Doe I v. Burton, 94-35734

• Decision Date: 13 May 1996
• Docket Number: No. 94-35734,94-35734
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. JOHN DOE I, Jane Doe, and John Doe II 1 , Plaintiffs-Appellants, v. Richard BURTON, Commissioner, Alaska department of Public Safety; Bruce M. Botelho, Alaska Attorney General, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 635

85 F.3d 635

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

JOHN DOE I, Jane Doe, and John Doe II ¹ Plaintiffs-Appellants, v. Richard BURTON, Commissioner, Alaska department of Public Safety; Bruce M. Botelho, Alaska Attorney General, Defendants-Appellants.

No. 94-35734.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1995.

Decided May 13, 1996.

Before: HALL, WIGGINS, and KLEINFELD, Circuit Judges.

MEMORANDUM ^*

Alaska enacted a sex offender registration act in 1994. John Doe, who is subject to the requirements of the Act due to a previous conviction for a sex offense, and his wife Jane Rowe, along with John Doe II, who is also subject to the terms of the Act, filed suit in district court seeking an injunction prohibiting enforcement of the Act. Their complaint names the Commissioner of the Alaska Department of Public Safety and the Attorney General for the State of Alaska (collectively "the state"). It alleges violations of the United States and Alaska constitutions.

The plaintiffs moved for a preliminary injunction and for leave to proceed under pseudonyms. The district court granted the motion for preliminary injunction in part, but denied the motion for leave to proceed under pseudonyms, ordering the plaintiffs to file a new complaint under their true names or have their case dismissed.

The plaintiffs filed an emergency appeal in this Court. A motions panel stayed pending appeal that portion of the district court order that denied leave to proceed under pseudonyms and threatened dismissal. This panel now has before it an appeal from the denial of the motion for leave to proceed under pseudonyms.

The district court had jurisdiction under 28 U.S.C. § 1343. Appellants claim that this Court has jurisdiction over the interlocutory appeal because the order denying leave to proceed under pseudonyms fits within the collateral order exception to the final decision rule of 28 U.S.C. § 1291.

I.

The appellants argue that this Court has jurisdiction over the interlocutory appeal under the "collateral order exception" recognized in Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949). This Court has noted that an interlocutory order must meet three conditions to fit within the exception:

The order (1) must conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.

Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985).

The parties dispute whether the district court's order meets the second condition. Specifically, the state argues that the pseudonym issue is neither "important" nor "completely separate from the merits of the action." Although we disagree that the issue is not "important," we agree that it is not "completely separate from the merits of the action." Because our conclusion that the issue is not separate by itself precludes our assertion of jurisdiction, we limit our discussion to the issue of separability. See Marchetti v. Bitterwolf, 968 F.2d 963, 965 (9th Cir.1992).

The plaintiffs argue that the pseudonym issue is "separate from the overall merits as to the constitutionality" of the registration act. The state responds that a "significant portion of the plaintiffs' case against the sex offender registration act revolves around their claim that the act violates their ... right to privacy.... But it is upon this same asserted right to privacy that plaintiffs base their motion to use pseudonyms." We think that the state is clearly correct.

Among the grounds on which the plaintiffs challenge the act is that it allegedly violates their implied federal right to privacy and the express state constitutional right to privacy. Central to a determination of these issues will be whether the plaintiffs in fact enjoy a legitimate expectation of privacy regarding their convictions. See Doe v. City of New York, 15 F.3d 264, 268 (2d Cir.1994) ("Certainly, there is no question that an individual cannot expect to have a constitutionally protected privacy interest in matters of public record."); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 493-96 (1975).

Similarly, whether the district court should allow a litigant to proceed under a fictitious name depends largely on whether the litigant has a sufficient privacy interest in the information that would be revealed in order to justify an exemption from the normal rule that parties must litigate under their own names. See, e.g., James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993) ("privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation").

