United States Court of Appeals
For the Eighth Circuit
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No. 22-3326
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Reporters Committee for Freedom of the Press
Petitioner - Appellant
v.
United States of America
Respondent - Appellee
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Media Organizations; Electronic Frontier Foundation; American Civil Liberties
Union
Amici on Behalf of Appellant(s)
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 17, 2023
Filed: March 1, 2024
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Before GRUENDER, STRAS, and KOBES, Circuit Judges.
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STRAS, Circuit Judge.
The Reporters Committee for Freedom of the Press, a nonprofit organization
dedicated to promoting the interests of journalists, filed an application seeking to
unseal court filings from federal criminal investigations. After months of back-and-
forth negotiations between the Reporters Committee, the clerk of court, and the
United States Attorney’s Office, the district court 1 dismissed for lack of jurisdiction.
We affirm.
I.
The Reporters Committee filed an application in the District of Minnesota
with a single goal in mind: unsealing electronic-surveillance filings. See 18 U.S.C.
§§ 2701–13 (Stored Communications Act). But standing in the way was a local rule
requiring federal law-enforcement officials to file them under seal. See D. Minn.
LR 49.1(c)(1)(B).
The district court was open to the request, but thought it was too broad. The
main reason was that the “vast majority” of the materials requested become unsealed
after six months.2 So the real dispute, at least in the court’s view, was over the
“pretty small number” of filings that remain under seal, instead of “a bunch of stuff
that doesn’t exist.” Thinking there could be room for agreement, the court instructed
the United States Attorney’s Office and the Reporters Committee to work with the
clerk of court, hammer out any “disagree[ments],” and “negotiate[]” a possible
solution.
1
The Honorable Patrick J. Schiltz, Chief Judge, United States District Court
for the District of Minnesota.
2
That is, unless the government “comes in and shows a good reason” for
keeping them sealed. Although the district court did not explain what reasons would
be good enough, keeping them from public view can protect ongoing investigations
and the privacy of the individuals involved. See, e.g., In re Search Warrant for
Secretarial Area Outside Off. of Gunn, 855 F.2d 569, 574 (8th Cir. 1988)
(concluding that a district court could seal documents “describ[ing] in considerable
detail the nature, scope, and direction” of a government investigation, including the
“individuals and specific projects involved”).
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Months of negotiations worked out some of the issues. Everyone agreed that
search warrants and other electronic-surveillance requests should be “flag[ged]” on
the docket. They also agreed on a notice on the District of Minnesota website
explaining that members of the public could view unsealed warrants and surveillance
orders at the clerk’s office. But there was not much progress on docketing and
unsealing what remained, so the Reporters Committee headed back to court.
It filed an amended application seeking an order directing the clerk of court,
who was not a party, to change her practices in two ways. The first was to
presumptively unseal warrants and related documents after 180 days. The other was
to begin docketing the government’s applications for electronic surveillance
regardless of whether a judge granted them. See Fed. R. Crim. P. 41 (allowing the
government to request electronic-surveillance and tracking-device warrants); 18
U.S.C. §§ 2703(a)–(b), 3117, 3123 (same). These duties arose, according to the
Reporters Committee, under the First Amendment and the common-law right of
access to public records and documents. See Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 575–80 (1980) (explaining how the First Amendment
applies); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597–99 (1978) (discussing
the scope of the common-law right).
The district court never reached the merits. It instead concluded that the
Reporters Committee lacked standing because all it had was a “generalized, abstract
interest” in unsealing the records. And such an interest could not provide jurisdiction
in federal court.
II.
Federal courts only have jurisdiction over “[c]ases” or “[c]ontroversies.” U.S.
Const. Art. III. Usually, they are “adversary proceeding[s]” with “adverse parties.”
