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

ia

PETITION 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

1a

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.

___________________

2a

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. 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.

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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 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].”

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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 “longestablished 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.

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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. 1935705, 2021 WL 5542169, at *1 (9th Cir. Nov. 26,

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2021).1 And courts have further recognized that

TransUnion did not work 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

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))).

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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). Other courts read

TransUnion just as we do and apply the adverse-

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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

2 Tardy and the dissent also cite cases from other circuits

allowing intervenors to seek documents that were not publicly

[Footnote continued on next page]

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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

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-ofpowers

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

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.

10a

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.

_________________

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

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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 1516. 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.

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

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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 omitted): “An asserted informational

injury that causes no adverse effects cannot satisfy

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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

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.

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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.”)

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 creditreporting 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.

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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, 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.

16a

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

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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.

18a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NIKKI BOLLINGER

GRAE, Individually

and on Behalf of All

Others Similarly

Situated,

Plaintiff,

v.

CORRECTIONS

CORPORTION OF

AMERICA, DAMON T.

HININGER, DAVID M.

GARFINKLE, TODD J.

MULLENGER, and

HARLEY G. LAPPIN,

Defendants.

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Case No.

3:16-cv-2267

Judge Aleta A.

Trauger

ORDER

Marie Newby, acting on her own behalf and as the

administrator of the Estate of Terry Childress, has

filed a Motion to Intervene and Unseal Judicial

Documents and Exhibits (Doc. No. 481), to which the

defendants and the Bureau of Prisons (“BOP”) filed

Responses in partial opposition (Doc. Nos. 490 & 492),

and Newby has filed a Reply (Doc. No. 493). The lead

plaintiff has filed a Response (Doc. No. 487) formally

taking no position on the dispute. For the reasons set

out herein, the motion will be granted in part and

denied in part.

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The corporate defendant in this closed case,

CoreCivic, operates private detention facilities including prisons. Class action plaintiffs sued CoreCivic and

some of its executives for securities fraud related to

representations that the company and its executives

had made relevant to the possibility that the BOP

would cease doing business with the company in light

of its alleged history of poor performance in areas

including inmate safety and security. After an unusually lengthy and hard-fought discovery process—and

the filing of more than a thousand documents with the

court, some under seal and some not—the parties

settled the case prior to trial. The court approved the

settlement and entered a judgment of dismissal on

November 8, 2021. (Doc. Nos. 477–80.)

On February 11, 2022, Newby sued CoreCivic and

a number of individual defendants based on events

surrounding the death of her son, Childress, in a

CoreCivic facility. (Doc. No. 481-1; see Case No. 3:22cv-00093 (Crenshaw, C.J.).) A week later—well before

any kind of meaningful discovery could have been

performed in her own case—Newby filed the currently

pending motion requesting “permission from the

Court to intervene in this case for the limited purpose

of requesting that the Court unseal the parties’

motions for class certification, for summary judgment,

sealed portions of the parties’ Daubert motions,

responses, replies, and supporting documentation.

([Doc.] Nos. 120, 121, 122, 336, 338, 347, 352, 358, 359,

386, 387, 388, 389, 396, 397, 398, 399, 400, 401, 422,

and 423).” (Doc. No. 481 at 1.) Newby argues that

“[t]he same allegations of understaffing and hiring

underqualified staff” that allegedly damaged

CoreCivic’s relationship with the BOP also led to her

son’s death. (Id. at 3.) Some of the sealed documents,

she argues, may therefore be relevant to her claims.

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She also argues that, even aside from her own particularized litigation-related interests, the public interest

favors unsealing the materials.

CoreCivic responds that, while some of the

underlying documents can be safely unsealed, others

“include[] operational information which, if disclosed,

could negatively affect the safety of residents and staff

at CoreCivic facilities and proprietary information

which, if disclosed, could negatively affect CoreCivic’s

competitive standing in the marketplace.” (Doc. No.

