United States Court of Appeals

For the Eighth Circuit

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No. 14-1187

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Larry C. Flynt

lllllllllllllllllllllMovant - Appellant

David Zink; Michael S. Worthington; John E. Winfield; Michael Anthony Taylor;

Leon Taylor; Walter T. Storey; Herbert Smulls; William L. Rousan; Earl Ringo,

Jr.; Roderick Nunley; Allen L. Nicklasson; John C. Middleton; Paul T. Goodwin;

Joseph Franklin; Jeffrey R. Ferguson; Andre Cole; Reginald Clemons; Cecil

Clayton; Mark Christeson; Russell Bucklew; David Barnett

lllllllllllllllllllll Plaintiffs

v.

George A. Lombardi; David R. Dormire; Terry Russell; John Does, 2-40

lllllllllllllllllllll Defendants - Appellees

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Public Citizen, Inc.; Missouri Press Association; Reporters Committee for

Freedom of the Press; Advance Publications Inc.; American Society of News

Editors; Association of Alternative Newsmedia; Courthouse News Service; The

E.W. Scripps Company; First Amendment Coalition; The McClatchy Company;

MediaNews Group, Inc., doing business as Digital First Media; National Press

Photographers Association; New York Times Company; Newspaper Association

of America; POLITICO LLC; The Washington Post

lllllllllllllllllllllAmici on Behalf of Appellant(s)

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No. 14-1202

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Larry C. Flynt

lllllllllllllllllllllMovant - Appellant

Earl Ringo, Jr.; John C. Middleton; Russell Bucklew; John E. Winfield; Dennis

Skillicorn; Leon Taylor; Roderick Nunley; Jeffrey R. Ferguson; Richard D. Clay;

Allen L. Nicklasson; Joseph Franklin; Martin Link; Mark Christeson; William L.

Rousan; David Barnett; Cecil Clayton; Michael Anthony Taylor; Herbert Smulls

lllllllllllllllllllll Plaintiffs

v.

George A. Lombardi; Terry Russell; John Doe

lllllllllllllllllllll Defendants - Appellees

------------------------------

Public Citizen, Inc.; Missouri Press Association; Advance Publications Inc.;

American Society of News Editors; Association of Alternative Newsmedia;

Courthouse News Service; The E.W. Scripps Company; First Amendment

Coalition; The McClatchy Company; MediaNews Group, Inc., doing business as

Digital First Media; National Press Photographers Association; New York Times

Company; Newspaper Association of America; POLITICO LLC; Reporters

Committee for Freedom of the Press; The Washington Post Company

lllllllllllllllllllllAmici on Behalf of Appellant(s)

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Appeals from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: January 14, 2015

 Filed: April 7, 2015

[Published]

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Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.

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PER CURIAM.

Pursuant to Federal Rules of Civil Procedure Rule 24(b), Larry Flynt, a

publisher, moved to intervene in two cases brought by Missouri death row prisoners

challenging Missouri's protocol for carrying out executions, for the limited purpose

ofseeking to unseal court records and docket entries. The district court denied Flynt's

motions to intervene, holding that Flynt's generalized interest in the subjects of the

litigation did not justify intervention. We reverse. 

I. BACKGROUND

Prisoners on Missouri's death row brought two cases against Missouri's

Department of Corrections. In the first case, Ringo v. Lombardi, No. 2:09-cv-04095

(W.D. Mo. filed May 15, 2009), the prisoners challenged Missouri's execution

protocol claiming Missouri violated the federal Controlled Substances Act and the

Food, Drug and Cosmetic Act. In the second case, Zink v. Lombardi, No. 2:12-cv04209 (W.D. Mo. filed Aug. 1, 2012), the prisoners challenged Missouri's execution

protocol based on Eighth Amendment due process, ex post facto, and other claims. 

In both cases, the district court sealed certain documents or docket entries, making

them inaccessible to the public. In Ringo, several judicial records were sealed,

apparently pursuant to a protective order that the parties jointly sought from the

district court. In Zink, numerous docket entries and the associated documents were

hidden from public view. There was no indication in the public record why these

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docket entries were sealed, nor any explanation of what documents, or types of

documents, were sealed.

On November 9, 2013, Flynt filed motions to intervene in both the Ringo and

the Zink cases, pursuant to Rule 24(b), and moved to unseal the aforementioned

judicial records and docket entries. It is uncontested that no party, in either case,

opposed Flynt's motions to intervene. At the time Flynt moved to intervene, the

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Ringo case had already been dismissed by the district court, while the Zink case

remained ongoing. In his motions to unseal, Flynt stated he had an interest in the

sealed records as a publisher and as an advocate against the death penalty. Flynt also

said he had a heightened interest in these cases because Joseph Franklin, a man who

had confessed to shooting Flynt, was an inmate on Missouri's death row and a

plaintiff in both cases. Franklin was executed on November 20, 2013, and on that

same day the district court denied Flynt's motion to intervene in the Zink case as

moot. Flynt subsequently filed a motion to reconsider the denial of his motion to

intervene in the Zink case, arguing that neither his ability to intervene in the case, nor

the court's ability to redress his claims, became moot with Franklin's execution. 

Thereafter, the district court denied both Flynt's motion for reconsideration in the

Zink case, and his motion to intervene in the Ringo case, stating "[a] generalized

interest in a subject of litigation does not justify intervention." Flynt appeals.

