Does v. Mills

United States Court of Appeals
For the First Circuit
No. 22-1435
JOHN DOES 1-3; JACK DOES 1-1000; JANE DOES 1-6; JOAN DOES 1-
1000,
Plaintiffs, Appellants,
v.
JANET T. MILLS, in her official capacity as Governor of the
State of Maine; JEANNE M. LAMBREW, in her official capacity as
Commissioner of the Maine Department of Health and Human
Services; NIRAV D. SHAH, in his official capacity as Director of
the Maine Center for Disease Control and Prevention;
MAINEHEALTH; GENESIS HEALTHCARE OF MAINE LLC; GENESIS HEALTHCARE
LLC; MAINEGENERAL HEALTH; NORTHERN LIGHT EASTERN MAINE MEDICAL
CENTER,
Defendants, Appellees,
MTM ACQUISTION, INC., d/b/a Portland Press Herald/Maine Sunday
Telegram, Kennebec Journal, and Morning Sentinel; SJ
ACQUISITION, INC., d/b/a Sun Journal,
Intervenors, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Howard, Circuit Judges.
Daniel J. Schmid, Mathew D. Staver, Horatio G. Mihet, Roger
K. Gannam, and Liberty Counsel on brief for appellants.
Kimberly L. Patwardhan, Assistant Attorney General, Thomas A.
Knowlton, Deputy Attorney General, Aaron M. Frey, Attorney
General, on brief for appellees Janet T. Mills, Jeanne M. Lambrew,
and Nirav D. Shah.
James R. Erwin, Katharine I. Rand, and Pierce Atwood LLP on
brief for appellees MaineHealth, Genesis Healthcare of Maine LLC,
Genesis Healthcare LLC, and MaineGeneral Health.
Ryan P. Dumais, Katherine L. Porter, and Eaton Peabody on
brief for appellee Northern Light Eastern Maine Medical Center.
Katie Townsend, The Reporters Committee for Freedom of the
Press, Sigmund D. Schutz, Jonathan G. Mermin, and Preti Flaherty
Beliveau & Pachios LLP on brief for appellees MTM Acquisition,
Inc. and SJ Acquisition, Inc.
July 7, 2022
LYNCH, Circuit Judge. Plaintiffs-movants (the
"plaintiffs"), who were allowed to proceed under pseudonyms for
the first ten months of this case, were ordered by the district
court, on motion by intervenor press/media organizations, to file
an amended complaint "identifying by name those individual
Plaintiffs who elect to proceed as named and identified Plaintiffs
in this action." Does 1-6 v. Mills, No. 21-CV-00242, 2022 WL
1747848, at *7 (D. Me. May 31, 2022), modified, No. 21-CV-00242,
2022 WL 2191701 (D. Me. June 17, 2022). The district court did so
after briefing and oral argument and found that the plaintiffs had
not met their burden of rebutting the presumption against parties
proceeding under pseudonyms. See id. at *4-7. It found that the
plaintiffs had not shown that their fear of severe harm from
disclosure of their identities was objectively reasonable at this
time. Id. at *5-7.
The plaintiffs have filed an appeal from the disclosure
order. However, this opinion addresses instead the plaintiffs'
motion filed in this Court under Fed. R. App. P. 8(a)(2) for an
emergency stay of that disclosure order until resolution of their
appeal on the merits. We deny the stay.
I.
Our prior opinion in this matter describes the
plaintiffs' challenge to the Maine vaccine mandate for healthcare
workers as it stood on October 19, 2021. See Does 1-6 v. Mills,
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16 F.4th 20, 24-28 (1st Cir. 2021), cert. denied sub nom. Does 1-
3 v. Mills, 142 S. Ct. 1112 (2022). We affirmed the district
court's denial of a preliminary injunction seeking to prevent
enforcement of that mandate against the plaintiffs. Id. at 24,
37. The defendants in this matter are three Maine officials (the
"State Defendants") and five healthcare companies (the "Hospital
Defendants").
The plaintiffs have to date litigated their claims under
pseudonyms. The complaint, filed August 25, 2021, names them as
six "Jane Does" and three "John Does."1 On August 31, 2021, the
plaintiffs moved the district court for permission to proceed as
such. As evidentiary support for this motion, the plaintiffs
relied on an undated declaration from counsel (the "Schmid
Declaration"), filed on August 31, 2021, that relayed the bases
for the plaintiffs' desire to proceed anonymously.2 No plaintiff
1 The complaint also lists two thousand putative plaintiff
"Jack Does" and "Joan Does." The plaintiffs have only attempted
to support their argument for pseudonymity with reference to the
nine "named" plaintiffs, and our analysis follows their lead.
