From Doe v. Hill, decided today by D.C. Circuit Judge Patricia Millett, joined by Judges Neomi Rao and Judith Rogers:
Dr. Doe challenges the constitutionality of the Federal Deposit Insurance Corporation’s [statutory] ban on hiring those who have been convicted of a felony. {Dr. Doe was convicted of two Ohio felonies when he was a young man in the early 1990s. Since then, Dr. Doe has lived a law-abiding life, obtained a PhD, and become a federal public servant with a security clearance. In 2009, he applied for and received a pardon from the Ohio governor, and his felony convictions were sealed by an Ohio court.} …
Because federal court proceedings are presumptively open and transparent, proceeding under a pseudonym is rarely granted. {Civil complaints filed in federal court must “name all the parties[,]” Fed. R. Civ. P. 10(a), and the suit must be prosecuted in “the name of the real party in interest,” id. 17(a)(1).} Although Dr. Doe has a legitimate privacy interest in his sealed felony convictions, that interest is insufficient in this case to overcome the strong presumption against pseudonymous litigation….
This presumption is grounded in “the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.'” We generally require “parties to a lawsuit [to] openly identify themselves … to protect[] the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.”
Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess “the real-world aftermath of a suit,” and to determine for themselves whether “justice was done.” Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness. “Secrecy breeds suspicion[,]” and so “[s]ome may believe that a party’s name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up.”
{A byproduct of government transparency is that those who seek to alter public law by using the federal courts must, in all but truly exceptional cases, reveal their identity so that the public can understand the issues before the court, the consequences of the court’s ruling, and the manner in which the court reached its decision. After all, secrecy in court proceedings was one of the evils of concern at the Founding. See Federal Farmer, Letter XV (Jan. 18, 1788), reprinted in The Complete Anti-Federalist (decrying “secret and arbitrary proceedings” and extolling public trials as “the means by which the people are let into the knowledge of public affairs—are enabled to stand as the guardians of each others’ rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them”)….
The court acknowledged that “the rare dispensation of pseudonymous status” may sometimes be provided, for instance in cases involving “matter[s] of [a] sensitive and highly personal nature,” but concluded that this particular exception is limited to “intimate issues such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors[]”:
Felony convictions are not in that [intimate issues] category as they have long been a legitimate matter of inquiry for public employment and other positions of trust….
[T]he Ohio court’s sealing of the record of Dr. Doe’s convictions does not materially alter the privacy balance in this case. To be sure, sealed cases “raise[] greater privacy concerns than the disclosure of information regarding public convictions[.]” But not so here. Dr. Doe’s sealing was based on an executive pardon. Applications for an executive pardon in Ohio are submitted to the Ohio parole board which must conduct and publish “a thorough investigation into the propriety of granting a pardon[.]” The Ohio Constitution also mandates that all granted pardons be publicly reported to the Ohio legislature.
This means that, in addition to the public court proceeding underlying the convictions, the very process that enabled Dr. Doe to seal his records resulted in at least two more public processes and records publicly disclosing his felony convictions—one from the parole board and one from the Governor. To be sure, these records may later have been sealed along with the underlying court records. But while Dr. Doe was seeking a court order sealing all records associated with his conviction, these new records were publicly available. At that time, information about Dr. Doe’s convictions could have been accessed, preserved, or publicized by any member of the public. That, in fact, may have occurred in this case because the FDIC discovered Dr. Doe’s criminal convictions using a “commercial investigative service.”
{In reaching our conclusion, we need not (and so do not) decide that information in sealed criminal records is always insufficient for factor one to favor pseudonymity. For example, substantially different considerations could be at play if a record were sealed because of exoneration. The Supreme Court has indicated that there is a very strong privacy interest in criminal records where the individual’s association with the record is due to “mere happenstance.”}
The court went on to conclude that the exceptions for personal privacy under the Freedom of Information Act don’t change the analysis:
FOIA vindicates the public interest in understanding only the operations and activities of the Executive Branch, and does so within the caveated and qualified disclosure requirements of the statute…. As a result of FOIA’s numerous exceptions to disclosure and privacy protections, the withholding of information from public view, in whole or in part, is common under FOIA.
By contrast, exceptions to openness in judicial proceedings are “rare.” Of course, FOIA and its protections against the disclosure of private citizens’ information do not apply to the Judicial Branch at all. Instead, judicial proceedings traditionally start with a presumption of openness, transparency, and full disclosure of party filings and, unlike FOIA, there is no long list of exceptions. The public’s historic and presumptive right to monitor whether federal courts are doing justice between parties, and how parties are using the courts to vindicate their own interests, have led courts to enforce across-the-board rules of disclosure concerning the parties’ filings, including the parties’ identities and facts about them that are salient to the resolution of their case. Only limited exceptions are allowed.
Finally, the court also discussed the significance of this being a lawsuit against the government, and challenging the constitutionality of a federal statute. I will have more to say about that in an upcoming post, since it’s an important question that arises in many different contexts.
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