Shandell Bradley v. Louis Ackal

Case: 18-31052 Document: 00515355433 Page: 1 Date Filed: 03/23/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 23, 2020

No. 18-31052

Lyle W. Cayce

Clerk

SHANDELL MARIE BRADLEY, Tutrix on behalf of her minor child AJW,

Plaintiff - Appellee

v.

LOUIS M. ACKAL, Individually and in his official capacity; JUSTIN ORTIS,

Individually and in his official capacity; XYZ DEPUTIES, Individually and in

their official capacity; XYZ INSURANCE COMPANY, on behalf of Sheriff’s

Office Iberia Parish,

Defendants - Appellees

v.

CAPITAL CITY PRESS, L.L.C., doing business as The Advocate; KATC

COMMUNICATIONS, L.L.C.,

Movants - Appellants

Appeal from the United States District Court

for the Western District of Louisiana

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Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Appellants Capital City Press, L.L.C., doing business as The Advocate,

and KATC Communications, L.L.C. appeal from the district court’s order

denying vacatur of sealing orders. We REVERSE and VACATE the sealing

orders in their entirety.

I. BACKGROUND

Iberia Parish, Louisiana, sheriff’s deputies arrested and handcuffed

Victor White III, then placed him in the back seat of a patrol car. White was

then driven to the Iberia Parish Sheriff’s Patrol Center parking lot where he

died from a single gunshot to the right side of his chest. White was still in

custody, handcuffed, and in the patrol car when he was shot. The coroner’s

report associated with White’s death states that White committed suicide. A

Louisiana Department of Public Safety and Corrections shooting report states

that White produced the gun he allegedly shot himself with while he was in

the patrol car. However, prior to his being handcuffed, White was patted down.

Nonetheless, the report stated that the sheriff’s deputy who conducted the pat

down “just overlooked finding [the gun] during the pat-down searches.”

Following White’s death, Appellee Shandell Marie Bradley filed this

lawsuit on behalf of her and White’s minor child, AJW 1—bringing claims under

federal and state law for alleged violations of White’s and AJW’s rights 2—

against Defendants Iberia Parish Sherriff Louis M. Ackal and Deputy Sherriff

1 Although Bradley amended her original complaint to include White’s parents—

Victor White, Sr. and Vanessa White—as plaintiffs, White’s parents were subsequently

dismissed from the action.

2 Specifically, Bradley brought 42 U.S.C. § 1983 claims, alleging that Defendants

subjected White to excessive force and acted with deliberate indifference to his medical needs

in violation of the Fourth, Eighth, and Fourteenth Amendments, and that Defendants

deprived AJW of the right to familial relations. Additionally, Bradley asserted wrongful

death, survival, negligence, and assault and battery claims under Louisiana state law.

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Justin Ortis in their official and individual capacities. Notably, Bradley

contended that White “was killed at the hands of Iberia Parish Sheriff’s

Deputies” and did not commit suicide.

The case was initially assigned to U.S. District Court Judge Rebecca F.

Doherty. With the parties’ consent, Judge Doherty referred the case to

Magistrate Judge Patrick J. Hanna “to conduct all further proceedings and the

entry of judgment.” Subsequently, Defendants moved for summary judgment.

The district court granted, in part, and denied, in part, the motion. 3

Prior to the trial date, Magistrate Judge Carol B. Whitehurst conducted

a settlement conference at which the parties settled the case. After the

settlement conference, the parties stated, on the record, the terms of the

settlement, including the settlement amount. During this post-conference

meeting, Magistrate Judge Whitehurst ascertained Bradley’s competence and

the parties further agreed that they would keep the settlement terms

confidential. Magistrate Judge Whitehurst then issued a confidentiality order

from the bench, preventing White’s parents—non-parties who were present at

the post-conference meeting—from sharing the terms of the settlement

agreement. 4 At the request of Bradley’s counsel, Magistrate Judge Whitehurst

also sealed the recording of the post-conference meeting, and later entered

sealed minutes regarding the settlement conference and post-conference

meeting. The parties did not file a written settlement agreement with the

court. Following the post-conference meeting, Magistrate Judge Hanna

dismissed the case.

The district court granted the motion only as to Bradley’s Eighth Amendment claim.

3

The motion was otherwise denied.

4 Magistrate Judge Whitehurst specified that the confidentiality order applies to

White’s parents and did not state that the order applies to anyone else.

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Appellants moved to intervene. Magistrate Judge Hanna granted the

motion following a hearing. Appellants then moved to vacate the district

court’s orders “sealing the record and minutes” of the post-conference meeting

under the Louisiana Public Records Law, La. Rev. Stat. Ann. § 44:1, et seq.,

and First Amendment and common law rights-of-access doctrine. Appellants

sought to vacate the sealing orders so that they could obtain the settlement

amount through a public records request.

It is undisputed that Appellants were unable to obtain the settlement

amount through a previously-filed public records request. Specifically, a

reporter for The Advocate sought “an accounting record of the check issued in

full and final settlement of this matter” from the Louisiana Sheriffs’ Law

Enforcement Program, which Appellants posit is the official public records

custodian of the check. In response, the reporter received a copy of (1) a

“Receipt and Release,” which noted that the settlement terms were contained

within the sealed record of the district court, and (2) the settlement check that

was issued to Bradley’s counsel with the amount redacted. Appellants

represented that counsel for the Louisiana Sheriffs’ Law Enforcement Program

“suggested that the amount was required to be redacted due to [the district

court’s orders] sealing the record and minutes” of the post-settlement

conference meeting.

