United States District Court, S.D. Mississippi, Northern Division
UNITED STATES OF AMERICA; JEREMY WESTFALL; RUSSELL BOURLAND; RICHI LESLEY PLAINTIFFS
APOTHETECH RX SPECIALTY PHARMACY CORP.; CANCER SPECIALISTS, LLC; JOHN DOES 1-10 DEFENDANTS
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
the Court is a motion by plaintiff-relators to seal the
entire record of this qui tam action or, in the
alternative, to unseal a redacted version of the record. The
Government responds in opposition, asking the Court to unseal
(1) Relators' Complaint; (2) Relators' Notice of
Voluntary Dismissal; (3) the United States' Notice of
Consent to Relators' Voluntary Dismissal; (4) the
Court's Order dismissing the case; and (5) all matters
occurring in this action after the date of that Order. The
Government requests that all other papers on file in this
action remain under seal, because they contain sensitive
information about ongoing civil and criminal investigations.
is clear that the courts of this country recognize a general
right to inspect and copy public records and documents,
including judicial records and documents.” Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978);
see also Sec. and Exch. Comm'n v. Van
Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993);
L.U.Civ.R. 76(a) (court records are presumptively in the
public domain). “[H]owever . . . the right to inspect
and copy judicial records is not absolute.”
Nixon, 435 U.S. at 598.
court must use caution in exercising its discretion to place
records under seal. Its decision must be made in light of the
strong presumption that all trial proceedings should be
subject to scrutiny by the public.” United States
v. Holy Land Found. for Relief and Dev., 624 F.3d 685,
689-90 (5th Cir. 2010) (quotation marks and citations
omitted). “Closed proceedings, although not absolutely
precluded, must be rare and only for cause shown that
outweighs the value of openness.” Press-Enterprise
Co. v. Superior Court of California, 464 U.S. 501, 509
(1984). “In determining whether to restrict the
public's access to court documents, the court must
‘weigh the interests advanced by the parties in light
of the public interest and duty of the courts.'”
In re Violation of Rule 28(D), 635 F.3d 1352,
1356-57 (Fed. Cir. 2011) (quoting Nixon, 435 U.S. at
602). “The principle of public access to judicial
records furthers not only the interests of the outside
public, but also the integrity of the judicial system
itself.” Holy Land, 624 F.3d at 690 (citation
omitted); see also United States v. Nix, 976 F.Supp.
417, 420 (S.D.Miss. 1997) (“‘People in an open
society do not demand infallibility from their institutions,
but it is difficult for them to accept what they are
prohibited from observing.'”) (quoting
Press-Enterprise, 464 U.S. at 509).
argue that placing this case under seal is the only way to
avoid damaging their hard earned reputations within the
healthcare industry and protect themselves and their families
from retaliatory action. These concerns may be well founded,
but alone they are insufficient to overcome the public right
to access judicial records.
general, courts refuse to allow a party to proceed
anonymously simply because of fears of embarrassment or
vague, unsubstantiated fears of retaliatory actions by
higher-ups.” United States ex rel. Grover v.
Related Companies, LP, 4 F.Supp.3d 21, 29 (D.D.C.
2013)(quotation marks and citation omitted).
[T]he Court does not believe that Plaintiff-Relator's
fear of retaliation by her current employer or future
employers is sufficient to overcome the strong presumption in
favor of access to judicial records. Indeed, to conclude
otherwise would ignore that Plaintiff-Relator's amorphous
concern is no different from the concern any employee may
have when she sues her employer for whatever reason.
Furthermore, should Plaintiff-Relator be retaliated against
by her current employer or future employers for filing this
qui tam action, she is not without legal recourse.
United States ex rel. Herrera v. Bon Secours Cottage
Health Servs., 665 F.Supp.2d 782, 785-86(E.D. Mich.
2008) (quotation marks, brackets, and citation omitted).
too relators' concerns are generalized apprehensions of
future retaliation. Each of these three relators submitted a
nearly identical declaration to the Court, containing
imprecise concerns of reprisal from employers in the
healthcare industry at large. They each fear the loss of
indefinite future employment opportunities, but do not
specify how they would suffer such loss aside from damaging a
professional relationship with a single healthcare industry
recruiter-a non-party to this suit. Importantly, as noted in
Herrera, relators are not without legal remedies.
For example, in the event of retaliation by current or future
employers, relators may turn to the False Claims Act itself
for legal recourse. See 31 U.S.C. § 3730(h);
see also United States v. ex rel. Permison v. Superlative
Tech., Inc., 492 F.Supp.2d 561, 564 (E.D. Va. 2007)
(“[T]he law provides other possible remedies, including
tortious interference with contract or business relations,
and defamation, in the event [defendants] were to attempt to
poison the industry waters for [relators].”).
Relators' concerns do not overcome the strong presumption
in favor of public access to court records. Accordingly, the
Court denies relators' motion to seal the case.
alternative request-to allow them to submit a redacted
complaint devoid of all personally identifying
information-would achieve the same effect of sealing the
case. See, e.g., Herrera, 665 F.Supp.2d at
786 (“Plaintiff-Relator's request for a wholesale
redaction of all identifying information is tantamount to
maintaining a permanent seal over all of the documents filed
in this action.”). Therefore, the reasons discussed
above apply with equal force to relators' alternative
motion to seal or in the alternative submit a redacted
complaint is denied. Docket No. 16. By Order entered August
30, 2016, this Court unsealed: (1) Relators' Complaint;
(2) Relators' Notice of Voluntary Dismissal; (3) the
United States' Notice of Consent to Relators'
Voluntary Dismissal; and (4) the Court's Order of August
30, 2016. Therein, the Court maintained under seal all other
papers in this action filed ...