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Case number 24-5049, John Doe, appellant, versus Jonathan McCormand in his official capacity as director of FDIC and Federal Deposit Insurance Corporation.

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Ms.

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Lichtenstein for the appellant, Ms.

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Lyons for the appellees.

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Good morning, and may it please the court.

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Alexandra Lichtenstein for appellant John Doe.

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The district court abused its discretion in denying Dr. Doe's motion to proceed under a suit

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On factor one of the test, it failed to account for the particularly heightened interest an individual has in a criminal record that has been pardoned and sealed and removed from the public record.

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On factor four of the test, it departed both from the way that factor has long been understood as focusing on reputational harm to the defendant, and from this court's reasoning in its 2020 in-race yield case decision, which focused on the importance of a plaintiff's identity to understanding individualized government determinations.

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Instead, the Disher Court read this court's in-race yield case decision

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to establish a decisively heightened public interests in suits like the one here, which raise purely legal issues about the constitutionality of a statute.

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And in evaluating the public interest, the district court further failed to consider whether a pseudonym would actually impair the public's ability to understand the case.

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Because it does not, and because he has an especially strong privacy interest, the district court abused its discretion in denying Dr. Doe's motion to proceed under a pseudonym.

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First, the court failed to acknowledge the nature of- So as you've already said, the standard of review here is abuse of discretion.

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But from what I can see, you only cite one district court case in which someone with a sealed conviction was allowed to proceed with a pseudonym.

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Your Honor, I believe there are a few different cases in which courts in other circuits have allowed

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uh, individuals with expunged convictions to proceed under a pseudonym.

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Um, so there, there is an example, uh, does one through eight be Sturtevant.

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Uh, I believe that's from Louisiana.

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There's also a case from Ohio.

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So there are many situations in which courts have acknowledged, uh, that there is a particularly heightened privacy interests in a, in criminal history information that's sealed.

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It does seem though that the privacy interests that we usually are focused on are different.

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They're about sexual crimes or related to personal matters like that.

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So how is this similar to the sort of the heartland of those cases?

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This sort of information falls exactly within the heartland of that sort of information.

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So as we explained in our briefing,

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those sorts of bits of information are categorized as particularly sensitive because they are highly stigmatic and would otherwise not be known to the public.

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They wouldn't otherwise be known to the public, whereas here, the fact of a criminal conviction is, because we have, thankfully, public and open, transparent criminal proceedings, known to the public.

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The governor's decision to grant a pardon is itself a matter of public governmental record.

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There was newspaper coverage because we have a free press in this country that can cover criminal prosecutions.

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So this is very different.

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This is much more like Microsoft.

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When we said we're looking to whether something has previously been

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subject to public exposure, and the examples that Judge Brow gave are things that are not, are traditionally kept intimate and secret, whereas here the difference is even though it's later sealed, expunged,

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It has been a matter of public record.

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And the decision to a seal expunge itself is a matter of public record.

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And so we have to find a privacy interest here now, not just because something's stigmatic, but because it has some inherent claim to being private.

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And it's hard to do that with criminal conviction matters.

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I think there are two answers to that, Your Honor.

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The first is that that's true in many circumstances, but it's not true in the circumstances of this case.

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So Dr. Doe had his record pardoned and sealed.

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It has faded.

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The governor's decision to make that pardon was a matter of public record and is a matter of Ohio governmental record.

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In Ohio, a decision to pardon is itself sealed.

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And Dr. Doe has made significant efforts over the years to ensure that information about his convictions.

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I'm sorry, was it not a matter of public record when the governor granted the decision to seal?

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The governor's secretly deciding?

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The governor is not secretly deciding, but records relating to the pardon under Ohio law are then themselves sealed.

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After the decision's made.

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After the decision's made.

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First the decision is disclosed to the public.

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That's true.

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But OK, so it was made a matter of public record.

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And in this day and age, once a matter of public record, always a matter of public record.

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That may be true for many people, but it is simply not true for Dr. Doe.

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So as he wrote in his declaration, he has invested significant after the fact.

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But again, we're talking about facts here.

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Normally someone's sexual history, medical history has never been a matter of public record.

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So I think you're in a very different position here where her

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and very salutary reasons, both the criminal conviction and the fact that a governor has decided to pardon slash seal a record are both matters of public record.

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So again, Your Honor, I would push back that those are still available to the public if you were at one point.

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Certainly.

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And so I think that would take me to the second.

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This is for the other examples.

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Sure.

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So the second response to Your Honor's question is that criminal history information has long been recognized by the Supreme Court and by this court as information in which there is a significant privacy interest, even though that information is true and may be a matter of public record or have one time been a matter of public record.

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So in Reporters Committee, the Supreme Court made clear

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that an individual has a significant privacy interest in his criminal history information and that that interest is all the stronger when the passage of time or their efforts to maintain privacy have rendered that information inaccessible.

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That was a statement about compiled rap sheets that back at the time made

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could only be put together through extraordinary effort.

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And so the reality of their existence in the world was itself essentially secret because it was so much work to try to compile rap sheets.

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It wasn't the fact of a single conviction, let alone a proceeding by a state governor.

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It was an issue there.

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I think the Supreme Court's language was a bit broader, Your Honor, and they did acknowledge that there is a significant privacy interest in one's criminal history.

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But in this court's decision in ACLU 1, which did not focus on these sort of compiled rap sheets, but instead on the fact of conviction, this court recognized that there is an individual interest, a privacy interest, in the sensitive information surrounding a conviction.

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And in ACLU 2,

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recognize that that interest is all the higher when it would unwarrantedly associate an individual with a criminal history.

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Your unwarrantedly adverb that you used there.

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also seems relevant to this case, because what do we do if the identity of the person and the thing that they wish to keep sealed, their association with criminal activity, seems actually quite pertinent to the public interest of understanding the nature of the litigation?

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This is an effort to invalidate an act of Congress passed by both houses, signed into law by a president of the United States.

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And one person now wants to declare, facially, for everybody, that the statute that says the FDIC cannot hire people with felony records is unlawful.

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Doesn't the public have an interest in knowing, in a way they may not in other cases, what it is and what the relevant criminal activity is of the person who's bringing that challenge?

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So as the Ninth Circuit recognized in DOES 1 through 23, there's kind of a two-step inquiry about the public interest.

