United States Court of Appeals
For the First Circuit
No. 22-1525
JOHN DOE,
Plaintiff, Appellee,
v.
TOWN OF LISBON; NEW HAMPSHIRE DEPARTMENT OF JUSTICE,
Defendants,
EUGENE VOLOKH,
Intervenor, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Kayatta, Gelpí, and Montecalvo,
Circuit Judges.
Eugene Volokh and Ireland Rose Larsen, Law Student Advocate,
with whom First Amendment Clinic, UCLA School of Law were on brief,
for appellant.
Christopher T. Meier, with whom John M. Crabbs and Cooper
Cargill Chant, P.A. were on brief, for appellee.
Katie Townsend, Bruce D. Brown, Shannon A. Jankowski, Sasha
Dudding, and Reporters Committee for Freedom of the Press, on brief
for Reporters Committee for Freedom of the Press and 15 Media
Organizations, amici curiae.
August 16, 2023
KAYATTA, Circuit Judge. Intervenor Eugene Volokh
challenges the district court's decision to allow a former New
Hampshire police officer to proceed pseudonymously in challenging
the inclusion of his name on New Hampshire's "Exculpatory Evidence
Schedule" (EES). We assume appellate jurisdiction over this
interlocutory appeal to resolve Volokh's challenge on the merits.
Because Doe's reasons for proceeding pseudonymously place his case
within the category of "exceptional cases in which party anonymity
ordinarily will be warranted," Doe v. MIT, 46 F.4th 61, 71 (1st
Cir. 2022), we affirm the district court's exercise of its
discretion in denying Volokh's motion.
I.
A.
The EES is a list maintained by New Hampshire's
Department of Justice identifying law enforcement officers "who
have engaged in misconduct reflecting negatively on their
credibility or trustworthiness." N.H. Ctr. for Pub. Int.
Journalism v. N.H. Dep't of Just., 247 A.3d 383, 387 (N.H. 2020).
Law enforcement officials initially began the list without any
statutory mandate as a means of sharing information about officer
misconduct with prosecutors to better facilitate their compliance
with Brady disclosure requirements in the wake of a decision by
New Hampshire's Supreme Court.
Id. at 388–89 (describing the
effect of State v. Laurie,
653 A.2d 549 (N.H. 1995)).
- 3 -
Subsequently, litigation arose concerning the extent to which, if
any, the EES was a public record subject to disclosure under New
Hampshire's Right-to-Know Law. Id. at 386–87. New Hampshire's
Supreme Court classified the EES as a public record that did not
fall into the disclosure exemption carved out for police personnel
files.
Id. at 391–92. However, that holding did not require the
public disclosure of the names of officers with pending challenges
to their listing. Id. at 387.
A year later, New Hampshire enacted a statute that more
or less codified the status quo in the wake of the decisions by
New Hampshire's highest court. See N.H. Rev. Stat. Ann. § 105:13–d
(2021). In this manner, New Hampshire sought to provide the public
with important information concerning police misconduct while also
affording officers notice and an opportunity to show that they
should not be included on the list before their inclusion is made
public.
As relevant here, for officers like Doe whose names were
on the EES in 2021, the statute requires the New Hampshire
Department of Justice to notify the officer that the officer's
name is on the list and gives the officer 180 days to "file a
lawsuit in superior court regarding the officer's placement on the
[EES]." Id. § 105:13–d(II)(a). Should the officer timely commence
such a lawsuit, the officer's name will remain nonpublic during
the pendency of the legal challenge and thereafter if the court
- 4 -
finds in favor of the officer (with exceptions not relevant here).
Id. § 105:13–d(II)(d).
B.
Formerly employed by the Town of Lisbon ("Town") police
department, Doe complains that the Town caused the New Hampshire
Department of Justice to add his name to the EES. When Doe received
notice of his placement on the list, he timely commenced this
lawsuit in New Hampshire state court challenging his listing and
alleging that the Town's actions in causing him to be placed on
the list violated his rights under state and federal law, including
his rights to due process. The defendants timely removed the suit
to federal court. Under both state and federal law, Doe seeks
damages and an injunction removing his name from the list. Both
parties presume that the adjudication of Doe's claims under New
Hampshire law constitutes the type of proceeding envisioned by the
New Hampshire statute for challenging a listing on the EES.
