Osama Elfeky v. Secretary United States Depart

• Court: Court of Appeals for the Third Circuit
• Decided: October 19, 2018
• Docket: 17-3476
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-3476 _____________

OSAMA “SAM” ELFEKY, Appellant

v.

SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL UNITED STATES OF AMERICA; DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; EVANGELIA KLAPAKIS, Director, Philadelphia Field Office, United States Citizenship and Immigration Services; LAURA B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Action No. 2-15-cv-03442) District Judge: Honorable Jan E. DuBois _____________

Submitted Under Third Circuit L.A.R. 34.1(a) September 27, 2018 _____________

Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges

(Opinion Filed: October 19, 2018) _____________

OPINION* _____________

GREENAWAY, JR., Circuit Judge.

After filing a complaint and amended complaint in the District Court pursuant to

the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), Osama “Sam” Elfeky

voluntarily disclosed several decisions made by the United States Citizenship and

Immigration Services (“USCIS” or the “agency”), which determined that he had entered

into a fraudulent marriage with a United States citizen to evade immigration laws. He

now appeals from the District Court’s order denying his petition to seal those judicial

records. We will affirm.

I. Facts & Procedural Background

Elfeky commenced this action in 2015 to challenge numerous adverse decisions

made by USCIS as arbitrary and capricious, in violation of the APA, 5 U.S.C.

§ 706(2)(A). The complaint was a result of USCIS’s determination that Elfeky had

entered into a marriage with a United States citizen, Kimberly D., “for the sole purpose of

evading immigration laws.” SA103. In initiating suit, Elfeky filed a complaint and

amended complaint that described his immigration status, the various forms of relief he

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 had petitioned for, and the several agency adjudications forming the basis of his

complaint. These pleadings were filed on the public docket.

Subsequently, the parties filed a joint motion requesting the District Court to seal

the administrative record. The parties reasoned that the record should be sealed because

it contained “2,789 pages of sensitive personal information relating to Elfeky, including

information that underlies the agency’s conclusion that he committed marriage fraud.”

SA55. They acknowledged that “[m]uch of this information would require redaction

under Local Rule of Civil Procedure 5.1.3, including personal identifiers such as Social

Security numbers, dates of birth, financial account numbers, and tax records.” SA55-56.

The parties agreed that, “[t]o ensure maximum public access to these proceedings,” they

would file the agency decisions with their motions for summary judgment and would

make summary judgment briefing “available to the public.” SA56. They also agreed that

the District Court’s decision on summary judgment would “fully inform the public of the

nature of the proceeding, further diminishing the public interest in the administrative

record standing alone.” SA56. The District Court granted the motion to seal the

administrative record, permitting the parties to proceed to summary judgment.

After reviewing the papers, the District Court issued a memorandum opinion and

order entering judgment in favor of USCIS. The opinion was published in the Federal

Supplement. Elfeky v. Johnson, 232 F. Supp. 3d 695 (E.D. Pa. 2017). In the opinion, and

pertinent to this case, the District Court noted, inter alia, that “USCIS possessed

3 substantial evidence that Elfeky’s marriage to Kimberly D. was fraudulent, including

Kimberly D.’s own admission against interest, detailed testimony concerning the

circumstances of the marriage, Elfeky’s use of an attorney who engaged in a marriage

fraud scheme, and evidence that Elfeky and Kimberly D. never cohabitated.” Id. at 706.

The District Court also determined that Elfeky “committed fraud and willfully

misrepresented a material fact” when he filed an application before USCIS. Id. at 707.

Elfeky did not appeal this decision.

Instead, nearly eight months later, Elfeky filed a petition in the District Court to

seal the record, docket, and all filings. Elfeky averred that the aforementioned opinion

was “available not only on the publicly accessible electronic docket; but also on the

internet upon a rudimentary search” of his name, and that the “publicly available”

opinion, docket, and pleadings “have caused [him] harm and prejudice.” SA194. As a

result, Elfeky continued, he has suffered “[l]ost business opportunities both in the United

States and abroad” and “[r]isk to his personal safety because of [his] asylum status being

public information.” Id.

The District Court denied Elfeky’s petition. In an order, the court noted that

Elfeky “voluntarily placed the issues on the public docket when he filed his Complaint

and Amended Complaint,” and emphasized that what he “seeks is contrary to what was

agreed to in the joint motion of the parties to seal the administrative record.” App. 5-6.

The District Court, nonetheless, carefully weighed the factors relevant to granting orders

4 of confidentiality. Accordingly, it concluded that Elfeky “ha[d] failed to establish good

cause for sealing under [our] framework.” App. 5. The District Court also rejected

Elfeky’s argument “regarding the need to seal the record based on his asylum status”

because he had “disclosed his asylum status years ago when he filed this lawsuit.” App.

6. This timely appeal followed.

II. Jurisdiction

The District Court had jurisdiction arising under 28 U.S.C. § 1331 and 5 U.S.C.

§ 706. We have jurisdiction pursuant to 28 U.S.C. § 1291.

III. Discussion

At the outset, we note that it appears Elfeky conflates his arguments that the

District Court erred in denying his petition to seal the judicial records and in deciding the

petition without a hearing. We therefore begin by analyzing the issue of whether the

District Court erred in denying the petition to seal the judicial records and then proceed to

determine if the District Court erred in deciding the petition without a hearing.