Bradley opposed Appellants’ motion for vacatur. No other party opposed

the motion. Magistrate Judge Hanna denied the motion.

II. JURISDICTION

Despite Bradley’s arguments to the contrary, we have jurisdiction over

this appeal under 28 U.S.C. § 1291, which provides, “The courts of appeals . . .

shall have jurisdiction of appeals from all final decisions of the district courts

of the United States[.]” Under the collateral order doctrine, “certain decisions

of the district court are final in effect although they do not dispose of the

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litigation.” Davis v. East Baton Rouge Par. Sch. Bd., 78 F.3d 920, 925 (5th Cir.

1996). Appealable collateral orders include “those district court decisions that

are conclusive, that resolve important questions completely separate from the

merits, and that would render such important questions effectively

unreviewable on appeal from final judgment in the underlying action.” Id.

(quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)).

An appealable collateral order must resolve a question that is not only

“important or serious,” but also “unsettled.” Chaves v. M/V Medina Star, 47

F.3d 153, 155 (5th Cir. 1995). A decision that an order is “effectively

unreviewable” on appeal must be made “on a categorical basis, looking only at

whether the class of claims, taken as a whole, can be vindicated by other means

than immediate appeal.” Vantage Health Plan, Inc. v. Willis-Knighton Med.

Ctr., 913 F.3d 443, 449 (5th Cir. 2019) (citation and internal quotation marks

omitted). “Sealing and unsealing orders . . . are reviewable . . . under the

collateral order doctrine.” Id. at 448 (“Equally pertinent to this case, non-

litigant parties lack appellate remedies available to the contenders in

litigation.”); see also Davis, 78 F.3d at 926 (holding, in the First Amendment

context, that “members of the news media, although not parties to litigation,

can appeal court closure orders or confidentiality orders under the collateral

order doctrine.”); In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir.

2011) (same).

Here, the decision denying vacatur of the sealing orders is appealable

under the collateral order doctrine. First, the decision is conclusive. Second,

the decision addresses important and unsettled questions of law concerning

the Louisiana Public Records Law and Appellants’ First Amendment and

common law rights to access settlement agreement information contained in a

sealed court recording and sealed minutes, particularly where a minor’s

privacy interests are involved. And the subject of the decision is completely

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separable from the merits of the litigation. Third, the decision would be

effectively unreviewable on appeal from final judgment. The decision resolves

Appellants’ motion to vacate sealing orders and Appellants are members of the

news media. For these reasons, the court has jurisdiction over this appeal

under the collateral order doctrine.

Bradley nonetheless argues that the court lacks jurisdiction over this

appeal because Magistrate Judge Hanna could only make recommendations to

a district court judge. Bradley argues that, to establish jurisdiction, Appellants

should have filed objections to Magistrate Judge Hanna’s order pursuant to

Federal Rule of Civil Procedure 72 so that the presiding district court judge

could rule on them. These arguments are unavailing.

Upon the parties’ consent, Judge Doherty referred the case to Magistrate

Judge Hanna “to conduct all further proceedings and the entry of judgment.”

The Federal Magistrate Act of 1979 provides that, “[u]pon the consent of the

parties, a full-time United States magistrate judge or a part-time United

States magistrate judge . . . may conduct any or all proceedings in a jury or

nonjury civil matter and order the entry of judgment in the case, when

specially designated to exercise such jurisdiction by the district court or courts

he serves.” 28 U.S.C. § 636(c)(1). “Unlike nonconsensual referrals of pretrial

but case-dispositive matters under § 636(b)(1), which leave the district court

free to do as it sees fit with the magistrate judge’s recommendations, a §

636(c)(1) referral gives the magistrate judge full authority over dispositive

motions, conduct of trial, and entry of final judgment, all without district court

review.” Roell v. Withrow, 538 U.S. 580, 585 (2003). “A judgment entered by

‘a magistrate judge designated to exercise civil jurisdiction under [§ 636(c)(1)]’

is to be treated as a final judgment of the district court, appealable ‘in the same

manner as an appeal from any other judgment of a district court.’” Id. (quoting

§ 636(c)(3)). In short, Magistrate Judge Hanna’s order denying vacatur should

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be treated the same as a district court judge’s order for the purposes of

appealability.

To the extent that Bradley further argues that Magistrate Judge Hanna

did not have the authority to vacate Magistrate Judge Whitehurst’s sealing

orders, this argument is also unavailing. See FED. R. CIV. P. 60(b) (“[T]he court

may relieve a party or its legal representative from a final judgment, order, or

proceeding . . . .”); Deloach v. Delchamps, Inc., 897 F.2d 815, 826 (5th Cir. 1990)

(“A court is free to vacate an interlocutory order on its own motion.”); see also

Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 291 (5th Cir. 2016) (“It is

well established that a federal court may consider collateral issues after an

action is no longer pending[.]”) (citation and internal quotation marks omitted);

Gambale v. Deutsche Bank AG, 377 F.3d 133, 141–42 (2d Cir. 2004) (“A district

court that concludes that there is a public right of access to judicial documents

. . . acts within its jurisdiction when it modifies or vacates a protective order to

allow that access, irrespective of whether it does so before or after a stipulation

of dismissal has been filed.”) (collecting cases).

