MEMORANDUM

DATE: December 10, 2007

TO: Professor Dan Coquillette

Professor Richard Marcus

FROM: Andrea Thomson

CC: Judge Lee H. Rosenthal

SUBJECT: Statutes Requiring or Permitting Sealing

This memorandum addresses research that we discussed at the November 2007 Civil Rules

meeting regarding statutes that require sealing of cases or documents. The research issues arose in

part in response to a letter from Judge Easterbrook to the Director of the Administrative Office

stating that the consensus of the Judicial Council of the Seventh Circuit is that too many cases are

being filed under seal. In the Council’s opinion “the only justification for sealing an entire piece of

litigation is a statute requiring that step (as, for example, the False Claims Act does for the initial

stages of qui tam litigation).” As the Sealing Sub-Committee has examined potential avenues for

addressing limits on sealing, the issue arose as to the effect of a potential rule limiting courts’ ability

to seal cases to circumstances where a statute requires sealing. Thus, my research so far has focused

on which federalstatutes actually require sealing. While there are not too many federalstatutes that

require sealing of entire cases, there are quite a few that addresssealing of at least part of the record.

A summary of the statutes I have found is below.

Before I get into the substance of the research, I wanted to provide a brief note on my

methodology for searching for statutes regarding sealing. A search in the U.S. Code database in

Westlaw for statutes containing the word “seal” turns up close to 950 results, but the majority of the
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results appear to be irrelevant. For example, the search turned up references to sealing in the

Constitution or in rules of procedure, as well as references to seals of offices, etc. To narrow the

search results, I tried searching for more specific references to sealing, such as filing under seal or

“seal” within the same sentence as “document” or “case.” I believe that variations of these types of

searches should have turned up all or most of the statutes that would require sealing a case. I have

separated those statutesthat require sealing of all or a portion of a case fromthose that permit a court

to seal portions of a case because it seems that the statutes requiring sealing would be most relevant

to the analysis of a potential rule limiting sealing to instancesrequired by statute. Nonetheless, I have

separately included those statutes I found that permit sealing (rather than require it) because those

statutes may also have an effect on a potential rule limiting sealing to situations where a statute

requires sealing.

Statutes Requiring Sealing of Cases or Portions of Cases

• 8 U.S.C.A. § 1533. Removal Court Procedure.

• “In any case in which the Attorney General has classified information that an alien is

an alien terrorist, the Attorney General may seek removal of the alien under this

subchapter by filing an application with the removal court . . . .” 8 U.S.C.A. §

1533(a)(1). Any application that is submitted under this statute is to be submitted ex

parte and in camera, and “shall be filed under seal with the removal court.” 8

U.S.C.A. § 1533(a)(2).

• 8 U.S.C.A. § 1535. Appeals.

• The Attorney General can seek review of a denial of an order sought under § 1533

by filing an appeal in the D.C. Circuit. The entire record is to be transmitted to the

Court of Appeals under seal and the Court of Appeals is to hear the matter ex parte.

8 U.S.C.A. § 1535(a)(2). 

• Likewise, if the United States seeks to take an interlocutory appeal of a determination

under § 1534(e)(3)regarding treatment ofclassified information, the entire record and

any classified information is to be transmitted to the Court of Appeals under seal. 8

U.S.C.A. § 1535(b)(2). “A verbatim record of such appeal shall be kept under seal

in the event of any other judicial review.” Id. 
3

• Similarly, if there is an appeal of the decision of the judge after the removal hearing,

by either the alien or the Attorney General, the entire record is to be transmitted to

the Court of Appeals, and any information received in camera and ex parte, and any

portion of the order that would reveal the substance or source of the information, is

to be transmitted under seal. 8 U.S.C.A. § 1535(c)(3). 

• Finally, the alien or the AttorneyGeneralmay petition to the Supreme Court for a writ

of certiorari, and any information transmitted to the Court of Appeals under seal

must, if submitted to the Supreme Court, also be transmitted under seal. 8 U.S.C.A.