United States District Court for the Western District of Missouri Local Rule 1

7.0(d) requiresthat "each party opposing [a] motion shall serve and file a brief written

statement of the reasons in opposition to the motion."

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II. DISCUSSION

A. Standard of Review

We normally review the district court's denial of a motion for permissive

intervention under Rule 24(b) for abuse of discretion. South Dakota ex rel. Barnett

v. United States Dep't of Interior, 317 F.3d 783, 787 (8th Cir. 2003). However, where

the district court's decision was based on a question of law, we exercise plenary

review. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994). 

B. Rule 24(b) as the Proper Procedural Vehicle

The appellees assert that the district court did not err in denying Flynt's motion

to intervene under Rule 24(b), and seem to suggest that since Flynt admits he could

file a separate lawsuit to address the merits of unsealing the judicial records in

question, his rights of access are not harmed. We disagree and find Rule 24(b)

intervention an appropriate procedural vehicle for partiesseeking to intervene for the

purpose of obtaining judicial records.

Given the district court's terse orders denying Flynt's motions, we are left to

some degree to speculate what the district court meant when it said "[a] generalized

interest in a subject of litigation does not justify intervention." To the extent the

district court denied Flynt's motions because it believed Rule 24(b) intervention was

the incorrect procedural mechanism, the district court applied the incorrect legal

standard in holding that Flynt's generalized interest in the subjects of the Zink and

Ringo cases did not justify intervention under Rule 24(b). Normally, parties seeking

permissive intervention pursuant toRule 24(b) must show:(1) an independent ground

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for jurisdiction, (2) timeliness of the motion, and (3) that the applicant's claim or 2

defense and the main action have a question of law or fact in common. United States

v. Union Elec. Co., 64 F.3d 1152, 1170 n.9 (8th Cir. 1995). The record seems to

indicate that the district court believed Flynt failed to satisfy the commonality

requirement of Rule 24(b) when it stated "[a] generalized interest in a subject of

litigation does not justify intervention." However, where a party is seeking to

intervene in a case for the limited purpose of unsealing judicial records, most circuits

have found that "there is no reason to require such a strong nexus of fact or law."

Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992). Instead, in

such cases, it is the public's interest in the confidentially of the judicial records

that–"in the language of Rule 24(b)(2)–[is] a question of law . . . in common between

the Parties [to the originalsuit] and the [would-be intervener]." Jessup v. Luther, 227

F.3d 993, 999 (7th Cir. 2000) (second alteration in original). Furthermore, when a

party is seeking to intervene only to modify a protective order or unseal documents,

and not to litigate a claim on the merits, an independent basis of jurisdiction is not

required. Beckman, 966 F.2d at 473. Accordingly, permissive intervention under

Rule 24(b) is an appropriate procedural vehicle for non-parties seeking access to

judicial records in civil cases. Jessup, 227 F.3d at 996-97; E.E.O.C. v. Nat'l 3

At oral argument, the parties argued about the timeliness of Flynt's motion to 2

intervene in the Ringo case, which had been dismissed a year before Flynt filed his

motion. Flynt's motion was timely. "[A] district court may properly consider a

motion to intervene permissively for the limited purpose of modifying a protective

order even after the underlying dispute between the parties has long been settled."

Pansy, 23 F.3d at 779.

The question of whether a party is allowed to intervene is distinct from the

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issue of whether the party's motion to unseal should be granted. See IDT Corp. v.

eBay, 709 F.3d 1220, 1222-25 (8th Cir. 2013); Webster Groves Sch. Dist. v. Pulitzer

Publ'g Co., 898 F.2d 1371, 1376 (8th Cir. 1990). We express no opinion on whether

Flynt should ultimately prevail in his request to unseal the judicial records at issue. 

Since submission of this appeal, however, the court en banc has grappled with the

sealing of at least some of the court records in Zink. Thus, our "no opinion" locution

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Children's Ctr., 146 F.3d 1042, 1045 (D.C. Cir. 1998); Pansy, 23 F.3d at 778; Grove

Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896-98 (7th Cir. 1994);

Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1015-16 (11th Cir. 1992); Beckman,

966 F.2d at 473; United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427

(10th Cir. 1990); Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783 (1st Cir.

1988); Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc., 823 F.2d 159, 162 (6th

Cir. 1987); Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 294 (2d Cir. 1979). 

Despite appellees' suggestions that Flynt should seek other avenues to challenge the

sealing of these judicial records, other courts have found they "are not willing to

create a special category of non-Rule 24 intervention for third parties who wish to

challenge protective ordersthrough informal motion." Pub. Citizen, 858 F.2d at 784. 

We agree. In fact, for reasons of judicial efficiency, Rule 24(b) intervention in such

instances may often be preferable to the third party filing a separate action. 

Accordingly, Rule 24(b) intervention wasthe proper procedural mechanismfor Flynt

to intervene in the Ringo and Zink cases.

III. CONCLUSION

For the reasons stated above, we reverse the orders of the district court and

direct that Flynt be allowed to intervene. We remand the cases to the district court for

proceedings consistent with this opinion.

BEAM, Circuit Judge, concurring only in the judgment of the court.

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in this footnote is in no way intended as, nor could it be, any expression concerning

the en banc court's Zink opinion. Zink v. Lombardi, No. 14-2220, 2015 WL 968176

(8th Cir. Mar. 6, 2015).

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