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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13932
____________________
RANDALL CALLAHAN,
KATRYNA GRISSON,
CANDICE SEAMAN,
MICHAEL WINGATE,
EMORY UNIVERSITY,
d.b.a. Emory University Hospital,
HENRY FORD HEALTH SYSTEM,
INDIANA UNIVERSITY HEALTH,
OREGON HEALTH & SCIENCE UNIVERSITY,
PIEDMONT HEALTHCARE,
THE RECTOR AND VISITORS OF THE UNIVERSITY OF
VIRGINIA,
on behalf of its Medical Center,
THE REGENTS OF THE UNIVERSITY OF MICHIGAN,
on behalf of its academic medical center, Michigan Medicine,
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2 Opinion of the Court 20-13932
SAINT LUKE’S HOSPITAL OF KANSAS CITY,
UNIVERSITY OF IOWA,
UNIVERSITY OF KANSAS HOSPITAL AUTHORITY,
a body politic and corporate and an independent
instrumentality of the State of Kansas,
UNIVERSITY OF KENTUCKY,
VANDERBILT UNIVERSITY MEDICAL CENTER,
VIRGINIA COMMONWEALTH UNIVERSITY HEALTH
SYSTEM AUTHORITY,
THE WASHINGTON UNIVERSITY,
BARNES-JEWISH HOSPITAL, et al.,
Plaintiffs-Appellees,
versus
UNITED NETWORK FOR ORGAN SHARING,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-01783-AT
____________________
Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.
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20-13932 Opinion of the Court 3
GRANT, Circuit Judge:
Judicial records are open to the public, and for good
reason—access to judicial proceedings is crucial to our tradition
and history, as well as to continued public confidence in our system
of justice. This Circuit has been resolute in our enforcement of
that presumption of public access.
The appellants here, preferring to avoid the release of
embarrassing internal communications that were attached to
briefing in the district court, seek to persuade us that we should
weaken our rule. They urge us to evaluate the functional purpose
of the documents at issue rather than their categorical status as
judicial records. Our precedents, however, permit no such shift.
The documents here are plainly judicial records and the appellants
have not shown good cause to keep them sealed. We affirm.
I.
Organ donation saves lives—but whose? To ensure a
uniform national policy answering this question, Congress enacted
the National Organ Transplant Act, which authorizes a partnership
between the federal government and private professionals
involved in organ donation. 42 U.S.C. §§ 273–274g. For the past
thirty-five years, the United Network for Organ Sharing has
overseen that partnership through a contract with the United
States Department of Health and Human Services. In this unique
role, UNOS works with the organ transplant community to
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4 Opinion of the Court 20-13932
generate policies that will equitably allocate organs among
potential recipients.
About three years ago, UNOS developed and approved a
new liver allocation policy that changed the geographic parameters
guiding which patients received donated organs. UNOS says the
policy is intended to provide more liver transplants to the patients
in greatest need, even if they are farther away from donors. Its
opponents say the policy will result in fewer transplants, especially
in socioeconomically disadvantaged areas.
No matter which side has the better of the argument, every
rule change has winners and losers. And the new organ transplant
policy meant a shift in who would receive donated organs—
ultimately, a change in which patients would live and which
patients would die. Hospitals and patients who were on the losing
end of that equation did not accept it quietly. A few months after
the new liver policy was approved, they sued UNOS and HHS,
alleging violations of the Administrative Procedure Act and the
Due Process Clause of the Fifth Amendment. The hospitals also
sought preliminary injunctive relief, which the district court denied
based on its review of one of the APA claims. On interlocutory
appeal, this Court affirmed that denial. Callahan v. U.S. Dep’t of
Health & Hum. Servs., 939 F.3d 1251, 1257, 1266 (11th Cir. 2019).
We then remanded the case for the district court to consider the
remaining claims. Id. at 1266.
The district court ordered limited discovery on remand, but
UNOS repeatedly failed to live up to its production obligations.
Indeed, it took two specific and successive orders from the court
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before UNOS produced requested communications between its
top-level personnel and outside policymakers. These documents
included, among other things, several unguarded emails expressing
personal opinions about the relative merits of living in different
regions of the United States.
