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Qualls v. Rumsfeld

April 27, 2005

DAVID W. QUALLS, ET AL., PLAINTIFFS,
v.
DONALD RUMSFELD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM AND ORDER

Plaintiffs, David Qualls and six John Does ("Doe plaintiffs "), are soldiers currently serving in Iraq or currently serving in Kuwait but en route to Iraq. Each has been serving in the Army pursuant to an enlistment contract that specifies a term of service. Defendants, the Secretary of Defense, the Secretary of the Army, and the Assistant Secretary of the Army for Manpower and Reserve Affairs, have extended plaintiffs' terms of service against plaintiffs' wishes by means of the Stop Loss program. Plaintiffs challenge these involuntary extensions and the validity of Stop Loss. Already, the Court has considered and denied David Qualls' motions for a Temporary Restraining Order and Preliminary Injunction in which Qualls requested the Court to keep him out of the Iraqi theater during the pendency of this case. Qualls v. Rumsfeld, 357 F. Supp. 2d 274 (D.D.C. 2005). Now the Court's focus turns to the Doe plaintiffs and whether they may bring their challenge pseudonymously.

Before the court is defendants' Motion [30] to Unseal the Identities of Plaintiffs and the opposition and reply thereto. The Doe plaintiffs were granted leave to file their complaint with pseudonyms by an order of the Chief Judge dated December 6, 2004. In that order and again on February 7, 2005, the Court ordered the Doe plaintiffs to file their real names under seal. Of the six, three have complied and three have not. Both parties agree that the plaintiffs who refuse to submit their real names under seal may not proceed in this case. As to the others, while defendants seek to compel the public disclosure of plaintiffs' real names, Doe plaintiffs request that their real names remain under seal and be shared only with defense counsel for the sole purpose of reasonably conducting the litigation. The Court, for the reasons set forth herein, will not permit Doe plaintiffs to proceed under pseudonyms, but will deny defendants' specific unsealing request.

The Federal Rules of Civil Procedure this Court's Local Civil Rules require that complaints state the names of parties; they make no provision for pseudonymous litigation. Fed. R. Civ. P. 10(a) ("In the complaint the title of the action shall include the names of all the parties."); LCvRs 5.1(e)(1), 11.1; Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000); Nat'l Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); S. Methodist U. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir. 1979). Federal Rule 10(a) requires that "[i]n the complaint the title of the action shall include the names of all the parties." Fed. R. Civ. P. 10(a). The Local Rules require that the "first filing on behalf of a party shall have in the caption the name and full residence address of the party." LCvRs 5.1(e)(1), 11.1. Requiring parties to disclose their identities furthers the public's interest in knowing the facts surrounding judicial proceedings. Advanced Textile, 214 F.3d at 1067.

Several circuit courts have condoned pseudonymous litigation. See e.g., James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993), Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981) Advanced Textile, 214 F.3d at 1067. The Supreme Court and the D.C. Circuit Court of Appeals have not expressly condoned this practice; though, from time to time they have permitted pseudonymous litigation to proceed without comment. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Doe v. Sullivan, 938 F.2d 1370, 1374 (D.C. Cir. 1991).

This District Court, like the D.C. Circuit Court, has not tackled the propriety of pseudonymous litigation head on, but this Court has developed an ad-hoc process that accommodates the practice. A litigant seeking to proceed under pseudonym may ask the Chief Judge, ex parte, for leave to file a complaint omitting the litigant's real name and full address. In effect, the litigant is asking the Chief Judge to waive the requirements of Federal Rule 10(a) and Local Civil Rules 5.1(e)(1) and 11.1. Leave is generally granted if the litigant makes a colorable argument in support of the request. If the Chief Judge grants leave to file, the litigant may then file a pseudonymous complaint and the case will be assigned to a judge just like any ordinary case. The Chief Judge's leave to file is only given "at this time," Qualls v. Rumsfeld, No. 04-2113 (D.D.C. Dec. 6, 2004), and does not guarantee that a litigant may proceed pseudonymously throughout the case; rather, the leave is an indication that the litigant's request is not frivolous and gets the case moving quickly, leaving the issue open to full, adverse litigation at a later date. See generally Does I Through III v. District of Columbia, 216 F.R.D. 5, 6 n.1 (D.D.C. 2003) ("Plaintiffs are proceeding pseudonymously, per order of the court, Chief Judge Hogan, docketed, Nov. 15, 2001."); Doe v. Sullivan, No. 91-51 (D.D.C. Jan. 11, 1991) (order of Chief Judge Robinson allowing "the filing of the complaint in this action under fictitious names and without plaintiffs' residential address"); Oah v. Tabor, No. 90-1023, 1991 WL 120087, at *1 n.1 (D.D.C. June 18, 1991).

Whether a Judge may ever set aside the straightforward language of Federal Rule 10(a) and Local Civil Rules 5(e)(1) and 11.1 to allow parties to proceed under pseudonyms remains an open question in this circuit, but a question that this Court need not address today. Assuming pseudonymous litigation is acceptable in compelling circumstances, the court finds that such circumstances are not present here.