2 The Schmid Declaration states that "most" of the
plaintiffs would decline to pursue their claims if they were not
allowed to proceed anonymously. It conveys the plaintiffs'
concerns that disclosure would negatively impact their current
employment and future job prospects. It also states that the
plaintiffs were aware of media coverage containing negative
comments about them, including in particular online comments from
readers responding to a Bangor Daily News article.
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filed a declaration in support of the motion. The district court
granted the plaintiffs' motion but left open the possibility of
revisiting the question after the preliminary-injunction stage of
the litigation. Does 1-6 v. Mills, No. 21-CV-00242, 2021 WL
4005985, at *2 (D. Me. Sept. 2, 2021).
On November 10, 2021, two Maine newspaper publishers
(the "Media Intervenors") filed a motion to intervene for the
purpose of challenging the plaintiffs' continued use of
pseudonyms, a motion which the plaintiffs opposed. The district
court granted the motion to intervene on December 30, 2021. Does
1-6 v. Mills, No. 21-CV-00242, 2021 WL 6197377, at *3 (D. Me. Dec.
30, 2021). The Media Intervenors then moved on January 27, 2022,
to unseal the plaintiffs' identities. In opposing this motion,
the plaintiffs relied on the Schmid Declaration, which had been
filed at the outset of the case, as evidentiary support for their
alleged fears of harm. No individual plaintiff filed a declaration
in support of the opposition. Plaintiffs' memorandum of law to
the district court also purported to support their position by
reference to generalized statements supposedly made by President
Biden, New York Governor Kathy Hochul, and television commentators
and to online statements made about other COVID-19 vaccine
mandates. The memorandum of law also referred to three online
comments responding to a press article about the allowance of the
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motion to intervene in this case.3 On May 4, 2022, the district
court held a hearing on the unsealing motion.4
On May 31, 2022, the district court granted the Media
Intervenors' motion and ordered the plaintiffs to identify
themselves. Does 1-6, 2022 WL 1747848, at *7. The court found
that any privacy interests the plaintiffs were asserting were not
"so substantial as to support pseudonymous proceedings," id. at
*5, and that there was "a near total absence of proof" that the
plaintiffs' fears of harm associated with disclosure of their
identities were objectively reasonable, id. at *7; see also id. at
*5-6.5 The district court gave the plaintiffs until June 7, 2022,
3 The plaintiffs cited three online comments from readers
in response to a Portland Press Herald article:
• “The community has every right to ostracize them.”
• “For someone to care more about their rights than those
who are sick and seeking help . . . the answer is simple:
ostracize them from their medical community. And make them
and their legal representatives accountable for all the
legal fees for being just plain morons.”
• “We may as well know their names because if they apply for
jobs, I doubt many will be interested in hiring them.”
The plaintiffs did not attempt to authenticate these
comments or provide more than a cursory description of them.
4 The Hospital Defendants submitted filings taking no
position on the Media Intervenors' motion to intervene and remained
silent as to the Media Intervenors' subsequent motion to unseal
the plaintiffs' identities. The State Defendants remained silent
as to both motions.
5 The district court did not consider the new assertions
made in the plaintiffs' memorandum of law because it was "not
verified and largely fail[ed] to identify the speaker, date, or
source of each of the statements quoted or paraphrased." Does 1-
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to file an amended complaint identifying by name each plaintiff
who elected to proceed with the suit. Id. at *7.
The plaintiffs noticed an appeal to this Court on June
1, 2022. On June 7, 2022, they moved the district court for a
stay of all proceedings pending appeal or, in the alternative, for
a stay of the district court's order to identify themselves. The
district court temporarily stayed its disclosure order to allow
time for briefing on the stay motion. On June 17, 2022, the
district court denied the stay motion but extended the plaintiffs'
time to amend their complaint until July 8, 2022. Does 1-6, 2022
WL 2191701, at *2.
This motion for a stay of the district court's disclosure
order pending appeal followed.6 We have received briefs from all
of the parties on the stay motion. The Media Intervenors and the
Hospital Defendants oppose a stay of the disclosure order. The
State Defendants take no position on whether the disclosure order
should be stayed.
6, 2022 WL 1747848, at *5 n.5. The plaintiffs do not challenge
that decision on appeal. They reiterate some of the same
assertions in their instant motion to stay, but we do not consider
these assertions for the reasons cited by the district court.
6 The plaintiffs do not seek a stay of the district court
proceedings generally.