After the documents were finally produced, the district
court allowed the hospitals to file a ten-page follow-up brief in
support of their request for a preliminary injunction. The hospitals
argued that the new documents exposed “bad faith and improper
behavior” in UNOS’s policymaking process and should be
considered as proof that the policy change was arbitrary,
capricious, and the result of a denial of due process. Pending its
own review, the court put both the supplemental briefing and
attached documents under provisional seal, restricting them to
“parties and Court users only.”
The district court ultimately excluded the documents from
the administrative record for the APA claim against HHS because
it concluded that even if the documents showed bad faith on the
part of UNOS, they did not do so for HHS. Callahan v. U.S. Dep’t
of Health & Hum. Servs., 434 F. Supp. 3d 1319, 1356 (N.D. Ga.
2020). The court went on to deny the preliminary injunction, but
emphasized that the documents were “still part of [the] Court’s
record” and could potentially inform judicial inquiry into the
remaining issues in the case. Id. at 1356, 1373. The court also noted
that the documents included “colorable evidence of animosity and
even some measure of regional bias”—what it characterized in a
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later order as “inadvisable ‘hot takes,’” “inflammatory remarks,”
and “clear preferences for policy outcomes.” Id. at 1363.
Following the district court’s ruling, the hospitals moved to
unseal the supplemental briefs with the appended documents. The
district court granted the motion, concluding that the documents
were judicial records and that UNOS had not shown good cause to
seal them. UNOS now appeals.
II.
“Whether a document is a ‘judicial record’ subject to the
common law right of access is a question of law we review de
novo.” Comm’r, Alabama Dep’t of Corr. v. Advance Loc. Media,
LLC, 918 F.3d 1161, 1165 (11th Cir. 2019). But we review a district
court’s decision about whether to unseal documents for abuse of
discretion. Id. A district court abuses its discretion when it “applies
an incorrect legal standard,” “follows improper procedures in
making the determination,” “makes findings of fact that are clearly
erroneous,” or “commits a clear error of judgment.” United States
v. Harris, 989 F.3d 908, 911–12 (11th Cir. 2021) (quotation omitted).
III.
We first need to consider whether we have jurisdiction; we
cannot reach the merits of UNOS’s interlocutory appeal if not. Hall
v. Flournoy, 975 F.3d 1269, 1274 (11th Cir. 2020). Circuit courts
generally have appellate jurisdiction to review only “final decisions
of the district courts”—that is, decisions that resolve all litigation
on the merits and leave “nothing for the court to do but execute
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the judgment.” 28 U.S.C. § 1291; Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 373 (1981) (quotation omitted). This
limitation preserves the independence and authority of the district
courts, reduces vexatious litigation, and promotes judicial
efficiency. See Firestone Tire, 449 U.S. at 374.
But the rule is not ironclad. Under the collateral order
doctrine, we may review decisions of issues apart from—“collateral
to”—the merits of a case when effective review would be
impossible after a final decision on the merits. Hall, 975 F.3d at
1274. For the collateral order doctrine to apply, a decision must
“(1) conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the action,
and (3) be effectively unreviewable on appeal from a final
judgment.” Id. (quoting Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). We have
previously held that orders granting motions to seal and orders
denying motions to unseal pass this test and are thus “appealable
as collateral to the underlying action.” Romero v. Drummond Co.,
Inc., 480 F.3d 1234, 1242 (11th Cir. 2007). But the order on appeal
here is different. It is an order granting a motion to unseal, and we
have never ruled on whether that kind of decision is reviewable as
a collateral order.
We hold that it is. Like an order granting a motion to seal
or denying a motion to unseal, an order granting a motion to
unseal conclusively decides a disputed question and resolves an
important issue separate from a lawsuit’s merits. And it becomes
effectively unreviewable if interlocutory appeal is unavailable—
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even more so than an order granting a motion to seal or denying a
motion to unseal. The tools of the information age have only made
more apparent what has always been true—once information is
revealed, it cannot be made secret again. See In re Chiquita Brands
Int’l, Inc., 965 F.3d 1238, 1246 (11th Cir. 2020). Requiring UNOS
to wait for a final judgment to appeal this order would allow the
documents to enter public circulation, effectively rendering this
appeal moot.
