Doe v. Town of Lisbon

78 F.4th 38

John DOE, Plaintiff, Appellee, v. TOWN OF LISBON; New Hampshire Department of Justice, Defendants,Eugene Volokh, Intervenor, Appellant.

No. 22-1525

United States Court of Appeals, First Circuit

August 16, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]

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.

Before Kayatta, Gelpí, and Montecalvo, Circuit Judges.

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., 173 N.H. 648, 247 A.3d 383, 387 (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, 139 N.H. 325, 653 A.2d 549 (1995)). 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 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 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 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 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 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 committed a meaningful error...