492 at 1–2.) The Bureau of Prisons opposes the

unsealing of a number of documents—some of which

overlap with CoreCivic’s list and others of which do

not—on the ground that they include confidential

“source selection information” that was “prepared for

use by an agency for the purpose of evaluating a bid

or proposal to enter into an agency procurement

contract” and “has not been previously made available

to the public or disclosed publicly.” (Doc. No. 490 at 7

(quoting 48 C.F.R. § 2.101).) Federal contracting rules

require that “source selection information must be

protected from unauthorized disclosure” in accordance with the law. 48 C.F.R. § 3.104-4(b); accord

Torres Advanced Enter. Sols., LLC v. United States,

135 Fed. Cl. 1, 6 (2017).

There is a “‘strong presumption in favor of

openness’ as to court records.” Shane Grp., Inc. v. Blue

Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.

2016) (quoting Brown & Williamson Tobacco Corp. v.

F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)).

“Shielding material in court records, then, should be

done only if there is a ‘compelling reason why certain

documents or portions thereof should be sealed.’”

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

Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016)

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(quoting Shane Grp., 825 F.3d at 305). Among the

reasons that may support a “narrowly tailored” seal

are the “privacy right[s] of third parties” or the need

to “legitimately protect” “trade secrets, information

covered by a recognized privilege (such as the

attorney-client privilege), and information required

by statute to be maintained in confidence (such as the

name of a minor victim of a sexual assault).” Id. at

594–95 (quoting Baxter Int'l, Inc. v. Abbott Lab'ys, 297

F.3d 544, 546 (7th Cir. 2002)).

In considering whether to keep some materials

under seal, the court must balance any interests

supporting the seal against the strong public interest

in accessing the “evidence and records . . . relied upon

in reaching” judicial decisions. Shane Grp., 825 F.3d

at 305 (quoting Brown & Williamson, 710 F.2d at

1181). The Sixth Circuit’s demanding standard for

sealing documents applies “even if neither party

objects to the motion to seal.” Id. at 306. Consistently

with that edict, this court has already made all seal

decisions in this case based on a weighing of all

relevant interests and with a presumption of open

access. Newby’s motion, therefore, is the equivalent of

a motion to intervene for the purpose of asking the

court to reconsider those earlier determinations.

The court finds, first, that Newby’s litigationrelated interests are insufficient to support intervention or warrant a change in the court’s earlier

conclusions. Newby’s case involves, at most, shortcomings related to one prisoner at one CoreCivic

facility at one time. The subject matter of this case

was far broader and involves numerous topics irrelevant to her claims. Newby, moreover, will have access

to all the ordinary tools of discovery in her own case.

There is not a single document under seal that she

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cannot seek in her own right, if it is actually relevant

to her claims. The only potentially persuasive interest

relevant to the court’s seals in this case, therefore, is

the general public interest in open records.

The public interest in the underlying records,

however, is fundamentally unchanged since the court

sealed the documents in the first place. CoreCivic is a

public contractor accused of misrepresenting the

quality of services it provided in exchange for public

funds. Moreover, CoreCivic is responsible for the

ongoing health, safety, and secrutity [sic] of the many

individuals detained in its facilities. There are therefore strong, legitimate public interests in information

regarding its operations and shortcomings, in addition to the ever-present public interest in transparent

court proceedings. The court, moreover, recognizes

that, “the greater the public interest in the litigation’s

subject matter, the greater the showing necessary to

overcome the presumption of access.” Shane Grp., 825

F.3d at 305. The public’s interests in accessing the

materials at issue in this case are stronger than in

most ordinary litigation between private parties,

meaning that the bar for justifying a seal is higher.

The court, however, considered those strong public

interests when it made its initial seal determinations

and found that countervailing considerations nevertheless supported a seal with regard to some

documents.

Newby’s briefing gives the court no persuasive

reason to conclude that its earlier rulings were

generally erroneous. Rather, she largely devotes her

briefing to reiterating the general public-interest

calculus governing seal decisions. That general public

interest in open dockets is real, but the court already

considered it and found that, with regard to these

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particular materials, it should not prevail. CoreCivic

and the BOP, moreover, have furnished detailed,

document-specific reasons reiterating the legitimate

grounds for the continued seal of many of the

requested documents. (Doc. No. 490 at 1–2, 6–9; Doc.

No. 492 at 5–15.)