Because disclosure of his name will allegedly cause much
of the very harm he seeks to avoid, Doe has sued under the "John
Doe" pseudonym rather than his own name. Apparently by oversight,
a single page of the original complaint contains a word processing
pathway that includes Doe's actual name. Prior to removal, Doe
secured an order from the New Hampshire Superior Court sealing the
state court docket and all pleadings. After removal, the parties
filed a joint "motion for redaction" asking that the district court
- 5 -
redact the reference path and file name contained on the complaint
that revealed Doe's full name to protect Doe's pseudonymity. The
district court granted the motion subject to the condition that a
redacted copy of the complaint be placed in the public docket. As
a result, the unredacted state court complaint is sealed, and there
appears on the federal docket a redacted complaint that is
identical to the original complaint in all respects except for
redaction of the word processing pathway containing Doe's name.
Nothing else in the federal docket is redacted or sealed.
Following removal, the parties agreed to split the
action, retaining in federal court all of Doe's claims for damages
under federal and state law, while remanding to state court his
requests that the court: (1) declare that he should not be listed
on the EES; and (2) issue an injunction (or writ of mandamus)
ordering the removal of his name.1
During the pendency of these (now several) lawsuits, the
New Hampshire Department of Justice has not released to the public
the listing of Doe's name on the EES. All parties to this appeal
presume -- and therefore so shall we -- that if Doe prevails in
1 Counts I and II allege that Doe's inclusion on the EES
violated his procedural and substantive due process rights under
the United States Constitution and the New Hampshire Constitution.
Counts V and VI, both asserted only against the Town, allege libel,
slander, and damage to Doe's reputation and seek attorney's fees.
Counts III and IV, remanded in full, seek declaratory relief and
mandamus removing Doe's name from the list. No party challenges
the appropriateness of this severance and remand.
- 6 -
the remanded state proceeding his name will be deleted from the
EES absent further proceedings not relevant here. Conversely, it
also appears that all parties agree that, should Doe lose the state
action, his listing will become public.
Both parties to this lawsuit are content to have Doe
proceed as Doe, but Volokh, a UCLA law professor, is not. He has
intervened in the federal action to challenge Doe's pseudonymity
and to request that the single sealed document in the record, the
state court complaint that includes Doe's name in the reference
path and filename at the bottom of one page, be unsealed. Volokh
contends that he cannot effectively write about the case in his
academic work and on his blog because of Doe's anonymity.
In an order "limited to pretrial proceedings," the
district court granted Volokh's motion to intervene but denied his
motion to unseal and challenge pseudonymity. Volokh now asks us
to reverse that denial.
II.
At the outset, Doe challenges this court's appellate
jurisdiction over Volokh's interlocutory appeal under the
collateral order doctrine. This doctrine permits appellate courts
"to hear appeals from judgments that are not complete and final if
they 'fall in that small class which finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of
- 7 -
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.'" Godin v. Schencks,
629 F.3d 79, 83–84 (1st Cir. 2010) (quoting Nieves-Márquez v.
Puerto Rico,
353 F.3d 108, 123 n.13 (1st Cir. 2003)). We have not
yet addressed whether orders granting motions to proceed by
pseudonym fall within the collateral order doctrine, although we
have held that "orders denying motions to proceed by pseudonym are
immediately appealable under the collateral order doctrine." MIT,
46 F.4th at 66 (emphasis added). We decline to resolve this
question now. Instead, we assume that we have appellate
jurisdiction over Volokh's appeal "[r]ather than resolving the
issues relating to [the] application of the collateral order
doctrine." Sherrod v. Breitbart,
720 F.3d 932, 936 (D.C. Cir.
2013). "Although hypothetical jurisdiction is generally
disfavored, such a barrier is insurmountable only when Article III
jurisdiction is in issue." Akebia Therapeutics, Inc. v. Azar,
976
F.3d 86, 91–92 (1st Cir. 2020) (citations omitted). This case
poses a question of statutory, not Article III, jurisdiction.2
2 The collateral order doctrine provides an exception to 28
U.S.C. § 1291's statutory grant of jurisdiction over final
decisions of United States district courts to the courts of appeal.