In re Hoefflin, 715 F.2d 1309, 1310 (8th Cir. 1983); see Fin. Guar. Ins. Co. v. City
of Fayetteville, 943 F.2d 925, 929 (8th Cir. 1991) (“The adversity requirement
[e]nsures that a court is presented with opposing parties that are fairly motivated to
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diligently and effectively present the merits of all sides of the issues . . . .”). They
also require “litigants [with] a personal stake in the suit.” Camreta v. Green, 563
U.S. 692, 701 (2011) (citation omitted).
A.
Adversity is missing here. The Reporters Committee filed an “application”
with the district court, but it did not name anyone or anything 3 as a defendant. It did
not sue the United States Attorney for the electronic-surveillance materials in his
possession, nor did it argue that he had an obligation to disclose them. It is true that,
at one point, the district court changed the caption to read “Reporters Committee . . .
v. United States of America,” but the United States never officially intervened. And
when the Reporters Committee finally amended its application, it did not mention or
seek relief against the United States or the United States Attorney.
Rather, it wanted something from the district court: “[o]rder[s] directing the
[c]lerk of [c]ourt” to unseal and docket certain materials. But the Reporters
Committee did not name the clerk of court as a defendant and seek to “enjoin” her
allegedly “unconstitutional action[]” of keeping certain electronic-surveillance
filings sealed. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015)
(recognizing that plaintiffs can seek prospective injunctive relief against federal
officials). But cf. Whole Woman’s Health v. Jackson, 595 U.S. 30, 39–40 (2021)
(explaining that “state-court clerks who docket . . . disputes” were not “adverse”).
Nor did it seek mandamus against the clerk of court or the district court, see In re
Iowa Freedom of Info. Council, 724 F.2d 658, 660 (8th Cir. 1983), the latter of which
would have nominally “ma[de] the judge a litigant,” Ex parte Fahey, 332 U.S. 258,
3
Sometimes the “opposing party” will be property rather than a person or
organization. See generally, e.g., United States v. One Parcel of Prop. Located at
Tracts 10 & 11, 51 F.3d 117 (8th Cir. 1995). In rem actions, as they are called, use
“[t]he fiction that the thing [subject to forfeiture] is primarily considered the
offender.” Austin v. United States, 509 U.S. 602, 615 (1993) (citation omitted). But
here, there is no defendant at all, fictional or otherwise.
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260 (1947). Any of these alternatives would have cured the lack of adversity, even
if they might have presented other difficulties.
To be sure, courts have sometimes been willing to relax adversity on appeal.
Consider United States v. Windsor, in which the Supreme Court concluded that
amicus briefing provided the necessary adversity when the parties themselves agreed
on the answer to a legal question. 570 U.S. 744, 757–62 (2013); see also id. at 786
(Scalia, J., dissenting) (“[T]hat a case between friendly parties can be entertained so
long as adversarial presentation . . . is assured by the participation of amici
curiae . . . effects a breathtaking revolution in our Article III jurisprudence.”
(citation omitted)). We have followed this approach ourselves in two recent cases.
See United States v. Stowell, 82 F.4th 607 (8th Cir. 2023) (en banc); United States
v. Bernard, 42 F.4th 905, 908 (8th Cir. 2022).
Those cases, however, involved amici advocating on behalf of parties who
were already part of the litigation. In Windsor, for example, after the Solicitor
General “confesse[d] error” and agreed with the plaintiff that the Defense of
Marriage Act was unconstitutional, the amicus defended the tax-related financial
interest of the United States. 570 U.S. at 755–60. Or take Bernard, in which an
amicus nominally represented the district court’s position in a mandamus proceeding
when both the defendant and the United States agreed that the court should have
allowed a prosecutor to dismiss a count from the indictment. 42 F.4th at 908. In
each, the amicus advocated on behalf of a party with a continuing interest in the
outcome.