Nevertheless, CoreCivic and the BOP have

informed the court that, having freshly reviewed the

documents, they do not object to a partial lift of the

seal. Specifically, CoreCivic supports the unsealing of

all of the relevant documents other than the following

docket entries: Doc. Nos. 387-1, 387-2, 389-1, 389-2,

389-4, 398-2, 398-3, 398-8, 399-10, 399-11, 399-25,

400-6, 400-12, 400-13, 401-13, 401-15, 401-18, 401-20,

401-24, and 401-26. BOP seeks the continued seal of a

somewhat longer list of items: Doc. Nos. 336-3, 336-5,

338, 338-1, 352-1, 367-1, 367-2, 389-1, 389-2, 389-4,

396, 397, 398-2, 398-3, 398-7, 398-8, 398-9, 398-10,

398-17, 398-18, 398-20, 398-22, 399-10, 399-11, 39922, 400-6, 400-12, 400-13, 400-17, 401-15, 401-18, 40119, 401-20, 401-24, 401-26, 401-30, 422, and 423.

Based on the court’s review, that means that the

unsealing of the following documents is unopposed:

Doc. Nos. 120, 121, 122, 336, 336-1, 336-2, 336-4, 3366, 347, 352, 352-2, 352-3, 358, 359, 386, 387, 388, 389,

389-3, 389-5, 398, 398-1, 398-4 to -6, 398-12 to -16,

398-19, 398-21, 398-23 to -25, 399, 399-1 to -9, 399-12

to -21, 399-23, 399-24, 400, 400-1 to -5, 400-7 to -11,

400-14 to -16, 400-18 to -25, 401, 401-1 to -12, 401-14,

401-16, 401-17, 401-21 to -23, 401-25, 401-27 to -29,

401-31, 401-32. Because Newby has not identified

persuasive reasons for revisiting the court’s original

sealing decisions with regard to the other documents,

the court will grant her motion only as to those

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documents about which there are no objections to

unsealing.

For the foregoing reasons, Newby’s Motion to

Intervene and Unseal Judicial Documents and

Exhibits (Doc. No. 481) is hereby GRANTED in part

and DENIED in part. The Clerk is hereby directed to

unseal the following docket items: Doc. Nos.1 120, 121,

122, 336, 336-1, 336-2, 336-4, 336-6, 347, 352, 352-2,

352-3, 358, 359, 386, 387, 388, 389, 389-3, 389-5, 398,

398-1, 398-4 to -6, 398-12 to -16, 398-19, 398-21, 39823 to -25, 399, 399-1 to -9, 399-12 to -21, 399-23, 39924, 400, 400-1 to -5, 400-7 to -11, 400-14 to -16, 400-18

to -25, 401, 401-1 to -12, 401-14, 401-16, 401-17, 40121 to -23, 401-25, 401-27 to -29, 401-31, 401-32.

Although Newby shall be permitted to intervene for

the limited purposes of this motion, she shall not be

granted access to any of the documents that remain

under seal.

It is so ORDERED.

ALETA A. TRAUGER

United States District Judge

1 When the court refers, in this list, to a docket number that has

a main document and a number of attached documents—for

example, Doc. No. 336—the court refers only to the main

document unless otherwise indicated. For example, the court’s

direction is to unseal the main document of Doc. No. 336 and the

other sub-documents explicitly identified (e.g., Doc. No. 336-1)

but not the other sub-documents under that docket entry (e.g.,

Doc. No. 336-3).

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No. 22-5312

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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NIKKI BOLLINGER GRAE,

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ET AL.,

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Plaintiffs,

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ORDER

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v.

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CORRECTIONS CORPORTION

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OF AMERICA, NKA CORECIVIC;

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DAMON T. HININGER; DAVID M.

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GARFINKLE; TODD J.

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MULLENGER; and HARLEY G.

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LAPPIN, DIRECTOR,

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Defendants-Appellees,

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MARIE NEWBY,

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Intervenor-Appellant,

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EDDIE TARDY,

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Proposed Intervenor.

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FILED Mar 9, 2023

DEBORAH S. HUNT, Clerk

BEFORE: BATCHELDER,

THAPAR, Circuit Judges.

GIBBONS,

and

The court received a petition for rehearing en

banc. The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision. The petition then was

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circulated to the full court. Less than a majority of the

judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Gibbons

would grant rehearing for the reasons stated in her

dissent.

ENTERED BY ORDER OF

THE COURT

Deborah S. Hunt, Clerk