Because the potential jurisdictional constraint here is imposed by
statute and not by the Constitution, we may assume hypothetical
jurisdiction here. See Tacuri-Tacuri v. Garland,
998 F.3d 466,
472 (1st Cir. 2021) ("[A]s this Court has done before when
statutory jurisdiction is ambiguous but the merits are
straightforward, we bypass the jurisdictional issue and explain
why the merits hold no water."); Donahue v. Fed. Nat'l Mortg.
- 8 -
Thus, the question of jurisdiction "need not be resolved if a
decision on the merits will favor the party challenging the court's
jurisdiction." Id. at 92. For reasons we will explain, a decision
on the merits favors Doe. We therefore exercise our discretion to
assume appellate jurisdiction to resolve Volokh's appeal on the
merits.
III.
A.
Federal courts maintain a "strong presumption against
the use of pseudonyms in civil litigation." Does 1-3 v. Mills, 39
F.4th 20, 25 (1st Cir. 2022). Nevertheless, a district court
"enjoys broad discretion to quantify the need for anonymity in the
case before it." MIT,
46 F.4th at 72. "This broad discretion
extends to the court's ultimate determination as to whether that
need outweighs the public's transparency interest."
Id. Our court
then reviews "a district court's denial of a motion to proceed by
pseudonym for abuse of discretion,"
id. at 66, and the parties
agree that it follows that the same standard of review also applies
to a district court's denial of a motion challenging pseudonymous
proceedings. Under this deferential standard, we reverse the
district court "only if it plainly appears that the court below
Ass'n,
980 F.3d 204, 207 (1st Cir. 2020) ("[W]e conclude that the
prudent course here is, as we sometimes do, to assume appellate
jurisdiction and proceed to the merits, given how clear they
are.").
- 9 -
committed a meaningful error of judgment." Fontanillas-Lopez v.
Morell Bauzá Cartagena & Dapena, LLC, 832 F.3d 50, 63 (1st Cir.
2016) (quoting West v. Bell Helicopter Textron, Inc.,
803 F.3d 56,
66 (1st Cir. 2015)).
Volokh, though, argues that because he seeks the
unsealing of the original complaint, we should view this appeal as
asserting a violation of the First Amendment presumptive right of
the public to access official court records. See Doe v. Pub.
Citizen, 749 F.3d 246, 269 (4th Cir. 2014). According to Volokh,
his appeal of the district court's pseudonymity decision should be
treated in the same manner as a sealing decision because, here,
pseudonymity has been protected in part by the sealing of a
document -- the original complaint that erroneously contained
Doe's real name at the bottom of a single page. He contends
further that, so viewed, the appeal calls for de novo review, and
"strict scrutiny." See
id. at 267, 270 (holding that plaintiffs
plausibly alleged that the district court's extensive redaction of
its memorandum opinion and "wholesale sealing of the parties'
summary judgment motions and accompanying materials" violated the
public's First Amendment right of access, requiring that the party
seeking to seal the documents present a "compelling interest
sufficient to overcome the strong First Amendment presumptive
right of public access").
- 10 -
We reject Volokh's attempt to frame this case as a
sealing/unsealing case. The only item sealed is a complaint
identical to the complaint on the public docket save for a
formatting snafu that reveals Doe's name. Thus, the public has
not been deprived of its ability to access information any more
than in any case in which a party proceeds pseudonymously. This
distinguishes Volokh's request from Courthouse News Service v.
Quinlan, 32 F.4th 15 (1st Cir. 2022), in which we held that the
sealing of newly filed complaints, in their entirety, for up to
six calendar days could at least plausibly impede the public's
presumptive First Amendment "right to access judicial records."
Id. at 21. Indeed, had Doe's name not erroneously appeared on the
reference path and file name at the bottom of a single page of the
complaint, the document would not have been sealed -- yet Volokh's
pseudonymity challenge would have, presumably, proceeded. In
short, the public has full access to all information contained in
the docket other than one party's name. We therefore see no reason
to analyze this appeal as raising a challenge distinct from the
pseudonymity challenge addressed in Doe v. MIT.