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II.
Our consideration of the plaintiffs' motion seeking a
stay pending appeal is de novo. See Fed. R. App. P. 8(a)(2). As
we consider the plaintiffs' likelihood of success, it is relevant
that the appeal on the merits from the district court's disclosure
order, which is sought to be stayed pending appeal, would be
subject to an abuse of discretion standard of review. See Nat'l
Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir. 2011); Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008);
see also Dist. 4 Lodge of the Int'l Ass'n of Machinists & Aerospace
Workers Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 42-43 (1st Cir.
2021) (considering standard of review applicable on eventual
appeal).
In determining whether to grant a stay, courts consider:
(1) [W]hether the stay applicant has made a
strong showing that [it] is likely to succeed
on the merits; (2) whether the applicant will
be irreparably injured absent a stay; (3)
whether issuance of the stay will
substantially injure the other parties
interested in the proceeding; and (4) where
the public interest lies.
Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. of Bos.,
996 F.3d 37, 44 (1st Cir. 2021) (alterations in original) (quoting
Nken v. Holder, 556 U.S. 418, 434 (2009)).7 "The first two factors
7 Though there is functional overlap between the stay
analysis and the test for assessing issuance of a preliminary
injunction, they are distinct inquiries. See Nken, 556 U.S. at
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'are the most critical.'" Id. (quoting Nken, 556 U.S. at 434).
"It is not enough that the chance of success on the merits be
better than negligible. . . . By the same token, simply showing
some possibility of irreparable injury fails to satisfy the second
factor." Id. (alteration in original) (quoting Nken, 556 U.S. at434–35). A stay "is not a matter of right, even if irreparable
injury might otherwise result to the appellant." Nken, 556 U.S.
at 427 (quoting Virginian Ry. Co. v. United States, 272 U.S. 658,
672 (1926)).
A.
The plaintiffs' likelihood of success on the merits of
their appeal must be considered in light of the strong presumption
against pseudonymity. Those circuit courts that have considered
the matter have recognized a strong presumption against the use of
pseudonyms in civil litigation. See, e.g., United States v.
Pilcher, 950 F.3d 39, 45 (2d Cir. 2020); Doe v. Megless, 654 F.3d
404, 408 (3d Cir. 2011); S. Methodist Univ. Ass’n of Women L.
Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979);
Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872
(7th Cir. 1997); Does I thru XXIII v. Advanced Textile Corp., 214
F.3d 1058, 1067-68 (9th Cir. 2000); Femedeer v. Haun, 227 F.3d
1244, 1246 (10th Cir. 2000); United States v. Microsoft Corp., 56
428-29, 434-35; 16A Wright & Miller, Federal Practice & Procedure
§ 3954 (5th ed., Apr. 2022 update).
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F.3d 1448, 1463-64 (D.C. Cir. 1995) (per curiam). We join these
courts in recognizing the strong presumption against the use of
pseudonyms in civil litigation.
The Federal Rules of Civil Procedure do not provide for
the use of pseudonyms. To the contrary, the Rules require that
"[t]he title of the complaint must name all the parties," Fed. R.
Civ. P. 10(a), and that "[a]n action must be prosecuted in the
name of the real party in interest," id. R. 17(a)(1). Permitting
parties to proceed anonymously is also in tension with the common
law presumption of public access to judicial proceedings and
records. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
565-74 (1980) (plurality opinion of Burger, C.J.); Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597-99 (1978). This public access
is important because it "allows the citizenry to monitor the
functioning of our courts, thereby insuring quality, honesty and
respect for our legal system." McKee, 649 F.3d at 70 (internal
quotation marks omitted) (quoting F.T.C. v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 410 (1st Cir. 1987)). And "[i]dentifying the
parties to [a] proceeding is an important dimension of [this]
publicness." Blue Cross & Blue Shield United of Wis., 112 F.3d at
872. In short, "[t]he people have a right to know who is using
their courts." Id.We acknowledge that some circuits have found that the
use of pseudonyms may be warranted in "exceptional cases."
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Megless, 654 F.3d at 408 (citation omitted). In assessing whether
this high bar is cleared, courts balance the interest established
by the party wishing anonymity against the interests of both the
public and other parties. See Sealed Plaintiff, 537 F.3d at 189(summarizing different circuits' approaches).
This Court has not formulated a test for assessing when
parties may proceed under pseudonyms, and we decline to do so in
the context of the present emergency motion. The district court
applied the Third Circuit's multi-factor test from Megless, 654
F.3d at 408, which other district courts in this circuit have
relied on and which the parties agreed provides a "workable
framework" for the analysis, Does 1-6, 2022 WL 1747848, at *2 n.2.