§ 1535(d).

• 15 U.S.C.A. § 1116. Injunctive Relief (in Trademark Act of 1946).

• Courts have power to grant injunctions to prevent violation of a right of a registrant

of a trademark or to prevent a violation of certain parts of section 1125. An order

under the subsection and any supporting documents must be sealed until the person

against whom the order is directed has the opportunity to contest the order. 15

U.S.C.A. § 1116(d)(8).

• 18 U.S.C.A. § 9, App. 3. Classified Information Procedures Act.

• Section 9 requires creation of rules establishing procedures for the protection against

unauthorized disclosure of any classified information in the custody of the United

States courts, courts of appeal, or the Supreme Court. The rules apply in criminal

cases involving classified information, and appeals therefrom. Every document filed

by the defendant in the case must be filed under seal and turned over to the court

security officer, who is to examine the document and determine whether it contains

classified information. If it does, the court must make sure it is appropriately marked.

If not, it must be unsealed and placed in the public record. 18 U.S.C.A. § 9, App.

3(9)(a). 

• 18 U.S.C.A. § 2339B. Providing material support or resources to designated foreign terrorist

organizations (in Antiterrorism and Effective Death Penalty Act of 1996).

• In a civil proceeding under this section, the U.S. may make an ex parte request, and

the court may authorize, redaction of classified information from documents to be

introduced into evidence or made available to the defendant in discovery. If the court

enters an order granting the request, the entire text of the document must be sealed

and preserved in the court’s records. 18 U.S.C.A. § 2339B(f)(1)(B). If the court

denies a request, the U.S. may take an interlocutory appeal and the text of the

documents and transcripts of ex parte arguments must be maintained under seal and

delivered to the appellate court. 18 U.S.C.A. § 2339B(f)(1)(C). The U.S. may

petition the court ex parte to admit, in lieu of classified writings, copies with

redactions, stipulations admitting relevant facts, and/or a declassified summary of

classified information. 18 U.S.C.A. § 2339B(f)(2)(A). Likewise, with respect to trial

testimony, the court can prevent disclosure of classified information by permitting the

U.S. to provide the court, ex parte, with a proffer of the witness’s response or
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requiring the defendant to provide the court with a proffer of the nature of the

information the defendant seeks to elicit. 18 U.S.C.A. § 2339B(f)(3)(B).

• 18 U.S.C.A § 3123. Issuance of an order for a pen register or a trap and trace device.

• The government may make an application for use of a pen register or trap and trace

device, and the court shall enter an ex parte order if the requisite showing has been

made. If the government obtains an order, it must maintain a record of certain

information and must provide that record ex parte and under seal to the court. 18

U.S.C.A. § 3123(a)(3)(B). An order authorizing the installation and use of a pen

register or trap and trace device must specify that the order is to be sealed until

otherwise ordered by the court and that those obligated to comply with the order may

not disclose the order. 18 U.S.C.A. § 3123(d). 

• 18 U.S.C.A. § 3509. Child victims’ and child witnesses’ rights.

• “All papers to be filed in court that disclose the name of or any other information

concerning a child shall be filed under seal without necessity of obtaining a court

order.” 18 U.S.C.A. § 3509(d)(2).

• 18 U.S.C.A. § 3511. Judicial review of requests for information.

• The recipient of a request for records, a report, or other information under section

2709(b) of Title 18, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act,

section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the

National Security Act of 1947 may petition for an order modifying or setting aside the

request. 18 U.S.C.A. § 3511(a). For all proceedings under this section, subject to

any right to an open hearing in a contempt proceeding, the court must close any

hearing to the extent necessary to prevent unauthorized disclosure of a request for

records, a report, or other information made to anyperson or entityunder the relevant

statutes. Petitions, filings, records, orders, and subpoenas must be kept under seal to

the extent necessary to prevent unauthorized disclosure. 18 U.S.C.A. § 3511(d). 