Without a defendant in this case, it is not clear what role the United States
played. See In re Application for Exemption from Elec. Pub. Access Fees by Jennifer
Gollan and Shane Shifflett, 728 F.3d 1033, 1038 n.3 (9th Cir. 2013) (describing
“judicial business” as “pursued by counterparties”). Did it represent its own
interests? Or was it advocating on behalf of someone else, like the clerk of court or
the district court? Perhaps all three? It is hard to know because the Reporters
Committee requested relief without suing anyone who could provide it. It brought
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an action without adversity, typically required for “federal-court adjudication.”4 See
Camreta, 563 U.S. at 701 (citation omitted).
B.
Adversity is not all that is missing. Closely related is the idea of standing, and
here, the Reporters Committee failed to establish that it suffered a “concrete” and
“particularized” injury. Spokeo Inc. v. Robins, 578 U.S. 330, 340 (2016); see
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2206 (2021) (noting that a “plaintiff
[who] has not suffered any physical, monetary, or cognizable intangible harm
traditionally recognized as providing a basis for a lawsuit in American courts” does
not have standing). As the district court put it, having a desire to unseal
electronic-surveillance materials on the chance that “some unspecified person may
some[d]ay want to review them” is hardly concrete. Such an injury, after all, has yet
to “actually exist.” Spokeo, 578 U.S. at 340.
The Reporters Committee disagrees on two grounds. The first is that, “like
all members of the public and press,” it claims to have “a strong interest in observing
and understanding” what happens in federal court. Maybe so, but without “concrete
plans” to review or use the materials, its injury is no different than every other
member of the public. Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992). A party
cannot bring an anticipatory lawsuit to head off an injury that could happen some
day. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
Its other argument, first raised in its appellate reply brief, gets closer, but
comes too late. The Reporters Committee now claims that, “[b]efore filing its initial
[a]pplication, [it] tried to access [electronic-surveillance] records . . . via CM/ECF”
and could not view them. We rarely consider arguments raised for the first time on
4
There are some exceptions. See Ayestas v. Davis, 138 S. Ct. 1080, 1090–91
(2018) (collecting cases). Among them are ex parte proceedings, like deciding
whether to issue a search or arrest warrant. See id. at 1091. No one suggests that an
exception applies here. See id. (“[E]x parte motions are disfavored.”).
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appeal. See Fleck v. Wetch, 937 F.3d 1112, 1116 (8th Cir. 2019). It is even rarer for
us to address an argument that a party first raises in a reply brief. See Sanchez v.
Taggart, 144 F.3d 1154, 1157 (8th Cir. 1998) (“declin[ing] to consider new facts or
legal theories raised in [a] reply brief”). This case is no exception, especially
because the Reporters Committee had an obligation to establish why it had standing
to sue from the “outset.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021).
It is no answer to say that it once obliquely referenced the problem during a
status conference. The Reporters Committee directs us to the following statement
by counsel: “when a member of the public tries to access the underlying materials in
an unsealed warrant case, there’s a warning that says you do not have permission to
view this document.” No one would interpret this statement as anything more than
a general description of the problem it was trying to remedy. It does not specify who
tried to access the materials, when they tried to do it, or what relationship they had
to the Reporters Committee. 5 Missing is nearly every one of the ingredients
necessary for standing. See Delorme v. United States, 354 F.3d 810, 815–16 (8th
Cir. 2004) (holding that pleadings that “do not indicate with any specificity who
suffered the alleged injury,” “the nature of any actual injury suffered,” or the
representative plaintiff’s “connection” to an injured party are deficient).
III.
We accordingly affirm the judgment of the district court.
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5
The absence of these details means we do not need to decide whether the
Reporters Committee suffered “downstream consequences from failing to receive
the required information.” TransUnion, 141 S. Ct. at 2214 (citation omitted); see
also id. (“An asserted informational injury that causes no adverse effects cannot
satisfy Article III.” (citation omitted)). Nor do we have to address whether the
district court asked too much by requiring the Reporters Committee to have evidence
supporting its jurisdictional allegations at such an early stage. See Lujan, 504 U.S.
at 561 (requiring a party to support “each element” of standing through “the manner
and degree of evidence required at the successive stages of litigation”).
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