By Paul Berks
Massey & Gail LLP

In Doe v. Village of Deerfield, No. 15-2069,  __ F. 3d __ (2016), 2016 WL 1425854, the Seventh Circuit held that an order denying a plaintiff’s motion to proceed anonymously is immediately appealable under the collateral order doctrine. Though a matter of first impression in the Seventh Circuit, the court joined five other circuits, which had reached the same conclusion. Id. at *2 (citing Does I thru XXIII v. Advanced Textile Corp., 214 F. 3d 1058, 1067 (9th Cir. 2000); M.M. v. Zavaras, 139 F. 3d 798, 802 (10th Cir. 1998); James v. Jacobson, 6 F. 3d 233, 234 (4th Cir. 1993); Doe v. Frank, 951 F. 2d 320, 322 n.2 (11th Cir. 1992) (based on adoption of Fifth Circuit precedent); S. Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F. 2d 707, 712 (5th Cir. 1979)).

The issue arose in a complaint by an anonymous plaintiff against two individuals and the Village of Deerfield, alleging an equal protection violation and malicious prosecution. The plaintiff alleged the two individuals falsely accused him of wrongdoing, and the Village prosecuted him, even though it knew the allegations were false. After the criminal proceedings terminated in “Doe’s” favor, he filed this civil suit.

The defendants moved to dismiss under Federal Rule of Civil Procedure 10(a), which requires a party to include its true name in the caption of all filings. “Doe” opposed the motion and moved for an order permitting him to proceed anonymously, arguing that disclosure of his identity would subject him to embarrassment and possible retaliation. The District Court denied the motion to proceed anonymously and dismissed the complaint without prejudice, permitting “Doe” to re-file under his true name.

A dismissal without prejudice is not a final order. Therefore, as a general rule it is not immediately appealable. Doe, 2016 WL 1425854 *2 (citing Bastian v. Petren Res. Corp., 892 F. 2d 680, 682 (7th Cir. 1990)). However, in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949), the United States Supreme Court identified a “ ‘small class’ of nonfinal orders that are deemed final and immediately appealable.” Doe, 2016 WL 1425854 *2.  To fall within this exception to the final order rule, the non-final order must meet three criteria, it must be “(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.”  Id. (quoting Mowhawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)). These criteria must be applied to “the entire category to which the claim applies,” ignoring the individualized idiosyncrasies that arise in any specific case. Id. (quoting Mohawk, 558 U.S. at 107). Thus, the question presented was whether the denial of motions to proceed anonymously are categorically immediately reviewable.

Joining the unanimous chorus of five other circuits, the Court answered affirmatively, concluding that each of the criteria were met. The order on appeal conclusively resolved the issue of the plaintiff’s right to proceed anonymously. The propriety of anonymity was entirely separate from, and collateral to, the merits of “Doe’s” civil rights claims. And, if not reviewed immediately, the order effectively would be unreviewable. “If parties were required to litigate the case through to a final judgment on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot.” Id. at *3 (citing Does I thru XXIII, 214 F. 3d at 1066). Thus, an order denying a motion to proceed anonymously falls within the collateral order doctrine enunciated in Cohen and is immediately reviewable.

Though “Doe” “won the jurisdictional battle, he has lost the war.” Id. at *1. After concluding it had jurisdiction to consider the issue on interlocutory appeal, the Court affirmed the District Court on the substance, agreeing that the plaintiff had not shown the exceptional circumstances necessary to justify proceeding anonymously. Nevertheless, the case remains noteworthy for identifying a rare example of the “small class” of orders that fall within the collateral order doctrine and are subject to immediate appeal.