Eighth Circuit Seals Published (Printed) Opinion, Later Grants Our Motion to Unseal
In 2014, the Eighth Circuit decided Hemminghaus v. Missouri, which was published in print at 756 F.3d 1100:
Hemminghaus worked as a court reporter for then Missouri circuit judge Gary M. Gaertner Jr. from October 2006 until April 2009. Hemminghaus complains Judge Gaertner fired her because she asked for leave from work to care for her children, whom she suspected had been abused by their nanny, and because she criticized the St. Louis Police Department and the county prosecutor for not pursuing criminal charges against the nanny. Hemminghaus filed claims against the State of Missouri (the State) for violating § 102(a) of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2612(a), and against Judge Gaertner, pursuant to 42 U.S.C. § 1983, for retaliating against her for exercising her First Amendment right to free speech. The district court granted summary judgment in favor of Judge Gaertner and the State on all claims. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
The case became part of the law of the Eighth Circuit, and has been cited by 20 other cases. But then, on June 22, 2020, the plaintiff filed a sealed motion to seal the opinion; and on the next day, the court agreed:
Appellant’s pro se motion to seal the opinion in this matter is granted. The opinion will be removed from the court’s web site, and the clerk will notify the publishers of the court’s opinions that the opinion has been sealed.
Of course, the sealing of the opinion could do nothing about the opinion in F.3d, or on CD-ROMs and the like. But the point of the sealing was likely to get various caselaw repositories to remove it; the exact justification is unknown because the motion to seal was sealed, but it seems likely—judging from the 2014 opinion—that it has to do with the mention of the alleged abuse of the children. (Though the children aren’t mentioned by their full names, the plaintiff’s last name is uncommon enough that some people searching for the children’s names might come across the opinion.) Many such repositories do indeed remove opinions when they see sealing orders, though they aren’t legally obligated by those orders. And Westlaw, one of the main research services for lawyers, did so in this case.
But such partial vanishing of binding caselaw, I think, can’t be right, for reasons that Nebraska lawyer David Alan Domina, Prof. Mark Kende (Drake University Law School), Prof. Raleigh Hannah Levine (Mitchell Hamline School of Law), Prof. Steven Morrison (University of North Dakota School of Law), the Electronic Frontier Foundation, and I explained in a motion to intervene and unseal that we filed—and that the court just granted this morning. (Many thanks to my fellow movants for participating, and to UCLA School of Law student Ryan Maister, who worked on the brief.) Here is the heart of the argument:
The 2014 opinion in this case remains binding precedent in this Circuit. It has never been withdrawn or overruled, and there appears to be no basis for thus stripping it of legal force. But is has been removed from public view and largely from public access.
No extraordinary justification (such as national security) is apparent for this removal. Yet the opinion has been sealed, and Westlaw and Lexis have been encouraged to remove it from their databases. (Westlaw has done so, though Lexis has not yet.) Such fractured access by the bench and bar to the opinion w
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