Free Speech

No Belated Sealing of "Central" Information in Professor's Race Discrimination Suit

The lawsuit had been filed against the University of Colorado; the Scheduling Order, which the professor had sought to seal, referred to allegations of improper conduct on the professor's part.

|The Volokh Conspiracy |

From this morning's decision by Magistrate Judge S. Kato Crews in Moudden v. Univ. of Colorado Boulder, 2020 WL 825850 (D. Colo.):

This Order addresses Plaintiff Youssef Moudden's Motion to Restrict the Proposed Scheduling Order and the Scheduling Order …. The Motion is unopposed. In accord with D.C.COLO.L.CivR 7.2(d), Eugene Volokh, a professor at UCLA School of Law, timely filed an objection to the Motion in his personal capacity and not as a professor at the law school. Professor Volokh argues that he "would like to write about the case, but would be limited in doing so if access were restricted and case documents were thus effectively sealed (whether entirely or partly)." …

The fact the Motion is unopposed does not in and of itself justify restriction because the right to access documentation is owed to the public. D.C.COLO.LCivR 7.2(c)(2). Moreover, the presence or lack of objection to a motion to restrict is not alone sufficient to deny or grant such a motion. D.C.COLO.L.CivR 7.2(d).

A motion to restrict is instead determined in light of preserving the public's right to access court documents. There is a strong presumption of public access to court records. Therefore, documents filed with the court are presumptively available to the public. This strong presumption of public access exists to hold courts accountable and to provide insight into the court's decision-making process. The presumption of public access is only outweighed when a party's interests require nondisclosure.

The District Court's Local Rule 7.2 governs motions to restrict. Because documents filed with the court are presumptively accessible to the public, the party seeking restriction has the burden to justify relief under Local Rule 7.2. In order to restrict public access to documents filed with the court, Local Rule 7.2(c) requires a party to move for restriction with a written motion that: (1) identifies the document for which the restriction is sought; (2) addresses the interest to be protected and why such interest outweighs the presumption of public access; (3) identifies a clearly defined and serious injury that would result if access is not restricted; (4) explains why no alternative to restriction is practicable or why only restriction will adequately protect the interest in question; and (5) identifies the restriction level sought.

Moudden moved to restrict public access to the Proposed Scheduling Order and the Scheduling Order, both in their entirety. However, the Motion fails to satisfy the second, third, and fourth requirements of Local Rule 7.2(c).

First, the proposed Scheduling Order was filed January 2, 2019, and the Scheduling Order issued January 8, 2019. Moudden waited until July 1, 2019 before moving to restrict these filings, which undercuts a finding that serious injury would result if access is not restricted since he waited six months to seek restriction.

Second, while the documents he seeks to restrict contain some information that is potentially sensitive, that information is central to the legal issues in the case, which weighs in favor of maintaining public access for transparency in the proceedings.

Third, Moudden did not clearly define what injury would result from continued public access to the two documents other than implying he may experience some embarrassment. See Richardson v. Gallagher, No. 10-cv-02097-MSK-CBS, 2012 WL 4359116, at *8 (D. Colo. Sept. 24, 2012) (determining that "embarrassment" is insufficient to qualify as a "clearly defined and serious injury" in favor of restricting public access). Lastly, the Motion does not address why possible alternatives to restriction are insufficient to protect Moudden's interests.

Ultimately, Moudden has not met his burden to show that the Proposed Scheduling Order and the Scheduling Order should be restricted from public access. The Motion to Restrict is therefore DENIED.

For more on the underlying lawsuit, see here; here is a taste of the plaintiff's allegations:

Plaintiff's allegations, which the Court accepts as true only for purposes of the Motion to Dismiss, are as follows:

Plaintiff is a former Research Associate and Lecturer in the Departments of Aerospace Engineering Sciences ("AES") and Atmospheric and Oceanic Studies ("ATOC") for Defendant University of Colorado Boulder (the "University"). He identifies as black and African-American, and his national origin is Moroccan. Plaintiff worked at the University from June or July 2007 to the end of the Fall 2016 semester.)

At some point while working as a Research Assistant for AES, Plaintiff became interested in becoming a lecturer in ATOC. At all relevant times, Defendant John Cassano ("Cassano") was responsible for selecting candidates for teaching positions in ATOC, subject to the approval of the chair of ATOC, Defendant Cora Randall ("Randall"). (Cassano and Randall first became aware of Plaintiff's desire to lecture in ATOC on June 11, 2013, when Plaintiff expressed interest in a lecturing vacancy. They did not consider Plaintiff for the position.

Cassano and Randall were again made aware of Plaintiff's interest in a Lecturer position in ATOC in April 2014, when he applied to teach the courses ATOC 1050 and 1060. According to Plaintiff, Defendants ultimately hired a "less qualified candidate" with "inferior teaching experience and inferior research experience."