For purposes of evaluating the instant motion, we will do the same.
For a party who wishes to proceed under a pseudonym to
prevail under Megless, the party must first show "both (1) a fear
of severe harm, and (2) that the fear of severe harm is
reasonable." 654 F.3d at 408 (quoting Doe v. Kamehameha
Schs./Bernice Pauahi Bishop Est., 596 F.3d 1036, 1043 (9th Cir.
2010)). The ultimate purpose of the Megless inquiry is to evaluate
if there is a "reasonable fear of severe harm that outweighs the
public's interest in open litigation." Id. at 409.
We conclude that the plaintiffs have made no such
showing. Much has changed since the plaintiffs filed suit ten
months ago. The plaintiffs' identities were disclosed to the
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defendants, and no plaintiffs withdrew from the case to avoid this
disclosure. See Does 1-6, 2022 WL 1747848, at *6. The plaintiffs
conceded to the Supreme Court in relation to their petition for a
writ of certiorari that seven of them had been terminated based on
their refusal to be vaccinated. The Hospital Defendants have
represented that as of November 10, 2021, the other two plaintiffs
are no longer covered by Maine's vaccination mandate as modified
on that date. As to each of the nine plaintiffs, then, the
circumstances have changed considerably based on what we know from
this record.
The plaintiffs have made a choice not to offer either
individualized declarations from each plaintiff or even a
declaration from counsel in light of these changed circumstances.
They have provided no current evidence that there are plaintiffs
who are deterred from proceeding with the lawsuit by a requirement
of disclosing their identities. There is no evidence of any harm
resulting from disclosure at this point in the litigation. Cf.
Does I thru XXIII, 214 F.3d at 1069 ("[T]he balance between a
party's need for anonymity and the interests weighing in favor of
open judicial proceedings may change as the litigation
progresses."). The plaintiffs have provided no current evidence
of any potential harm to themselves or evidence on subsidiary
issues such as whether they are employed and whether they have
kept their identities confidential throughout the course of the
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litigation. Cf. Megless, 654 F.3d at 409 (identifying
confidentiality as a relevant factor). Instead, ten months into
the litigation, they continue to rely on the generalized assertions
in the August 2021 Schmid Declaration as the primary evidentiary
support for their continued pseudonymity. The Schmid Declaration
does not establish any non-speculative present harm from
disclosure.
The plaintiffs do not cite Supreme Court or circuit law
bearing directly on their situation, and multiple of the district
court decisions they cite concern the early stages of challenges
to vaccine mandates. For example, in Does 1-2 v. Hochul, No. 21-
CV-5067, 2022 WL 836990 (E.D.N.Y. Mar. 18, 2022), cited by
plaintiffs as addressing the "precise issue" here, the court made
the "close call" to grant plaintiffs leave to proceed anonymously
but reserved the right to revisit the question following the
motion-to-dismiss stage, id. at *2-4. And religious freedom cases,
including those involving challenges to vaccine mandates, are
often brought in the names of the plaintiffs. See, e.g., Brox v.
The Woods Hole, Martha's Vineyard, & Nantucket Steamship Auth.,
No. 22-CV-10242, 2022 WL 715566, at *2 (D. Mass. Mar. 10, 2022);
Together Emps. v. Mass Gen. Brigham Inc., No. 21-CV-11686, 2021 WL
5234394, at *1, *3-4 (D. Mass. Nov. 10, 2021), aff'd, 32 F.4th 82,
87 (1st Cir. 2022); Rodriguez-Vélez v. Pierluisi-Urrutia, No. 21-
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CV-1366, 2021 WL 5072017, at *1 (D.P.R. Nov. 1, 2021); Harris v.
Univ. of Mass., Lowell, 557 F. Supp. 3d 304, 306 (D. Mass. 2021).
Given the absence of record evidence substantiating the
plaintiffs' assertions of anticipated harm, they have not met their
burden of showing likelihood of success on the merits of their
appeal.
B.
Because the plaintiffs' likelihood of success on the
merits turns on their showing a reasonable fear of harm, it follows
from the preceding analysis that the plaintiffs have not
established a threat of irreparable harm. Denial of the stay
itself does not constitute irreparable harm under these
circumstances.
And the public interest and the Media Intervenors'
interests weigh in favor of denying the stay due to the presumption
of public access. See, e.g., McKee, 649 F.3d at 70.
III.
The motion is denied.
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