17-1806-cv
United States of America ex rel. v. American University of Beirut

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of April, two thousand eighteen.

Present:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
                        Circuit Judges.
            DENISE COTE,1
                        District Judge.
_____________________________________________________

UNITED STATES OF AMERICA EX REL.,

                                    Plaintiff-Appellant,

UNITED STATES OF AMERICA,

                                   Intervenor-Plaintiff,

                 v.                                                 No. 17-1806

AMERICAN UNIVERSITY OF BEIRUT,

                         Defendant-Appellee.
____________________________________________________
Appearing for Appellant: David Abrams (Stephanie Goldberg, Benjamin N. Cardozo School
                         of Law, on the brief), New York, N.Y.


1
 Judge Denise Cote, United States District Court for the Southern District of New York, sitting
by designation.
Appearing for Appellee:        Daniel S. Ruzumna, Patterson Belknap Webb & Tyler LLP, New
                               York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Oetken, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

         The relator in this qui tam action appeals from the order entered May 16, 2017 in the
United States District Court for the Southern District of New York (Oetken, J.) sealing its
identity.2 We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        We review sealing decisions for abuse of discretion. Newsday LLC v. County of Nassau,
730 F.3d 157, 163 (2d Cir. 2013). Federal courts employ two related but distinct presumptions in
favor of public access to court proceedings and records: a strong form rooted in the First
Amendment, and a slightly weaker form based in federal common law. Id. Under the First
Amendment, there is a presumptive right of access to documents: (1) where the documents have
historically been open to the public, (2) public access plays a significant positive role in the
functioning of the court process in question, or (3) that are derived from or serve as a necessary
corollary to the capacity to attend court proceedings. Id. at 163-64. This presumptive right to
access prevails unless it is overcome by specific, on-the-record findings that sealing is necessary
to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim.
Id. at 165 (internal quotation marks omitted).

        By contrast, the common law right operates slightly differently. Id. “Once the court has
determined that the documents are judicial documents and that therefore a common law
presumption of access attaches, it must determine the weight of that presumption.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). “The weight to be given the
presumption of access must be governed by the role of the material at issue in the exercise of
Article III judicial power and the resultant value of such information to those monitoring the
federal courts.” Id. (internal quotation marks omitted). “Finally, after determining the weight of
the presumption of access, the court must balance competing considerations against it.” Id. at
120 (internal quotation marks). “Such countervailing factors include but are not limited to the
danger of impairing law enforcement or judicial efficiency and the privacy interests of those
resisting disclosure.” Id. (internal quotation marks omitted).

        There is no question that the documents at issue here are judicial documents. The district
court found that the identity of the relator in a False Claims Act case is tangential to the court’s
exercise of its judicial powers, and thus the common law right of access was to be afforded
“limited weight.” App’x at 72. Finding that American University “plausibly assert[ed]” security
concerns sufficient to outweigh the public’s right of access to the identity of the relator, the
2
 The relator filed an amended notice of appeal purporting to include the district court’s July 27,
2017 order. To the extent that the relator challenges any redaction decisions contained in the
district court’s July 27, 2017 order, our conclusion that the sealing decision in the May order was
not an abuse of discretion applies equally to decisions in the July order.


                                                 2
district court ordered the relator’s identity sealed. App’x at 72. We affirm. The district court did
not exceed the bounds of its discretion in ordering the limited seal at issue here.

        Nor did the district court abuse its discretion under the more demanding standard which
governs the First Amendment right to access certain judicial documents. See Lugosch, 435 F.3d
at 120. (“A court’s conclusion that a qualified First Amendment right of access to certain judicial
documents exists does not end the [First Amendment] inquiry” because “[d]ocuments may be
sealed if specific, on the record findings are made demonstrating that closure is essential to
preserve higher values and is narrowly tailored to serve that interest.”). The district court here
made specific, on-the-record findings and determined that sealing was necessary “to preserve
higher values.” The district court’s order was narrowly tailored, ordering only the relator’s name
and any identifying information to remain under seal.

       We have considered the remainder of Appellant’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
own costs.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                 3
