Petition for Writ of Certiorari — Eddie Tardy, Petitioner v. Corrections Corporation of America, nka CoreCivic, et al.

Supreme Court briefAug 7, 2023

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NO. __________

IN THE

Supreme Court of the United States

EDDIE TARDY,

Petitioner,

CORRECTIONS CORPORATION OF AMERICA, nka

CORECIVIC, ET AL.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL A. HORWITZ

LINDSAY E. SMITH

MELISSA K. DIX

HORWITZ LAW, PLLC

4016 Westlawn Dr.

Nashville, TN 37209

(615) 739-2888

daniel@horwitz.law

lindsay@horwitz.law

melissa@horwitz.law

JOHN J. BURSCH

Counsel of Record

BURSCH LAW, PLLC

9339 Cherry Valley Ave., #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Counsel for Petitioner

QUESTIONS PRESENTED

In Public Citizen v. United States Department of

Justice, 491 U.S. 440 (1989), and Federal Election

Commission v. Akins, 524 U.S. 11 (1988), this Court

recognized that Article III’s injury requirement is

satisfied when a litigant seeks to vindicate a right of

public access to information. If that principle is true

for ABA judicial evaluations and records of political

activities that an organization is required to disclose

to the public, it is doubly so when an individual seeks

access to improperly sealed court records.

The Sixth Circuit reached the opposite conclusion

here, holding that a member of the public lacks

standing to intervene and unseal court documents

unless he also shows personalized “adverse effects.”

App.7a. As the dissent explained, that analysis “fails

to heed” this Court’s decisions in Public Citizen and

Akins and places the Sixth Circuit “at odds with [its]

sister circuits.” App.10a (Gibbons, J., dissenting).

Though “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.” Id. at 16a–17a.

The question presented is:

Whether an intervenor’s interest in transparency

is sufficient to confer standing to seek access to sealed

or protected judicial records (as the First, Third,

Fourth, and Eleventh Circuits hold); whether an

intervenor’s standing turns on whether the underlying case is still pending (as the Fifth Circuit holds);

or whether an intervenor must show personalized

“adverse effects” to seek document unsealing (as the

Sixth Circuit held here).

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioner is Eddie Tardy, an individual person.

Respondents are Corrections Corporation of

America, nka CoreCivic, a corporation; Damon T.

Hininger; David M. Garfinkle; Todd J. Mullenger; and

Harley G. Lappin, Director.

Additional parties are individual Plaintiffs Nikki

Bollinger Grae and Luvell L. Glanton; Plaintiff

Amalgamated Bank, as Trustee for the LongView

Collective Investment Fund; and individual Intervenor Marie Newby.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Sixth Circuit, Case

No. 22-5312, Grae v. Tardy, opinion issued January

13, 2023, en banc review denied March 9, 2023.

U.S. District Court for the Middle District of

Tennessee, No. 3:16-cv-02267, Order entered April 8,

2022.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT ...... ii

LIST OF ALL PROCEEDINGS ................................. ii

APPENDIX TABLE OF CONTENTS ....................... v

TABLE OF AUTHORITIES ..................................... vi

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL PROVISION ..... 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 6

I. The public right to access court documents ......... 6

II. Nature of the case and proceedings below ........... 9

REASONS FOR GRANTING THE WRIT............... 15

I. The Sixth Circuit’s decision created a 4-1-1

circuit split over whether an intervenor must

allege adverse effects to have standing to

unseal judicial documents. ................................. 16

A. The Fourth and Eleventh Circuits broadly

allow intervenors standing to seek

unsealing of judicial records. ........................ 16

B. The First and Third Circuits have held

that the public has standing to seek

modification of protective orders for the

purpose of accessing court documents. ......... 18

C. In conflict with multiple circuits, the Fifth

Circuit holds that third parties generally

have standing to intervene and unseal

documents—but not after a case has

concluded. ...................................................... 20

II. The Sixth Circuit’s rule conflicts with this

Court’s decisions in Public Citizen and Akins. .. 22

III.This case is of immense importance to the

principle of government transparency and an

ideal vehicle to resolve the circuit conflict and

resolve the question presented. .......................... 25

CONCLUSION ......................................................... 27

APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Sixth Circuit,

Order in 22-5312,

Issued January 13, 2023 .................................. 1a–17a

United States District Court for the

Middle District of Tennessee,

Order in 3:16-cv-02267,

Issued April 8, 2022 ....................................... 18a–24a

United States Court of Appeals for the

Sixth Circuit,

Order Denying Petition for Rehearing

En Banc in 22-5312,

Issued March 9, 2023 ..................................... 25a–26a

TABLE OF AUTHORITIES

Cases

Anderson v. Cryovac, Inc.,

805 F.2d 1 (1st Cir. 1986) .................................. 19

Beckman Indus., Inc. v. Int’l Ins. Co.,

966 F.2d 470, 472 (9th Cir. 1992)...................... 20

Brown & Williamson Tobacco Corp. v. F.T.C.,

710 F.2d 1165 (6th Cir. 1983) ..................... 3, 6, 8

Brown v. Advantage Eng’g, Inc.,

960 F.2d 1013 (11th Cir. 1992)...........4, 17, 18, 19

Campaign Legal Center v. Scott,

49 F.4th 931 (5th Cir. 2022) .................. 13, 15, 24

City of Hartford v. Chase,

733 F. Supp. 533 (D. Conn. 1990) ..................... 19

City of Hartford v. Chase,

942 F.2d 130 (2d Cir. 1991) ............................... 19

Comm’r v. Advance Loc. Media, LLC,

918 F.3d 1161, 1172 n.5 (11th Cir. 2019) ......... 21

Dep’t of Air Force v. Rose,

425 U.S. 352 (1976)............................................ 23

Dep’t of Justice v. Julian,

486 U.S. 1 (1988)................................................ 22

Dep’t of Justice v. Reporters Comm. for Freedom

of Press,

489 U.S. 749 (1989)............................................ 22

Deus v. Allstate Ins. Co.,

15 F.3d 506 (5th Cir. 1994) ............................... 20

vii

Doe v. Pub. Citizen,

749 F.3d 246 (4th Cir. 2014) ................... 3, 16, 17

E.E.O.C. v. Nat’l Children’s Ctr., Inc.,

146 F.3d 1042, 1047 (D.C. Cir. 1998) ................ 21

FBI v. Abramson,

456 U.S. 615 (1982)............................................ 22

FDIC v. Ernst & Ernst,

677 F.2d 230, 231–32 (2d Cir. 1982) ................. 20

Federal Election Comm’n v. Akins,

524 U.S. 11 (1988)................................. i, 2, 12, 23

Globe Newspaper Co. v. Pokaski,

868 F.2d 497 (1st Cir. 1989) ................................ 7

Goodman v. Fuller,

960 F.2d 149 (6th Cir. 1992) ............................... 3

Grae v. Corr. Corp. of Am.