B.
Issued after the district court's decision here, Doe v.
MIT eschewed the multi-factor tests employed in other circuits to
determine whether pseudonymous litigation is warranted. 46 F.4th
at 69–70. Instead, we sketched "four general categories of
- 11 -
exceptional cases in which party anonymity ordinarily will be
warranted." Id. at 71. These categories are: (1) cases in which
disclosure of the would-be Doe's identity would "cause him
unusually severe harm"; (2) "cases in which identifying the would-
be Doe would harm 'innocent non-parties'"; (3) "cases in which
anonymity is necessary to forestall a chilling effect on future
litigants who may be similarly situated"; and (4) "suits that are
bound up with a prior proceeding made confidential by law."
Id.
at 71 (quoting Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185,
190 (2d Cir. 2008)). Ultimately, these categories are designed to
provide guidance to district courts in "balanc[ing] the interests
asserted by the movant in favor of privacy against the public
interest in transparency, taking all relevant circumstances into
account." Id. at 72. To follow that guidance, the district court
determines whether the case before it fits into one of the four
categories. If so, "party anonymity ordinarily will be warranted."
Id. at 71. Moreover, "it [also] is possible that a party whose
case for pseudonymity appears weak when each [category] is analyzed
separately may nonetheless make a persuasive showing when multiple
[categories] are implicated," and anonymity will be warranted.
Id. at 72. Otherwise, the presumption against pseudonymous
litigation will prevail, at least absent the "rare" and
"exceptional" case not foreseen in Doe v. MIT.
- 12 -
This litigation fits into the fourth category.3 The
actions of the New Hampshire Department of Justice in preliminarily
listing Doe are fairly viewed as a "prior proceeding," and
litigation of the now-remanded state claims may be considered such
a proceeding but for the immaterial distinction that it is
contemporaneous rather than "prior." As explained in Doe v. MIT,
this category is implicated "when denying anonymity in the new
suit would significantly undermine the interests served by that
confidentiality [provided by law in the prior proceeding]." Id.
at 72.
Volokh, though, contends that we should grant no weight
to New Hampshire's treatment of Doe's EES listing as confidential,
or to the fact that its courts allow him to proceed anonymously.
After all, we are in federal court, where the Federal Rules of
Procedure control. But Doe v. MIT makes clear that the federal
rules and practice allow for pseudonymous litigation in
appropriate cases. So we are simply asking whether, under that
federal precedent, the circumstances of this case allow a district
court the discretion to grant pseudonymity.
3 Volokh would have us narrowly reframe Doe v. MIT's fourth
category as a holding that "the confidentiality of a Title IX
disciplinary proceeding may sometimes -- but not always -- furnish
grounds for finding an exceptional case warranting pseudonymity."
This framing overlooks the fact that a Title IX disciplinary
proceeding is but one specific example of a proceeding that fits
within the more broadly defined category of "prior proceeding[s]
made confidential by law." MIT, 46 F.4th at 71.
- 13 -
Nor does the fact that the "prior" proceedings at issue
are state court proceedings preclude treating this case as within
the fourth category identified in Doe v. MIT. In that case itself,
the court cited to state court juvenile proceedings as an apt
example of "a prior proceeding made confidential by law." Id. at
72. We keep in mind, too, that fitting into the fourth category
provides no automatic occasion for pseudonymous litigation.
Id.
at 71 ("party anonymity ordinarily will be warranted") (emphasis
supplied).
We certainly consider, too, "the background
confidentiality regime in assessing the circumstances relevant to
a request for pseudonymity." Id. at 76. This background
information, here gleaned from New Hampshire's statute, tells us
that New Hampshire has a strong public interest in pseudonymity
through the EES challenge process that "should weigh heavily in"
the federal district court's decision as to whether a litigant may
proceed pseudonymously.
Id. (quoting MetLife, Inc. v. Fin.
