A federal judge faced with determining whether to order a state court to reseal a mistakenly revealed FBI affidavit of probable cause to search labor union leader John Dougherty’s house asked both sides Tuesday, “Why do you care what I do?”
In repeating one of the attorney’s comments in the case, U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania said the “toothpaste doesn’t go back in the tube” given the document’s contents have been broadly reported.
The sealed affidavit, which was mistakenly not blocked from access on the federal court’s Pacer system, was used by the owners of The Philadelphia Inquirer in support of their motion for summary judgment in a state defamation case Dougherty brought against the paper over articles he was being investigated. Dougherty is the business manager and leading figure in the International Brotherhood of Electrical Workers, Local 98.
The affidavit was then the subject of an article in the Inquirer, later sealed by a state court judge in Philadelphia and then unsealed by a different state court judge when she granted the newspaper’s motion for summary judgment. The document was then again covered by the media and posted on websites.
Dougherty is arguing a federal judge ordered a seal of the document back in 2006 and that was never changed. He is now asking Pratter to order the state court prothonotary to reseal the document. His lawyers said Tuesday at the second day of hearings on the issue that leaving the order unsealed in state court would eviscerate the federal court’s powers and the full faith and credit and supremacy clauses of the U.S. Constitution and would allow this otherwise-sealed document to be brought into any present or future litigation involving Dougherty.
Dougherty is arguing that if the affidavit was kept under seal as he says it should be, then it never could have been used to help support the newspapers’ successful motion to dismiss his defamation suit against them and couldn’t be used in his appeal of the paper’s successful dismissal of the suit.
Joseph R. Podraza Jr. of Sprague & Sprague, arguing for Dougherty, said he doesn’t argue the fact that in the public realm, anyone now has the right to publicize the affidavit, including the Inquirer. But he argued the judicial forum is a different one, governed by rules of evidence.
“You are asking me to direct the conduct of a different clerk—the prothonotary … I’m not sure I have the authority to direct the prothonotary to do something when in fact the original [federal seal order] itself didn’t pretend to direct anyone to do anything except the federal clerk of court,” Pratter said to Podraza.
But she more than hinted during arguments from the Inquirer’s attorneys that the issues of federalism and her power over the state courts didn’t have to be the focus of her decision.
Michele Hangley and Dan Segal of Hangley Aronchick Segal Pudlin & Schiller are representing the Inquirer. Hangley argued Tuesday that a federal judge telling a state court what to do would mean Pratter has to accept that the state court is subservient to federal courts.
“I’m fairly comfortable at this juncture that this case does not have to go down the path of worrying one way or another over whose dog is bigger, the federal courts or the state courts,” Pratter said, noting she didn’t think issues of federalism would be the focal point of her ruling.
But toward the end of the hearing, Richard A. Sprague brought the issue back to the federal court’s power. He said there had been a lot of talk during the hearing about what good it would do to seal the order now or why the Inquirer would care if it was resealed.
“The issue for your honor is whether you are going to support the supremacy of federal law, yes even over state law,” Sprague said.
He said he would submit that not only would federal judges never say they are powerless to stop a state court from improperly unsealing a sealed document, but that they would feel they had an “obligation” to support federal supremacy.
An FBI affidavit supporting the search of Dougherty’s house was mistakenly entered on the federal court criminal docket of Donald Dougherty Jr. and, in 2008, was, for an unknown reason, removed from restricted status on the court’s Pacer system. The mistake, however, went unnoticed for several years. John Dougherty was never charged with any wrongdoing.
The affidavit, referred to by its place on the docket as Document 27, was first made public in December 2012 when the Inquirer attached it to its motion for summary judgment in the state-court defamation action as an exhibit in support of its argument that the paper’s reports about Dougherty were true.
The Inquirer wrote about the affidavit a few days later. When the Department of Justice learned of this, it asked Pratter to remove the affidavit from Document 27 on the federal docket and substitute it with the proper affidavit related to Donald Dougherty. Pratter granted the request Dec. 17, 2012, and removed the affidavit to the custody of the U.S. Attorney’s Office. The affidavit was placed under seal in the state court action in January 2013 until it was unsealed April 28.
Robert C. Heim of Dechert argued at the hearing on behalf of Pepper Hamilton, the firm that previously represented John Dougherty during the FBI’s investigation, and, at a subsequent point, represented the Inquirer in Dougherty’s defamation suit against the paper until Pepper Hamilton was disqualified from that representation. Pepper Hamilton is now defending its own lawsuit from Dougherty.
“Mr. Dougherty has not been harmed in the slightest,” Heim said. “There is no current injury that is redressable by you ordering the prothonotary in state court” to seal the affidavit.
Pratter did note that she is respectful of the reasons that affidavits of probable cause are typically sealed to begin with, including protecting both the government’s investigation and the reputation of the individual being investigated. Pratter said she would look to rule in the case soon.