For the foregoing reasons, we have jurisdiction over this appeal.

III. STANDARD OF REVIEW

We review a district court’s denial of a motion to vacate a confidentiality

or sealing order for abuse of discretion. See Vantage Heath Plan, Inc., 913 F.3d

at 450; Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); S.E.C. v.

Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). “A district court abuses

its discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on

erroneous conclusions of law; or (3) misapplies the law to the facts.” Allen v.

C&H Distribs., L.L.C., 813 F.3d 566, 572 (5th Cir. 2015) (quoting McClure v.

Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003)).

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IV. ANALYSIS

Appellants argue that the district court erred in failing to properly

consider Appellants’ rights of access to the sealed recording and minutes under

common law, the Louisiana Public Records Law, and the First Amendment.

Because we conclude that the district court abused its discretion in its

consideration of Appellants’ common law right of access, we do not address

Appellants’ additional arguments.

The public “has a common law right to inspect and copy judicial records.”

Van Waeyenberghe, 990 F.2d at 848. This right “promotes the trustworthiness

of the judicial process, curbs judicial abuses, and provides the public with a

better understanding of the judicial process, including its fairness[, and] serves

as a check on the integrity of the system.” United States v. Sealed Search

Warrants, 868 F.3d 385, 395 (5th Cir. 2017) (citation, internal quotation

marks, and brackets omitted); see also United States v. Amodeo, 71 F.3d 1044,

1048 (2d Cir. 1995) (“[T]he bright light cast upon the judicial process by public

observation diminishes the possibilities for injustice, incompetence, perjury,

and fraud. Furthermore, the very openness of the process should provide the

public with a more complete understanding of the judicial system and a better

perception of its fairness.”) (quoting Leucadia, Inc. v. Applied Extrusion Techs.,

Inc., 998 F.2d 157, 161 (3d Cir. 1993)). The public’s common law right of access

is not absolute, however, and the “common law merely establishes a

presumption of public access to judicial records.” Van Waeyenberghe, 990 F.2d

at 848. This circuit has not assigned a particular weight to the presumption.

Id. at 848 n.4. Nor has this court interpreted the presumption in favor of access

as creating a burden of proof. See Vantage Health Plan, Inc., 913 F.3d at 450

(stating that the parties “dispute whether this presumption . . . equates to a

burden of proof, and if so, who bears the burden” and refusing to hold that the

presumption creates a burden of proof). In any case, “[t]he district court’s

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discretion to seal the record of judicial proceedings is to be exercised charily.”

Fed. Savings & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987); cf.

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“Every court has

supervisory power over its own records and files, and access has been denied

where court files might have become a vehicle for improper purposes.”).

“In exercising its discretion to seal judicial records, the court must

balance the public’s common law right of access against the interests favoring

nondisclosure.” Van Waeyenberghe, 990 F.2d at 848. But, “‘[t]he presumption

however gauged in favor of public access to judicial records[]’ [is] one of the

interests to be weighed on the [public’s] ‘side of the scales.’” Belo Broad. Corp.

v. Clark, 654 F.2d 423, 434 (5th Cir. Unit A Aug. 1981) (quoting Nixon, 435

U.S. at 602); see also Van Waeyenberghe, 990 F.2d at 848 n.4 (same). 5 The

“relevant facts and circumstances of the particular case” inform the factors

that a court weighs on both sides. Belo Broadcasting Corp., 654 F.2d at 430

(quoting Nixon, 435 U.S. at 599).

Not every document, however, is a judicial record subject to the common

law right of access. Two records are the subject of this appeal: (1) the sealed

court recording of the post-conference meeting and (2) the sealed minutes

5 In Sealed Search Warrants, this court stated that it “has not assigned a weight to

the presumption in favor of access, unlike some other circuits which have characterized it as

‘strong’ or others which reduce it to ‘one of the interests to be weighed.’” 868 F.3d at 393–94.

Notwithstanding this statement, this court follows its decision in Belo Broadcasting Corp.,

which held that the presumption in favor of public access to judicial records is “one of the

interests to be weighed on the [public’s] ‘side of the scales.’” 654 F.2d at 434 (quoting Nixon,

435 U.S. at 602); see Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000)

(“[U]nder the rule of orderliness, to the extent that a more recent case contradicts an older

case, the newer language has no effect.”). Moreover, that the presumption in favor of public

access is one of possibly multiple factors is not at odds with this court not assigning a weight

to the presumption. See Belo Broad. Corp., 654 F.2d at 434 (“‘[T]he presumption however

gauged in favor of public access . . .’ [is] one of the interests . . . .”) (quoting Nixon, 435 U.S.

at 602) (emphasis added).

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regarding the settlement conference and post-conference meeting. We address

each in turn.

First, the sealed court recording containing the settlement amount is a

judicial record. “Once a settlement is filed in district court, it becomes a

judicial record. The presumption in favor of the public’s common law right of

access to court records therefore applies to settlement agreements that are

filed and submitted to the district court for approval.” Van Waeyenberghe, 990

F.2d at 849 (citation omitted) 6; cf. Gambale, 377 F.3d at 143 (collecting cases

and concluding that “[t]here is no established presumption of access” to

information contained in settlement documents that were “entered into on a

confidential basis between the parties and are not themselves a part of the

court record”). Here, no written settlement agreement was filed with the

district court and Bradley represents that there “was no written settlement

agreement” at all. Nonetheless, the parties read the settlement terms,

including the settlement amount, into the district court’s record at the post-

conference meeting. While Bradley suggests that Magistrate Judge

Whitehurst simply allowed the parties to memorialize the terms of the

6 There are two possible interpretations of the quoted language from Van

Waeyenberghe. First, that a settlement agreement becomes a judicial record if two conditions

are met: (1) it is filed in district court, and (2) the district court must take some additional

action related to the settlement agreement, such as approving the settlement agreement.

Second, that a settlement agreement becomes a judicial record if it is filed in district court.

In other words, under the second interpretation, the district court need not take some

additional action related to the settlement agreement for it to become a judicial record so long

as the settlement agreement is filed with the court. We do not and need not choose between

these interpretations in this appeal because the settlement agreement at issue satisfies the

criteria under both interpretations. Cf. Enprotech Corp. v. Renda, 983 F.2d 17, 20–21 (3d

Cir. 1993) (concluding that a settlement agreement that had not been “filed with the district

court, and [had] never been interpreted or ordered enforced by the district court” was not a

judicial record and further concluding that a settlement agreement “will not become part of

the public record unless and until the district court may order the parties to comply with its

terms”); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994) (same).

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settlement on the record, Magistrate Judge Whitehurst did more. 7 As

explained, it appears that the parties effectively filed and submitted their

settlement agreement for approval at the district court.

Listed in chronological order, at the post-conference meeting, Magistrate

Judge Whitehurst (1) had Bradley sworn in to testify as to her background and

competence; (2) asked the parties to put the terms of the settlement on the

record; (3) asked Bradley’s counsel if they agreed to the terms of the settlement,

after counsel for Defendants stated the terms; (4) entered a confidentiality

order preventing White’s parents—non-parties—from disclosing the terms of

the settlement agreement sua sponte; (5) asked Bradley if she agreed with the

terms of the settlement; and (6) sealed the recording of the meeting after

Bradley’s counsel requested that Magistrate Judge Whitehurst do so.

The parties did not simply submit to the district court that they settled

the case. The recorded transactions between the parties and the district court

are unlike a stipulation of dismissal that is filed after an agreement is reached

between parties and which does not require court approval. FED. R. CIV. P.

41(a)(1)(A) (providing for voluntary dismissal without a court order); Bechuck,

814 F.3d at 291 (“The notice of dismissal is self-effectuating and terminates

the case in and of itself; no order or other action of the district court is

required.”) (citation and internal quotation marks omitted). Instead, the

district court effectively approved the settlement agreement by confirming that

7 The decision denying vacatur states, without citing to the record, that “the

settlement terms were placed on the record as a means of quickly memorializing them

without having to confect a written document at the conclusion of the settlement conference.”

However, the decision appears to contradict itself, stating that the district court was “[n]ot .

. . privy to the details of the proceeding [before Magistrate Judge Whitehurst] as it was

ongoing” and that, “since the parties requested that the record be sealed, it may be that Judge

Whitehurst’s order was nothing more than recognition of an agreement between the parties.

If so, then there may be no basis on which this Court is authorized to step in and alter the

parties’ agreement.” (Emphasis added.)

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Bradley was of sound mind, asking the parties to state the terms of the

settlement, ensuring that each party agreed to the terms, and entering—

unprompted—a confidentiality order. The court recording of the settlement

terms is, thus, a judicial record subject to the common law right of access. 8 See

Van Waeyenberghe, 990 F.2d at 849.

Second, the sealed minutes are also a judicial record. While this court

has not generally defined “judicial record” or yet interpreted minutes as a

judicial record, it would defy commonsense if the minutes in this case did not

qualify as a judicial record. See In re United States for an Order Pursuant to

18 U.S.C. Section 2703(D), 707 F.3d at 290 (“Although we have never explicitly

defined ‘judicial records,’ it is commonsensical that judicially authored or

8 Even if the settlement terms were not submitted for the district court’s approval at

the post-conference meeting, the recording may remain a judicial record. See supra n.6; see

also Gambale, 377 F.3d at 143 (“Of course, the statements at the conference, including the

settlement amount, having been reduced to transcript form and filed, were part of a judicial

record to which some presumption of openness, however gauged, may have therefore

attached,” although the settlement documents were “entered into on a confidential basis

between the parties” and were “not themselves part of the court record”); cf. City of Greenville,

Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014) (“Once filed with the

court, . . . documents that affect the disposition of federal litigation are presumptively open

to public view . . . unless a statute, rule, or privilege justifies confidentiality.”) (citation,

internal quotation marks, and brackets omitted); In re United States for an Order Pursuant

to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013) (“Although we have never

explicitly defined ‘judicial records,’ it is commonsensical that judicially authored or created

documents are judicial records.”); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119

(2d Cir. 2006) (“In order to be designated a judicial document, the item must be relevant to

the judicial function and useful in the judicial process.”) (citation and internal quotation

marks omitted); In re Boston Herald, Inc., 321 F.3d 174, 189 (1st Cir. 2003) (“In cases

considering the common law right, this court has often used a definition of ‘judicial record’

which refers to materials on which a court relies in determining the litigants substantive

rights. . . . [W]e have applied this definition to documents on which a court relied in approving

a consent decree because that approval settled a civil enforcement action.”) (citation and

internal quotation marks omitted); In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)

(“The status of a document as a ‘judicial record’ . . . depends on whether a document has been

filed with the court, or otherwise somehow incorporated or integrated into a district court’s

adjudicatory proceedings. While filing clearly establishes such status, a document may still

be construed as a judicial record, absent filing, if a court interprets or enforces the terms of

that document, or requires that it be submitted to the court under seal.”) (citation omitted).

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created documents are judicial records.”). Notably, while Bradley objected to

Appellants’ motion for vacatur because it would unseal the settlement terms,

the minutes do not contain the terms, including the settlement amount.

We now turn to the factors the district court considered in balancing

Appellants’ common law right of access to the sealed recording and minutes.

The district court weighed, on the one hand, “the child’s privacy interest in

being protected from financial predators or others who would harass the child

simply because they know the amount received when the suit was settled, the

protection of the judicial process in permitting orders to be sealed, and the

chilling effect that the public’s knowledge of the settlement might have on

settlement negotiations and jury deliberations in upcoming similar cases[.]”

On the other hand, the district court weighed “the media’s interest in releasing

a sensational story regarding the amount of money paid to resolve the lawsuit

without knowing anything about how the decisions were ultimately reached in

the parties’ settlement negotiations.” The district court appeared to place the

most weight on the child’s privacy interest, finding that “the minor child’s

privacy interest outweighs the public’s right to know the amount paid to settle

the case.”

While the district court did not balance this possible factor, the district

court also considered that “keeping the settlement terms confidential [might

have been] a factor in the parties’ decision to settle.” The district court did not

give this potentiality any weight because the record does not state whether

keeping the settlement terms confidential was such a factor. Nor do we.

Although the parties agreed to keep the settlement terms confidential at the

post-conference meeting, it is unclear whether this agreement was a factor in

the parties’ decision to settle. Cf. Seals v. Herzing Inc.–New Orleans, 482 Fed.

App’x 893, 896 (5th Cir. 2012) (unpublished) (“In light of the parties’ agreement

to maintain confidentiality, the express statement that the confidentiality was

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a material inducement for [a party] to settle, the fact that public policy favors

voluntary settlements, and the limitation of the district court’s order to . . .

three exhibits [(i.e., two confidential consent awards and an arbitration

transcript)], we conclude that the district court did not abuse its discretion in

ordering these exhibits sealed.”) (citation and internal quotation marks

omitted); LEAP Sys., Inc. v. MoneyTrax, Inc., 638 F.3d 216, 222 (3d Cir. 2011)

(holding that a district court “[cannot] rely on the general interest in

encouraging settlement to justify the sealing of an agreement which the parties

mistakenly believed would remain confidential”) (citation and internal

quotation marks omitted).

At the district court, Bradley did not argue in her opposition to the

motion to vacate that keeping the settlement terms confidential was a factor

in the parties’ decision to settle, that such a factor should affect the outcome of

the motion, or that the district court assured the parties of confidentiality at

the post-conference meeting. 9 In re Novack, 639 F.2d 1274, 1276–77 (5th Cir.

Unit B Mar. 1981) (“As a general rule, appellate courts refuse to consider an

issue raised for the first time on appeal.”). Nor does Bradley argue the same

on appeal. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)

(“It has long been the rule in this circuit that any issues not briefed on appeal

are waived.”). Instead, on appeal, Bradley argues that “it appears that all

9 This last possible argument would be at odds with the order of events at the post-

conference meeting: Bradley requested that the district court seal the recording of the post-

conference meeting at the end of the meeting, after the parties already disclosed the

settlement terms and agreed to them. Cf. LEAP Sys., Inc., 638 F.3d at 222 (“[W]e find LEAP’s

reliance on the District Court’s assurances of confidentiality reasonable and sufficient to

outweigh the public’s common law right of access” where “LEAP would not have entered into

the settlement agreements but for the Court’s assurance of confidentiality.”) (emphasis in

original); Gambale, 377 F.3d at 143–44 & n.8 (holding that the details of a confidential

settlement agreement disclosed during “a relatively informal conference relating to

settlement,” on the basis of the court’s “assurances of confidentiality,” warranted only a

“weak” presumption of public access).

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Judge Whitehurst did was memorialize a mutual confidentiality agreement”

(emphasis added), and that Appellants do not “show whether Judge

Whitehurst made any ruling at all.” 10 But it is undisputed that Magistrate

Judge Whitehurst sealed the court recording containing the settlement

amount and the minutes regarding the settlement conference and post-

conference meeting.

We now address each factor the district court balanced and, additionally,

consider the following factors in favor of disclosure: (1) that the settlement

agreement involves public officials and matters of legitimate public concern

and (2) the presumption of the public’s right of access.

First, the district court weighed in favor of non-disclosure “the child’s

privacy interest in being protected from financial predators or others who

would harass the child simply because they know the amount received when

the suit was settled.” However, it is public information that a settlement was

reached in this case and that Bradley, AJW’s mother and sole living parent, is

in control of AJW’s property. Pursuant to Louisiana law, “Each parent has the

right and the obligation to administer the property of the child. The parent

must do so as a prudent administrator and is answerable for any damage

caused by his fraud, fault, default, or neglect.” LA. CIV. CODE ANN. ART. 229.