• *** Portions of 18 U.S.C.A. §3511 were held to be unconstitutional in Doe v.

Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007). Legislation is currently pending to

amend the statute. Relevant for our purposes, subsection (d) is proposed to be

amended to state: “(d) Disclosure. In making determinations under this section, unless

the court findsthatsuch disclosure would not assist in determining any legal or factual

issue pertinent to the case, the court shall disclose to the petitioner, the counsel of the

petitioner, or both, under the procedures and standards provided in the Classified

Information Procedures Act (18 U.S.C. App.) or other applicable law, portions of the

application, National Security Letter, or other related materials.” The proposed

legislation would also repeal section 3511(e), requiring the court to review ex parte

and in camera any government submissions that may include classified information.

It looks like the sealing section may be removed by the proposed amendments.

• 28 U.S.C.A. § 657. Arbitration award and judgment.
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• District courts are required to provide, by local rule, that the contents of any

arbitration award made under this chapter (Ch. 44 - Alternative Dispute Resolution)

shall not be made known to any judge who might be assigned to the case until the

district court has entered final judgment or the action has otherwise been terminated.

28 U.S.C.A. § 657(b) (entitled “Sealing of arbitration award”).

• 28 U.S.C.A. § 2635. Filing of official documents.

• In civil actions commenced in the Court of International Trade under section 516A

of the Tariff Act of 1930, the administering authority established to administer title

VII of the Tariff Act of 1930 or the United States International Trade Commission

shall transmit to the clerk of court the record of such action. 28 U.S.C.A. §

2635(b)(1). The administering authority ortheCommissionshall identify and transmit

under seal to the clerk of court any document, comment, or information that is given

confidential or privileged status by the Government agency whose action is being

contested and that is required to be transmitted to the clerk. 28 U.S.C.A. §

2635(b)(2).

• When an application for an order directing the administering authority or the

Commission to make confidential information available under section 777(c)(2) of the

Tariff Act of 1930, “the administering authority or the Commission shall transmit

under seal to the clerk of the Court of International Trade, as prescribed by its rules,

the confidential information involved, together with pertinent parts of the record. .

. . The confidential status of such information shall be preserved in the civil action,

but the court may examine the confidential information in camera and may make such

information available under a protective order consistent with section 777(c)(2) of the

Tariff Act of 1930.” 28 U.S.C.A. § 2635(c).

• In other civil actions in the Court of International Trade in which review is based on

the record made before an agency, the agency must “identify and transmit under seal

to the clerk of the court any document, comment, or other information that was

obtained on a confidential basis and that is required to be transmitted to the clerk

under paragraph (1) of this subsection. . . . The confidential status of such

information shall be preserved in the civil action, but the court may examine the

confidential information in camera and may make such information available under

such terms and conditions as the court may order.” 28 U.S.C.A. § 2635(d)(2).

• 31 U.S.C.A. § 3730. Civil actions for false claims.

• A complaint filed by a private person under the False Claims Act (section 3729) must

remain under seal for at least 60 days, and shall not be served on the defendant until

the court orders. 31 U.S.C.A. § 3730(b)(2). The Government may, for good cause,

move for extensions of time for the complaint to remain under seal. 31 U.S.C.A. §

3730(b)(3).

• *** Proposed legislation is pending that would amend section 3730(b) to allow the

Government to move to dismiss the qui tam relator who is an employee of the Federal

Government in certain circumstances, and to require that a motion to dismiss and
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supporting papers cannot be made public without prior written consent of the person

bringing the civil action and cannot be subject to discovery by the defendant. The

proposed legislation would further provide that if a motion to dismiss is granted, the

matter must remain under seal.

• 42 U.S.C.A. § 1396h. State False Claims Act requirements for increased State share of

recoveries.