In August 2014, Plaintiff e-mailed Cassano from a different e-mail address under the pseudonym "Jason McLeif." Plaintiff, posing as "McLeif," stated in an e-mail to Cassano that he was a post-doctoral student at Colorado State University and was inquiring about lecturer vacancies in ATOC. Cassano responded and informed "McLeif" (i.e., Plaintiff) that there were currently no vacancies, but that he would keep him apprised of future opportunities. Thereafter, Cassano informed "McLeif" of "every teaching vacancy that ATOC had and invited him to apply at every available occasion." Cassano never informed Plaintiff (i.e., Youssef Moudden) of any teaching vacancy and never invited him to apply.

And here is some material from the Proposed Scheduling Order and the Scheduling Order that may have been the "confidential personnel information based on an OIEC (Office of Institutional Equity and Compliance) complaint" to which plaintiff's motion to seal referred. Note that this is the defendants' view of the matter, and, like plaintiff's allegations, has not been proved:

Over the course of the Fall 2016 semester, Defendants received (1) complaints from students about Plaintiff's class and (2) a complaint from a student regarding an inappropriate and uncomfortable interaction during which Plaintiff (a) asked about the student's dating relationships; (b) asked whether she had any tattoos; (c) invited her to watch a movie with him; and (d) grabbed her hand and arm. Given these complaints and the number of other qualified individuals interested in serving as contract lecturers, although Plaintiff expressed interest in serving as an ATOC lecturer the following Spring 2017 semester, Defendants decided not to re-hire Plaintiff.

NEXT: American Heart Association Journal Finally Retracts Study Implying That E-Cigarettes Cause Heart Attacks Before People Use Them

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I do not understand part of the court’s summary.
    “…This Order addresses Plaintiff …Motion to …. The Motion is unopposed. In accord with D.C.COLO.L.CivR 7.2(d), Eugene Volokh, a professor at UCLA School of Law, timely filed an objection to the Motion in his personal capacity and not as a professor at the law school. . . .
    …The fact the Motion is unopposed does not in and of itself justify restriction because the right to access documentation is owed to the public.”

    The court mentions that EV has filed a timely objection. But the court also states (twice) that the motion to seal is unopposed. Did this court mean that the motion was unopposed *by a party*? To my eye (a lawyer entirely uninformed about the procedures for opposing such sealing motions and equally uninformed about what such court opinions tend to look like), the court’s language looks deceptive. Well, maybe not actually deceptive . . . maybe “sloppy” or ‘misleading’ is more accurate.

    1. I guess that filing an objection is not the same as formal opposition, yes? (If allowed to edit a post, I’d obviously have done that instead of posting a self-reply.) 🙂

      1. Under the local rules, when a “motion is unopposed” at the time it’s filed, “it shall be titled ‘Unopposed Motion for ________.'” It seems like that label sticks with it, even if, after the filing, an outsider comes in to object to it.

        1. So, just as Prince became the Artist Formally Known as Prince, I guess this type of motion should become The Opposed Motion Formally Known as Unopposed.

          Local rules are weird.

  2. Great outcome, thanks Professor for pursuing this!

  3. Any news concerning Prof. Volokh’s efforts with respect to the sealing case involving John M. Mulvaney of South Carolina?

    Didn’t think so.

    Trump got your tongue, Professor?


    1. Lol. You were going to handle that one, remember? Because you claim to be a lawyer.

      You aren’t a lawyer. But it’s OK. It’s the internet. Nobody knows you’re a dog.

      1. I do not remember the ‘going to handle that one’ part because it never happened.

        I am not going to challenge the Mulvaney sealing and neither, apparently, is Prof. Volokh. Whether because of pure partisanship or shambling pursuit of favor from the Trump administration, this is vivid cowardice and hypocrisy. A ‘free speech champion’ who engages in viewpoint-controlled censorship and cowers before Trump and Mulvaney.

        Your conclusion that I am not a lawyer reflects the level of reasoning that leads to being a clinger.

        Carry on, clingers. So far as America’s better elements permit, that is.

        1. Does it hurt being that ignorant RAK?
          Or just normal for a Progressive serf?

          1. Does ranting at your betters in the American mainstream constitute a salve with respect to the pain of getting stomped in the culture war, FlameCCT?

            (It seems to work for the Volokh Conspirators.)

  4. What’s the significance of the objection being filed in your personal capacity, not as a law professor?

    1. I just wanted to make clear that I was representing myself, and not UCLA. You’d think that would be obvious, but an opponent in an unsealing cases objected to it once, so now I always make that explicit.

      1. Thanks!

  5. Like shooting fish in a barrel huh? Congratulations professor V.

    1. Yes, I do not claim a high degree of difficulty on this one.

      1. . . . still hoping you demonstrate I am wrong about the case of John M. Mulvaney of South Carolina.

        1. . . . but expecting more obsequious groveling and conspicuous conservative cowardice with respect to the Mulvaney case.

  6. I’m sorry, is he suing over not being put on a email list?

Please to post comments

Comments are closed.