We acknowledge that the collateral order doctrine is an
exception that “must never be allowed to swallow the general
rule.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)
(quotation omitted). But like several of our sister circuits, we
recognize that due to the irreversible nature of public access to
sensitive documents, that exception is warranted for orders to
unseal. See, e.g., Vantage Health Plan, Inc. v. Willis-Knighton
Med. Ctr., 913 F.3d 443, 448–50 (5th Cir. 2019); United States v.
HSBC Bank USA, N.A., 863 F.3d 125, 133–34 (2d Cir. 2017). But
see United States v. Guerrero, 693 F.3d 990, 995–99 (9th Cir. 2012)
(holding that orders resolving motions to seal pretrial competency
proceedings are not immediately appealable). We thus have
jurisdiction to consider this appeal.
IV.
We now turn to the merits. UNOS argues that the district
court twice erred: first when it concluded that the controversial
documents are judicial records because they are attached to the
hospitals’ supplemental briefing, and second when it ordered the
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documents unsealed in spite of UNOS’s contention that the
hospitals acted in bad faith. We are unpersuaded. The first
argument flies in the face of our precedents, and the second
contests a reasonable exercise of the district court’s discretion.
A.
The common-law right of access to judicial proceedings is
“an essential component of our system of justice” and
“instrumental in securing the integrity of the process.” Chi. Trib.
Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir.
2001). We are mindful that “the means used to achieve justice
must have the support derived from public acceptance of both the
process and its results.” Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 571 (1980). But while the right of access is
indispensable, it is also limited. The right attaches only to “items
which may properly be considered public or judicial records”—not
to any and all materials produced during discovery—and it can be
outweighed by competing interests. Chi. Trib. Co., 263 F.3d at
1311.
Though the distinction between judicial records and
discovery materials may seem ambiguous in concept, our
precedent dispels any mysteries about where that line falls. This
Circuit has held that “material filed with discovery motions is not
subject to the common-law right of access, whereas discovery
material filed in connection with pretrial motions that require
judicial resolution of the merits is subject to the common-law
right.” Id. at 1312. In other words, though discovery materials do
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not automatically qualify as judicial records subject to the
common-law right of access, they take on that status once they are
filed in connection with a substantive motion.
We have faithfully adhered to this rule—without exception.
For instance, in Romero v. Drummond Co., Inc., we reiterated that
material “filed in connection with any substantive pretrial motion,
unrelated to discovery, is subject to the common law right of
access.” 480 F.3d at 1245. We also clarified that a substantive
pretrial motion need not be dispositive for the rule to apply; any
motion “presented to the court to invoke its powers or affect its
decisions” is subject to the public right of access. Id. at 1246
(quotation omitted). And in Federal Trade Commission v. AbbVie
Products LLC, we held that a complaint and its attachments were
judicial records, emphasizing that we “determine whether a
document is a judicial record depending on the type of filing it
accompanied.” 713 F.3d 54, 64 (11th Cir. 2013).
So too in Commissioner, Alabama Department of
Corrections v. Advance Local Media, LLC. There, we held that
even documents not formally filed with the court could be
considered judicial records if they were “integral to the judicial
resolution of the merits in any action taken by that court.” 918 F.3d
at 1167 (quotations omitted). And we still cited the Chicago
Tribune test as the proper standard for those documents that had
been filed. Id. at 1166–67. Indeed, we emphasized that our
“narrow” holding “comport[ed] with our own precedent,”
applying only to the “unique set of circumstances” in which an
unfiled document could properly be considered a judicial record.
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Id. at 1168. Advance Local Media shows that while filing a
document with a pretrial motion is sufficient to make it a judicial
record, that rule establishes a floor rather than a ceiling.
Remarkably, UNOS argues that the Chicago Tribune test no
longer applies because of our holding in Advance Local Media. It
contends that our focus there on the role a given document played
in the district court’s decisionmaking nudges us inexorably toward
a “functional approach,” and away from the categorical approach
we’ve applied so far. According to UNOS, the law in this circuit is
now that the status of a document as a judicial record “depends on
the document’s relationship to the court’s decision on a disputed
issue.” 1
That argument distorts our case law beyond recognition.
