                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2005

Reyes v. Freeberry
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3400




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"Reyes v. Freeberry" (2005). 2005 Decisions. Paper 880.
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                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                            04-3400
                         ____________

                   JACK REYES, Sergeant;
            JOSE ANTONIO HERNANDEZ, Sergeant,

                                  Appellants

                                   v.

                   SHERRY FREEBERRY;
           JOHN L. CUNNINGHAM, Colonel, both
           individually and in their official capacity;
        NEW CASTLE COUNTY, a municipal corporation

                    ____________________

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE DISTRICT OF DELAWARE
               ____________________

                    (D.C. Civ. No. 02-cv-01283)
            District Judge: The Honorable Kent Jordan

                     Argued: May 24, 2005

Before: SCIRICA, Chief Judge, ALITO, and ROSENN, Circuit Judges

                      (Filed: July 8, 2005)

                             STEPHEN J. NEUBERGER (Argued)
                             THOMAS S. NEUBERGER
                             The Neuberger Firm
                             Two East Seventh Street, Suite 302
                             Wilmington, Del. 19801
                                           MARTIN D. HAVERLY
                                           Two East Seventh Street, Suite 3021
                                                Wilmington, Del. 19801
                                                Counsel for Appellants

                                           ELIZABETH A. MALLOY (Argued)
                                           JESSAMYNE M. SIMON
                                           Klett Rooney Lieber & Schorling
                                           Two Logan Square, 12th Floor
                                           Philadelphia, Pa. 19103

                                        WILLIAM. W. BOWSER
                                        Young Conaway Stargatt & Taylor
                                        The Brandywine Bldg., 17th Floor
                                        1000 West Street
                                        Wilmington, Del. 19899
                                              Counsel for Appellees
                                 ____________________

                                       OPINION
                                 ____________________

PER CURIAM:

       This appeal arose out of an action filed by officers of the Newcastle County Police

Department in federal court against the county and several current or former county

officials. The plaintiffs allege, among other things, discrimination based on race and

national origin and retaliation for engaging in protected activities. The parties entered

into a confidentiality agreement and filed a joint motion for a protective order approving

the agreement. The District Court granted that motion in January 2003. Claiming that

plaintiffs’ counsel had violated the order, the defendants subsequently filed a Motion to

Comply with Protective Order. After conducting a hearing by telephone, the District


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Court placed certain filings under seal and ordered counsel not to engage in certain

communications with the media. Some time later, the plaintiffs filed a motion to void the

confidentiality agreement and protective order and to make all of the records in the case

available to the public. While this motion was pending, defendant Freeberry was indicted

on unrelated federal charges, and the District Court stayed all proceedings in the civil

case until further order. The District Court also denied without prejudice all pending

motions, including the plaintiffs’ motion to void the confidentiality agreement and

protective order and to make the record available to the public. The plaintiffs then took

this appeal, arguing that the District Court erred in staying the civil case, in refusing for

the time being to void the confidentiality agreement and protective order and to make the

records available to the public, and in precluding counsel from speaking with the media.

       We cannot consider the merits of the arguments raised by the plaintiffs in this

appeal unless we possess appellate jurisdiction. After considering the parties’ arguments

on this question, we conclude that we lack jurisdiction to review the order staying the

civil case. We further conclude that clarification by the District Court is needed in order

for us to resolve all of the jurisdictional questions relating to the remaining arguments

presented in this appeal. Accordingly, we are remanding this case to the District Court

for clarification of the points discussed below. Cf. Forbes v. Twp. of Lower Merion, 313

F.3d 144, 149 (3d Cir. 2002) (remanding case for clarification of matters relating to

determination of appellate jurisdiction).



                                               3
       As noted, we conclude that we lack jurisdiction to review the order of the District

Court staying the civil case pending the resolution of the criminal case against defendant

Freeberry. “As a general rule, a stay order is not appealable.” Haberern v. Lehigh & N.E.