• If a State has a law relating to false claims that meets certain criteria, the Federal

medical assistance percentage for anyamountsrecovered under aState action brought

under such law shall be decreased by 10%. 42 U.S.C.A. § 1396h(a). Among the

requirements of the state law is that the law must contain a requirement for filing an

action under seal for 60 days with review by the State Attorney General. 42 U.S.C.A.

§ 1396h(b)(3).

• 42 U.S.C.A. § 10608. Closed circuit televised court proceedings for victims of crime.

• In order to allow victims of a crime to watch criminal trial proceedings where venue

is inconvenient, the trial court shall order closed circuit televising of the proceedings

in certain circumstances. 42 U.S.C.A. § 10608(a). “No public broadcast or

dissemination shall be made of the signal transmitted pursuant to subsection (a) of this

section. In the event any tapes are produced in carrying out subsection (a) of this

section, such tapes shall be the property of the court and kept under seal.” 42

U.S.C.A. § 10608.

• 49 U.S.C.A. § 1154. Discovery and use of cockpit and surface vehicle recordings and

transcripts.

• “A court may allow a part of a cockpit or surface vehicle recorder transcript not made

available to the public under section 1114(c) or 1114(d) of this title or a cockpit or

surface vehicle recorder recording to be admitted into evidence in a judicial

proceeding, only if the court places the part of the transcript or the recording under

seal to prevent the use ofthe part ofthe transcript or the recording for purposes other

than for the proceeding.” 49 U.S.C.A. § 1154(a)(4)(B).

• 50 U.S.C.A. § 1802. Electronic surveillance authorization without court order; certification

by Attorney General; reportsto Congressional committees; transmittal under seal; duties and

compensation of communication common carrier; applications; jurisdiction of court (in

Foreign Intelligence Surveillance Act of 1978).

• The President may authorize electronic surveillance without a court order to acquire

foreign intelligence information for periods of up to one year if the Attorney General

certifies that certain requirements are met. 18 U.S.C.A. § 1802(a)(1). “The Attorney

General shall immediately transmit under seal to the court established under section

1803(a) of this title a copy of his certification.” 18 U.S.C.A. § 1802(a)(3). It must

remain sealed unless an application for a court order with respect to the surveillance

is made under sections 1801(h)(4) and 1804, or until the certification is necessary to

determine the legality of the surveillance under section 1806(f). Id. 
7

• 50 U.S.C.A. § 1803. Designation of judges (in the Foreign Intelligence Surveillance Act of

1978).

• If a judge denies an application for an order authorizing electronic surveillance under

the chapter, the judge must provide a written statement of each reason for his

decision, and on motion by the United States, the record should be transmitted under

seal to the court of review. 50 U.S.C.A. § 1803(a).

• If the court of review determines that the application was properly denied, the court

of review must provide a written statement of reasons, and on a petition by the United

States for a writ of certiorari, the record must be transmitted under seal to the

Supreme Court. 50 U.S.C.A. § 1803(b).

• 50 U.S.C.A. § 1805b. Additional procedure for authorizing certain acquisitions concerning

persons located outside the United States.

• The Director of National Intelligence and the Attorney General may authorize

acquisition of foreign intelligence information regarding people believed to be outside

the United States if certain criteria are met. 50 U.S.C.A. § 1805b(a). The Attorney

General must submit under seal to the court a copy of his certification that the

required criteria have been met. 50 U.S.C.A. § 1805b(c). All petitions made under

this section must be filed under seal. 50 U.S.C.A. § 1805b(k). Further, the court may

review ex parte and in camera Government submissions that may include classified

information. Id.

• *** Legislation is pending to repeal this section effective December 31, 2009 (with

certain exceptions for those acquisitions authorized prior to the sunset provision). In

addition, there appears to be pending legislation that would remove portions of the

current statute, including the section on sealing petitions and filing a sealed

certification (although the amendment would still specify that the order would be ex

parte).