We have consistently rejected any test that would make a
document’s status as a judicial record dependent upon “whether it
played a discernible role in the resolution of the case” or that would
1 A “cleaned up” parenthetical has limited utility at most.And whatever utility
that innovation may have will vanish entirely if it is used to obscure relevant
information. Here, UNOS quoted Advance Local Media as saying that
“[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public
interest is not furthered by documents that are ‘irrelevant to the underlying
issues,’ like ‘the overwhelming majority of documents disclosed during
discovery.’” But the text UNOS “cleaned up” comes from an explanatory “cf.”
parenthetical summarizing AbbVie Products and therefore does not constitute
a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at
1168. Even more troubling, UNOS omitted the end of the sentence it quoted,
which reiterated that “public access is presumed for materials that invoke
judicial resolution of the merits.” Id. (quotations omitted).
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require us to determine “the actual role the document played.”
AbbVie Prods., 713 F.3d at 64. And Advance Local Media did not
cut back on the common-law right of access for documents that
qualify under the Chicago Tribune test; consistent with our
“tradition favoring access,” it expanded the definition of judicial
records to include a narrow class of documents not formally filed
with the court. Id. at 1168 (quoting Chi. Trib. Co., 263 F.3d at
1312). The case entrenches rather than erodes our commitment to
the principle that public access is presumed for documents “filed
with pretrial motions that require judicial resolution of the merits
of an action.” Id. at 1167 (quotation omitted). What matters is
how the document was used by the parties—to support an
argument before the court—and not whether the court itself used
the document to resolve that argument.
We decline UNOS’s invitation to part ways with these
precedents. Under the standard we have consistently applied, the
outcome here is clear: as the district court correctly concluded, the
documents at issue “were used in connection with merits briefing
such that the public right of access attaches.” They were attached
to the hospitals’ supplemental brief in support of a preliminary
injunction—a pretrial motion separate from discovery. The
materials thus qualify as judicial records, and they are subject to the
common-law right of access.
B.
Still, determining that a document is a judicial record is not
the end of the inquiry. It is true—such records are presumptively
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available to the public under the common law so that the judicial
process can remain accessible and accountable to the citizens it
serves. But even when the right of public access attaches, it is “not
absolute.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
(1978). Courts must evaluate whether good cause exists to prevent
such access, balancing “the asserted right of access against the other
party’s interest in keeping the information confidential.” Romero,
480 F.3d at 1246 (quotation omitted).
Though we have not articulated a set list of factors, a court
weighing these competing interests will consider a number of
important questions, including “whether allowing access would
impair court functions or harm legitimate privacy interests, the
degree of and likelihood of injury if made public, the reliability of
the information, whether there will be an opportunity to respond
to the information, whether the information concerns public
officials or public concerns, and the availability of a less onerous
alternative to sealing the documents.” Id. Concerns about trade
secrets or other proprietary information, for example, can
overcome the public interest in access to judicial documents. Id.
Indeed, a court should consider “whether the records are sought
for such illegitimate purposes as to promote public scandal or gain
unfair commercial advantage.” Advance Loc. Media, 918 F.3d at
1169 (quotation omitted). Because district courts are “in a superior
position to decide whether to enter or modify protective orders,”
the decision whether to unseal documents is one best left to their
“sound discretion.” AbbVie Prods., 713 F.3d at 61.
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UNOS argues that it has successfully shown good cause to
keep the documents sealed. 2 It says that the district court abused
its discretion by failing to correctly weigh the relevant factors. But
simply assigning UNOS’s favored factors less weight in the final
balance is not an abuse of discretion. UNOS offered no particularly
compelling reasons to keep the documents sealed in the first place.
They involve policymaking on a topic of genuine public concern,
and do not contain proprietary information or trade secrets that
require protection. Nor is there any suggestion that the emails are
fraudulent; UNOS itself produced the communications. To be
sure, UNOS’s eagerness to keep the documents secret is
understandable; we are certain that these are not the first litigants
to wish they had been more circumspect in their emails. But
UNOS’s reasoning boils down to a desire to keep indiscreet
communications out of the public eye, which is not enough to
satisfy our standard for good cause.