(6th Cir. Jan. 13, 2023) (No. 22-5312)............... 10

Grove Fresh Distrib., Inc. v. Everfresh Juice Co.,

24 F.3d 893 (7th Cir. 1994) ................................. 7

Hartford Courant Co. v. Pellegrino,

308 F.3d 83 (2d Cir. 2004) ................................... 7

In re Alexander Grant & Co. Litig.,

820 F.2d 352 (11th Cir. 1987) ........................... 19

In re Knoxville News Sentinel Co.,

723 F.2d 470 (6th Cir.1983) .......................... 3, 11

In re Lobe Newspaper Co.,

729 F.2d 47 (1st Cir. 1984) ................................ 19

In re Providence Journal Co.,

293 F.3d 1 (1st Cir. 2002) .................................... 7

viii

In re San Juan Star Co.,

662 F.2d 108 (1st Cir. 1981) .............................. 19

In re Search Warrant,

855 F.2d 569 (8th Cir. 1988) ............................... 7

Ipsen Biopharmaceuticals, Inc. v. Becerra,

2021 WL 4399531 (D.D.C. Sept. 24, 2021) ....... 24

Kelly v. RealPage Inc.,

47 F.4th 202 (3d Cir. 2021) ............................... 14

Kleindienst v. Mandel,

408 U.S. 753 (1972).............................................. 3

L. Singer & Sons v. Union Pac. R.R. Co.,

311 U.S. 295 (1940)............................................ 17

Leucadia, Inc. v. Applied Extrusion Technologies,

Inc.,

998 F.2d 157, 161 n.5 (3d Cir. 1993) ................. 20

Lugosch v. Pyramid Co. of Onondaga,

435 F.3d 110 (2d Cir. 2006) ................................. 5

Meyer Goldberg, Inc. of Lorain v. Fisher Foods,

823 F.2d 159 (6th Cir.1987) .......................... 3, 11

Newby v. Enron Corp.,

443 F.3d 416 (5th Cir. 2006) ................... 4, 20, 21

Nixon v. Warner Commc’n, Inc.,

435 U.S. 589 (1978).............................................. 6

Pansy v. Borough of Stroudsburg,

23 F.3d 772 (3d Cir. 1994) ............................. 4, 19

Phoenix Newspapers, Inc. v. United States Dist.

Court,

156 F.3d 940 (9th Cir. 1998) ............................... 7

Press-Enterprise Co. v. Superior Ct. of Ca.,

Riverside Cty.,

464 U.S. 501 (1984).............................................. 8

Public Citizen v. Liggett Grp., Inc.,

858 F.2d 775 (1st Cir. 1988) .................... 4, 18, 19

Public Citizen v. United States Dep’t of Justice,

491 U.S. 440 (1989)................... i, 2, 12, 13, 22, 23

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980).......................................... 3, 7

Rudd Equip. Co. v. John Deere Constr. &

Forestry Co.,

834 F.3d 589 (6th Cir. 2016) ............................. 11

SEC v. Van Waeyenberge,

990 F.2d 845 (5th Cir. 1993) ............................... 8

Smith v. United States,

431 U.S. 291 (1977).............................................. 3

Stanley v. Georgia,

394 U.S. 557 (1969).............................................. 2

State ex rel. Colscott v. King,

57 N.E. 535 (Ind. 1900)........................................ 6

State ex rel. Ferry v. Williams,

41 N.J.L. 332 (1879) ............................................ 6

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021)...................2, 11, 12, 13, 24

TransUnion LLC v. Ramirez,

141 S. Ct. 792 (2020).......................................... 24

Trichell v. Midland Credit Mgmt., Inc.,

964 F.3d 990 (11th Cir. 2020) ........................... 11

United Nuclear Corp. v. Cranford Ins. Co.,

905 F.2d 1424, 1427 (10th Cir. 2990)................ 20

United States v. Amodeo,

71 F.3d 1044 (2d Cir. 1995) ................................. 5

United States v. Antar,

38 F.3d 1348 (3d Cir. 1994) ................................. 7

United States v. Cianfrani,

573 F.2d 835 (3d Cir. 1978) ............................... 19

United States v. Weber Aircraft Corp.,

465 U.S. 792 (1984)............................................ 22

Van Cleve v. U.S. Sec’y of Commerce,

2022 WL 1640669 (11th Cir. May 24, 2022) ..... 25

Wilson v. Am. Motors Corp.,

759 F.2d 1568 (11th Cir. 1985).................... 17, 18

Statutes

28 U.S.C. 1248 ............................................................ 1

28 U.S.C. 1254(1) ....................................................... 1

28 U.S.C. 1331 ............................................................ 1

Other Authorities

1 J. Bentham, Rationale of Judicial Evidence 524

(1827).................................................................... 7

3 W. Blackstone, Commentaries 372–73................... 7

David S. Ardia, Court Transparency and the First

Amendment, 38 CARDOZO L. REV. 835 (2017) ..... 8

M. Hale, The History of the Common law of

England 343–45 (6th ed. 1820) ........................... 7

U.S. Const. art. III, § 2 ............................................... 1

DECISIONS BELOW

The district court’s order granting and denying in

part Intervenor Marie Newby’s Motion to Intervene

and Unseal Judicial Documents and Exhibits is not

reported but is reprinted at App.18a.

The Sixth Circuit’s opinion denying Petitioner

Eddie Tardy’s Motion to Intervene and Unseal

Judicial Documents and Exhibits is reported at 57

F.4th 567 (6th Cir. 2022) and reprinted at App.1a.

The Sixth Circuit’s order denying rehearing en banc

is not reported but is available at 2023 WL 2752575

and reprinted at App.25a.