• 50 U.S.C.A. § 1805c. Submission to Court review of procedures.

• The Government is required to submit procedures by which the Government

determines that acquisitions conducted pursuant to section 1805b do not constitute

electronic surveillance. 50 U.S.C.A. § 1805c(a). The court is to determine if the

procedures are clearly erroneous and enter an order. 50 U.S.C.A. § 1805c(c). The

Government may appeal the order, and on a petition for a writ of certiorari, the

record must be transmitted under seal to the Supreme Court. 50 U.S.C.A. §

1805c(d).

• *** Legislation is pending that would change this section to relate to emergency

procedures for acquisition of foreign intelligence. In addition, legislation is pending

to repeal this section effective December 31, 2009 (with certain exceptions for those

acquisitions authorized prior to the sunset provision). 

• 50 U.S.C.A. § 1822. Authorization of physical searches for foreign intelligence purposes.

• The President (acting through the Attorney General) may authorize physical searches
8

without a court order to acquire foreign intelligence information for up to one year

if certain requirements are certified. 50 U.S.C.A. § 1822(a)(1). The Attorney

General must immediately submit under seal to the Foreign Intelligence Surveillance

Court a copy of the certification of meeting the statutory requirements. 50 U.S.C.A.

§ 1822(a)(3). It must remain sealed unless an application for a court order regarding

the physical search is made under sections 1821(4) and 1823 or the certification is

necessary to determine the legality of the physical search under section 1825(g). Id.

• The Foreign Intelligence Surveillance Court has jurisdiction to hear applications for

and grant orders approving physicalsearches under certain conditions. 50 U.S.C.A.

§ 1822(c). If the judge denies the application, the judge must provide a written

statement in the record of the reasons for denial, and on motion of the United States,

the record must be transmitted under seal to the court of review established under

section 1803(b). Id.

• If the reviewing court determines that the application was properly denied, the court

must provide for the record a written statement of the reasons for the decision, and

on petition ofthe United States for a writ of certiorari, the record must be transmitted

under seal to the Supreme Court. 50 U.S.C.A. § 1822(d).

• 50 U.S.C.A. § 1861. Access to certain business records for foreign intelligence and

international terrorism investigations.

• The Director of the FBI or his designee may make an application for an order

requiring the production of tangible things for an investigation to obtain foreign

intelligence information not concerning a U.S. person or to protect against

international terrorismor clandestine intelligence activities, but the investigation must

not be solely based on activities protected by the First Amendment. 50 U.S.C.A. §

1861(a)(1). A person receiving a production order may challenge the order’s legality

by filing a petition and may challenge a non-disclosure order in connection with

production by filing a petition to set aside the non-disclosure order. 50 U.S.C.A. §

1861(f)(2)(A)(i). A petition for review of an order affirming, modifying, or setting

aside an order, by the Government or any person receiving the order, may be filed

with the court ofreview, and the reviewing court must provide written reasons for its

decision and upon a petition for a writ of certiorari, the record shall be transmitted

under seal to the Supreme Court. 50 U.S.C.A. § 1861(f)(3).

• Judicial proceedings under this section must be completed expeditiously and the

records of the proceedings (including petitions, orders, statements of reasons for

decision) shall be maintained under security measures established by the Chief Justice

of the Supreme Court. 50 U.S.C.A. § 1861(f)(4).

• “All petitions under thissubsection shall be filed under seal. In any proceedings under

this subsection, the court shall, upon request of the Government, review ex parte and

in camera any Government submission, or portions thereof, which may include

classified information.” 50 U.S.C.A. § 1861(f)(5).

• *** Proposed legislation is pending that appears to remove the discussion of sealing

from subsection (f).
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Statutes Authorizing (But Not Necessarily Requiring) Sealing of Documents

• 12 U.S.C.A. § 1786. Termination of insured credit union status; cease and desist orders;

removal or suspension from office; procedure (in Federal Credit Union Act).