Elfeky contends that he has proffered sufficient evidence to show good cause to

seal the judicial records and that, in balancing the Pansy factors, the privacy interests are

in his favor. He also argues that the District Court erred in placing weight on the fact

“that the parties had previously agreed to lift the seal that had been in place.” Elfeky Br.

7. According to him, the harm he alleges was not discovered until the seal was lifted.

5 We review a district court’s decision to seal judicial records for abuse of

discretion. See EEOC v. Kronos Inc., 694 F.3d 351, 361 (3d Cir. 2012). “Courts have

‘inherent equitable power’ to grant orders of confidentiality upon a showing of good

cause.” EEOC v. Kronos Inc., 620 F.3d 287, 302 (3d Cir. 2010) (quoting Pansy v.

Borough of Stroudsburg, 23 F.3d 772, 785–86 (3d Cir. 1994)). Good cause is proven by

a showing that “disclosure will work a clearly defined and serious injury to the party

seeking closure.” Id. (quoting Pansy, 23 F.3d at 786). The allegations articulated must

be specific and sufficiently detailed: “‘[b]road allegations of harm, unsubstantiated by

specific examples or articulated reasoning,’ do not support a good cause showing.” Id.

(alteration added) (quoting Pansy, 23 F.3d at 786). The party petitioning the court bears

the burden of justifying confidentiality. Kronos, 620 F.3d at 302.

In Pansy, we set out a non-exhaustive list of factors that balance public interest

against private interest in deciding whether a party has established good cause to seal

judicial records. 23 F.3d at 787–89. The following are several factors we consider as

part of a showing of good cause:

1) whether disclosure will violate any privacy interests;

2) whether the information is being sought for a legitimate purpose or an improper purpose;

3) whether disclosure of the information will cause a party embarrassment;

4) whether confidentiality is being sought over information important to public health and safety; 6 5) whether the sharing of information among litigants will promote fairness and efficiency;

6) whether a party benefitting from the order of confidentiality is a public entity or official; and

7) whether the case involves issues important to the public.

Kronos, 620 F.3d at 302 (quoting Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d

Cir. 1995)). A district court abuses its discretion when it fails to conduct a good cause

balancing test before adjudicating the matter. Pansy, 23 F.3d at 792.

The District Court properly set forth the Pansy factors and explained how they

weighed in this case. The court found that Elfeky “failed to establish good cause for

sealing” under the Pansy framework in part because he “voluntarily placed” the

information on the public docket when he filed the complaints and “again when he filed

his motion for summary judgment.” App. 5. The District Court rejected Elfeky’s

averments related to “unspecified ‘lost business opportunities’” and his personal safety as

“insufficient to warrant sealing,” reasoning that the “public is entitled to know about a

case that involves public officials, a federal agency, and the [District] Court’s resolution

of a dispute concerning immigration issues.” App. 5-6. Moreover, the District Court

highlighted that Elfeky’s request was “contrary to what was agreed to in the” parties’

motion to seal the administrative record. App. 6. Similarly, the District Court overruled

Elfelky’s argument on the need to seal based on his asylum status, explaining that he had

already “disclosed his asylum status years ago when he filed this lawsuit,” and that 7 Federal Rule of Civil Procedure 5.1 “exempts immigration cases, including this one, from

electronic public access.” Id.

We discern no abuse of discretion in the District Court’s conclusion that Elfeky

failed to establish good cause under the Pansy framework. We agree that the record

demonstrates several instances where Elfeky affirmatively discloses information he now

attempts to seal. Furthermore, we also concur with the District Court’s determination

that Elfeky’s unspecified allegations of lost business opportunities and fear for his

personal safety were insufficient to establish good cause because “‘[b]road allegations of

harm, unsubstantiated by specific examples or articulated reasoning,’ do not support a

good cause showing.” Kronos, 620 F.3d at 302 (alteration added) (quoting Pansy, 23

F.3d at 786). Indeed, Elfeky has not clearly defined or articulated a particularized

example of the harm he has suffered due to this information being available to the public.

Accordingly, we conclude that the District Court exercised appropriate discretion in

denying Elfeky’s petition.

Elfeky further argues that the District Court’s resolution is “problematic because

[he] was never given [the] opportunity” of a hearing. Elfeky Br. 8. He contends that he

was not given an opportunity to respond to the Government’s assertions because the

District Court decided the petition three days after the Government’s response.

We acknowledge that district courts have broad discretion to decide a motion with

or without oral argument, and our review of those decisions is for an abuse of that broad

8 discretion. See Fed. R. Civ. P. 78(b); Rose v. Bartle, 871 F.2d 331, 340 n.4 (3d Cir.

1989). Here, Elfeky does not point to anything in the record to demonstrate how the

District Court abused its discretion in not holding oral argument to decide the petition or

in deciding the motion three days after the Government filed its response. Likewise, our

independent review satisfies us that the District Court acted well within its discretion to

decide the motion without oral argument and in an appropriate timeframe.

Thus, we will affirm.

IV. Conclusion

For the foregoing reasons, we shall affirm the order of the District Court denying

Elfeky’s petition to seal the record, docket, and all filings in this matter.