STATEMENT OF JURISDICTION

The Sixth Circuit entered judgment on January

13, 2023, and denied rehearing en banc on March 9,

2023. Lower courts had jurisdiction under 28 U.S.C.

1331 and 28 U.S.C. 1248. This Court has jurisdiction

under 28 U.S.C. 1254(1).

PERTINENT CONSTITUTIONAL PROVISION

Article III, § 2 of the U.S. Constitution states, in

relevant part: “The judicial Power shall extend to …

Controversies … between Citizens of different

States.”

INTRODUCTION

Transparency in court proceedings promotes confidence in the judicial system and the fair administration of justice. It also encourages judges to act

impartially and consistently. Yet the 2-1 published

panel decision below impairs the judiciary’s promise

of transparency by holding that members of the public

lack standing to unseal improperly sealed court

documents unless they demonstrate personalized

“adverse effects.” App.7a. Judge Gibbons’ dissent

chastised the ruling, which “fails to heed [this] 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 puts the Sixth Circuit “at odds with [its]

sister circuits[.]” App.10a (Gibbons, J., dissenting).

In reaching that holding, the panel applied the

“adverse effects” language in TransUnion LLC v.

Ramirez, 141 S. Ct. 2190 (2021), to claims involving

sealed judicial documents—a position that no party’s

brief advanced. TransUnion was a damages case, and

the opinion made clear that its holding did not apply

to situations where the public’s right to public information was at stake. E.g., id. at 2214 (distinguishing

Akins and Public Citizen because “those cases

involved denial of information subject to publicdisclosure or sunshine laws that entitle all members

of the public to certain information.”).

TransUnion further explained that, for standing

purposes, “traditional harms may also include harms

specified by the Constitution itself.” Id. at 2204. That

observation controls here, given that the right to

receive information is a constitutional right. E.g.,

Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is

now well established that the Constitution protects

the right to receive information”); Smith v. United

States, 431 U.S. 291, 319, n.18 (1977) (“the First

Amendment necessarily protects the right to ‘receive

information and ideas.’”) (quoting Kleindienst v.

Mandel, 408 U.S. 753, 762–63 (1972)). Accord Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

576–77 (1980) (“‘In a variety of contexts, this Court

has referred to a First Amendment right to ‘receive

information and ideas.’ What this means in the

context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit

government from summarily closing courtroom

doors.”) (quoting Kleindienst, 408 U.S. at 762).

The panel majority’s holding also transformed the

Sixth Circuit’s sealing precedent. That precedent

used to afford members of the public an essential

“check on courts,” which guards against secrecy that

“insulates the participants, masking impropriety,

obscuring incompetence, and concealing corruption.”

Brown & Williamson Tobacco Corp. v. F.T.C., 710

F.2d 1165, 1178–79 (6th Cir. 1983). The Sixth Circuit

previously regarded that check as “a presumptive

right to inspect and copy judicial records.” Goodman

v. Fuller, 960 F.2d 149 (6th Cir. 1992) (citing Meyer

Goldberg, Inc. of Lorain v. Fisher Foods, 823 F.2d 159,

163 (6th Cir.1987); In re Knoxville News Sentinel Co.,

723 F.2d 470, 473–74 (6th Cir.1983)).

By now taking the opposite view, the Sixth Circuit

created an irreconcilable 4-1-1 circuit conflict. As

Judge Gibbons explained it, “[t]wo circuits have held

that intervenors have standing to vindicate the

public’s First Amendment right of access to judicial

records.” App.15a (Gibbons, J., dissenting) (citing Doe

v. Pub. Citizen, 749 F.3d 246, 262–65 (4th Cir. 2014),

and Brown v. Advantage Eng’g, Inc., 960 F.2d 1013,

1016 (11th Cir. 1992)). “Two other circuits,” she

continued, “have held that intervenors have standing

to seek modification of discovery-related protective

orders, suggesting a fortiorari that they would also

have standing to seek unsealing of documents on a

court’s docket.” App.15a–16a (citing Pub. Citizen v.

Liggett Grp., Inc., 858 F.2d 775, 787 (1st Cir. 1988),

and Pansy v. Borough of Stroudsburg, 23 F.3d 772,

777 (3d Cir. 1994)).

The Fifth Circuit, Judge Gibbons explained,

“holds that intervenors have standing to vindicate the

public right of access to information by unsealing in

cases that are still pending” but also “says that

intervenors lack standing to seek unsealing in

situations like this one where the underlying case is

closed.” App.16a (discussing Newby v. Enron Corp.,

443 F.3d 416, 421–22 (5th Cir. 2006)). But the panel

majority’s opinion here makes the Sixth Circuit “the

only one to hold that intervenors categorically lack

standing to vindicate the public right of access to

information.” Ibid. (emphasis added). And the

majority did so based on a single sentence from the

same TransUnion opinion that specifically excepted

public-disclosure claims from its scope, “treating

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.” App.13a (Gibbons, J., dissenting).

By requiring unsealing proponents to demonstrate personalized “adverse effects from the denial of

information,” App.7a, the panel majority’s ruling will

have catastrophic effects on all manner of informational and public-disclosure claims—from sealing, to

FOIA, to courtroom closure, to gag orders. At best, the

panel’s decision will require citizens to disclose to a

judge—one whose rulings they may be investigating

for impropriety—their motivation to seek records held

by their government to satisfy the panel’s heightened

injury standard. Contra, e.g., Lugosch v. Pyramid Co.

of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006) (“what

the Newspapers seek to do with the documents has no

effect on our consideration”); United States v. Amodeo,

71 F.3d 1044, 1050 (2d Cir. 1995) (“we believe motive

generally to be irrelevant to defining the weight

accorded the presumption of access.”). At worst, it will

stymie such claims entirely, because without speculating, litigants cannot plausibly know how they were

injured by being denied access to information that

they have a right to receive but cannot see. As Judge

Gibbons put it, “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?” App.16a. (Gibbons, J., dissenting).

At bottom, it does not even matter whether the

Sixth Circuit was correct in its interpretation of this

Court’s precedents addressing the right to information. It simply cannot be the case that the right of a

third party to access sealed court documents, or documents subject to a protective order, varies depending

on the district where the litigation is venued. The

Court should grant review, resolve the 4-1-1 circuit

split, and either affirm that citizens with a transparency interest have no standing to pursue public

records or reverse and hold that there is an Article III

injury when a court improperly prevents the public

from seeing such records. Given the importance of the

issue and the uncertainty caused by the circuit split,

certiorari is warranted.