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The first is whether the public might be interested in knowing the outcome of the case, that it's a matter of widespread

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public importance.

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But the second, which the Disher Court failed to consider at all, is whether the public interest would be impaired.

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That is, whether the public would be unable to understand or follow the case simply because the plaintiff is using a pseudonym.

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And here, that's simply not true.

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The plaintiff's name is a very minor piece of information.

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It is not.

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The fact is that he wants to say, and we're not getting to the merits, maybe he's right, maybe he's wrong, but he wants to say that it's unlawful

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across the board for Congress and the President to have decided the FDIC should not hire people with felony records.

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And it might make a big difference to the public's understanding of that to know, and this is all hypothesizing, but if the person bringing the lawsuit had a history of bank fraud.

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That would really factor into their calculus as opposed to maybe history of littering.

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or had a history of violent behavior.

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For a facial attack, all of this is relevant.

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And so it seems to me, you might say the name doesn't matter, but knowing the name of the person and the conviction that person did in their history, knowing something about them may have more relevance here than it would in other cases, would it not?

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So, Your Honor, I just, I don't think that that is true for several reasons.

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The first is that that's not relevant to the merits of Dr. Doe's claim and what- Why is he appreciating who these felons are that he says should be hired, should not be barred from being hired, are and what they've done?

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Why isn't that relevant?

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So the question that is brought by Dr. Doe's merits case is whether there is any rational basis for a flat categorical bar on any individual with any felony working at the FDIC.

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But under a facial challenge, if the government can identify one instance in which it would be a rational application of the rule,

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then the facial challenge fails.

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And so understanding who the plaintiff is, what their motivations might be, allowing the public to decide what their motivations might be, what that person's history is, seems much more relevant than it does in many other cases.

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And so how do we factor that into the nature of the balancing analysis, that public interest?

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So Your Honor, the government is free to raise those arguments at the merit stage.

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But in looking at whether the plaintiff should be allowed to proceed.

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I'm talking about the public interest in the understand.

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You said an unwarranted public interest.

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And I'm pushing on that.

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Sure.

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So what courts have consistently held, and in fact, this court held an in race sealed case to the 2020 decision, is that the public's interest is in being able to understand and follow the case and to understand how this court's

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opinion might apply to others going forward.

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So also in somebody who wants to accept themselves from the rules that govern everybody else.

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And here he wants to accept himself and everybody in the felon status class from a rule that Congress adopted.

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So your honor, I think that's actually quite different than the sort of exception being discussed in Ray Seale case too.

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Here, Dr. Zhou is bringing a challenge to the constitutionality of a statute, and that challenge would apply equally

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to everyone affected by the statute, you know, depending on how.

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Is he bringing in facial challenge, or is he bringing in facial challenge as applied?

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He's also bringing in facial challenge.

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Well, the as applied one would very much be a singular exception, just like in Inray Sealed Case 2.

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But it doesn't turn on any factual issues.

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On this back to where we were in Sealed Case 2, which is his as applied challenge seeks an individualized exception for him from a general federal requirement.

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And as applied challenge would, based on the facts that are already in the record, challenge the law as applied to him.

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But that would be, again, a purely legal question.

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There aren't issues of credibility that might come up.

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There aren't disputed factual issues.

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And has this court held an in-race sealed case too?

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You get to proceed pseudonymously if you're only raising legal questions.

[00:13:44] Speaker 02:
So the Second Circuit in sealed point of the sealed defendant held that there is an atypically weak public interest when- That may be what the Second Circuit held, but someone's trying to invalidate either facially or as applied a federal statute in this case.

[00:14:00] Speaker 05:
And particularly if they're thinking a singularized exception for themselves, I don't know how you get out of a sealed case, too, based on that fact.

[00:14:10] Speaker 02:
Your Honor, I think that when you read in Irracial Case 2 in context, it was referring to a petition for review from an individualized agency adjudication in which the government was acting as a regulator.

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And the challenge to the law it was bringing was the framework for exceptions for which the public didn't have a real interest in knowing the plaintiff's identity.

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It might have been relevant to the plaintiff's market share.

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to competitors who might want to know how exceptions might apply to them moving forward.

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But here we have a purely legal question.

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Dr. Doe is bringing a challenge to the constitutionality of a statute, and it doesn't aid the public interest in understanding whether or not that statute is constitutional to know his identity.

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And in fact, as we pointed out in our briefing, there is a public interest in having the constitutionality of laws challenged and in pressing

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laws to ensure that they are constitutional and in ensuring that when the only class of plaintiffs able to bring that sort of challenge are those who seems to be no shortage of people in this country who are willing to bring constitutional challenges to statutes in their own name.

[00:15:22] Speaker 05:
And that's certainly true that I don't think we need to have a secrecy policy just to encourage policing of the constitutionality of federal laws.

[00:15:31] Speaker 02:
It's not simply to encourage that, Your Honor, but as courts have held, when the class of individuals able to bring those sorts of challenge are subject to stigmatization and are part of a disfavored minority, there's a heightened public interest in ensuring that those individuals

[00:15:51] Speaker 02:
are not deterred from bringing that sort of challenge.

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And that's the situation that we have here with Dr. Doe, who has, again, particularly heightened privacy interests in a criminal history that no longer exists as a matter of Ohio law.

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The criminal information was pardoned, it was sealed, and it is no longer part of the public record.

[00:16:14] Speaker 05:
The time he applied to the FDIC in 2022, Ohio law,

[00:16:18] Speaker 05:
allowed an employer to ask him about this very criminal conviction and for him to answer honestly.

[00:16:26] Speaker 02:
So Ohio law in 2022 would have kept that information secret.

[00:16:32] Speaker 05:
He allowed an employer to ask and he had to answer.

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So it did not say in 2022 you have a privacy interest in telling the employer no, no convictions.

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changed that later.

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But in 2022, when the FDIC, he applied to the FDIC, the law was that he didn't even have a right to keep the secret from an employer who asked.

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So in 2022, Your Honor, under Ohio law, this conviction was treated not to have occurred.

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And so I do think Dr. Doe would be within his rights not to affirmatively offer that information to the employer or not to check yes.

[00:17:07] Speaker 05:
They changed it in 2023.

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They changed the law in 2023, but in 2022, employers were allowed to ask.

[00:17:13] Speaker 02:
But Dr. Do didn't have to affirmatively offer that information, and were he asked?

