RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0391p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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ERICK C. CARTER; WHITNEY A. HAYES-
Plaintiffs-Appellants, --
CARTER; JOSHUA J. GRZECKI,
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No. 10-3922
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>
Intervenor, -
UNITED STATES OF AMERICA,
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v.
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WELLES-BOWEN REALTY, INC.; WELLES -
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BOWEN TITLE AGENCY, LLC; WELLES
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BOWEN INVESTORS, LLC; WELLES BOWEN
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MORTGAGE, INC.; THE DANBERRY CO.;
INTEGRITY TITLE AGENCY OF OHIO & -
MICHIGAN, LTD.; CHICAGO TITLE INSURANCE -
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COMPANY; DANBERRY TITLE, LLC,
Defendants-Appellees.
Filed: December 22, 2010
Before: MARTIN, McKEAGUE, and KETHLEDGE, Circuit Judges.
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ORDER
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In these consolidated actions under the Real Estate Settlement Procedures Act
of 1974, the plaintiffs appeal the summary judgment for the defendants. The United
States moves to intervene in the appeal to address two issues: (1) whether a policy
statement issued by the United States Department of Housing and Urban Development
is unconstitutionally vague; and (2) whether that policy statement is entitled to
deference. The plaintiffs support the intervention of the government, and the defendants
oppose the motion to intervene.
On appeal, we may grant either intervention of right or permissive intervention.
Ne. Ohio Coal. for Homeless & Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467
F.3d 999, 1006 (6th Cir. 2006); see Fed. R. Civ. P. 24(a), (b)(2). A motion to intervene
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No. 10-3922 Carter, et al. v. Welles-Bowen Realty, et al. Page 2
must be timely. The defendants argue that the government’s motion is not timely and
they are prejudiced by the failure of the government to intervene in the district court.
The failure of the government to intervene in the district court does not preclude its
intervention on appeal. See United States v. Locke, 529 U.S. 89, 98 (2000). We find the
government’s motion to be timely and conclude that its intervention in this appeal will
not unduly prejudice the defendants.
In addition, the plaintiffs move to file their appellate brief under seal, stating that
it will disclose confidential financial material that is protected by two confidentiality
agreements entered into in the district court. The defendants support the motion to file
under seal.
The public has the right “to inspect and copy judicial documents and files.” In
re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474 (6th Cir. 1983). Thus,
documents filed in the court generally must be made available to the public. See Procter
& Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). To the extent that
the appellate briefs contain confidential financial information, they may be filed under
seal. If the court later determines that the sealed information is not confidential, it may
be unsealed. See, e.g., Elliot Co. v. Liberty Mut. Ins. Co., 2009 WL 750780, at *9 (6th
Cir. 2009) (unpublished) (ordering briefs and other documents unsealed after concluding
that the motion to seal “presents no legally sufficient reason for sealing”); United States
v. Green, 532 F.3d 538, 542 n.2 (6th Cir. 2008), cert. denied, 129 S. Ct. 2735 (2009).
The motion to intervene by the United States is GRANTED. The plaintiffs’
motion to seal their brief is GRANTED, without prejudice to reconsideration should it
appear that they have sealed matters that should be made available to the public. A
public version of the brief, redacting the confidential information, must also be filed.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk