Nikki Grae v. Corrections Corp. of Am.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0009p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

NIKKI BOLLINGER GRAE, et al.,

│

Plaintiffs, │

│

v. │

> No. 22-5312

│

CORRECTIONS CORPORATION OF AMERICA, nka │

CoreCivic; DAMON T. HININGER; DAVID M. │

GARFINKLE; TODD J. MULLENGER; HARLEY G. LAPPIN, │

Director, │

Defendants-Appellees, │

│

MARIE NEWBY, │

Intervenor-Appellant, │

│

EDDIE TARDY, │

│

Proposed Intervenor.

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:16-cv-02267—Aleta Arthur Trauger, District Judge.

Argued: November 15, 2022

Decided and Filed: January 13, 2023

Before: BATCHELDER, GIBBONS, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Daniel A. Horwitz, HORWITZ LAW, PLLC, Nashville, Tennessee, for Appellant

Marie Newby and proposed intervenor Eddie Tardy. Roman Martinez, LATHAM & WATKINS

LLP, Washington, D.C., for Appellees. ON BRIEF AND MOTIONS: Daniel A. Horwitz,

HORWITZ LAW, PLLC, Melissa K. Dix, Nashville, Tennessee, for Appellant Marie Newby and

proposed intervenor Eddie Tardy. ON APPELLEE BRIEF: Brian T. Glennon, Eric C. Pettis,

Michael A. Galdes, LATHAM & WATKINS LLP, Los Angeles, California, Steven A. Riley,

Milton S. McGee, III, RILEY & JACOBSON, PLC, Nashville, Tennessee, for Appellees.

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 2

Paul R. McAdoo, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington,

D.C., for Amicus Curiae.

THAPAR, J., delivered an order and announced the judgment of the court in which

BATCHELDER, J., joined. GIBBONS, J. (pp. 8–15), delivered a separate dissenting opinion.

_________________

ORDER

_________________

THAPAR, Circuit Judge. What started as a securities-fraud action against Corrections

Corporation of America (now known as CoreCivic) has turned into a quest for documents. Eddie

Tardy seeks to intervene and unseal documents that CoreCivic produced during discovery.

Because he lacks standing, we deny his motion.

I.

CoreCivic operates private prisons. Years ago, the company’s stockholders brought a

class action alleging securities fraud. The company settled that suit, and the district court entered

final judgment. The case remained dormant until Marie Newby moved to intervene three months

later. Newby believed that documents produced in the securities action would help establish

CoreCivic’s responsibility for the death of her son in one of its prisons. The district court

unsealed most, but not all, of the documents Newby sought. She appealed, but before we could

decide her case, she settled with CoreCivic and moved to voluntarily dismiss her appeal. See

Fed. R. App. P. 42(b). At the same time, Eddie Tardy moved to intervene in this appeal, seeking

permission to carry on in Newby’s stead. See Fed. R. Civ. P. 24(b).

Like Newby, Tardy had a son who died in a CoreCivic prison. But unlike Newby, Tardy

waived any claim that the denial of documents in this action hinders his ability to litigate his

separate suit against CoreCivic for the death of his son. Reply Br. 5 (ECF No. 36-1) (“[C]ivil

litigation is barely even a material consideration here.”). In fact, at oral argument, Tardy

conceded that he hasn’t suffered any adverse effects from the denial of documents. Instead, he

seeks to vindicate the public’s right of access to judicial records. We must decide whether Tardy

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 3

has standing to intervene on the public’s behalf, having repeatedly disclaimed any need for the

documents himself.

II.

If the original parties to a case don’t appeal the district court’s decision, intervenors can

in some instances “step into the shoes of the original part[ies].” Wittman v. Personhuballah, 578

U.S. 539, 543–44 (2016) (citation omitted). But they must have standing to do so. Diamond v.

Charles, 476 U.S. 54, 68 (1986). Without that requirement, courts would exceed their Article III

authority to decide only “cases” and “controversies.”

To stay within those Article III limits, courts must always verify that litigants have

suffered an injury in fact that is fairly traceable to the defendant and likely redressable by a

favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Here, Tardy hasn’t

suffered an injury in fact.

For Tardy to have standing, his injury must be concrete and particularized. TransUnion

LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). This case concerns the concreteness requirement.

Physical and pocketbook injuries easily satisfy this requirement. Id. at 2204. Though intangible

harms—like the denial of information—may also qualify, we must first look to history to

determine whether the harm was traditionally understood as concrete enough to support standing.

Id.

So let’s turn to the history. Our precedent has long recognized a common-law right of

public access to court records. Meyer Goldberg, Inc., of Lorain v. Fisher Foods, Inc., 823 F.2d

159, 163 (6th Cir. 1987) (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 473–74 (6th

Cir. 1983)). That right flows from the “long-established legal tradition” allowing the public to

inspect and copy judicial records. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834

F.3d 589, 593 (6th Cir. 2016) (quoting Knoxville News-Sentinel, 723 F.2d at 474). Thus,

litigants who assert the violation of their right of access to judicial records stand on strong

historical ground.

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 4

Nevertheless, the mere denial of information is insufficient to support standing.

TransUnion, 141 S. Ct. at 2214. Precedent confirms this fundamental principle. For example, in

Huff v. TeleCheck Services, Inc., 923 F.3d 458, 461 (6th Cir. 2019), the plaintiff sued TeleCheck,

which keeps files on consumers’ checking history. TeleCheck uses that information to help

merchants assess the risk of accepting a customer’s check. Id. The plaintiff received a report

from TeleCheck that omitted information he thought critical, but TeleCheck never told a

merchant to decline Huff’s checks. Id. at 461–62. So the “incomplete report had no effect on

[the plaintiff] or his future conduct.” Id. at 467. Thus, Huff did not have standing because he

had not suffered any “adverse consequences.” Id. at 465.

In a similar case, Judge Katsas cited Huff for the proposition that “an asserted

informational injury that causes no adverse effects cannot satisfy Article III.” Trichell v.

Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020). Then, in TransUnion, the

Supreme Court adopted that principle from Trichell. See TransUnion, 141 S. Ct. at 2214

(quoting Trichell, 964 F.3d at 1004).

Since TransUnion, the courts of appeals have consistently recognized that, to have

standing, a plaintiff claiming an informational injury must have suffered adverse effects from the

denial of access to information. See Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir.

2022); Kelly v. RealPage, Inc., 47 F.4th 202, 211–14 (3d Cir. 2022); Campaign Legal Ctr. v.

Scott, 49 F.4th 931, 936–39 (5th Cir. 2022); Laufer v. Looper, 22 F.4th 871, 880–81 (10th Cir.

2022); see also Norvell v. Blue Cross & Blue Shield Ass’n, No. 19-35705, 2021 WL 5542169, at

*1 (9th Cir. Nov. 26, 2021).1 And courts have further recognized that TransUnion did not work

1

The First Circuit took a somewhat different path but did not necessarily disagree with our reading of

TransUnion. See Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 268–75 (1st Cir. 2022), petition for cert. filed, Case

No. 22-429 (Nov. 4, 2022). The First Circuit recognized TransUnion’s adverse-effects rule but held that it was

bound to follow a prior Supreme Court case that concluded the plaintiff had standing. Id. at 271 (discussing Havens

Realty Corp. v. Coleman, 455 U.S. 363 (1982)). Even so, the First Circuit held in the alternative that the plaintiff in

Acheson Hotels had suffered adverse effects. Id. at 274–75.

Recent cases from two other circuits discuss informational injury, but they don’t cite, much less grapple

with, TransUnion. See Campaign Legal Ctr. v. FEC, 31 F.4th 781, 788–90 (D.C. Cir. 2022); Inland Empire

Waterkeeper v. Corona Clay Co., 17 F.4th 825, 833 (9th Cir. 2021). And in any case, Campaign Legal Center notes

that the adverse effects the plaintiffs suffered were identical to the adverse effects in FEC v. Akins. See Campaign

Legal Ctr., 31 F.4th at 790 (“[I]t is clear, as in Akins, ‘that the information would help [Appellants] . . . evaluate

candidates for public office.’” (alterations in original) (quoting FEC v. Akins, 524 U.S. 11, 21 (1998))).

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 5

a “sea change”—it “simply reiterated the lessons of . . . prior cases: namely, to state a cognizable

informational injury a plaintiff must allege that they failed to receive required information, and

that the omission led to adverse effects or other downstream consequences.” Kelly, 47 F.4th at

214 (cleaned up).

Two earlier Supreme Court informational-injury cases are not to the contrary. See FEC

v. Akins, 524 U.S. 11 (1998); Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440 (1989). The

plaintiffs in Akins and Public Citizen had suffered adverse effects. In Akins, voters were denied

information that would have helped them “evaluate candidates for public office.” 524 U.S. at 21.

And in Public Citizen, the plaintiffs were denied information that would have helped them

“participate more effectively in the judicial selection process.” 491 U.S. at 449. Those harms

mattered because they transformed what otherwise would have been a “bare procedural

violation” of a public-disclosure law into a concrete injury. See Huff, 923 F.3d at 467–68

(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)).

So a chorus of precedent all sings the same tune: to have standing, litigants must have

suffered adverse effects from the denial of information.

That requirement dooms Tardy’s case. At oral argument, Tardy told us he had not

suffered any adverse effects. In fact, he admitted that if he were required to allege an adverse

effect, he would lose. We take him at his word. See Taylor v. Pilot Corp., 955 F.3d 572, 582

(6th Cir. 2020) (Thapar, J., concurring in part) (controlling opinion) (“Although parties cannot

waive arguments against jurisdiction, they are more than free to waive (or forfeit) arguments for

it.”). Therefore, Tardy does not have standing to intervene in this appeal.

The dissent argues that TransUnion, Trichell, and Huff are all financial-reporting cases

and thus don’t affect public-disclosure cases like this one. Dissent at 11. It’s true that

TransUnion, Trichell, and Huff were financial-reporting cases. But standing is a constitutional

principle that applies to all cases. See Miller v. City of Wickliffe, 852 F.3d 497, 502 (6th Cir.

2017). And TransUnion specifically framed the adverse-effects rule as part of the constitutional

inquiry that applies across all cases: “[a]n ‘asserted informational injury that causes no adverse

effects cannot satisfy Article III.’” 141 S. Ct. at 2214 (quoting Trichell, 964 F.3d at 1004).

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 6

Other courts read TransUnion just as we do and apply the adverse-effects rule in public-

disclosure cases. See Scott, 49 F.4th at 938 (“Thus, even in public disclosure-based cases,

plaintiffs must and can assert ‘downstream consequences,’ which is another way of identifying

concrete harm from governmental failures to disclose.”); see also Harty, 28 F.4th at 444; Kelly,

47 F.4th at 214; Looper, 22 F.4th at 880–81. So the standing principles set out in TransUnion,

Trichell, and Huff apply here.

The dissent also faults us for not explaining what we mean by “adverse effects.” Dissent

at 12. But there’s no need to do so here, because Tardy conceded at argument that he hasn’t

alleged any adverse effects at all. And in cases where the issue has been presented, other courts

have not found it difficult to define “adverse effects.” See, e.g., Harty, 28 F.4th at 444 (holding

that a plaintiff “must show that he has an interest in using the information beyond bringing his

lawsuit” (cleaned up)).

Next, Tardy claims that in Price v. Dunn the Supreme Court permitted the intervenors to

unseal documents even though they hadn’t suffered adverse effects. Not so. In Price, National

Public Radio and a reporters’ association moved to intervene in a headline-grabbing death-

penalty case. Mot. for Leave to Intervene to File a Mot. to Unseal at 4, Price v. Dunn, 139 S. Ct.

2764 (2019) (Mem.) (No. 18A1238). Why? Because the denial of documents adversely affected

their ability to report. Id. Thus, Price is fully consistent with the adverse-effects rule. And, in

any event, Price predated TransUnion. So we cannot apply Price in a way that conflicts with

TransUnion.2

Finally, Tardy contends that we should unseal the documents even if he doesn’t have

standing. In making this request, he invokes our caselaw permitting a court to sua sponte

consider whether to unseal documents. See, e.g., Shane Grp., Inc. v. Blue Cross Blue Shield of

Mich., 825 F.3d 299, 306–07 (6th Cir. 2016) (“A court’s obligation to keep its records open for

2

Tardy and the dissent also cite cases from other circuits allowing intervenors to seek documents that were

not publicly available. See Doe v. Pub. Citizen, 749 F.3d 246, 262–65 (4th Cir. 2014); Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994); Brown v. Advantage Eng’g, 960 F.2d 1013, 1016 (11th Cir. 1992);

Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 787 (1st Cir. 1988); but see Deus v. Allstate Ins. Co., 15 F.3d 506,

525–26 (5th Cir. 1994) (holding that intervenors don’t have standing to seek document unsealing). But those cases

all predate TransUnion.

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 7

public inspection is not conditioned on an objection from anybody.”). Tardy misapplies that

caselaw. We may unseal documents “on our own motion” during an ongoing case. Brown &

Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176 (6th Cir. 1983). But the underlying

case here is no longer ongoing, and we have never held that courts possess the power to unseal

documents outside a justiciable case or controversy. That would undermine the separation-of-

powers principles that standing protects. TransUnion, 141 S. Ct. at 2203. Under Article III,

federal courts may adjudicate only cases or controversies; yet Tardy would turn us into a “roving

commission” in search of documents to unseal. Id. The Constitution prevents any such

freewheeling inquiry. No matter how important the public’s right to access judicial records, we

may adjudicate only “a real controversy with real impact on real persons.” Id. (quoting Am.

Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring in the

judgment)). And absent any alleged adverse effects, this isn’t such a controversy.

Accordingly, Tardy’s motions to intervene and file a reply brief are denied. Newby’s

motion to dismiss the appeal is granted.

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 8

_________________

DISSENT

_________________

JULIA SMITH GIBBONS, dissenting. The majority holds that a member of the public

suffers no injury when denied access to documents on a court’s docket absent “adverse effects.”

Maj. Op., at 5. Because the majority’s analysis fails to heed the Supreme Court’s decisions in

Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989), and Federal Election

Commission v. Akins, 524 U.S. 11 (1998), and reaches a result that puts us at odds with our sister

circuits, I respectfully dissent.

In Public Citizen, the plaintiffs sought information pursuant to the Federal Advisory

Committee Act (FACA) about the Department of Justice’s collaboration with the American Bar

Association in the selection of judicial nominees. See 491 U.S. at 447-48. The Supreme Court

held that “refusal to permit appellants to scrutinize the ABA Committee’s activities to the extent

FACA allows constitutes a sufficiently distinct injury to provide standing to sue.” Id. at 449.

The Court further explained that its “decisions interpreting the Freedom of Information Act have

never suggested that those requesting information under it need show more than that they have

sought and were denied specific agency records.” Id. (citing cases). There was “no reason” to

apply a different rule in the FACA context. Id. The Court also rejected the argument that the

plaintiffs were complaining of a mere “generalized” grievance because they had not shown how

denial of the information harmed them specifically—the same argument CoreCivic makes, and

the majority accepts, here. See id. at 448-450.

Similarly, in Akins, the plaintiffs sought information about an organization’s political

activities that they contended the Federal Election Campaign Act (FECA) required be made

public. See 574 U.S. at 15-16. The Supreme Court held that those plaintiffs had shown an

“informational injury” sufficient to confer Article III standing. Id. at 25. That injury

“consist[ed] of their inability to obtain information . . . that . . . the statute requir[ed] that [the

organization] make public.” Id. at 21. The Supreme Court again explicitly rejected the argument

that the plaintiffs were complaining of a mere “generalized” grievance. Id. at 23.

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 9

Here, all agree that Tardy “sought” and “[was] denied specific . . . records.” Public

Citizen, 491 U.S. at 449. As Public Citizen made clear, that is all that Article III requires where

a litigant seeks to vindicate a statutory right of public access to information. And there is no

reason to apply a more demanding standard to litigants seeking to vindicate the public’s

common-law right of access to judicial records. Tardy therefore has standing.

The majority distinguishes Public Citizen and Akins because the plaintiffs there would

have used the information to “evaluate candidates for public office,” Maj. Op., at 5 (quoting

Akins, 524 U.S. at 21), and “participate more effectively in the judicial selection process,” id.

(quoting Pub. Citizen, 491 U.S. at 449), and the majority says that Tardy fails to offer any similar

explanation as to how the denial of information harms him. Contrary to the majority’s

interpretation, neither Public Citizen nor Akins suggests that a litigant seeking to vindicate the

public’s right of access to information must explain how he will use that information. Instead,

Public Citizen expressly holds that such litigants “need show [no] more than that they have

sought and were denied” the information to which the public right of access applies. 491 U.S. at

449.

Moreover, the statements from Public Citizen and Akins on which the majority relies only

restate at the most general level the rationale for the relevant public right of access. The purpose

of the FECA disclosure requirements in Akins was to allow citizens to “evaluate candidates for

public office,” 524 U.S. at 21, while the purpose of FACA’s disclosure requirements in Public

Citizen was to allow citizens to “participate more effectively” in public processes to which the

disclosures were relevant, 491 U.S. at 449. Here, the rationale for public access to documents on

a court’s docket includes such interests as understanding the basis for a judicial ruling and

monitoring the judiciary to prevent corruption. See Shane Grp., Inc. v. Blue Cross Blue Shield of

Mich., 825 F.3d 299, 305 (6th Cir. 2016). Throughout this litigation, Tardy has maintained that

those interests apply in this case. See, e.g., Reply Br., at 2 (quoting Shane Grp., 825 F.3d at

305). So even if Public Citizen and Akins could be read to require a litigant to recite some

generic rationale for the public right of access he seeks to vindicate, Tardy has done that here.

In holding that Tardy lacks standing, the majority relies entirely on a single sentence

from TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021) (internal quotation marks

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 10

omitted): “An asserted informational injury that causes no adverse effects cannot satisfy Article

III.” TransUnion is a credit-reporting case in which the plaintiffs argued that they received their

personal information in the wrong format, see id., rather than a case in which a litigant sought to

vindicate a right of access to information to which the public was entitled. Nevertheless, and

despite also saying that TransUnion did not work a “sea change,” Maj. Op., at 4–5 (quoting Kelly

v. RealPage, Inc., 47 F.4th 202, 211-214 (3d Cir. 2022)), the majority treats TransUnion as if it

overruled Public Citizen to the extent that Public Citizen enumerated the exclusive requirements

for standing in cases where a litigant seeks to vindicate a public right of access to information.

491 U.S. at 449.1

TransUnion did no such thing. Instead, and shortly before the sentence on which the

majority relies, TransUnion distinguished Public Citizen and Akins on the grounds that “those

cases involved denial of information subject to public-disclosure or sunshine laws that entitle all

members of the public to certain information.” 141 S. Ct. at 2214. At best, TransUnion is

ambiguous as to whether its adverse-effects requirement applies to “public-disclosure or

sunshine laws,” as recently noted by another court addressing the issue of standing in such a

context. See Campaign Legal Ctr. v. Scott, 49 F.4th 931, 938 (5th Cir. 2022) (“Consequently,

Akins and Public Citizen, on one reading of Spokeo and TransUnion, may dispense with

‘downstream consequences’ on the earlier cases’ reasoning that the nondisclosure violation alone

creates concrete injury.”). Rather than assume that the Supreme Court silently overruled Public

Citizen without instruction to do so, I would adopt the reading of TransUnion that avoids conflict

with the Supreme Court’s longstanding precedent: Public Citizen and Akins govern when

plaintiffs seek information pursuant to a public right of access, while TransUnion governs certain

other theories of informational injury. See Kelly v. RealPage Inc., 47 F.4th 202, 212 (3d Cir.

2022) (“TransUnion did not cast doubt on the broader import of [Public Citizen] and [Akins]. In

fact, the Court cited [those cases] with approval, reaffirming their continued viability and putting

TransUnion in context.”)

1

In the same vein, the majority dismisses the nearly unanimous views of our sister circuits in cases

addressing the issue before us, discussed in more detail below, on the sole ground that those cases “predate

TransUnion.” Maj. Op. at 7 n.2.

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 11

Most of the “chorus of precedent” that the majority cites does not support the conclusion

it reaches today. Maj. Op., at 5. The majority cites several credit-reporting cases that, like

TransUnion itself, expressly distinguish between the public-access context and the credit-

reporting context. See id. (citing Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004

(11th Cir. 2020), Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 467 (6th Cir. 2019), and Kelly, 47

F.4th at 812). The majority also cites cases in which a “tester” with no intention of visiting a

facility sought information about the facility’s compliance with the Americans with Disabilities

Act pursuant to regulatory requirements. See id. (citing Harty v. West Point Realty, Inc.,

28 F.4th 435, 444 (2d Cir. 2022) and Laufer v. Looper, 22 F.4th 871, 880-81 (10th Cir. 2022)).

Because those cases did not involve “public-disclosure or sunshine laws” like the ones at issue in

Public Citizen and Akins, they had no occasion to address whether TransUnion overruled those

earlier cases and introduced a new requirement for standing in the public-access context.

The majority cites only one case applying an “adverse effects” requirement where a

litigant sought to vindicate a public right of access. See id. (citing Scott, 49 F.4th at 938). In

Scott, the Fifth Circuit (like the majority today) did not discuss Public Citizen’s express holding

that public-access litigants have standing if they “sought and were denied” the information they

seek. 491 U.S. at 449. Thus, although the Fifth Circuit acknowledged TransUnion’s ambiguity,

as discussed above, it adopted the same reading of TransUnion the majority adopts now. See

Scott, 49 F.4th at 938. I would not follow the Fifth Circuit’s opinion in Scott for the same

reasons as I respectfully dissent from the majority’s opinion today. Moreover, even if there were

some “adverse effects” requirement in the public-access context, Public Citizen and Akins show

that it could not preclude Tardy’s standing here. That is because Tardy articulated the injury he

suffers at the same level of generality as did the plaintiffs in those cases, as discussed in more

detail above.

Perhaps unsurprisingly, then, none of our sister circuits that have considered the issue of

intervenor standing to seek unsealing of documents on a court’s docket has reached the

conclusion that the majority reaches here. Two circuits have held that intervenors have standing

to vindicate the public’s First Amendment right of access to judicial records. See Doe v. Pub.

Citizen, 749 F.3d 246, 262-65 (4th Cir. 2014); Brown v. Advantage Eng’g, Inc., 960 F.2d 1013,

No. 22-5312 Grae, et al. v. Corrections Corp. of Am., et al. Page 12

1016 (11th Cir. 1992). Two other circuits have held that intervenors have standing to seek

modification of discovery-related protective orders, suggesting a fortiori that they would also

have standing to seek unsealing of documents on a court’s docket. See Pub. Citizen v. Liggett

Grp., Inc., 858 F.2d 775, 787 (1st Cir. 1988); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777

(3d Cir. 1994).

To be sure, the Fifth Circuit says that intervenors lack standing to seek unsealing in

situations like this one where the underlying case is closed. See Newby v. Enron Corp., 443 F.3d

416, 421-22 (5th Cir. 2006) (citing Deus v. Allstate Ins. Co., 15 F.3d 506, 522 (5th Cir. 1994)).

Deus, the Fifth Circuit case that so holds, mentions neither Article III nor the requirement of an

injury-in-fact, and instead apparently uses the term “standing” loosely to invoke some personal

interest relevant to the intervention analysis under Federal Rule of Civil Procedure 24. See

15 F.3d at 25-26. Deus also predates Akins. Moreover, unlike the majority today, the Fifth

Circuit also holds that intervenors have standing to vindicate the public right of access to

information by seeking unsealing in cases that are still pending. Newby, 443 F.3d at 421-22.

The majority’s opinion therefore makes this circuit the only one to hold that intervenors

categorically lack standing to vindicate the public right of access to information.

The majority does not explain at what level of specificity future litigants will have to

show “adverse effects” to challenge nondisclosure where a public right of access applies. If

future panels follow Public Citizen and Akins, then the intervenor’s burden will be easily met,

and the harm limited to this case. If the majority’s view instead requires a more specific

showing, an obvious problem arises. How can a member of the public, unfamiliar with the

contents of a sealed judicial record, establish how the failure to disclose that record harms him?

Such an exercise will inherently require the kind of “speculation” that does not satisfy Article III.

See Lujan v. Defs. of Wildlife, 504 U.S. 555, 567 (1992). Thus, although all agree that the public

right of access to judicial records is deeply rooted in Anglo-American history and tradition, the

majority’s holding suggests that the Constitution prevents any specific member of the public

from vindicating that right. Because the majority’s view conflicts with the Supreme Court’s

cases applying Article III in the public-access context, I respectfully dissent.