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Affirmatively offers a very different thing.

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I'm saying, again, for the level of the privacy interest here.

[00:17:21] Speaker 02:
But the employer would have to ask very specifically whether he had a conviction that was pardoned and or sealed.

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If the employer simply.

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Do you have a case that says that?

[00:17:34] Speaker 05:
At that time, that's what they meant when they said it was still OK for employers to ask.

[00:17:38] Speaker 02:
I'm not familiar with an Ohio Supreme Court case from that time.

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I'll take a lower court Ohio case.

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I don't know any off the top of my head, Your Honor.

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We don't know that, in fact, they'd have to ask a specific question.

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We don't know that at the time they couldn't say, tell us if you have any felony convictions.

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What I do know is that as a matter of statute, Ohio law said that those convictions are treated not to have occurred.

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And exceptions mostly limited to the law enforcement context.

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So if he were convicted of an additional crime or for the purposes of a background check for a firearms permit, for example.

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If the FDIC was hiring him for purpose of its investigatory arm, it looks into violations of banking laws.

[00:18:26] Speaker 02:
Would he be required to provide that information?

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Would it be okay for them to ask?

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So FDIC is obviously not governed by Ohio law, and it's hiring in DC.

[00:18:38] Speaker 05:
No, but you think Ohio law wouldn't even treat it as something he's entitled not to disclose.

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Ohio law does treat his conviction as something.

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It was for law enforcement investigatory purposes.

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So my understanding is that it's for very limited purposes around sentencing after an additional conviction or very narrow law enforcement

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position.

[00:19:01] Speaker 05:
I've asked if FDIC was hiring him for a law enforcement position position within maybe civil law enforcement within FDIC.

[00:19:10] Speaker 02:
Sure.

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So FDIC would be able to have a facial challenge here.

[00:19:13] Speaker 02:
So sure.

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And that might go to the merits of Dr. Doe's claim.

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But I don't think it undermines the serious privacy interest he does have in this information in granting a sealing of the record draws into serious question how private that interest is if Ohio law

[00:19:30] Speaker 05:
is leaking around the edges here and allowing, making it perfectly permissible and requiring him to honestly answer that his answer that it never happened doesn't work is not allowed.

[00:19:40] Speaker 05:
He has to acknowledge it happened in certain law enforcement hiring contacts and other law enforcement.

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context, and it was okay for employers to ask the question, at which point he must give an honest answer if he wants to be employed.

[00:19:55] Speaker 05:
There's a lot of leak around this privacy interest.

[00:19:58] Speaker 02:
So, Your Honor, I think it's important to recognize that this privacy interest is not a binary, it's a spectrum.

[00:20:05] Speaker 02:
The fact that Dr. Doe may have been required

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to reveal this information to a few select individuals is a much more minor infringement on his privacy right than linking his name in the caption of this case, such that it's available to anyone who would do a web search for his name.

[00:20:24] Speaker 02:
And the fact that he has kept that information out of the public eye, out of being linked to his name, that as he wrote in his declaration, almost no one in his life is aware of his previous convictions, that all goes to the strength of his privacy interest and to the degree to which it really has been kept confidential.

[00:20:47] Speaker 05:
The fact that- Could your position not just that Ohio law

[00:20:50] Speaker 05:
is what defines or sort of identifies a privacy interest year, but as Ohio law plus his efforts.

[00:20:56] Speaker 02:
That's correct, Your Honor.

[00:20:57] Speaker 05:
So we had someone who had their conviction sealed, just like he did by the governor of Ohio.

[00:21:03] Speaker 05:
But this was a poor person who didn't have the resources to take all the steps that Dr. Doe has done here to kind of layer on secrecy over his prior conviction.

[00:21:17] Speaker 05:
That person might not be in the same place and would not be able to proceed pseudonymously.

[00:21:21] Speaker 02:
It may be true that the individual facts of a case and the extent to which that information is public would affect the degree of privacy and sensitivity of that information.

[00:21:34] Speaker 05:
I don't think that is... Imagine how difficult we would find it to be to write an opinion that would say those who have enough resources to invoke services that hide your information better are entitled to proceed synonymously, but those who are in equivalent legal position but don't have those financial resources

[00:21:50] Speaker 02:
I don't think it's just a matter of financial resources, Your Honor.

[00:21:54] Speaker 02:
Dr. Doe has personally and individually invested significant amount of his time in hiding.

[00:22:00] Speaker 05:
People who are poor don't have time for that kind of stuff in jobs.

[00:22:04] Speaker 02:
It may be true, Your Honor, that different individuals are positioned differently to be able to keep this sort of information secret, but that is the kind of interest that the pseudonymity test weighs.

[00:22:16] Speaker 02:
The question under factor one

[00:22:18] Speaker 02:
is a degree to which this information is highly personal and sensitive.

[00:22:24] Speaker 02:
And as the Supreme Court explained in Reporters Committee, that degree of sensitivity does rest in part

[00:22:31] Speaker 02:
on how confidential that information has kept.

[00:22:35] Speaker 02:
It may be that the passage.

[00:22:36] Speaker 05:
Is an accepted inquiry sort of categorically across the board how society views that information, like the examples Judge Rao gave?

[00:22:43] Speaker 05:
Or are you saying it's a individualized inquiry to how secret the defendant has kept the information, or the, I'm sorry, the would-be plaintiff has kept the information?

[00:22:51] Speaker 02:
I think both inquiries are relevant to factor one, Your Honor.

[00:22:54] Speaker 02:
So what the factor distinguishes between is information that's highly sensitive and information that might cause

[00:23:01] Speaker 02:
mere criticism that might attend any litigation.

[00:23:04] Speaker 02:
And so relevant to the sensitivity is both the degree to which it has been kept highly private, but also the degree to which the public treats this as a matter of stigmatization.

[00:23:16] Speaker 02:
And in Dr. Doe's situation, that level of stigmatization is particularly high because it is unwarranted.

[00:23:23] Speaker 02:
He is no longer in the eyes of the law considered someone with a felony conviction.

[00:23:28] Speaker 02:
And so being

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put back in a position where he would be considered to be associated with criminal activity in an irreversible way would undermine a serious privacy interest and not just subject him to the normal sort of criticism that might accompany any litigation.

[00:23:46] Speaker 04:
Let me just be clear about sort of one sort of technical factual situation.