There is no evidence AJW would face financial predation where Bradley is the

property’s steward.

Further, Bradley does not show or argue that Bradley or AJW has

experienced any financial predation or financially-motivated harassment since

the settlement was reached approximately two years ago. The district court

10 As stated supra, this court has not interpreted the common law right of access as

requiring a party to carry a burden of proof. See Vantage Health Plan, Inc., 913 F.3d at 450;

cf. In re Cendant Corp., 260 F.3d at 194 (“The burden is on the party who seeks to overcome

the presumption of access to show that the interest in secrecy outweighs the presumption.”)

(citation and internal quotation marks omitted).

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and Bradley merely speculate that disclosing the settlement amount would

increase the possibility of financial predation and related harassment and do

not appear to account for the already publicly available information, namely,

that a settlement was reached in this case and that Bradley is the steward of

the settlement property. Nor do they cite any authority that supports the

proposition that disclosing a settlement amount increases the possibility of

financial predation or related harassment or show that any court has weighed

such a possibility in favor of nondisclosure. Nor is that proposition necessarily

true as a matter of common sense: an effort to keep undisclosed a settlement

amount where it is known that a settlement was reached and who the steward

of the settlement amount is might increase the possibility of financial

predation or related harassment because a financial predator might suspect

that the settlement amount is much larger than the actual amount. See, e.g.,

Tomas Well, More than $6M paid out by sheriffs’ offices in judgments,

settlements since 2015; attorney fees add another $1.4M, LOUISIANA VOICE

(July 16, 2018), https://louisianavoice.com/2018/07/16/more-than-6m-paid-out-

by-sheriffs-offices-in-judgments-settlements-since-2015-attorney-fees-add-

another-1-4m/ (speculating on the settlement amount in this case).

Moreover, lifting the seals here would not reveal AJW’s name or other

information that has been identified as warranting nondisclosure in cases

involving a minor. See, e.g., FED. R. CIV. P. 5.2 (stating only the initials of a

person “known to be a minor” may be provided in court filings); Globe

Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 607 (1982)

(holding, in the First Amendment context, that “safeguarding the physical and

psychological well-being of a minor” who is a sex crime victim in a criminal

case is a “compelling” interest); Jaufre ex rel. Jaufre v. Taylor, 351 F. Supp. 2d

514, 516–19 (E.D. La. 2005) (collecting cases where a minor’s information—

such as the minor’s name and confidential documents from child protective

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proceedings—was protected, and sealing certain judicial records because they

variously contained “detailed descriptions of [the minor’s] behavioral

problems” and medical and emotional conditions, “pictures of [the minor’s]

injuries that could be humiliating or stigmatizing,” and the names of other

children not parties to the lawsuit). For these reasons, this factor does not

weigh in favor of non-disclosure.

Second, the district court weighed in favor of non-disclosure “the

protection of the judicial process in permitting orders to be sealed.” The district

court, however, did not elaborate on this factor or cite any case where this was

considered a factor. “Every court has supervisory power over its own records

and files, and access has been denied where court files might have become a

vehicle for improper purposes.” Nixon, 435 U.S. at 598. This power, however,

is not an interest, and there is a presumption in favor of disclosure. See Van

Waeyenberghe, 990 F.2d at 848. The court must weigh the interests in favor of

and against disclosure to determine how to exercise its power. See id. To hold

otherwise would enshrine a circular logic according to which a district court’s

sealing order is appropriate because the district court has the power to issue

the sealing order. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d

Cir. 1994) (“[S]imply because courts have the power to grant orders of

confidentiality does not mean that such orders may be granted arbitrarily.”).

For these reasons, “the protection of the judicial process in permitting orders

to be sealed” carries no weight and should not factor into the analysis at all.

Third, the district court weighed in favor of non-disclosure “the chilling

effect that the public’s knowledge of the settlement might have on settlement

negotiations and jury deliberations in upcoming similar cases.” The district

court noted that, at the time of its order, other civil cases alleging violations

similar to those alleged in this case were pending against the Iberia Parish

Sheriff’s Office. The district court does not explain how disclosing the

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settlement amount would have a “chilling effect” on negotiations and jury

deliberations in similar cases. “Chilling effect” is a compound noun, the legal

definition of which is “a usually undesirable discouraging effect or influence.”

Chilling effect, THE MERRIAM-WEBSTER.COM LEGAL DICTIONARY,

https://www.merriam-webster.com/legal/chilling%20effect (last visited Nov.

25, 2019). The noun is “used especially of First Amendment violations.” Id.;

see, e.g., Laird v. Tatum, 408 U.S. 1, 2 (1972). The settlement amount’s

disclosure presumably might expose the Iberia Parish Sheriff’s Office to

additional liability and litigation and, as such, might cause cases to settle

differently than they would otherwise, but it is unclear how these possibilities

would lead to or result from a chilling effect. In any case, that disclosure might

harm the Iberia Parish Sheriff’s Office, its sheriff, or sheriff’s deputies by

exposing them to additional liability and litigation is of no consequence; “a

litigant is not entitled to the court’s protection from this type of harm” where

it arises solely because of the common law right of access. Foltz v. State Farm

Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003); cf. Herrnreiter v.

Chicago Hous. Auth., 281 F.3d 634, 637 (7th Cir. 2002) (concluding that a

party’s “desire to keep the amount of its payment quiet (perhaps to avoid

looking like an easy mark, and thus drawing more suits) is not nearly on a par

with national security and trade secret information,” which are traditionally

kept secret for important policy reasons). Further, it is unclear how the risk

of jury prejudice would lead to or result from a chilling effect. And in any event,

any risk of jury prejudice because of the settlement amount’s disclosure is

addressable through voir dire.

Notably, Defendants did not oppose Appellants’ motion for vacatur.

Thus, they did not argue that disclosure would cause a chilling effect in similar

cases involving them or the Iberia Parish Sheriff’s Office, nor did they argue

that disclosure would otherwise prejudice them. Indeed, any such argument—

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even if legally supportable—would be unconvincing considering the public

availability of numerous other settlement amounts in similar civil suits filed

against the Iberia Parish Sheriff’s Office, its sheriff, or sheriff’s deputies since

Ackal began serving as sheriff in 2008. See John Simerman, The Advocate,

KATC challenge sealing of Iberia Parish sheriff’s settlement over gun death in

patrol car, THE ACADIANA ADVOCATE (July 19, 2018),

https://www.theadvocate.com/acadiana/news/article_f553600e-8b5f-11e8-

92ec-0b8bcffe3b28.html (“Settlements of those claims against Ackal, not

including Bradley’s, totaled $2.96 million[.]”); Nathaniel Rich, The Preacher

and the Sheriff, N.Y. TIMES MAGAZINE (Feb. 8, 2017),

https://www.nytimes.com/2017/02/08/magazine/the-preacher-and-the-

sheriff.html (“[Whitney] Lee has filed a civil suit against Ackal and two of his

deputies, one of 30 or so that have been filed since he took office; at least 10

have been settled, for a cumulative sum of about $1.1 million.”); Tomas Well,

More than $6M paid out by sheriffs’ offices in judgments, settlements since 2015;

attorney fees add another $1.4M, LOUISIANA VOICE (July 16, 2018),

https://louisianavoice.com/2018/07/16/more-than-6m-paid-out-by-sheriffs-

offices-in-judgments-settlements-since-2015-attorney-fees-add-another-1-4m/

(compiling settlement amounts in similar civil cases filed against Ackal). For

the reasons above, this factor does not weigh in favor of disclosure.

Fourth, and finally, the district court weighed in favor of disclosure “the

media’s interest in releasing a sensational story regarding the amount of

money paid to resolve the lawsuit without knowing anything about how the

decisions were ultimately reached in the parties’ settlement negotiations.”

This statement of the factor does not adequately address Appellants’ interest

in this case. While the facts of this case may be “sensational,” the media’s

interest in judicial records and proceedings is generally more important than

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the district court’s characterization would imply. The Supreme Court has

stated:

A responsible press has always been regarded as the handmaiden

of effective judicial administration, especially in the criminal field.

Its function in this regard is documented by an impressive record

of service over several centuries. The press does not simply

publish information about trials but guards against the

miscarriage of justice by subjecting the police, prosecutors, and

judicial processes to extensive public scrutiny and criticism. . . .

[W]e have consistently required that the press have a free hand,

even though we sometimes deplored its sensationalism.

Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). Nonetheless, “[t]he Supreme

Court has made it plain that all persons seeking to inspect and copy judicial

records stand on an equal footing, regardless of their motive for inspecting such

records.” Leucadia, Inc., 998 F.2d at 167 (“[T]he press has no greater right of

access than does the general public[.]”) (citing Nixon, 435 U.S. at 609).

Appellants and the amici 11 argue that White’s death and the

circumstances around it—particularly, the allegations that an Iberia Parish

sheriff’s deputy shot White and then covered it up—are matters of local and

national concern. We agree. See, e.g., Michael Kunzelman, Settlement resolves

suit in handcuffed man’s shooting death in Lafayette, THE ACADIANA ADVOCATE

(Mar. 16, 2018),

https://www.theadvocate.com/acadiana/news/courts/article_c929bf86-294f-

11e8-8e02-e78485ca840d.html; Nathaniel Rich, The Preacher and the Sheriff,

N.Y. TIMES MAGAZINE (Feb. 8, 2017),

https://www.nytimes.com/2017/02/08/magazine/the-preacher-and-the-

sheriff.html; Jonathan Capehart, Victor White’s unbelievable ‘Houdini

The amici are The Reporters Committee for Freedom of the Press, The Joseph L.

11

Brechner Center for Freedom of Information, and thirty-two other media or media-related

organizations.

