Case 1:06-cv-00648-RCL Document 41-5 Filed 07/29/2008 Page 1 of 2
LEXSEE 1997 U.S. APP. LEXIS 28546
As of: Jul 29, 2008
In Re: Sealed Case
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
1997 U.S. App. LEXIS 28546
October 8, 1997, Filed
[*1] RULES OF THE DISTRICT OF
COLUMBIA CIRCUIT COURT OF APPEALS MAY
LIMIT CITATION TO UNPUBLISHED OPINIONS.
PLEASE REFER TO THE RULES OF THE UNITED
STATES COURT OF APPEALS FOR THIS CIRCUIT.
Format at: 1997 U.S. App. LEXIS 40310.
Reported in Table Case
PRIOR HISTORY: On Appeal from the United States
the District of Columbia.
DISPOSITION: Case remanded.
GINSBURG and TATEL, Circuit Judges.
James P. Rigoulot and Timothy M. Treschuk (the
tam action against MKI
Systems, Inc. on behalf of the United States pursuant to
the False Claims Act, 31 U.S.C. §§ 3729-3733. After the
United States declined to intervene the district court
ordered that the complaint be unsealed but ordered that
record remain under
Subsequently, the district court dismissed the action upon
consideration of a notice of voluntary dismissal submitted
by the Relators. MKI, unaware that the complaint had
been unsealed, requested that the district court unseal the
entire record. The district court denied MKI's motion
without explanation, and MKI appealed.
This court has long held that
there is a "strong
presumption in favor of public access
Johnson v. Greater Southeast
Community Hosp. Corp., 293 U.S. App. D.C. 1, 951 F.2d
1268, 1277 (D.C. Cir. 1991); see also EEOC v. National
Children's Ctr., Inc., 321 U.S. App. D.C. 243, 98 F.3d
1406, 1409 (D.C. Cir. 1996).
In United States v.
Hubbard, 208 U.S. App. D.C. 399, 650 F.2d 293, 317-22
(D.C. Cir. 1980) we established six factors for a court to
weigh in determining whether this presumption can be
overcome. These factors are:
(1) the need for public access to the
the extent of
previous public access to the documents;
(3) the fact that someone has objected to
disclosure, and the identity of that person;
the strength of any property and
possibility of prejudice to those opposing
disclosure; and (6) the purposes for which
Case 1:06-cv-00648-RCL Document 41-5 Filed 07/29/2008 Page 2 of 2
1997 U.S. App. LEXIS 28546, *2
the documents were introduced during the
National Children's Ctr., 98 F.3d at 1409 (citing
Hubbard, 650 F.2d at 317-22). In order for this court to
evaluate the district court's exercise of its discretion to
maintain the seal upon the record, the district court must
articulate its reasons for denying MKI's motion. See 98
F.3d at 1410. Because [*3] the district court in this case
made no findings when it denied MKI's motion to unseal
the record, it is hereby
ORDERED that the case be remanded to the district
court. Upon remand the district court should apply the
Hubbard factors, and if the court determines that the
record or any portion of the record should remain under
then it should articulate its reasons for
The Clerk is directed to withhold issuance of the
mandate herein until seven days after disposition of any
timely petition for rehearing. See D.C. Cir. Rule 41.