STATEMENT OF THE CASE

The public right to access court documents

American courts have long recognized a “general

right to inspect and copy … judicial records and

documents.” Nixon v. Warner Commc’n, Inc., 435 U.S.

589, 597 (1978) (numerous citations omitted). And,

contrary to the practice in English courts, American

courts “generally do not condition enforcement of this

right on a proprietary interest in the document or

upon a need for it as evidence in a lawsuit.” Id.

(emphasis added). Rather, the “interest necessary to

support the issuance of a writ compelling access has

been found” in mere transparency, such as a “citizen’s

desire to keep a watchful eye on the workings of public

agencies.” Id. at 598 (citing State ex rel. Colscott v.

King, 57 N.E. 535 , 536–38 (Ind. 1900), and State ex

rel. Ferry v. Williams, 41 N.J.L. 332, 336–39 (1879)).

To be sure, this right is “not absolute;” but the reasons

for denying access to judicial records must be

compelling—such as protecting proprietary business

information, id.

The foundation for this broad right of access goes

to the very root of our constitutional democracy: “[t]he

English common law, the American constitutional

system, and the concept of the ‘consent of the

governed’ stress the ‘public’ nature of legal principles

and decisions.” Brown & Williamson Tobacco Corp. v.

FTC, 710 F.2d 1165, 1177 (6th Cir. 1983). And the

need for public access to judicial records is not limited

to transparency. It also increases judicial accountability.

This Court, in the context of open judicial

proceedings, quoted Jeremy Bentham for the

proposition that transparency is the keystone to an

effective—and accountable—judiciary. “Without

publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.

Recordation, appeal, whatever other institutions

might present themselves in the character of checks,

would be found to operate rather as cloaks than

checks; as cloaks in reality, as checks only in appearance.” Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 569 (1980) (quoting 1 J. Bentham, Rationale

of Judicial Evidence 524 (1827)). Indeed, an open

court system is the bulwark against “decisions based

on secret bias or partiality.” Id. (citing M. Hale, The

History of the Common law of England 343-45 (6th

ed. 1820); 3 W. Blackstone, Commentaries 372–73).

Following this reasoning, “[n]umerous federal

and state courts have [ ] extended the First Amendment protection provided by Richmond Newspapers to

particular types of judicial documents, determining

that the First Amendment itself, as well as the

common law, secures the public’s capacity to inspect

such records.” Hartford Courant Co. v. Pellegrino, 308

F.3d 83, 91–91 (2d Cir. 2004) (citing In re Providence

Journal Co., 293 F.3d 1, 10–13 (1st Cir. 2002);

Phoenix Newspapers, Inc. v. United States Dist. Court,

156 F.3d 940, 948 (9th Cir. 1998); United States v.

Antar, 38 F.3d 1348, 1359–60 (3d Cir. 1994); Grove

Fresh Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 893,

897 (7th Cir. 1994); Globe Newspaper Co. v. Pokaski,

868 F.2d 497, 505 (1st Cir. 1989); In re Search

Warrant, 855 F.2d 569, 573 (8th Cir. 1988)).

Applying these principles, a trial court that

intends to seal a court record is required to set forth

its specific findings and conclusions “which justify

nondisclosure to the public”—even if neither party

objects to the sealing. Brown & Williamson, 710 F.2d

at 1176. Accord, e.g., SEC v. Van Waeyenberge, 990

F.2d 845, 849 (5th Cir. 1993) (reversing trial court

because of a lack of “evidence in the record that the

district court balanced the competing interests prior

to sealing the final order”). And in the rare instance

where circumstances require sealing a judicial document or record, the trial court must engage in a

narrow tailoring analysis and “seal only such parts …

as necessary.” Press-Enterprise Co. v. Superior Ct. of

Ca., Riverside Cty., 464 U.S. 501, 825–26 (1984).

Yet belying the commitment to transparency,

“[j]udges across the country routinely close court

proceedings and restrict public access to judicial

records, including sealing entire cases.” David S.

Ardia, Court Transparency and the First Amendment,

38 CARDOZO L. REV. 835, 838–39 (2017). “In recent

years, it has come to light that some courts have

maintained secret dockets containing thousands of

cases.” Id. at 839. And following the shift of many

courts to electronic access to court records, “a number

of courts and legislatures have sharply limited public

access to certain proceedings and records.” Id. at 843

(citations omitted). Other courts, such as the district

court below, simply rubber-stamp requests to seal

judicial documents, providing no reasoning at all.

Such secrecy is inimical to judicial transparency

and public faith in the justice system. The solution

comes in the form of third parties like Petitioner who

seek intervention for the purpose of shedding light on

the darkness of sealed court records.

II. Nature of the case and proceedings below

This case involves a private prison contractor—

CoreCivic—that performed poorly enough that the

federal government took remedial action to address

the company’s deficient safety and security record.

During the underlying securities fraud litigation, the

district court entered a series of uniformly unreasoned two-word (sometimes four-word) sealing orders

that adopted whatever position sealing proponents

advocated, merely scribbling “Motion GRANTED” in

the corner of a proponent’s motion without further

analysis.1 As a result, thousands of pages of records

regarding matters of extraordinary public concern

were sealed wholesale, without any accompanying

findings or reasoning.

Shortly after the original litigation settled, nonparty Marie Newby moved to intervene for the limited

purpose of unsealing the illicitly sealed documents.

App.3a. Again deferring to what proponents of

sealing—who confessed substantial error at this

point—wanted, the District Court unsealed some, but

not all, of the improperly sealed documents. Ibid. Ms.

1 7/20/2018 Order, R.106, PageID.2830; 10/29/2018 Order,

R.123, PageID.3483; 11/5/2018 Order, R.128, PageID.3511;

1/2/2019 Order, R.142, PageID.3652; 2/8/2019 Order, R.156,

PageID.4219; 2/22/2019 Order, R.164, PageID.4411; 11/23/2020

Order, R.368, PageID.17661; 11/23/2020 Order, R.369, Page

ID.17662; 11/23/2020 Order, R.371, PageID.17666; 11/23/2020

Order, R.372, PageID.17667; 12/7/2020 Order, R.377, Page

ID.17756; 12/7/2020 Order, R.378, PageID.17757; 12/7/2020

Order., R.379, PageID.17758; 2/17/2021 Order, R.414, Page

ID.23860; 2/17/2020 Order, R.415, PageID.23861; 2/22/2021

Order, R.432, PageID.24390; 2/22/2021 Order, R.433, Page

ID.24391.

Newby appealed. But before the Sixth Circuit

resolved her case, she and CoreCivic settled, and she

moved to dismiss her appeal. Ibid.

The same day, Eddie Tardy—a member of the

public who, like Ms. Newby, saw his child murdered

in CoreCivic’s care—moved to intervene and assume

Ms. Newby’s role. App.3a. He had good reason, too. In

particular, he was preparing to (and then did) file a

lawsuit in the same district that had just illicitly

sealed thousands of record pages for CoreCivic’s

benefit. But rather than claiming that the improper

sealing decisions meaningfully hindered his ability to

litigate that suit, he claimed a right as a member of

the public to access the treasure trove of documents

that the district court improperly sealed.

In response to questioning about his standing to

seek document unsealing, Mr. Tardy’s counsel

acknowledged that Mr. Tardy had not alleged any

“adverse consequences in terms of damages to Mr.

Tardy,” though he explained that, unlike

TransUnion, the present dispute is not about money

damages.2 He also maintained that asking whether

he had suffered adverse consequences was not the

proper inquiry for sealing claims, explaining that he

wished to exercise his right “to check the district

court’s rulings” instead.

The Sixth Circuit panel majority concluded that

this admission was fatal to Mr. Tardy’s Article III

standing, App.7a, because he “hasn’t suffered an

injury in fact,” App.4a.

2 Oral Argument at 1:53, 6:58, Grae v. Corr. Corp. of Am. (6th

Cir. Jan. 13, 2023) (No. 22-5312), https://bit.ly/43I0Yoz.

The majority started with the accepted proposition that for “Tardy to have standing, his injury must

be concrete and particularized.” App.4a (citing TransUnion, 141 S. Ct. at 2203). The majority honed in on

“the concreteness requirement.” Ibid. Though the

majority acknowledged that “intangible harms—like

the denial of information” may satisfy the concreteness standard, it “first look[ed] to history to determine

whether the harm was traditionally understood as

concrete enough to support standing.” Ibid.

The majority acknowledged a “long recognized”

“common-law right of public access to court records.”

App.4a (citing Meyer Goldberg, 823 F.2d at 163, and

In re Knoxville, 723 F.2d at 473–74). “That right,” the

majority continued, “flows from the ‘long-established

legal tradition’ allowing the public to inspect and copy

judicial records.” Ibid. (citing Rudd Equip. Co. v. John

Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th

Cir. 2016)). “Thus, litigants who assert the violation

of their right of access to judicial records,” like Eddie

Tardy, “stand on strong historical ground.” Ibid.

Conflating public access to judicial documents

with access to other forms of information, the majority

then cited TransUnion for the proposition that “the

mere denial of information is insufficient to support

standing.” App.5a (citing TransUnion, 141 S. Ct. at

2214), and Trichell v. Midland Credit Mgmt., Inc., 964

F.3d 990, 1004 (11th Cir. 2020)). Continuing that

conflation, the majority said that “the courts of

appeals have consistently recognized that, to have

standing, a plaintiff claiming an information injury

must have suffered adverse effects from the denial of

access to information.” App.5a (citations omitted).

To close the loop, the majority distinguished this

Court’s decisions in Akins and Public Citizen on the

ground that the plaintiffs in those cases “had suffered

adverse effects.” App.6a. And the majority viewed

TransUnion as framing the so-called “adverse-effects

rule as part of the constitutional inquiry that applies

across all cases.” App.7a (citing TransUnion, 141 S.

Ct. at 2214). Accordingly, the majority denied Tardy’s

motion to intervene and granted Newby’s motion to

dismiss. App.10a.

Judge Gibbons issued an acerbic dissent.

App.10a. She began with Public Citizen, noting that

this Court allowed the plaintiffs there to obtain

information about the ABA’s collaboration with the

Department of Justice in the selection of judicial

nominees even though 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.” App.10a–11a

(citing Public Citizen, 491 U.S. at 448–50).

Similarly, explained Judge Gibbons, in Akins, this

Court held that plaintiffs seeking “information about

an organization’s political activities that they contended the Federal Election Campaign Act (FECA)

required be made public” had likewise “shown an

‘information injury’ sufficient to confer Article III

standing.” App.11a (citing Akins, 574 U.S. at 25). This

Court “again explicitly rejected the argument that the

plaintiffs were complaining of a mere ‘generalized’

grievance.” Ibid. (citing Akins, 574 U.S. at 23).

“[T]here is no reason to apply a more demanding

standard,” she concluded, “to litigants seeking to

vindicate the public’s common-law right of access to

judicial records. Tardy therefore has standing.” Ibid.

“Contrary to the majority’s interpretation,” Judge

Gibbons continued, 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.” App.11a–12a.

Rather, “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.” App.12a (quoting

Public Citizen, 491 U.S. at 449).

Judge Gibbons next criticized the majority for

relying “entirely on a single sentence from

TransUnion,” i.e., that “[a]n asserted informational

injury that causes no adverse effects cannot satisfy

Article III.” App.12a–13a (quoting TransUnion, 141

S. Ct. at 2214). The panel majority, she said, “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.” App.13a.

In Judge Gibbons’ view, “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 publicdisclosure or sunshine laws that entitle all members

of the public to certain information.” App.13a (quoting

TransUnion, 141 S. Ct. at 2214). “At best,” she

concluded, “TransUnion is ambiguous as to whether

its adverse-effects requirement applies to ‘publicdisclosure or sunshine laws,” as recently noted by the

Fifth Circuit in Campaign Legal Center v. Scott, 49

F.4th 931, 938 (5th Cir. 2022). Ibid.

“Rather than assume that [this] Court silently

overruled Public Citizen without instruction to do so,”

Judge Gibbons “would adopt the reading of

TransUnion that avoids conflict with [this] 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.”

App.13a–14a (citing Kelly v. RealPage Inc., 47 F.4th

202, 212 (3d Cir. 2021)).

Finally, Judge Gibbons distinguished the circuit

precedents on which the panel majority relied, noting

that none of them “involve[d] ‘public-disclosure or

sunshine laws’ like the ones at issue in Public Citizen

and Akins.” App.14a. And she detailed the 4-1-1

circuit split that is the subject of this petition.

App.15a–16a.

“Thus, although all agree that the public right of

access to judicial records is deeply rooted in AngloAmerican history and tradition, the majority’s

holding suggests that the Constitution prevents any

specific member of the public from vindicating that

right.” App.16a–17a. “Because the majority’s view

conflicts with [this] Court’s cases applying Article III

in the public-access context,” Judge Gibbons respectfully dissented. App.17a. “Less than a majority” of the

Sixth Circuit voted for en banc rehearing. App.26a.

REASONS FOR GRANTING THE WRIT

Public access to judicial records and documents is

essential to a well-functioning judiciary and to public

confidence in the court system. Yet now in the Sixth

Circuit, the only time a citizen can seek access to

improperly sealed records is if he or she can show the

same types of “adverse effects” that this Court

requires of litigants in damages cases. Such a result

will cause many citizens to wonder what the judiciary

has to hide.

It is for that reason that four other circuits have

held that transparency is a sufficient interest for

standing to seek access to sealed court records or

documents subjected to a court’s protective order, and

another has said any interest is sufficient provided

the underlying case is still pending. Those decisions

accord with this Court’s precedents in Public Citizen

and Akins, both of which vindicated a strong public

right of access to public documents. And the mature

4-1-1 conflict that now exists among six circuits over

the issue requires this Court’s immediate resolution.

TransUnion is not to the contrary. There, this

Court did not overrule or even cast doubt on Public

Citizen or Akins. Instead, it applied an adverse-effects

standard for damages claims, as distinguished from

public-disclosure claims. And to the extent TransUnion is “ambiguous as to whether its adverse-effects

requirement applies to ‘public-disclosure or sunshine

laws,’” App.13a (Gibbons, J., dissenting); Campaign

Legal Center, 49 F.4th at 938, that is another reason

justifying review. The petition should be granted.

The Sixth Circuit’s decision created a 4-1-1

circuit split over whether an intervenor

must allege adverse effects to have standing

to unseal judicial documents.

The panel majority’s decision below makes the

Sixth Circuit “the only one to hold that intervenors

categorically lack standing to vindicate the public

right of access to information.” App.16a (Gibbons, J.,

dissenting). Two circuits, the Fourth and Eleventh,

have held the exact opposite. Two more, the First and

Third, have held the same in the context of protective

orders. The Fifth Circuit stands on its own, holding

that intervenors generally do have standing to seek

unsealing but only if the underlying case is not yet

closed—though it is not clear why the concreteness of

an intervenor’s injury in being unable to access sealed

judicial documents should change merely because the

underlying case reaches its conclusion. The Court

should grant the petition and resolve the conflict.

A. The Fourth and Eleventh Circuits broadly

allow intervenors standing to seek unsealing of judicial records.

Start with the Fourth Circuit. In Doe v. Public

Citizen, 749 F.3d 246 (4th Cir. 2014), consumer

groups moved to intervene and unseal a Consumer

Product Safety Commission report attributing an

infant’s death to a manufacturing company’s product,

and for access to the district court’s memorandum

ordering the sealing, which was heavily redacted. In

assessing whether the consumer groups alleged a

sufficiently concrete injury for Article III standing,

the court looked to this Court’s decisions in Public

Citizen and Akin.

Although the consumer groups’ “right of access

stems not from a statute [as in Public Citizen and

Akins] but from the Constitution and common law,

the nature of their alleged injury is indistinguishable

from the informational harm suffered by the plaintiffs

in [those] cases.” 749 F.3d at 264. That injury flows

from the groups’ “inability to access judicial documents and materials filed in the proceeding below,

information that they contend they have a right to

obtain and inspect.” Ibid. “Because the public right of

access under the First Amendment and common law

protects individuals from the very harm suffered by

Consumer Groups, their injury transcends a mere

abstract injury such as a ‘common concern for

obedience to law.’” Ibid. (quoting L. Singer & Sons v.

Union Pac. R.R. Co., 311 U.S. 295, 303 (1940)). The

consumer groups’ “interest in the litigation is that of

a third party seeking access to documents filed with

the court.” Id. at 265. Accordingly, they “have a

redressable, actual injury and a personal stake sufficient to make their claims justiciable.” Full stop.

The Eleventh Circuit is in the same camp. In

Brown v. Advantage Engineering, Inc., 960 F.2d 1013

(11th Cir. 1992), the plaintiffs in one civil case moved

to intervene to unseal a judicial record in an unrelated

case brought by a different plaintiff against the same

defendant. After the district court denied the motion,

the Eleventh Circuit reversed, relying on its precedent that presumes judicial proceedings “are public

proceedings.” Id. at 1015 (quoting Wilson v. Am.

Motors Corp., 759 F.2d 1568, 1569 (11th Cir. 1985)).

When a district court attempts to deny access to

judicial records, “it must be shown that the denial is

necessitated by a compelling governmental interest,

and is narrowly tailored to that interest.” Id. at 1015–

16 (quoting Wilson, 759 F.2d at 1571 (cleaned up)).

In direct conflict with the Sixth Circuit’s decision

here, the Eleventh Circuit held that “because it is the

rights of the public, an absent third party, that are at

stake, any member of the public has standing to view

documents in the court file that have not been sealed

in strict accordance with” the above standard, “and to

move the court to unseal the court file in the event the

record has been improperly sealed.” Advantage Eng’g,

960 F.2d at 1016. Accordingly, the court vacated and

remanded to the district court for the Wilson analysis

without requiring the intervenors to allege any

additional, perosnalized adverse effects.

B. The First and Third Circuits have held

that the public has standing to seek

modification of protective orders for the

purpose of accessing court documents.

Decisions of the First and Third Circuits, though

rendered in the protective-order context, are of a piece

with those of the Fourth and Eleventh.

In Public Citizen v. Liggett Group, Inc., 858 F.2d

775 (1st Cir. 1988), tobacco companies appealed from

a district court’s modification of a protective order to

allow a public-interest group to access discovery documents. Though the case did not involve unsealing per

se, the underlying question was exactly the same: did

the public-interest group have standing?

The First Circuit answered unequivocally yes:

“Courts, including this one, routinely have found that

third parties have standing to assert their claim of

access to documents in a judicial proceeding.” Id. at

787 (citing In re Alexander Grant & Co. Litigation,

820 F.2d 352, 354 (11th Cir. 1987), Anderson v.

Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986); In re Lobe

Newspaper Co., 729 F.2d 47, 50 n.2 (1st Cir. 1984),

and In re San Juan Star Co., 662 F.2d 108 (1st Cir.

1981)). Accordingly, Public Citizen, too, “had standing

to intervene in the case and to ask the court to modify

its pre-existing protective order.” Id. at 790.

The Third Circuit reached the same conclusion in

Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir.

1994), a case involving newspapers that sought to

intervene and modify a confidentiality order in a

former police chief’s civil-rights suit. The court

quickly dispensed with the standing inquiry: “We

have routinely found, as have other courts, that third

parties have standing to challenge protective orders

and confidentiality orders in an effort to obtain access

to information or judicial proceedings.” Id. at 777

(citing Brown v. Advantage Eng’g, 960 F.2d at 1016,

Liggett Group, 858 F.2d at 787 & n.12, In re Alexander

Grant, 820 F.2d at 354, United States v. Cianfrani,

573 F.2d 835, 845 (3d Cir. 1978), and City of Hartford

v. Chase, 733 F. Supp. 533, 534 (D. Conn. 1990), rev’d

on other rounds, 942 F.2d 130 (2d Cir. 1991)).

Though it was an injury shared by the public, the

newspapers alleged “a distinct and palpable injury to”

themselves sufficient to establish standing. Pansy, 23

F.3d at 777 (quoting Cianfrani, 573 F.2d at 845). The

newspapers “have shown that the putatively invalid

Confidentiality Order which the district court entered

interferes with their attempt to obtain access to the

Settlement Agreement, either under the right of

access doctrine or pursuant to the Pennsylvania Right

to Know Act.” Ibid.

C. In conflict with multiple circuits, the

Fifth Circuit holds that third parties

generally have standing to intervene and

unseal documents—but not after a case

has concluded.

The Fifth Circuit follows the First, Third, Fourth,

and Eleventh Circuit, with two caveats.

In Newby v. Enron Corp., 443 F.3d 416 (5th Cir.

2006), the court confronted the issue of whether the

Texas State Board of Public Accountancy had standing to intervene and seek access to discovery that had

been protected by a court order. Distinguishing its

decision in Deus v. Allstate Insurance Co., 15 F.3d 506

(5th Cir. 1994), the Fifth Circuit held that a third

party could not intervene for such purposes in a case

that had already concluded, since there was no live

controversy, but that intervention was warranted in

an ongoing case. Id. at 421–22. So while a putative

intervenor like Tardy would be left out, a citizen could

intervene in an ongoing case. This rule itself conflicts

with decisions in six circuits. E.g., FDIC v. Ernst &

Ernst, 677 F.2d 230, 231–32 (2d Cir. 1982) (allowing

intervention two years after settlement to challenge a

confidentiality order); Leucadia, Inc. v. Applied

Extrusion Technologies, Inc., 998 F.2d 157, 161 n.5

(3d Cir. 1993) (“[A] district court may properly

consider a motion to intervene permissively for the

limited purpose of modifying a protective order even

after the underlying dispute between the parties has

long been settled.”); Beckman Indus., Inc. v. Int’l Ins.

Co., 966 F.2d 470, 472 (9th Cir. 1992) (allowing

intervention to challenge a protective order two years

after case was dismissed); United Nuclear Corp. v.

Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.

2990) (allowing intervention three years after underlying action had settled; “courts have widely recognized that the correct procedure for a non-party to

challenge a protective order is through intervention

for that purpose”); Comm’r v. Advance Loc. Media,

LLC, 918 F.3d 1161, 1172 n.5 (11th Cir. 2019)

(“Courts retain jurisdiction to unseal judicial records

and may allow parties to intervene well after

judgment in a dispute.”); E.E.O.C. v. Nat’l Children’s

Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998)

(allowing intervention “almost two years after the

original parties had settled the case” to obtain

materials under seal or protective order).

In addition, the Newby court suggested that there

was “no Article III requirement that intervenors have

standing in a pending case.” Id. at 422. That rule goes

far beyond the position that Tardy asserts—or the one

that the First, Third, Fourth, and Eleventh Circuits

have adopted. So the Fifth Circuit’s rule is both

broader (no “adverse effects” required) than the Sixth

Circuit’s decision here and narrower (no intervention

after a case concludes) than the other four circuits

with which the Sixth Circuit’s opinion conflicts.

At the end of the day, that leaves six circuits in

irreconcilable conflict over the question presented

here. Indeed, if CoreCivic’s case had arisen in the

First, Third, Fourth, or Eleventh Circuits, there can

be no doubt that those courts would have applied their

precedents and recognized Tardy’s standing to intervene to unseal improperly sealed documents. And if

the underlying case had still been pending, the Fifth

Circuit would have held the same. The Court should

grant the petition and resolve that mature circuit

conflict.

II. The Sixth Circuit’s rule conflicts with this

Court’s decisions in Public Citizen and

Akins.

The Sixth Circuit’s decision below also conflicts

with this Court’s decisions in Public Citizen and

Akins. Like Judge Gibbons (but unlike the Sixth

Circuit panel majority), Petitioner Tardy does not

read TransUnion as overruling either of those

precedents. And to the extent there is any ambiguity,

the bench and bar are best served by this Court’s

immediate clarification of the confusion rather than

allowing it to percolate and spread.

Public Citizen involved public-interest groups

seeking access via the Freedom of Information Act to

documents, shared between the American Bar Association and Department of Justice, pertaining to federal

judicial appointments. Like CoreCivic here, the ABA

resisted the request by arguing that the groups had

not alleged “injury sufficiently concrete and specific to

confer standing” but rather only “a general grievance

shared in substantially equal measure by all or a

large class of citizens.” 491 U.S. at 448–49.

This Court unanimously rejected the ABA’s

position, holding that an agency’s denial of a FOIA

request—alone—“constitutes a sufficiently distinct

injury to provide standing to sue.” 491 U.S. at 449.

Indeed, this Court’s FOIA decisions “have never

suggested that those requesting information under it

need show more than that they sought and were

denied specific agency records.” Ibid. (citing Dep’t of

Justice v. Reporters Comm. for Freedom of Press, 489

U.S. 749 (1989), Dep’t of Justice v. Julian, 486 U.S. 1

(1988), United States v. Weber Aircraft Corp., 465 U.S.