[00:23:52] Speaker 04:
The fact that his motion has been denied, if he decides to go forward, is he in a position where he can still have the record sealed before the merits judge, while all the information would be made public before

[00:24:17] Speaker 04:
the merits judge, that that he is concerned about would not be.

[00:24:25] Speaker 04:
I was thinking hypothetically of a situation where an anonymous person says, for purposes of this litigation, I am willing to stipulate that, you know, I did one, two, and three, and let's suppose

[00:24:45] Speaker 04:
in my hypothetical, those are robbing banks, all right?

[00:24:50] Speaker 04:
But that was 20 years ago.

[00:24:53] Speaker 04:
Ohio has seen fit to grant me this other way of living my life and I've taken advantage of it.

[00:25:05] Speaker 04:
And now I'm facing a situation where

[00:25:11] Speaker 04:
there is an absolute bar with no opportunity for me to present any extenuating circumstances.

[00:25:22] Speaker 04:
And that under this theory is unconstitutional.

[00:25:32] Speaker 02:
So, Your Honor, I think under the rules of the D.C.

[00:25:37] Speaker 02:
District Court's plaintiff seeking a motion to file under a pseudonym files the motion and any accompanying evidence, in this case, a declaration under seal, so that information is private in the District Court.

[00:25:52] Speaker 04:
No, but I'm thinking of the average case.

[00:25:55] Speaker 04:
It can be child cruelty, and the whole record is sealed.

[00:26:02] Speaker 04:
all right, but before the district court hearing the matter, or it could be a financial situation where all of the records involving the various companies and in antitrust cases, financial records are all sealed.

[00:26:23] Speaker 04:
So the public doesn't know, and there are a lot of states that have laws that allow

[00:26:31] Speaker 04:
of drug manufacturers, et cetera, to litigate.

[00:26:34] Speaker 04:
And we never know because the case is sealed and the drug manufacturer's name is never made public, even where there is an award against that manufacturer.

[00:26:50] Speaker 04:
So I'm trying to understand in this context, while the district court turned down this one avenue,

[00:26:59] Speaker 04:
Does your client have these other avenues or are they simply not?

[00:27:06] Speaker 04:
doable.

[00:27:07] Speaker 04:
I mean, he may not want to do them.

[00:27:09] Speaker 04:
I understand that.

[00:27:10] Speaker 04:
But I mean, they're not doable as a matter of law and procedure.

[00:27:14] Speaker 02:
So, Your Honor, a ceiling is generally considered to be more invasive public closure than proceeding under a pseudonym.

[00:27:22] Speaker 02:
No question about it.

[00:27:24] Speaker 04:
So you lose the whole loaf of bread.

[00:27:27] Speaker 04:
My question is, can you get half a loaf?

[00:27:29] Speaker 04:
Can you get three quarters of a loaf?

[00:27:32] Speaker 02:
So in this case, simply keeping certain information confidential wouldn't protect the privacy interests that Dr Doe is interested in protecting because his name would still be in the caption of the case and given.

[00:27:47] Speaker 02:
the nature of his claim to have standing, he would have to be someone with a felony conviction.

[00:27:53] Speaker 04:
And so- No, but that's what I'm trying to understand about this whole procedure, because there are all kinds of rules that we have where parties are not named in the caption.

[00:28:06] Speaker 04:
All right?

[00:28:09] Speaker 04:
So I'm just trying to understand whether this is your last guess.

[00:28:14] Speaker 04:
I'm just not clear it is.

[00:28:16] Speaker 02:
Your Honor, I think outside of sealing the entire case, which, as I said, is a higher bar and is not something Dr. Doe wants to do.

[00:28:25] Speaker 02:
He thinks it's important for the public to be able to follow and understand this litigation.

[00:28:31] Speaker 02:
We don't believe that there is any sealing or redaction that could keep the link between Dr. Doe and these previous convictions private.

[00:28:40] Speaker 02:
And I would note that in Ray Seald case two, there was a confidentiality order.

[00:28:47] Speaker 02:
And so part of this court's consideration was that there was information that could be kept out of the public

[00:29:00] Speaker 02:
record and that the public had an interest in knowing other parts of the record.

[00:29:05] Speaker 02:
That's just not possible here for the reasons I explained.

[00:29:11] Speaker 05:
Judge Rogers, do you have any more questions?

[00:29:13] Speaker 04:
And my only other thought, I was thinking about this, one of my colleagues suggested there are all kinds of other people who can attack the constitutionality of this statute.

[00:29:26] Speaker 04:
And I suppose for purposes of standing,

[00:29:29] Speaker 04:
You'd have to show what?

[00:29:32] Speaker 04:
That you have these convictions, they're public records.

[00:29:40] Speaker 04:
You want nevertheless to work for this federal agency and they have a bar, an absolute bar.

[00:29:49] Speaker 04:
And so this law, I'm just trying to think about how this pursues

[00:29:58] Speaker 04:
if it's not done through this process.

[00:30:02] Speaker 04:
And it may be, it just has to be brought by somebody who is not seeking the full fruits of the state action when my hypothetical plaintiff is seeking to work for the federal government.

[00:30:21] Speaker 02:
I think, Your Honor, is right that given this nature of the standing here, this is a particular class of potential plaintiffs who are subject to the sorts of stigmatization that I described.

[00:30:35] Speaker 02:
And Dr. Doe is in a particularly unique position here as someone who does have these pardon and sealed past felony convictions and so is

[00:30:45] Speaker 02:
as FDIC has argued, subject to the bar, but who has also applied for and received a job offer from FDIC.

[00:30:53] Speaker 02:
So that positions him uniquely as a strong plaintiff, and I think demonstrates the unique privacy interests that he has here.

[00:31:02] Speaker 05:
Any more questions?

[00:31:05] Speaker 05:
Thank you, Your Honor.

[00:31:06] Speaker 05:
Thank you very much, Counselor.

[00:31:06] Speaker 05:
We'll give you some time for rebuttal.

[00:31:19] Speaker 06:
Good morning.

[00:31:20] Speaker 06:
May it please the court, Jane Lyons from the U.S.

[00:31:22] Speaker 06:
Attorney's Office on behalf of the Federal Deposit Insurance Corporation and a director named Jonathan McKernan.