Stability Oversight Council,
865 F.3d 661, 675 (D.C. Cir. 2017)).
The interests served by New Hampshire's decision to provide Doe
with a court hearing before publicizing his listing on the EES are
obvious. The opportunity for prepublication challenges mitigates
due process concerns and increases the likelihood that the list is
reliable. The list is valuable to the state and to the public
only if it is accurate, and ensuring that listings are thoroughly
- 14 -
vetted before being publicized directly furthers that end.
Officers, too, have a strong interest in being able to challenge
listings before they are made public. The listing is a form of
official public branding by the state. The effects of such an
official public branding on one wishing to work as a police officer
are likely to be immediate and concrete. See, e.g., Duchesne v.
Hillsborough Cnty Att'y, 119 A.3d 188, 196 (N.H. 2015)
("[I]nclusion on the [EES] carries a stigma [and] police officers
have a weighty countervailing interest in [e]nsuring that their
names are not placed on the list when there are no proper grounds
for doing so."); Gantert v. City of Rochester, 135 A.3d 112, 118
(N.H. 2016) (explaining that officers have a liberty interest under
the New Hampshire constitution in their professional reputations
implicated by inclusion on the EES). The district court thus
concluded, and we agree, that Doe's fears of disclosure went beyond
a concern that he would suffer embarrassment if his identity was
released and that his concerns that he would "experience severe
reputational damage and impairment of future career prospects"
were "well founded."
Volokh's best argument against Doe's continued
pseudonymity points to the fact that Doe has done more than seek
to avoid being listed on New Hampshire's EES. Doe also seeks an
award of damages under both state and federal law, alleging that
public officials have acted unconstitutionally in listing him.
- 15 -
So, for that reason, Volokh says we should preclude Doe from
proceeding pseudonymously in pursuit of his damages claims even if
we would not have so ruled in a narrower case.
While we acknowledge the distinction, we think it falls
short of requiring that we find an abuse of discretion by the
district court on the facts of this case. The damages claims, as
reflected so far in the record, arise out of the same occurrence
that gave rise to the requests for declaratory and injunctive
relief. They would therefore have likely been subject to claim
preclusion had they not been pled initially in the same complaint.4
So were we to accept Volokh's distinction as controlling, we would
be saying to any officer improperly listed on the EES that the
price of retaining the anonymity promised by the statute is the
4 See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984) ("[A] federal court must give to a state-court
judgment the same preclusive effect as would be given that judgment
under the law of the State in which the judgment was rendered.");
Merriam Farm, Inc. v. Town of Surry, 125 A.3d 362, 364 (N.H. 2015)
("[Claim preclusion] prevents parties from relitigating
matters . . . that could have been litigated in the first action,
and it applies if three elements are met: '(1) the parties are the
same or in privity with one another; (2) the same cause of action
was before the court in both instances; and (3) the first action
ended with a final judgment on the merits.'" (quoting In re Est.
of Bergquist, 100 A.3d 510, 512 (N.H. 2014))); see also
id.
(explaining that "[t]he term 'cause of action' is defined as the
right to recover, regardless of the theory of recovery" and that
to determine "whether two actions are the same cause of action for
the purpose of applying res judicata, [a court considers] whether
the alleged causes of action arise out of the same transaction or
occurrence." (first quoting Meier v. Town of Littleton,
910 A.2d
1243, 1246 (N.H. 2006); then quoting Sleeper v. Hoban Fam. P'ship,
955 A.2d 879, 883 (N.H. 2008))).
- 16 -
release of any claim for compensation of any damages arising out
of that improper listing.
Volokh also asserts that First Amendment and common law
principles create a presumptive right of the public to know Doe's
name now that he has filed suit. We agree. See MIT, 46 F.4th at
67–68. The district court, however, recognized and applied that
presumption. And although the district court did not have the
benefit of our later-issued opinion in Doe v. MIT, its analysis -
- training its attention on the state disclosure procedure, and
recognizing that this case is unique because of its relationship
to that procedure -- aligns well with the guidelines provided in
Doe v. MIT.
IV.
For the foregoing reasons, we affirm the denial of
Volokh's motion to unseal and oppose pseudonymity.
- 17 -
