Courtemanche v. Noble

• Court: Court of Appeals for the First Circuit
• Decided: May 28, 2026
• Docket: 25-1386
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 25-1386

JASON COURTEMANCHE, BRETT FORESMAN, JUAN RIOS, and DENNIS WILLIAMS, on behalf of themselves and all others similarly situated,

Plaintiffs, Appellees,

v.

GEOFFREY D. NOBLE, in their official capacity as Superintendent of the Massachusetts State Police,

Defendant, Appellant,

and

MOTOROLA SOLUTIONS, CALLYO 2009 CORP., and SHI INTERNATIONAL CORP.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Margaret R. Guzman, U.S. District Judge]

Before

Aframe, Lipez, and Howard, Circuit Judges.

Jeffrey T. Collins, Special Assistant Attorney General, with whom Andrea Joy Campbell, Attorney General of Massachusetts, Robert Papandrea, and Morgan, Brown & Joy, LLP were on brief, for appellants. Erik P. Bartenhagen, with whom Bartenhagen Law, PLLC, James L. O’Connor, Jr., Christopher R. Batinsey, and Christopher J. Walton were on brief, for appellees.

May 28, 2026 AFRAME, Circuit Judge. Four residents of Worcester

County, Massachusetts, (the "plaintiffs") filed this putative

class action against Geoffrey D. Noble, in his official capacity

as Superintendent of the Massachusetts State Police (the "MSP"),

and several private companies. The Superintendent moved to

dismiss the claims against him on several grounds, including

sovereign immunity and standing. The district court denied his

motion in part, prompting the Superintendent to file this

interlocutory appeal. We now reverse because the plaintiffs have

not alleged an injury in fact with sufficient concreteness or

imminence to establish standing.

We summarize the allegations in the first amended

complaint (the "complaint"), taking all well-pleaded allegations

as true and drawing all reasonable inferences in the plaintiffs'

favor. Douglas v. Hirshon, 63 F.4th 49, 55 (1st Cir. 2023). We

ignore, however, "allegations that are too meager, vague, or

conclusory to remove the possibility of relief from the realm of

mere conjecture." Id. (citation modified).

Since 2017, the MSP has secretly recorded phone

conversations between its officers and civilians and then saved

those communications to an online database. From March to May of

2022, the MSP recorded the plaintiffs, among others, without their

knowledge or consent. The MSP used its recordings to identify

various individuals, including the plaintiffs, to propose charges

- 3 - in at least 181 criminal cases. The MSP did not notify prosecuting

agencies about the recordings made in conjunction with these cases.

We refer to the MSP's recording and subsequent concealment of the

recordings as the MSP's "record-and-withhold" program.

Based on these allegations, the plaintiffs brought nine

claims against all the defendants. We focus our discussion on the

two that the plaintiffs asserted against the Superintendent, as

only they pertain to this appeal. First, the plaintiffs alleged

that MSP officers violated the Massachusetts Wiretap Act, Mass.

Gen. L. c. 272 § 99, by surreptitiously recording the plaintiffs.

Second, they alleged, under 42 U.S.C. § 1983, that the MSP violated

their rights under the Sixth and Fourteenth Amendments to the

United States Constitution by depriving the plaintiffs of

"exculpatory evidence at trial," "their right[s] to effective

assistance of their counsel," and their rights "to be presented

with evidence against them, confront their accusers, and enjoy a

fair and impartial trial."

The complaint contains no allegation that the plaintiffs

were convicted of the charges derived from the surreptitious

recordings, that there were charges pending against the plaintiffs

when they filed their complaint, or that such charges were

certainly impending. Instead, the complaint mostly describes the

violations underlying the plaintiffs' claims in the past tense

except for the final allegation for each count. Those final

- 4 - allegations are boilerplate assertions that the plaintiffs have

"suffered and continue to suffer substantial past and future harm"

because of the MSP's actions. (Emphasis added). The plaintiffs

request declaratory and injunctive relief for their alleged

injuries.

The Superintendent moved to dismiss the plaintiffs'

claims based on the Eleventh Amendment's grant of state sovereign

immunity. He further argued that the plaintiffs' § 1983 claim

should be dismissed because the plaintiffs lack standing and fail

to allege a cognizable constitutional violation. In response, the

plaintiffs voluntarily dismissed the Massachusetts Wiretap Act

claim. They continued, however, to press their § 1983 claim and

objected to that portion of the Superintendent's motion to dismiss.

The district court allowed voluntary dismissal of the

Massachusetts Wiretap Act claim but denied the Superintendent's

motion to dismiss the § 1983 claim. First, it held that sovereign

immunity did not shield the Superintendent because the plaintiffs'

§ 1983 claim falls within the Ex parte Young exception to state

sovereign immunity. That exception allows a party to circumvent

the sovereign immunity bar by suing a state officer in their

official capacity and alleging "an ongoing violation of federal

law." Cotto v. Campbell, 126 F.4th 761, 767 (1st Cir. 2025)

(quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S.