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handcuff’ suicide, WASH. POST (Sept. 2, 2014),

https://www.washingtonpost.com/blogs/post-partisan/wp/2014/09/02/victor-

whites-unbelievable-houdini-handcuff-suicide/. Further, as the district court

noted, this and similar civil cases were “play[ing] out against the backdrop of

the recent criminal prosecution of the [Iberia Parish] sheriff himself[, who was

a defendant in this case,] and the guilty pleas of several of his deputies with

regard to the use of excessive force in making arrests and during the

incarceration of prisoners in the parish jail.” These prosecutions are also of

local and national interest. See, e.g., Nathaniel Rich, The Preacher and the

Sheriff, N.Y. TIMES MAGAZINE (Feb. 8, 2017),

https://www.nytimes.com/2017/02/08/magazine/the-preacher-and-the-

sheriff.html; Bryn Stole & Jim Mustian, Ruled not guilty, Iberia Sherriff Louis

Ackal says ‘I’m not a crook,’ vows to clean out ‘rouges’, THE ACADIANA ADVOCATE

(Nov. 4, 2016),

https://www.theadvocate.com/acadiana/news/courts/article_1f35ff7e-a2b6-

11e6-920f-3b82c2c4ee1c.html. Public access to the settlement amount will

shed light on the resolution of a case that is of local and national interest and

related to the criminal prosecutions of the Iberia Parish sheriff and sheriff’s

deputies for allegedly violating the law in ways similar to those that were

alleged in this case—prosecutions that are also of local and national interest.

For these reasons, this factor considered by the district court represents a

mischaracterization of the public’s right of access. Therefore, we consider in

its place the two factors discussed below.

First, the settlement agreement involves public officials or parties of a

public nature and matters of legitimate public concern. The district court

declined to balance this factor. As the Third Circuit in Pansy stated:

If a settlement agreement involves public officials or parties of a

public nature, and involves matters of legitimate public concern,

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that should be a factor weighing against entering or maintaining

an order of confidentiality. On the other hand, if a case involves

private litigants, and concerns matters of little legitimate public

interest, that should be a factor weighing in favor of granting or

maintaining an order of confidentiality.

Pansy, 23 F.3d at 788 (citation and footnote omitted). 12 The district court

discounted this opinion, stating that Pansy stands for the proposition that

“disclosure should be favored when it is a public person or governmental entity

that is seeking to prevent disclosure of the settlement agreement,” which is not

the case here. 13 While the Pansy court concluded that a party’s “privacy

interests are diminished” when that party is a public person, 23 F.3d at 787, it

also stated, “The public’s interest is particularly legitimate and important

where, as in this case, at least one of the parties to the action is a public entity

or official.” Id. at 786. In other words, the district court conflated the Pansy

court’s discussion of a public person’s privacy interests with its discussion of

12 The Pansy court used the term “confidentiality order” to liberally refer to “any court

order which in any way restricts access to or disclosure of any form of information or

proceeding, including but not limited to . . . ‘sealing orders[.]’” Pansy, 23 F.3d at 777 n.1.

13 The Pansy court concluded that the media-intervenors who sought access to a

settlement agreement that was subject to a district court confidentiality order did not have a

common law right of access to the settlement agreement because the settlement agreement

was not filed with the district court and was therefore not a judicial record. Pansy, 23 F.3d

at 780–783. (As determined supra, the same is not true here: the court recording of the

settlement terms and the minutes regarding the settlement conference and recorded meeting

are judicial records.) Nonetheless, the Pansy court concluded that the media-intervenors

“ha[d] an interest in vacating the Order of Confidentiality even though [the court had]

rejected their attempt to obtain the Settlement Agreement under the right of access doctrine.”

Id. at 784. This interest stemmed from the district court’s “power to modify or lift

confidentiality orders that it has entered.” Id. The Pansy court adopted a “balancing process”

to address whether “good cause” existed for the confidentiality order. Id. at 786–87.

Similarly, here, “In exercising its discretion to seal judicial records, the court must balance

the public’s common law right of access against the interests favoring nondisclosure.” Van

Waeyenberghe, 990 F.2d at 848. Given the similarity between the inquiry here and the

inquiry that was before the Pansy court, consideration of the Pansy court’s reasoning for

establishing as a balancing factor whether a party to a settlement agreement is a public

official and involves matters of legitimate public concern is appropriate here. In any case, as

discussed infra, other courts have applied rules similar or identical to the rule in Pansy in

considering a party’s common law right of access.

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the public’s interest in disclosure. Other courts have applied rules similar or

identical to the rule in Pansy in considering a party’s common law right of

access. See, e.g., Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th

Cir. 2007) (“In balancing the public interest in accessing court documents

against a party’s interest in keeping the information confidential, courts

consider, among other factors, . . . whether the information concerns public

officials or public concerns[.]”); Under Seal v. Under Seal, 27 F.3d 564, 1994

WL 283977, at *2 (4th Cir. 1994) (unpublished) (“Courts have also recognized

that when cases involve matters of particularly public interest, such as

misspent government funds, the rationale for public access is even greater.”)

(collecting cases). Here, at least one of the parties is a public official or party

of a public nature, and the public’s interest in the settlement amount is

particularly legitimate and important, not least because disclosure will allow

the public to monitor the expenditure of taxpayer money. For these reasons,

this factor weighs in favor of disclosure.

Second, it does not appear that the district court weighed as a factor in

favor of disclosure the presumption of the public’s right of access. See Belo

Broad. Corp., 654 F.2d at 434. Ultimately, this factor alone outweighs any

interest favoring nondisclosure.

V. CONCLUSION

The district court abused its discretion in denying Appellants’ motion for

vacatur by relying on erroneous conclusions of law and misapplying the law to

the facts. See Allen, 813 F.3d at 572. Accordingly, we REVERSE and VACATE

the sealing orders in their entirety. 14

14 Specifically, we vacate the orders sealing the (1) court recording containing the

settlement amount and (2) minutes regarding the settlement and recorded meeting.

23