In any event, the district court explicitly considered—and
rejected—UNOS’s arguments against unsealing. The court first
2 A party seeking to seal documents must generally first show good cause. See
Fed. R. Civ. P. 26(c)(1). After this initial showing, the party seeking unsealing
bears the burden of showing that good cause no longer exists. AbbVie Prods.,
713 F.3d at 66. Here, the district court ordered that the documents initially be
“restricted to parties and Court users only, pending its review.” Because the
district court did not require an initial showing of good cause before sealing
the documents, both parties now assume that UNOS bears the burden of
showing good cause to keep them under seal. We also assume that UNOS
bears the burden of showing good cause under these circumstances.
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considered the potential irrelevance of the documents. That
included the contention that the hospitals had not truly relied on
the documents in their briefing and the district court’s ultimate
decision to exclude the documents from the administrative record
(though not from the complete record of the case). Noting that the
hospitals had to “be selective” in the sources they could quote in
their short supplemental brief, the court concluded that the
hospitals had indeed relied on the documents and that they could
not be excluded for irrelevance. It next rejected as insufficient the
argument that unsealing the documents might have an adverse
effect on policymaking, explaining that UNOS’s “generalized
notion” that unsealing the documents would chill deliberations
“cannot overcome the presumptive public interest nature of these
documents.” Finally, the court considered the possibility that the
hospitals had sought the documents from UNOS in a bad-faith
attempt to publicize sensational communications. It found no
evidence of bad faith, but noted that even if the hospitals had acted
out of spite, “sealing materials subject to the common law right of
access is generally not a proper sanction for misconduct.”
UNOS argues that the district court ignored one crucial
factor in its analysis: the possibility that even if the hospitals had
initially sought the documents in good faith, that good faith had
dissipated once they seized the opportunity to embarrass their
opponents by unsealing the communications. The hospitals’ “true
purpose in moving to unseal,” UNOS says, was “to publicize
private emails they should never have received” in “a misuse of the
discovery process.” But this argument is really just a retread of the
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bad-faith argument that the district court already rejected. Though
UNOS raises new doubts about the hospitals’ motives in its brief,
including that they hope to exploit the documents in other
litigation, those doubts are not concrete enough to justify
overturning the reasoned judgment of the district court.
UNOS also warns that affirming the district court’s order to
unseal will allow “the court to be used as a vehicle for publicizing
confidential materials,” opening the floodgates to plaintiffs seeking
to use filings as “Trojan horses for irrelevant material.”
Fortunately, our precedents already protect litigants against such
schemes: “insofar as this potential for abuse does exist in other
cases, there are already sufficient remedies to address it.” AbbVie
Prods., 713 F.3d at 64. If confidential or sensitive documents are
improperly attached to filings, an aggrieved party may move to
strike “any redundant, immaterial, impertinent, or scandalous
matter” from the record. Fed. R. Civ. P. 12(f). For cases involving
clear abuse of the judicial system, “professional sanctions may be
available, along with monetary sanctions” under Federal Rule of
Civil Procedure 11, or parties may bring an “action for wrongful
civil proceedings.” AbbVie Prods., 713 F.3d at 64 (quotation and
brackets omitted).
We are unpersuaded by UNOS’s argument that these
remedies do not go far enough—particularly because UNOS did
not even seek to obtain them. UNOS explained during oral
argument that it considered a motion to strike “futile,” and decided
not to file one because of the pressures of the hectic holiday season.
But just because UNOS failed to pursue the remedy does not make
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it deficient. Sealing documents is no more effective than striking
them; motions to strike offer ample protection against the abusive
litigation tactics that UNOS decries.
We see no abuse of discretion in the district court’s analysis.
To the contrary, we share the district court’s reluctance to endorse
document sealing as punishment for bad behavior. We have
already rejected the reasoning that allowing the public to access
documents will “vindicate improper motives” on the part of
litigants. Romero, 480 F.3d at 1247. The interests served by
judicial openness extend far beyond the bounds of any particular
case. As we have long recognized, when “a matter is brought
before a court for resolution, it is no longer solely the parties’ case,
but also the public’s case.” Brown v. Advantage Eng’g, Inc., 960
F.2d 1013, 1016 (11th Cir. 1992). So too here. The district court
did not err.
* * *
The documents under seal in this case are judicial records
subject to a presumption of public access, and the district court did
not abuse its discretion in ordering them unsealed. We therefore
AFFIRM the district court’s order.