792 (1984), FBI v. Abramson, 456 U.S. 615 (1982), and

Dep’t of Air Force v. Rose, 425 U.S. 352 (1976)). The

fact that others might share the same injury “does not

lessen [the interest groups’] asserted injury.” Ibid.

To be sure, as the Sixth Circuit panel majority

noted, Public Citizen referenced the public-interest

groups’ desire to “participate more effectively in the

judicial selection process.” App.7a (quoting Public

Citizen, 491 U.S. at 449). But the Court did not say

that its holding hinged on that desire. Instead, the

holding was that the groups, and other FOIA plaintiffs like them, “‘need show [no] more than that they

sought and were denied’ the information to which the

public right of access applies.” App.12a (Gibbons, J.,

dissenting) (quoting Public Citizen, 491 U.S. at 449).

Similarly, in Akins, a group of voters sought

information about an organization’s political activities that FECA purportedly required the organization

to make public. The Sixth Circuit panel majority

correctly noted the voters’ interest in possessing the

information to help them “evaluate candidates for

public office.” App.6a (quoting Akins, 524 U.S. at 21).

But this Court described the plaintiffs’ concrete

harm more generally as “informational injury,” 524

U.S. at 24, not more specifically as “votinginformation-impairment injury.” And the Court

expressly endorsed prior decisions holding that “a

plaintiff suffers an ‘injury in fact’ when the plaintiff

fails to obtain information which must be publicly

disclosed pursuant to a statute.” Id. at 21 (citations

omitted). That is because the statute protects

“individuals such as respondents from the kind of

harm they say they have suffered, i.e., failing to

receive particular information about campaignrelated activities.” Id. at 22.

TransUnion is not to the contrary, because it was

a credit-reporting case involving a claim for damages,

and did not concern FOIA, FECA, or any other

“public-disclosure law.” 141 S. Ct. at 2214. Indeed, the

Court granted only “Question 1” of the TransUnion

petition, TransUnion LLC v. Ramirez, 141 S. Ct. 792

(2020), and that question was whether “either Article

III or Rule 23 permits a damages class action where

the vast majority of the class suffered no actual

damages.” TransUnion LLC v. Ramirez, No. 20-297,

Pet. for Certiorari i (Sept. 2, 2020) (emphasis added).

The Court’s opinion also went out of its way to

distinguish Public Citizen and Akins, explaining 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 (emphasis added). When the Court

criticized the TransUnion plaintiffs for failing to

identify any “downstream consequences” from the

failure to receive the information they demanded, it

was immediately following the Court’s comment that

“Akins and Public Citizen do not control here.” Ibid.

It is precisely that juxtaposition that caused the

Fifth Circuit to observe that “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.” Campaign

Legal Ctr., 49 F.4th at 938. Accord, e.g., Ipsen

Biopharmaceuticals, Inc. v. Becerra, 2021 WL

4399531, at *10 n.4 (D.D.C. Sept. 24, 2021) (“TransUnion suggested that the violation of ‘publicdisclosure or sunshine laws that entitle all members

of the public to certain information’ is necessarily a

justiciable injury.”); Van Cleve v. U.S. Sec’y of

Commerce, 2022 WL 1640669, at *4 (11th Cir. May

24, 2022) (“Van Cleve’s alleged informational injury

was not concrete because neither [statute] is a publicdisclosure law that entitles all members of the public

to certain information.”). Or, to quote Judge Gibbons,

TransUnion is at best “ambiguous as to whether its

adverse-effects requirement applies to ‘publicdisclosure or sunshine laws.’” App.13a (Gibbons, J.,

dissenting).

When an ambiguity in the Court’s decisions

causes confusion in the lower courts, as here, this

Court is the only body with power to resolve that

confusion. Again, certiorari is warranted.

III. This case is of immense importance to the

principle of government transparency and

an ideal vehicle to resolve the circuit

conflict and resolve the question presented.

The 4-1-1 split in circuit authority and the conflict

with (or at least ambiguity in) this Court’s publicinformation standing decisions are reason enough to

grant immediate review. Moreover, it is difficult to

understate the importance of non-party standing

when it comes to governmental transparency.

The rule of law is the heartbeat of the American

governmental experiment, one that has been a beacon

for nascent democracies around the world. But the

principle is not one that can be simply created on

paper by drafting checks and balances. It is one that

must be earned—and re-earned—through the hard

work and perseverance of individual presidents,

members of congress, and judges.

Crucial to that trust-building process is transparency. What government officials do—indeed, what

judges do—must be substantially open to the public’s

scrutiny. Clandestine meetings and Star Chamber

judicial proceedings will result in mistrust, suspicion,

and ultimately a lack of trust in our government

institutions.

For those reasons, the Sixth Circuit’s decision

here creates problems that go far beyond a lack of

judicial transparency. To be sure, if a judge can deal

with a series of sealing requests by granting them

seriatim with only two- to four-word unreasoned

orders, that will inevitably cause a public loss of

confidence in the judicial process and the justice

system itself. But the court of appeals’ standing

analysis is far more sweeping.

Consider a FOIA request for public records. Until

the records are disclosed, it is difficult for a citizen to

predict—let alone plausibly allege—what “adverse

effects” the lack of production will cause. And yet that

difficulty alone will be enough to keep a FOIA lawsuit

from proceeding in the Sixth Circuit if recalcitrant

government officials refuse to produce public documents—even when the law requires it. The answer to

that problem cannot be to assert the adverse effect of

not being able to ensure transparency. After all, the

same is true of Tardy’s request here, and that effect

was insufficient for the Sixth Circuit. With public

confidence in government officials and institutions

already in serious decline, there could not be a worse

time for the judiciary to create a new, heightened

barrier on the public’s ability to ensure transparency

through access to improperly sealed court records and

other secret, public documents.

This case is also an ideal vehicle for correcting the

Sixth Circuit’s misstep. Because of the way proceedings unfolded below, the record is clean, and there are

no factual disputes. The panel majority’s opinion on

the one hand and Judge Gibbons’ dissent on the other

draw a clear line over how the question presented can

be resolved. And no matter which side of the line this

Court ultimately chooses, a clear rule will be the

result. The petition should be granted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,