[00:31:31] Speaker 06:
After reviewing the evidence the plaintiff put in the record to attempt to meet the weighty burden this court has set for proceeding in a civil action under a pseudonym, the district court found that the plaintiff did not satisfy his burden under the applicable test.

[00:31:46] Speaker 06:
The district court's conclusion is a reasonable one.

[00:31:50] Speaker 06:
within its discretion in light of the requirement that parties be identified and a strong presumption favoring public access to judicial proceedings, particularly in cases brought against the government.

[00:32:03] Speaker 06:
In the context of claims challenging the constitutionality of a statute prohibiting the FDIC from employing convicted felons, neither the status of the conviction under Ohio law nor the level of obscurity Doe has achieved for the conviction in the internet age are dispositive or worthy

[00:32:20] Speaker 06:
of what this court called a rare dispensation in Inry's sealed case, the 2020.

[00:32:25] Speaker 04:
No, I was going to ask you, is it your view that in this age in which we live, there is no such thing as privacy?

[00:32:33] Speaker 06:
No, Your Honor, there is still a zone of privacy.

[00:32:36] Speaker 04:
No, but somebody who wants to find out about me can just keep digging, regardless of all the court orders that may be out there that say I can proceed with litigation using a pseudonym.

[00:32:50] Speaker 06:
It is certainly more difficult to keep something as public as a felony conviction, a secret, for decades, the way that Dr. Doe has selectively- Now this is a state.

[00:33:04] Speaker 04:
These are state convictions, right?

[00:33:07] Speaker 04:
Yes, Your Honor.

[00:33:08] Speaker 04:
Ohio State- So the federal government is saying the states, sovereign states, have no authority to erase their records, in effect.

[00:33:20] Speaker 04:
And I'm just trying to understand that the federal interest is quite different from, or it's certainly separate from the state interest.

[00:33:34] Speaker 06:
I think that's the best way to put it.

[00:33:35] Speaker 06:
It's a separate interest.

[00:33:38] Speaker 06:
And maybe, well, the best place to start in thinking about this is that, as this court recognized in the in-race sealed case from 2020,

[00:33:50] Speaker 06:
The doors are open as the starting point, and we generally require parties to a lawsuit to identify themselves to protect the public's legitimate interest in knowing all the facts involved, including the identities of the party.

[00:34:03] Speaker 04:
So hypothetically, suppose I have the dispensation by Ohio so that I don't have to

[00:34:19] Speaker 04:
tell you about my Ohio convictions.

[00:34:24] Speaker 04:
But under the district court's order and our opinions, the only thing I could do would be to change my name?

[00:34:32] Speaker 06:
No, Your Honor, but you would have to consider whether your paramount objective was to keep that conviction secret or to try to obtain a benefit.

[00:34:45] Speaker 06:
not withstanding it.

[00:34:47] Speaker 06:
And that's really what this case is about.

[00:34:49] Speaker 06:
The first factor that the court has spent discussing this morning of the test has two buckets.

[00:34:57] Speaker 06:
And the district court ruled Dr. Doe out of the first bucket, which sort of just leaves him by default in the second bucket.

[00:35:06] Speaker 06:
And the first bucket is for things that commonly involve issues such as sexual activities, reproductive rights, bodily autonomy, medical conditions, and the identity of abused minors.

[00:35:18] Speaker 06:
Nothing in the record suggests anything remotely in those areas.

[00:35:21] Speaker 04:
Well, you have an adverb in your sentence, commonly, not exclusively.

[00:35:27] Speaker 06:
I respect that, Your Honor.

[00:35:28] Speaker 06:
This test is meant to not check boxes.

[00:35:30] Speaker 06:
It's meant to be applied contextually.

[00:35:33] Speaker 06:
But in that context, it is important to recognize that the public has a right to understand this litigation and everyone with assets in a bank has interest in maintaining the integrity of the FDIC's workforce.

[00:35:49] Speaker 06:
The FDIC is an insurer of public bank deposits.

[00:35:52] Speaker 06:
It acts as a receiver for failed banks, and it is a regulator for banks.

[00:35:57] Speaker 06:
These vital roles in the operation of the statute that was enacted by Congress has been recognized this morning and signed by a president.

[00:36:07] Speaker 06:
And the vital roles in the operation of that statute

[00:36:12] Speaker 06:
should run to the public interest in this case high.

[00:36:16] Speaker 06:
And I recognize that DOE has some privacy interests, but they are not of the nature required under factor one to be recognized as needing secrecy.

[00:36:26] Speaker 06:
I would also note in response to my friend on the other side that he has also brought a related proceeding, which is what it's called, a related proceeding, not claiming to have done that in a DOE capacity.

[00:36:39] Speaker 06:
He's challenged the agency, so this is a selective secrecy that he is employing.

[00:36:46] Speaker 05:
In terms of the, I want to talk- He's brought another proceeding in his own name that reveals the fact that he has a felony conviction?

[00:36:53] Speaker 06:
Yes.

[00:36:53] Speaker 06:
It's an administrative proceeding, but that unleashes- Did you write that in your brief?

[00:37:00] Speaker 05:
His control.

[00:37:00] Speaker 05:
Is that in your brief?

[00:37:03] Speaker 06:
It's in their brief.

[00:37:05] Speaker 05:
Okay.

[00:37:06] Speaker 05:
I'm not remembering this.

[00:37:07] Speaker 06:
I'm not.

[00:37:07] Speaker 06:
I can't tell you right off the second whether it's in mine.

[00:37:10] Speaker 05:
That administrative proceeding is a public proceeding in which he reveals that he has a felony conviction in his own name.

[00:37:15] Speaker 06:
It's not a particularly public in the sense that it's an administrative proceeding, but an administrative proceeding can.

[00:37:22] Speaker 06:
They are, they are, but they're rarely attended by the public.

[00:37:26] Speaker 03:
Is that the sort of administrative proceeding that from which he could seek judicial review?

[00:37:34] Speaker 06:
I'm not sure about that, but I am also not sure whether it could result in a published decision by a decision maker.

[00:37:41] Speaker 06:
that is something that, say, you could obtain under the Freedom of Information Act.

[00:37:46] Speaker 06:
And let's talk about that, because those are the cases to establish the privacy interest that my friend on the other side is relying on.