• The National Credit Union Administration Board “may file any document or part of

a document under seal in any administrative enforcement hearing commenced by the

agency if disclosure of the document would be contrary to the public interest. A

written report shall be made part of any determination to withhold any part of a

document from the transcript of the hearing required by paragraph 2.” 12 U.S.C.A.

§ 1786(s)(6).

• 12 U.S.C.A. § 1818. Termination of status as insured depository institution.

• “The appropriate Federal banking agency may file any document or part of a

document under seal in any administrative enforcement hearing commenced by the

agency if disclosure of the document would be contrary to the public interest. A

written report shall be made part of any determination to withhold any part of a

document from the transcript of the hearing required by paragraph (2).” 12 U.S.C.A.

§ 1818(u)(5).

• 12 U.S.C.A. § 4522. Public disclosure of final orders and agreements.

• The Office of Federal Housing Enterprise Oversight’s Director may file any document

or part of a document under seal in a hearing conducted under another sub-chapter

if the Director determines in writing that disclosure would be contrary to the public

interest. 12 U.S.C.A. § 4522(d).

• 12 U.S.C.A. § 4586. Public disclosure of final orders and agreements (in Federal Housing

Enterprises Financial Safety and Soundness Act).

• Generally, hearings regarding charges issued by the Secretary of Housing and Urban

Development are to be open to the public unlessthe Secretary determines that public

hearings would be contrary to the public interest. The Secretary may file any

document under seal in any hearing under thissection ifshe determines in writing that

disclosure would be contrary to public interest. 12 U.S.C.A. § 4586(d).

• 12 U.S.C.A. § 4639. Public disclosure of final orders and agreements (in Federal Housing

Enterprises Financial Safety and Soundness Act).

• Generally, hearings with respect to charges issued by the Director are open to the

public, unless the Director determines that it would be contrary to the public interest.

The Director may file any document under seal in any hearing commenced by the

Director if determined in writing that the disclosure would be contrary to public

interest. 12 U.S.C.A. § 4639(d).

• 15 U.S.C.A. § 77z-1. Private securities litigation (in Securities Act of 1933).
10

• In a plaintiff class action under this sub-chapter, terms and provisions of any

settlement agreement of a class action are not to be filed under seal, except that the

court may order filing under seal portions of the settlement agreement as to which

good cause is shown for filing under seal. Good cause exists only if publication of a

term or provision of a settlement agreement would cause direct and substantial harm

to any party. 15 U.S.C.A. § 77z-1(a)(5).

• 15 U.S.C.A. § 77u-4. Private securities litigation (in Securities Act Amendments of 1964).

• In private securities litigation brought as a plaintiff class action under this chapter,

settlements are not to be filed under seal, unless the court orders filing under seal the

portions of the agreement as to which good cause is shown. Good cause exists only

if publication of a termor provision of a settlement agreement would cause direct and

substantial harm to any party. 15 U.S.C.A. § 77u-4(a)(5).

• 26 U.S.C.A. § 7461. Publicity of proceedings.

• The general rule is that Tax Court reports and evidence shall be public records, but

the Tax Court may make any provision which is necessary to prevent disclosure of

trade secrets or other confidential information, including a provision that a document

or information be placed under seal.

• 26 U.S.C.A. § 7612. Special procedures for summonses for computer software.

• “In any court proceeding to enforce a summonsfor any portion ofsoftware, the court

may receive evidence and issue any order necessary to prevent the disclosure of trade

secrets or other confidential information with respect to such software, including

requiring that any information be placed under seal to be opened only as directed by

the court.” 26 U.S.C.A. § 7612(c)(1).

• 28 U.S.C.A. § 1610. Exceptions to the immunity from attachment or execution.