635, 645 (2002)); see generally Ex parte Young, 209 U.S. 123

- 5 - (1908). A party bringing such a claim may seek only "relief

properly characterized as prospective," as sovereign immunity

precludes retrospective remedies. See Cotto, 126 F.4th at 767-68

(1st Cir. 2025) (quoting Verizon Md., Inc., 535 U.S. at 645).

Second, and most importantly for our purposes, the

district court concluded that the plaintiffs had standing to seek

prospective relief for these alleged violations as required for a

suit to proceed under Ex parte Young. It based this conclusion

on the plaintiffs' allegation that the MSP continues its

record-and-withhold program. The court buttressed this standing

determination by recounting an exchange at the hearing on the

motion to dismiss. During that exchange, the Superintendent's

counsel expressed uncertainty about whether the MSP had ceased

using the recording devices or disposed of the recorded evidence.

Based on this statement, the district court asserted that "[u]ntil

there is proof or an unequivocal statement" that the MSP ceased

recording civilians and disclosed all extant recordings, there

remained a "live issue." Finally, the court held that the

plaintiffs adequately alleged their claim under § 1983 because the

MSP's record-and-withhold program plausibly violated the Sixth and

Fourteenth Amendments.

The Superintendent took an interlocutory appeal and now

asks us to review the district court's order with respect to

sovereign immunity, standing, and the plausibility of the § 1983

- 6 - claim. We have appellate jurisdiction over the district court's

sovereign immunity ruling under the collateral order doctrine.

See Cotto, 126 F.4th at 767. And, as the parties agree, we must

consider whether the plaintiffs have standing to bring the claim

that is properly before us on interlocutory appeal. See, e.g.,

Dantzler, Inc. v. Empresas Berríos Inventory & Operations, Inc.,

958 F.3d 38, 46 (1st Cir. 2020); Asociación de Subscripción

Conjunta del Seguro de Responsabilidad Obligatorio v. Flores, 484

F.3d 1, 20 & n. 22 (1st Cir. 2007). The parties dispute, however,

whether we may address whether the plaintiffs have plausibly

alleged a constitutional violation at this preliminary stage. We

bypass that disagreement because the standing issue is

dispositive.

Article III of the United States Constitution limits the

federal judicial power to "'Cases' and 'Controversies.'" Diamond

Alt. Energy, LLC v. EPA, 606 U.S. 100, 110 (2025) (quoting U.S.

Const. art. III § 2, cl. 1). Standing doctrine derives from this

limitation and ensures that federal courts do not encroach on the

domain reserved for the political branches of government. See

Dantzler, Inc., 958 F.3d at 46. To establish standing, a plaintiff

must show that they have "suffered or likely will suffer" a

"concrete" injury in fact; that the defendant likely caused, or

will cause, their injury; and that a court likely could redress

that injury. FDA v. All. for Hippocratic Med., 602 U.S. 367,

- 7 - 380-81 (2024). "The party invoking federal jurisdiction bears the

burden of establishing" standing. Lujan v. Def. of Wildlife, 504

U.S. 555, 561 (1992).

The plaintiffs' complaint, which speaks almost entirely

in the past tense, could establish standing for retrospective

relief related to their past prosecutions to the extent that they

were affected by the record-and-withhold program. However,

retrospective relief is unavailable here; the plaintiffs may seek

only prospective relief consistent with the Eleventh Amendment and

Ex parte Young. See Cotto, 126 F.4th at 767-68. And so, because

a party must establish standing with respect to the form of relief

sought, the plaintiffs must establish standing for a prospective

remedy. See TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021).

Where a plaintiff seeks prospective relief, the

requirement that they "likely will suffer" a concrete injury in

fact is often the sticking point for standing. All. for

Hippocratic Med., 602 U.S. at 380; see id. at 381. This

requirement is divided into two components. First, the

plaintiff's alleged injury must be "concrete" and

"particularized," rather than a "generalized grievance." Id. at

381 (citations omitted). And while the injury may be commonly

shared or widespread, the plaintiff must show that the asserted

injury harmed them "personal[ly]" and individually. Massachusetts

v. EPA, 549 U.S. 497, 517 (quoting Lujan, 504 U.S. at 581 (Kennedy,

- 8 - J., concurring)). The second component requires that the alleged

harm be likely to occur, or "imminent." All. for Hippocratic

Med., 602 U.S. at 381. In this respect, the plaintiff must show

a "substantial risk" of injury or that their injury is "certainly

impending." Susan B. Anthony List, v. Driehaus, 573 U.S. 149, 158

(2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414

n.5 (2013)). By contrast, where an alleged harm is merely

"hypothetical" or "speculative," the party asserting that injury

will lack standing. Clapper, 568 U.S. at 401-02.