[00:37:53] Speaker 06:
The FOIA cases are really different contexts that's being assessed for purposes of privacy interest, because the interests in the FOIA that are being vindicated are what the government is up to, not what the plaintiff has been or was ever up to.

[00:38:08] Speaker 06:
So I think those cases are inapposite

[00:38:11] Speaker 06:
Rule 10 of the Federal Rules of Civil Procedure is about what the plaintiff is up to and who is bringing the challenge.

[00:38:20] Speaker 06:
And here where it's a challenge to a statute that has been on the books since 1950, it's important that the public have insight into who is trying to make an exception to this statute.

[00:38:37] Speaker 06:
The FDIC also can't hire people who've been through bankruptcy proceedings, and there are other agencies that have the felony bar in place as well.

[00:38:46] Speaker 06:
The FBI jumps to mind.

[00:38:48] Speaker 05:
I jumped here on four, which they say is sort of a heads you win, tails the plaintiff lose factor.

[00:38:59] Speaker 05:
Explain to me your understanding of that factor in light of our precedent.

[00:39:04] Speaker 06:
Okay, so I think the first thing to straighten out is that my friend on the other side has said that the district court didn't understand this factor and got the law wrong.

[00:39:11] Speaker 06:
That is incorrect.

[00:39:12] Speaker 06:
District court clearly states on Appendix Page 35, he acknowledges that anonymous litigation is more acceptable when the defendant is a government body.

[00:39:23] Speaker 06:
And that recognizes that the government doesn't have the same kind of privacy interests

[00:39:27] Speaker 06:
that individuals have.

[00:39:29] Speaker 06:
So he recognized the law correctly, but he found that principle was superseded by the very heightened public interest here because the plaintiff seeks to challenge the operation of a law that will impact not only the plaintiff, but also other parties going forward.

[00:39:44] Speaker 05:
Is that true for every lawsuit against the government?

[00:39:47] Speaker 06:
No, Your Honor.

[00:39:48] Speaker 06:
Let's take a typical employment discrimination case with a single plaintiff who's seeking relief, back pay, reinstatement, whatever.

[00:39:55] Speaker 06:
That only, in fact,

[00:39:57] Speaker 06:
The plane F the resolution of the case by this court one way or another.

[00:40:01] Speaker 05:
There's any legal questions resolved in that case that's going to affect people in the future.

[00:40:06] Speaker 05:
Yes, a whole lot of cases again, but maybe this is an appeals court perspective.

[00:40:11] Speaker 05:
So that's my problem.

[00:40:12] Speaker 05:
They come by that don't have some legal questions resolved in the process.

[00:40:16] Speaker 05:
And we're, you know, to the extent there's sort of a, I hate to use the phrase, but common law that's built up around factual determinations, a sort of creative, what facts are enough to survive summary judgment, which ones aren't.

[00:40:28] Speaker 05:
In each particular case, that may seem to visualize, but that builds sort of a body of law as to what it takes, for example, to avoid summary judgment.

[00:40:35] Speaker 05:
So it's hard to figure out what cases, particularly against a defendant like the government, do not affect other parties going forward.

[00:40:44] Speaker 06:
I think it's just more direct in this kind of a challenge, a constitutional challenge.

[00:40:49] Speaker 05:
This may be more in your face, but for purposes of your analysis of what the district court did here and your arguments in your brief about factor four, it seems to me that you want a position under which if it's against a private defendant, that way is against pseudonymity.

[00:41:07] Speaker 05:
And if it's against the government, that way is against pseudonymity.

[00:41:11] Speaker 05:
Is that your reading of factor four?

[00:41:13] Speaker 06:
My reading of factor four depends on the context in which the entire analysis is taking place.

[00:41:22] Speaker 05:
And the factor for analysis, I want analysis of factor four.

[00:41:26] Speaker 05:
I recognize that there could be other factors that might weigh in favor of pseudonymity, but I'm concerned about your reading, the government's proposed reading of factor four in this case.

[00:41:38] Speaker 06:
To the extent that the government's brief is not as clear as it perhaps should be about the

[00:41:43] Speaker 06:
application of factor four.

[00:41:44] Speaker 06:
What is at issue this morning is in the district court's application of factor four, which I think is correct.

[00:41:52] Speaker 05:
So you're disavowing any broader reading in your own brief, any broader argument in your own brief.

[00:41:58] Speaker 06:
Yes, I did not mean to broaden the factor four analysis at all.

[00:42:03] Speaker 05:
But if it gets to whether the decision in the matter is going to have implications, and one doesn't know whether to allow someone to proceed under pseudonym is decided right up front at the beginning of litigations, it's a little hard to predict whether it's going to be a fact-specific case or it's going to have some legal issues that could affect people going forward.

[00:42:23] Speaker 05:
So I'm just not sure how

[00:42:25] Speaker 05:
yours or as you're describing the district courts reading a factor four even works at the beginning stages of a case.

[00:42:32] Speaker 05:
You just can't tell from a complaint if there's going to be some important legal question that's going to be raised.

[00:42:39] Speaker 06:
Well, I think the general also constitutional requirement that the courts limit their exercise of jurisdiction to concrete

[00:42:48] Speaker 06:
Controversies is hard.

[00:42:50] Speaker 05:
I'm not making a standing argument here.

[00:42:51] Speaker 05:
I'm saying that you decide student stage at the beginning of a case before there's an answer before there's a 12b6 motion.

[00:43:01] Speaker 05:
Yes, a complaint.

[00:43:03] Speaker 05:
Asserts claims doesn't always say, by the way, here's a big.

[00:43:07] Speaker 05:
narrowly legal issue that you all are going to have to resolve in the course of deciding my case.

[00:43:11] Speaker 05:
That's not always known.

[00:43:12] Speaker 05:
That's true, but it's not always.

[00:43:15] Speaker 05:
You can't apply the test as you propose as to determine whether the decision is going to have implications for other parties.

[00:43:25] Speaker 05:
You can't do that at the front end.

[00:43:27] Speaker 05:
The district.

[00:43:28] Speaker 05:
Always or maybe not even commonly.

[00:43:30] Speaker 06:
The chief judge is tasked with doing the best he can at the outset of the case in applying this test, and the parties are free to continue litigating it if dose status is granted.

[00:43:41] Speaker 06:
There are opportunities farther into the litigation for another party to move to strike the dose status and unmask, for lack of a better term, the plaintiff.