• Property of a foreign state in the United States is not immune from attachment or

execution if certain criteria are met. “At the request of any party in whose favor a

judgment has been issued with respect to a claim for which the foreign state is not

immune under section 1605(a)(7), the Secretary of the Treasury and the Secretary of

State should make every effort to fully, promptly, and effectively assist any judgment

creditor or any court that has issued any such judgment in identifying, locating, and

executing against the property of that foreign state or any agency or instrumentality

of such state.” 28 U.S.C.A. § 1610(f)(2)(A). In providing the assistance, the

Secretaries may provide information to the court under seal. 28 U.S.C.A. §

1610(f)(2)(B)(i).

• 38 U.S.C.A. § 7268. Availability of proceedings.

• The United States Court of Appeals for Veterans Claims may make provisions

necessary to prevent disclosure of confidentialinformation, including a provision that

any such document or information be placed under seal. 38 U.S.C.A. § 7268(b)(1).
11

Rules of Procedure Requiring or Permitting Sealing

Although rules of procedure that address sealing fall a bit outside the scope of what we are

looking into at thistime, I came across some procedural rules regarding sealing as I was researching

the statutes. Because it seems that such rules could be affected by a proposed rule that permitted

sealing only when required by statute, I have included some of those rules regarding sealing below.

While this is not yet a complete list of rules governing sealing because I have not exhaustively

researched all rules regarding sealing, I thought it could be useful to provide a brief summary of those

that I came across in my research regarding the statutes.

• FED. R. BANKR. P. 9037. Privacy Protection for Filings Made with the Court.

• The court may order that a filing be made under seal without redaction. FED. R.

BANKR. P. 9037(c).

• An entity making a redacted filing may also file an unredacted copy under seal. FED.

R. BANKR. P. 9037(e).

• A filing that contains redacted information can be filed with a reference list that

identifies items of redacted information and specifies an appropriate identifier that

corresponds to each item listed. The list must be filed under seal. FED. R. BANKR.

P. 9037(f).

• The rule is adopted in compliance with section 205(c)(3) of the E-Government Act

of 2002, which requires the Supreme Court to create rules to protect privacy relating

to electronic filing. FED. R. BANKR. P. 9037, advisory committee’s note (2007).

• U.S. VET. APP. R. 48. Sealing of Cases.

• A party requesting disclosure must make an immediate application under 38 U.S.C.

§ 7332(b)(2)(D), caption the case “In re: SealCase No. . . .”, and serve a copy of the

application on the protected person. “[T]he Clerk will enter the case as ‘withdrawn’

on the docket, assign a new case number and recaption the case using an encoded

identifier, and seal the record on appeal and the file of the Court.” U.S. VET. APP. R.

48(a).

• “The procedures described in this rule may, in the Court’s discretion, be applied to

cases that the Court orders sealed but that do not contain records protected by 38

U.S.C. § 7332.” U.S. VET. APP. R. 48(b).

• D.C. CIR. R. 47.1. Matters Under Seal.

• “Any portion of the record that was placed under seal in the district court or before

an agency remains underseal in this court unless otherwise ordered.” D.C.CIR.RULE

47.1(a).
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• “In any case in which the record in the district court or before an agency is under seal

in whole or in part and a notice of appeal or petition for review has been filed, each

party must promptly review the record to determine whether any portions of the

record under seal need to remain under seal on appeal. If a party determines that

some portion should be unsealed, that party must seek an agreement on the

unsealing.” D.C. CIR. RULE 47.1(b).

• Parties may move to unseal portions of the record in the D.C. Circuit, and such

motions will usually be referred to the district court, although the court may decide

the unsealing itself. D.C. CIR. RULE 47.1(c).

• If briefing refers to sealed material, the filing party must file 2 sets of briefs, one for

public use with the sealed material redacted, and one for court use with the sealed

material included. D.C. CIR. RULE 47.1(d)(1).

• The clerk, in conjunction with issuing the mandate, must order the parties to show

cause why the record (or sealed portions) should not be unsealed. D.C. CIR. RULE

47.1(f)(1). If material is not unsealed, it will be stored for 20 years, at which point

the court will reconsider whether it should be unsealed. D.C. CIR. RULE 47.1(f)(2).

