosure.
d. The Public Interest
“The fourth and final factor to be considered by the Court when analyzing the ... request for a stay and injunction is where the public interest lies. The public interest is a uniquely important consideration in evaluating a request for [interim relief].” Nat‘l Ass‘n of Mfrs. v. Taylor, 549 F.Supp.2d 68, 77 (D.D.C.2008) (citations omitted). As this Court has repeatedly stated оver the course of this case, the public has a compelling interest in the Stevens case, and that interest weighs overwhelmingly in favor of the
Mr. Sullivan does not acknowledge or attempt to dispute these compelling interests. Rather, he argues that there is “a substantial public interest in ensuring that a prosecutor does not accuse uncharged individuals of wrongdoing.” Mot. to Stay at 11. As discussed in the Irrepаrable Harm section supra, this argument is unavailing, especially in view of Mr. Sullivan‘s claim that the Report “correctly exonerates” and “rightfully clears” his name. Id. at 2, 5. The only other argument Mr. Sullivan asserts in support of public interest in further delay is “the right to effective appellate review.” Id. at 11. But, again, as discussed supra, this unsupported assertion does not erase or negate the stringent requirements for a stay, none of which have been met in this case. It also does not trump the overwhelming public interest in, аnd right to, the results of Mr. Schuelke‘s investigation, as detailed in his Report.
For the foregoing reasons, the Court will DENY movant‘s Motion to Stay Pending Appeal.
B. Mr. Sullivan‘s Motions to Seal His Motion to Stay and His Notice of Appeal
In addition to his Motion to Stay Pending Appeal, Mr. Sullivan has moved the Court to file the Motion to Stay, as well as
As recent decisions in this case have made clear, judicial proceedings in the United States are presumptively open to the public. Proceedings, records, and the identities of litigants are withheld from the public only when the movant overcomes strong presumptions in favor of disclosure. See, e.g., Richmond Newspapеrs, Inc. v. Virginia, 448 U.S. 555, 589-93, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (presumption of public access to criminal cases, overcome only by overriding interest that disclosure is essential to preserve higher values and narrowly tailored to serve that interest); Nixon v. Warner Commc‘ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (“[i]t 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.“); U.S. v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C.Cir. 1995) (courts grant “rare dispensation” of anonymity sparingly); Coe v. U.S. Dist. Court for Colorado, 676 F.2d 411, 415-16 (10th Cir.1982) (courts generally allow anonymity to preserve privacy only in highly personal matters such as abortion and welfare of children, or when identification poses risk of physical or mental harm; anonymity not permitted in an action involving a litigant‘s future professional and economic life.).
In this case, the Court has sealed only those pleadings and portions of pleadings which would reveal the contents of the Report.6 The subjects’ identities have never been sealed; to the contrary, they have been widely publicized from the outset of the investigation. Mr. Sullivan‘s Notice of Appeal contains no information regarding the content of the Report, nor does his Motion to Stay. Accordingly, in the absence of any argument by Mr. Sullivan to overcome the presumption of openness, his motions to seal the Notice of Appeal and Motion to Stay are DENIED. The Clerk of the Court is directed to post the Notice of Appeal and Motion to Stay on the public docket on March 1, 2012. Because his Memorandum in Support of Motion to Stay and his Reply in Support of Motion to Stay reference the content of the Report, the Court will GRANT Mr. Sullivan‘s motion to file those memoranda under seal. In accordance with the Court‘s February 8, 2012 Opinion and Order, all pleadings related to Mr. Schuelke‘s Report shall be unsealed when the Report is published on March 15, 2012, and Mr.
II. CONCLUSION
For the foregoing reasons, Mr. Sullivan‘s Motion to Stay is DENIED, and his motions to file under seal are GRANTED IN PART AND DENIED IN PART.
An appropriate Order accompanies this Memorandum Opinion.
Kemeria BESHIR, Plaintiff,
v.
Eric HOLDER, II et al., Defendants.
Civil Action No. 10-652 (RMU).
United States District Court, District of Columbia.
March 9, 2012.
David R. Saffold, Washington, DC, for Plaintiff.