[00:43:53] Speaker 05:
But it's a law of the case for parties.

[00:43:55] Speaker 06:
It's a law of the case, I suppose, at that point

[00:43:59] Speaker 06:
I've just, I know I've just seen cases where it is, it is litigated later or as Judge Rogers correctly pointed out, it is, it becomes enmeshed with a similar analysis under the Hubbard factors for whether to seal parts of the record to correctly achieve the outcome of giving the public enough information about what the litigation is about and vindicating those important and compelling interests in

[00:44:28] Speaker 06:
open judicial proceedings.

[00:44:30] Speaker 05:
Would the privacy interests be any different in this case if he had been acquitted or investigated but not charged?

[00:44:40] Speaker 06:
If he had been investigated but not charged, I would say yes.

[00:44:43] Speaker 06:
The privacy interests would be different because one of the district court's main reasons... Why would acquitted not be even?

[00:44:50] Speaker 06:
Might be even stronger.

[00:44:51] Speaker 06:
I'm just taking these one at a time as my brain reacts.

[00:44:57] Speaker 06:
If he were acquitted, I don't know.

[00:45:00] Speaker 06:
Now, if he's acquitted, he's not subject to this bar.

[00:45:05] Speaker 05:
So this case isn't happening in this case.

[00:45:07] Speaker 05:
But one could imagine some other challenge where he doesn't want to reveal the fact, have you ever been arrested?

[00:45:12] Speaker 05:
Right.

[00:45:12] Speaker 05:
But.

[00:45:13] Speaker 05:
Have you ever been the subject of a criminal proceeding?

[00:45:17] Speaker 05:
Phrases, questions can get phrased differently by employers on applicants.

[00:45:20] Speaker 06:
Sure.

[00:45:21] Speaker 06:
And it's important to recognize, I think, that an employer or the federal government doing a background investigation is doing a different process than an open judicial proceeding in court.

[00:45:31] Speaker 06:
Those are just really different contexts.

[00:45:32] Speaker 05:
I'm just asking you for the nature of the privacy interests.

[00:45:35] Speaker 05:
You think it would be a heightened privacy interests if they were acquitted or investigated but not charged?

[00:45:41] Speaker 06:
Yes.

[00:45:42] Speaker 06:
Those would be higher privacy interests.

[00:45:44] Speaker 05:
Doesn't Ohio law effectively make

[00:45:47] Speaker 05:
his prior record, the equivalent of a acquitted or not charged is as if it never the criminal prosecution never happened.

[00:45:55] Speaker 06:
I think I don't think that the federal government is bound by in terms of not asking the more specific questions about have you ever asking for purposes of the privacy interest at stake.

[00:46:06] Speaker 06:
Yes.

[00:46:07] Speaker 05:
whether this isn't, this is the question right now is just whether there's enough privacy interest to proceed under a pseudonym, not the merits of the case.

[00:46:16] Speaker 05:
If he's interested in knowing this, it is only whether he should proceed under pseudonym.

[00:46:20] Speaker 05:
And if, if the interest in privacy that he has is equivalent to that of someone who's acquitted or investigated, but not charged, then I'm not sure why you're discounting his privacy interest.

[00:46:32] Speaker 06:
This test has not really ever been articulated, at least up to now, in terms of the magnitude of the privacy interest.

[00:46:39] Speaker 06:
It's really the nature of the privacy interest.

[00:46:42] Speaker 05:
I'm not saying magnitude.

[00:46:43] Speaker 05:
I don't know what your difference is between magnitude or nature.

[00:46:46] Speaker 05:
If it's parallel to, if it's tantamount to being acquitted or charged but not prosecuted, charges dropped, then how is this any different for purposes of the nature of its privacy interest?

[00:47:02] Speaker 06:
Well, you would have to assess the nature of that privacy interest in the context of the legal challenge brought, which would be perhaps unrelated to the criminal activity or charge.

[00:47:11] Speaker 05:
Again, I'm asking you, for these cases, you were saying upfront that you didn't think, he didn't fit in the first bucket.

[00:47:20] Speaker 05:
And my understanding, to be brief, is you don't think that he carries a lot of weight in whatever you think the second bucket is under the first test.

[00:47:28] Speaker 05:
And I'm asking you why it's not,

[00:47:32] Speaker 05:
a heightened and reasonable privacy interest to recognize if we would do the same for someone having been acquitted.

[00:47:42] Speaker 06:
All I'm saying, let me see if I can attack this a different way and say it better.

[00:47:46] Speaker 06:
All I'm saying is that the district court reasonably found that the privacy interests that's being asserted in this case is not one of the ones that's been recognized to favor Dr. Doe with regard to factor one.

[00:48:00] Speaker 05:
It's not an exhaustive list.

[00:48:01] Speaker 05:
No, it's not.

[00:48:03] Speaker 05:
And if we would recognize the privacy interest in acquittal, but you were acquitted, you just shouldn't have this fact that you were arrested, investigated, hanging around your neck, then why is this different?

[00:48:16] Speaker 05:
Or do you agree that it's at the same level since it was sealed or in a case where it's expunged?

[00:48:23] Speaker 05:
I have different words for it in Ohio.

[00:48:25] Speaker 06:
Yeah, Ohio law seems a little complicated.

[00:48:27] Speaker 05:
It is, but why are these not on a parallel?

[00:48:30] Speaker 06:
Well, I think if an employer in Ohio could have asked Dr. Doe about his conviction when the FDIC was considering the matter, I think that's a good indicator that it's not such a private matter that it would rise to the level that you're talking about for an acquittal.

[00:48:49] Speaker 06:
Also, all of these challenges and issues have to be addressed in the context of each case.

[00:48:53] Speaker 06:
And that's what the district court does with a mind run of cases.

[00:48:57] Speaker 06:
And it decides which of them are

[00:49:00] Speaker 06:
warrant and meet the weighty burden.

[00:49:02] Speaker 06:
I'm not convinced that it's impossible for Dr. Doe to meet the weighty burden, but I think the point here is that he didn't on this record.

[00:49:12] Speaker 05:
Do we have any questions from my colleagues?

[00:49:15] Speaker 05:
No, thanks.

[00:49:16] Speaker 05:
All right, thank you very much.

[00:49:19] Speaker 05:
Sorry, did you want to do a one sentence wrap up or something?