Here, the district court concluded that the plaintiffs

demonstrated standing to pursue their § 1983 claim because the MSP

failed to acknowledge that it had ceased making surreptitious

recordings and that all recordings had been disclosed to

prosecutors.1 This omission does not suffice to create an injury

in fact.

1 In its order denying the Superintendent's motion to dismiss, the district court appeared to place the burden on the Superintendent to show that there no longer remained a "live" controversy. That analysis implicates mootness, not standing. Indeed, the mootness doctrine applies "when the issues presented are no longer live," and places the burden of establishing that the case is moot on "the party invoking the doctrine," which is often the "defendant[]." See ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013) (citation modified) (emphasis added). But at this stage in the litigation, it would be premature to examine whether the MSP cancelled its record-and-withhold program, thereby mooting the plaintiffs' § 1983 claim. The plaintiffs first must allege that a case or controversy existed when they brought their complaint before the MSP can be tasked with demonstrating that a case or controversy no longer exists. See Ramírez v. Sánchez-Ramos, 438 F.3d 92, 97, 100 - 9 - As an initial matter, even if the MSP's

record-and-withhold program is ongoing, the plaintiffs'

forward-facing allegations amount to nothing more than a

"generalized grievance" that the program violates the law. All.

for Hippocratic Med., 602 U.S. at 381. They do not explain how

the record-and-withhold program will specifically affect them in

a way that differentiates them from any other person in

Massachusetts with "general legal, moral, ideological, and policy

concerns" about the program. Id. at 386.

The Supreme Court's decision in O'Shea v. Littleton is

instructive here. See 414 U.S. 488 (1974). There, several

individuals purporting to represent a class sued a county

magistrate and associate judge to enjoin alleged violations of

their First, Sixth, Eighth, Thirteenth, and Fourteenth Amendment

rights through the officials' conduct, including illegal bond

setting, sentencing, and jury fee practices in criminal cases.

Id. at 490-92. The Court held that the individuals lacked standing

because their complaint alleged violations "in only the most

general terms" and lacked reference to "specific instances of

misconduct with respect to particular individuals." Id. at 495.

So too here. The plaintiffs have drawn attention to what may well

(1st Cir. 2006). Put another way, failure to show the cessation of conduct does not demonstrate standing. And as we explain, the plaintiffs did not set forth allegations establishing a case or controversy when they initiated their suit.

- 10 - be a flawed program, but they have not alleged that they

"personal[ly]" are likely to be victims of it in the future. All.

for Hippocratic Med., 602 U.S. at 381 (citation omitted).

Moreover, to the extent the plaintiffs' complaint

suggests that the plaintiffs are specific targets of the

record-and-withhold program, the claim is too hypothetical.

Recall that the plaintiffs' alleged injury is that their Sixth and

Fourteenth Amendment rights are violated when the MSP does not

provide recordings to prosecutors in criminal cases brought

against them. The plaintiffs set forth no allegations suggesting

that they have been "threatened" with an "imminent" prosecution

affected by the record-and-withhold program. Susan B. Anthony

List, 573 U.S. at 159. Instead, they baldly assert that they

"continue to suffer substantial . . . future harm" because of the

MSP's actions. Such conclusory allegations do not establish

standing. See Wilson v. HSBC Mortg. Serv., Inc., 744 F.3d 1, 7

(1st Cir. 2014).2

2The plaintiffs argue that their harm is ongoing because their prior criminal cases were dismissed without prejudice. But the plaintiffs have not explained how a dismissal of a case without prejudice makes a revival of the case certainly impending. In any event, the plaintiffs identify no record support for the dismissal of their prior cases without prejudice. Indeed, it appears that those allegations are drawn from filings that the MSP submitted on appeal but that this Court, upon the plaintiffs' motion, struck. We "decline to consider" arguments based on facts that are not in the record. Wallach v. Eaton Corp., 837 F.3d 356, 377 n.23 (3d Cir. 2016).

- 11 - Finally, we note that neither the plaintiffs' prior

prosecutions nor the alleged widespread nature of the MSP's program

offsets the plaintiffs' failure to allege a prospective injury.

Background facts like these cannot substitute for allegations of

a "sufficiently real and immediate" threat. City of Los Angeles

v. Lyons, 461 U.S. 95, 103 (1983) (quoting O'Shea, 414 U.S. at

497); see id. at 105 (holding that a plaintiff had no standing to

sue to enjoin the future use of a chokehold even though the

plaintiff had previously been subject to the maneuver and its use

was a common police practice). Nothing before us suggests that

the plaintiffs are likely to be harmed in the future from the MSP's

record-and-withhold program.

The plaintiffs have failed to plead a concrete and

imminent injury for which they could receive prospective relief.

Accordingly, they lack standing to bring their § 1983 claim against

the Superintendent. We therefore reverse the district court's

decision denying the Superintendent's motion to dismiss and remand

the case for further proceedings consistent with this opinion.

So ordered.

- 12 -