The Volokh Conspiracy

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First Circuit Allows Police Officer Pseudonymity in Federal Lawsuit Over "Exculpatory Evidence List" Placement

I had asserted the contrary, arguing that the state allowance of pseudonymity in trying to get removal from the list didn't justify pseudonymity in a federal court lawsuit seeking damages for such placement; but the court disagreed.


From Doe v. Volokh, decided today by the First Circuit, in an opinion by Judge William Kayatta, joined by Judges Gustavo Gelpí and Lara Montecalvo:

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)…. 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 (1st Cir. 2022), we affirm the district court's exercise of its discretion in denying Volokh's motion….

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." … 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. However, that holding did not require the public disclosure of the names of officers with pending challenges to their listing.

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. 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]." 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)….

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….

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.

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….

Federal courts maintain a "strong presumption against the use of pseudonyms in civil litigation." Nevertheless, a district court "enjoys broad discretion to quantify the need for anonymity in the case before it." … [W]e reverse the district court "only if it plainly appears that the court below committed a meaningful error of judgment." …

Issued after the district court's decision here, Doe v. MIT … sketched "four general categories of exceptional cases in which party anonymity ordinarily will be warranted." 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." 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." 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." 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. Otherwise, the presumption against pseudonymous litigation will prevail, at least absent the "rare" and "exceptional" case not foreseen in Doe v. MIT.

This litigation fits into the fourth category. 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]."

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.

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." We keep in mind, too, that fitting into the fourth category provides no automatic occasion for pseudonymous litigation.

We certainly consider, too, "the background confidentiality regime in assessing the circumstances relevant to a request for pseudonymity." 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.

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 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. 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. 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. 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 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. 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.

Congratulations to opposing counsel, Christopher T. Meier, with whom John M. Crabbs and Cooper Cargill Chant, P.A. were on the brief, who prevailed against my challenge. And thanks to (1) my student Ireland Rose Larsen, who briefed the case under my supervision, and who split oral argument time with me, and (2) Katie Townsend, Bruce D. Brown, Shannon A. Jankowski, Sasha Dudding, and Reporters Committee for Freedom of the Press, who filed an amicus brief on my side on behalf of the Committee and 15 media organizations.