[00:49:23] Speaker 06:
Please affirm.

[00:49:24] Speaker 05:
Thank you.

[00:49:27] Speaker 05:
All right.

[00:49:29] Speaker 05:
Ms.

[00:49:29] Speaker 05:
Lichtenstein, we'll give you two minutes.

[00:49:31] Speaker 02:
Thank you, Your Honor.

[00:49:32] Speaker 02:
Just Lichtenstein.

[00:49:34] Speaker 02:
I apologize.

[00:49:35] Speaker 02:
Not a problem.

[00:49:36] Speaker 05:
I didn't retain it in my head.

[00:49:37] Speaker 05:
I apologize.

[00:49:38] Speaker 02:
Not a problem.

[00:49:40] Speaker 02:
Just a few quick points, Your Honors.

[00:49:42] Speaker 02:
First, the related proceeding that was mentioned by my colleague was, in fact, not public.

[00:49:48] Speaker 02:
And Dr. Doe, as we mentioned in our briefing, filed a motion to seal that proceeding.

[00:49:55] Speaker 02:
But more importantly.

[00:49:56] Speaker 02:
Is that motion granted?

[00:49:57] Speaker 02:
I believe it's still pending, Your Honor.

[00:50:01] Speaker 05:
So as of now, what is this proceeding?

[00:50:04] Speaker 02:
It's an EEOC proceeding, Your Honor.

[00:50:07] Speaker 05:
Is that a public record proceeding?

[00:50:08] Speaker 02:
My understanding is that those are presumptively private.

[00:50:11] Speaker 05:
Presumptively private?

[00:50:12] Speaker 05:
Okay.

[00:50:12] Speaker 05:
And so they couldn't be obtained through FOIA or anything?

[00:50:16] Speaker 02:
I don't believe they could be obtained through FOIA, but I know that they are not accessible to an average person just searching the Internet.

[00:50:26] Speaker 05:
What about an un-average person?

[00:50:27] Speaker 05:
I'm not sure what you mean.

[00:50:28] Speaker 02:
So I think that gets to my point, which is that the broader point here is the relevant fact is not whether anyone in the entire world might know this information about Dr. Doe, but whether the general public knows it, whether it's accessible to someone just searching his name.

[00:50:47] Speaker 02:
And that is the difference between any potential

[00:50:51] Speaker 02:
You know, revelation to an employer or someone else who is an individual rather than having his name be linked to this information in an irreversible way as part of this litigation.

[00:51:03] Speaker 02:
The second point I just want to make is that this court is recognized in MetLife.

[00:51:09] Speaker 02:
that the background confidentiality regime of the state law is important to its evaluation of the strength of the privacy interest.

[00:51:18] Speaker 02:
And the district court failed to weigh that interest at all.

[00:51:21] Speaker 02:
It failed to acknowledge the background confidentiality regime set by Ohio, in which the court determined that Doe's private interest outweighed the public's interest.

[00:51:31] Speaker 02:
It failed to acknowledge this court and the Supreme Court's precedence in finding that there's criminal history information that is private and presumptively sensitive.

[00:51:41] Speaker 05:
Are you suggesting that federal courts in applying this, answering this procedural question have to credit or follow state law?

[00:51:51] Speaker 02:
Not at all, Your Honor.

[00:51:52] Speaker 02:
They're not bound in any way by Ohio's law, but this court has held that it's an important factor in assessing the background confidentiality regime because it's a determination by Ohio that Dr. Doe's privacy interests here outweigh any possible public interest.

[00:52:10] Speaker 05:
But imagine you have a state that is a real outlier and treats something with a heightened level of privacy that no other state accords any relevant level of privacy to.

[00:52:24] Speaker 05:
Would a court still have to?

[00:52:25] Speaker 02:
I think this court could take into account that it's an outlier, but there are comedy interests in recognizing the sensitivity with which Ohio has treated this information.

[00:52:36] Speaker 05:
The federal court serves the entire country, not a single

[00:52:39] Speaker 05:
Absolutely.

[00:52:42] Speaker 05:
The broad, there's no broad privacy interest that's recognized.

[00:52:46] Speaker 05:
That's why I was trying to get to it with my sort of objective or individualized inquiry as to how private something is kept.

[00:52:53] Speaker 05:
The types of categories we've recognized before have been things that are sort of broadly by society recognized as very, very private and intimate forms of information.

[00:53:06] Speaker 05:
And felony convictions just don't seem to fit that category.

[00:53:11] Speaker 02:
I think courts have recognized that criminal history information is exactly that sort of information.

[00:53:16] Speaker 02:
Courts have referred to an opprobrium approaching the opprobrium with which society treats criminal information and crediting other privacy concerns.

[00:53:25] Speaker 02:
But what I think is also important here is that the Disher Court failed to consider any of this at all.

[00:53:30] Speaker 02:
And that was its abusive discretion.

[00:53:32] Speaker 02:
It didn't discount the Ohio confidentiality background.

[00:53:37] Speaker 02:
It didn't merely discount

[00:53:39] Speaker 02:
Dr. Doe's privacy interest in his pardoned and sealed convictions, it simply failed to address them.

[00:53:45] Speaker 02:
And as the Fourth Circuit has recognized in Doe v. Sidar, a failure to account for the nature and strength of a plaintiff's privacy interest is an abuse of discretion.

[00:53:57] Speaker 05:
Just one more clarification.

[00:53:59] Speaker 05:
Is your argument that the privacy interest here is in felony convictions?

[00:54:07] Speaker 05:
Or is it only in sealed felony convictions?

[00:54:12] Speaker 02:
Your Honor, our argument here kind of weaves all of these threads together.

[00:54:16] Speaker 02:
Dr. Doe has a privacy interest in criminal history information that has been pardoned, that has been sealed, and therefore, which is considered no longer to have occurred, and that has faded from the public view.

[00:54:29] Speaker 02:
So all of those factors together are what give him the particularly heightened

[00:54:34] Speaker 02:
into privacy interest in this information, and that's unique to the circumstances of this case.

[00:54:41] Speaker 05:
No further questions.

[00:54:43] Speaker 02:
Thank you.

[00:54:43] Speaker 02:
We urge the court to reverse and allow Dr Doe to proceed under a suit.

[00:54:47] Speaker 05:
Thank you very much.

[00:54:47] Speaker 05:
The case is submitted