• D.C. CIR. R. 47.6. Appeals from the Alien Terrorist Removal Court.

• “Unless otherwise specified herein, allsubmissionsfiled in the court in an appeal from

the Alien Terrorist Removal Court must be filed under seal. In addition, any

submission containing or referring to classified information must so indicate in an

appropriate legend on the face of the submission. The court and all parties to a

removal proceeding must comply with all applicable statutory provisions for the

protection of classified information, and with the ‘Security Procedures Established

Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States

for the Protection of Classified Information.’” D.C. CIR. R. 47.6(a)(3).

• “An appeal from the denial of a removal application must be conducted ex parte and

under seal. No submissions, including the notice of appeal and the memorandum in

support of the appeal, will be served on the alien.” D.C. CIR. R. 47.6(b)(3).

• “An appeal from a discovery determination will be conducted ex parte and under seal.

No submissions, except the notice of appeal, will be served on the alien.” D.C. CIR.

R. 47.6(c)(3).

• In an appeal from a decision after a removal hearing, “[a]ny portion of the record

sealed in the Removal Court must be transmitted to and maintained by this court

under seal.” D.C. CIR. R. 47.6(d)(3). Briefs and memoranda in an appeal from a

decision after a removal hearing must be filed under seal to the extent necessary to

comply with subsection (a)(3). D.C. CIR. R. 47.6(d)(4).

• TAX CT. R. 103. Protective Orders.

• The court may make an order to protect parties or others from annoyance,

embarrassment, oppression, or undue burden or expense, including a requirement that

the parties file specified documents in sealed envelopes to be opened as directed by

the court. TAX CT. R. 103(a)(8).
13

• U.S. CT. OF INT’L TRADE R. 3.1. Actions Transferred to the Court of International Trade

from a Binational Panel or Committee Pursuant to 19 U.S.C. § 1516a(g)(12)(B) or (D).

• If there is a request for transfer, “[a]ny documents that were filed under seal pursuant

to NAFTA Article 1904 Panel Rule 56 or NAFTA Extraordinary Challenge

Committee Rule 30 shall be treated in the same manner as a document, comment, or

information that is accorded confidential or privileged status by the agency whose

action is being contested. U.S. CT. OF INT’L TRADE R. 3.1(d)(3).

• U.S. CT. OF INT’L TRADE R. 73.2. Documents in an Action Described in 28 U.S.C. §

1581(c) or (f).

• “In an action described in 28 U.S.C. § 1581(c), any document, comment, or

information that is accorded confidential or privileged status by the agency whose

action is being contested and that is required to be filed with the clerk of court, shall

be filed under seal.” U.S. CT. OF INT’L TRADE R. 73.2(c)(1).

• In an action under 28 U.S.C. § 1581(f), the administering authority or the

Commission must file, with the clerk of the court, under seal, the confidential

information involved, together with pertinent parts of the record. U.S. CT. OF INT’L

TRADE R. 73.2(d).

• 9TH CIR. R. 27-13. Motions to Seal.

• “If the filing of any specific documents or part of a document under seal is required

by statute or a protective order entered below, the filing party shall file the materials

or affected parts under seal together with an unsealed and separately captioned

notification setting forth the reasons the sealing is required. Notification as to the

necessity to seal based on the entry of a protective order shall be accompanied by a

copy of the order. Any document filed under sealshall have prominently indicated on

its cover and first page the words ‘under seal.’” 9TH CIR. R. 27-13(a).

• Motions to seal may be made on grounds permitted by law. 9TH CIR. R. 27-13(b).

• “Absent an order to the contrary, any portion of the district court or agency record

that was sealed below shall remain under seal upon transmittal to this court.” 9TH

CIR. R. 27-13 advisory committee’s note.