Thus, both the pseudonym issue and the privacy claims turn on whether the plaintiffs have a legitimate expectation of privacy in matters that are a part of the public record. The pseudonym issue "cannot be assessed fairly until the substance of both [the plaintiffs'] case and that of the defendant become known." Kuster, 773 F.2d at 1049.

This conclusion is not an easy one, for it forces the plaintiffs to suffer exactly the harm they seek to avoid by challenging the law. As they themselves assert,

The complaint seeks protection from the punitive nature of the [registration act], including its public disclosure provisions. Appellants should not be denied that protection and suffer public disclosure at the outset merely because they chose to challenge the constitutionality of the [registration act].

Unfortunately, however, it is the conclusion the caselaw prescribes. The fact that the plaintiffs seek the same protection in their motion for leave to proceed under pseudonyms as they do in their underlying complaint underscores that the issues are not in fact separate. ²

Two other courts of appeals, however, have decided that an order denying leave to proceed under pseudonym is immediately appealable under the collateral order doctrine: James v. Jacobson, 6 F.3d 233 (4th Cir.1993); Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir.1979); Doe v. Stegall, 653 F.2d 180 (5th Cir.1981).

In none of these cases, however, was the pseudonym issue intertwined with the underlying claim as it is here. In James, the plaintiffs brought a malpractice action and claimed economic injuries. The "rights" they sought to protect in the underlying action and in their effort to proceed anonymously were therefore distinct. Likewise, in Southern Methodist, the plaintiffs' underlying claim sought to redress injuries from employment discrimination rather than the shame or opprobrium the plaintiffs sought to avoid by proceeding under pseudonyms. Finally, Stegall was an establishment clause challenge to school sponsored prayers; the plaintiff's desire to avoid community harassment by proceeding anonymously was a different interest than the First Amendment interest that the plaintiffs sought to protect in the underlying claim.

We therefore conclude that none of these cases is helpful to the plaintiffs in this case. We dismiss this interlocutory appeal because the issue presented is not separate from the merits of the plaintiffs' claims.

II.

Because we lack jurisdiction to review the district court's denial of the motion for leave to proceed under pseudonyms, we express no opinion as to whether the district court abused its discretion in doing so.

III.

For all the foregoing reasons, this appeal is DISMISSED.

WIGGINS, Circuit Judge, dissenting:

I dissent. I believe that the majority misinterprets the "separate" requirement of the collateral order doctrine and therefore errs in holding that we have no jurisdiction to review the order denying Appellants leave to proceed under pseudonyms. In addition, in reaching the merits of the appeal, I would hold that the district court abused its discretion in denying Appellants leave to proceed anonymously.

I.

At issue here is the proper interpretation of Cohen 's "separateness" prong. As discussed by the majority, under 28 U.S.C. § 1291, only "final decisions" of the district court can be reviewed on appeal. Under the collateral order doctrine, certain orders that do not end the litigation on the merits are appealable on an interlocutory basis. See Digital Equipment Corp. v. Desktop Direct, Inc., 114 S.Ct. 1992, 1995 (1994). In order to be immediately appealable, the order must "(1) conclusively determine the disputed issue, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985) (discussing Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949)); see also Orange County v. Hongkong and Shanghai Banking Corp. Ltd., 52 F.3d 821, 823 (9th Cir.1995) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

The majority concludes that the district court's order denying Appellants' motion to proceed under pseudonyms does not decide an issue "completely separate from the merits of the action" because the pseudonym issue raises privacy-based arguments similar to those raised in the underlying challenge to the statute. For the following reasons, I believe the majority misinterprets the "separate" requirement of the collateral order doctrine.

A.

The separateness prong of Cohen requires that an appealable interlocutory order must be "separate" in that it should not merely be a "step toward final disposition of the merits of the case and will not be merged in final judgment." Cohen, 337 U.S. at 546; see also Jackson v. Vasquez, 1 F.3d 885, 888 (9th Cir.1993) (transportation order is not a "mere step toward final disposition" of potential habeas petitioner's claims...