Ry. Co., 554 F.2d 581, 584 (3d Cir. 1977). Although we have entertained appeals of stay

orders in exceptional circumstances, no such circumstances are present here. It is not

uncommon for a civil case to be stayed pending resolution of a related criminal case, and

it appears likely that the period of the stay will conclude in the not-too-distant future.

Federal criminal cases are subject to the strict time limits of the Speedy Trial Act, 18

U.S.C. §§ 3161-3174, and we have been informed that the criminal case involving

defendant Freeberry is currently scheduled to commence in October of this year. We

therefore dismiss the appeal insofar as it seeks review of the stay order.

       The protective order and the order barring counsel from engaging in certain

communications with the media require a different analysis. Of course, neither of these

orders is a final decision under 28 U.S.C. § 1291 in the usual sense, but the plaintiffs

argue that the requirements of the collateral order doctrine are met.

       Under the collateral order doctrine, an order is immediately appealable if it (1)

conclusively determines the disputed question, (2) involves an “important” question that

is unrelated to the merits of the underlying case, and (3) would be effectively

unreviewable after the conclusion of the case. See, e.g., Coopers & Lybrand v. Livesay,

437 U.S. 463, 468-69 (1978). In applying this doctrine, it is important to determine as a



                                               4
threshold matter whether First Amendment free speech or free press rights are at issue.

There are circumstances in which even brief restrictions may irreparably damage these

rights. See Elrod v. Burns, 427 U.S. 347, 373 (1976); Swartzwelder v. McNeily, 297

F.3d 228, 241 (3d Cir. 2002); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989). In such a

situation, even a temporary restriction might be viewed as conclusively resolving an

important question that could not be effectively reviewed later because, by then, the right

– i.e., to engage in constitutionally protected and time-sensitive communications – would

have been irreparably lost. By contrast, in the usual case involving a dispute about the

disclosure of information obtained in discovery pursuant to a protective order, no First

Amendment rights are implicated. When a civil litigant obtains discovery pursuant to a

valid protective order, the litigant has no First Amendment right to disclose the

information. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). An order temporarily

refusing to vacate such a protective order might not satisfy either the first or the third

prong of the collateral order doctrine. In addition, the order might not be sufficiently

“important,” in the sense relevant here, to justify interlocutory review.

       In the present case, it is not clear from the record whether, as the defendants

maintain, this appeal involves at bottom only a mundane dispute about the disclosure of

information obtained in discovery or whether, as the plaintiffs insist, important First

Amendment rights are implicated. For example, the defendants interpret the order

precluding communications with the media as limited to the disclosure of information



                                               5
covered by the protective order, while the plaintiffs interpret the order as prohibiting all

communications relating to the case. The defendants likewise argue that the only filings

that have been sealed are those that contain information covered by the protective order,

while the plaintiffs argue that virtually the entire record has been sealed.

       It is also difficult for us to determine based on the present record whether the

question of nondisclosure is unrelated to the merits of the underlying case, as required by

the second prong of the collateral order doctrine. The District Court entered the

protective order in response to a joint motion and thus did not provide an explanation on

the record of the “good cause” justifying the restrictions on the disclosure of the

information covered by the order. See Fed. R. Civ. Proc. 26(c); Glenmeade Trust Co. v.

Thompson, 56 F.3d 476, 483 (3d Cir. 1995); Cipollone v. Liggett Group, Inc., 785 F.2d

1108, 1120-1121 (3d Cir. 1986). Without such an explanation, it is difficult for us to

determine whether the dispute about the disclosure of any particular category or item of

information is or is not related to the merits of the action.

       For these reasons, we find it difficult to determine on the basis of the current

record whether we have appellate jurisdiction. We are therefore remanding this case to

the District Court so that the Court can clarify (a) the scope of the restrictions that it has

placed on the disclosure of court records and discovery information and on

communications by counsel to the media and (b) the reasons for any such restrictions. In

setting out these reasons, the District Court should provide specific reasons for each



                                               6
relevant category of documents or information. We will retain jurisdiction, and after

clarification is provided, we will proceed to determine whether we have appellate

jurisdiction and, if we do, whether the rulings of the District Court were correct under the

applicable standard of review.




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