The circuit courts that have addressed the legitimacy of pseudonymous litigation permit such litigation to proceed in district court when the district court reasonably determines that the "need for anonymity" outweighs "the general presumption that parties' identities are public information and the risk of unfairness to the opposing party." Advanced Textile, 214 F.3d at 1068. The "rare dispensation" of allowing parties to proceed pseudonymously is only justified in the "critical" case, James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993), or the "unusual case," Advanced Textile, 214 F.3d at 1067. Such critical or unusual cases may include those in which "identification creates a risk of retaliatory physical or mental harm, those in which "anonymity is necessary to preserve privacy in a matter of [a] sensitive and highly personal nature," and those in which the anonymous party would be compelled to admit criminal behavior or be subject to punishment by the state. Id. at 1068 (citing Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981); James, 6 F.3d at 238). Courts may be more inclined to permit pseudonymous suits by plaintiffs when the government is the defendant or when the plaintiff is a minor. James, 6 F.3d at 238; Stegall, 653 F.2d at 185. A plaintiff's desire "merely to avoid the annoyance and criticism that may attend any litigation" is not sufficient to justify pseudonymous proceedings. James, F.3d at 238.

Doe plaintiffs argue that, should their real names come to light, there would be a potential for increased tension within Doe plaintiffs ' units and retaliatory conduct that could lead to Doe plaintiffs ' injury or death while serving in combat. In support of this assertion, Doe plaintiffs note they are "fearful of retaliation" (Opp. at 3.) and submit the declarations of three unrelated third-parties.

The declarations do not persuade the Court. One declarant Charlie C. Carlson, III - a former staff sergeant who served in the Army for 14 years and in Iraq from 2003-2004 - tells how he would send email or letters to his father back in the United States and how his father would send these along to a newspaper that would publish them. The correspondence contained some comments critical of the President and the President's administration. Carlson, after a "15-6 investigation" for making disparaging comments about the President, was demoted to Sergeant, had pay suspended for six months, and was given 45 days of extra duty. Carlson considered this penalty "a bit harsh" and out of proportion with other punishments of violations with which he was familiar. (Carlson Decl. at 3.)

The second declarant, Adele Kubein, has a daughter on active duty who served in Iraq and is someone who conducts "peace activities." Once, Kubein made a statement on the unit's website opining that since the unit was back from Iraq, the unit's families might now work to end the war and thereby bring back all the troops. In the remainder of Kubein's declaration, which is unreliable hearsay, Kubein says that her daughter related her commanding officer's admonition that no one speak about their experiences in Iraq unless they wanted to put their careers in jeopardy. Kubenin further claims that when an article appeared about her own peace activities, her daughter's sergeant told her daughter that he would smear Kubein's name in the press and that something would happen to her if she or her mother spoke out again. Kubein alleges that her daughter was scared and thought she could lose her medical care.

The final declarant, Monica Bernderman, is the wife of a sergeant who, after a combat tour and after some soul-searching, sought conscientious objector status. She alleges that the investigative officer in charge of the conscientious objector hearing was biased against her husband because the officer and her husband served in the same battalion and because her husband had spoken out about his beliefs. As evidence, she attaches a "statement in rebuttal" and an addendum, both of which appear to be argumentative legal briefs, challenging the investigating officer's procedures and conclusions. She did not include the investigating officer's response or his initial conclusions provoking her rebuttal.

These three declarations do not show the kind of risk of physical or other injury to Doe plaintiffs that would be necessary to permit them to proceed under pseudonyms. As an initial matter, these declarations are weak evidence for pseudonymous litigation, both in this case and generally. The declarations are all made by third parties and contain no discussion of the Doe plaintiffs ' particular situations. Also, while each declaration alleges retaliation or bias against free-speaking military personnel and their families, none alleges retaliation in connection with bringing suit in court. Further, all concern retaliation or bias against those who oppose the President, the Iraq war, or war in general, none speaks of retaliation against those who challenge the military's administrative policies.

Second, none of these declarations ever mentions a physical injury or the fear or threat of physical injury, the kind of harm Doe plaintiffs claim to fear. The first declaration speaks of economic harms - demotion and pay suspension - but these economic harms were a proper punishment, even if allegedly a bit harsh, that resulted from an internal Army investigation. Moreover, a threat of economic harm alone does not generally permit a court to let litigants proceeds under pseudonym. Advanced Textile, 214 F.3d at 1070; S. Methodist U. Ass'n of Women Law Students, 599 F.2d at 710. The other declarations, assuming for a moment that they are reliable evidence, likewise offer no showing of a threat or imposition of physical retaliation. The Kubein declaration mentions a vague fear of losing medical care, another economic harm. The Bendarman declaration speaks of bias in just one conscientious objector proceeding, and while that bias could be viewed as leading to a retaliatory denial of ...


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