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Doe v. Von Eschenbach


June 27, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Plaintiffs are anonymous military personnel, Department of Defense ("DoD") civilian employees, and/or DoD contractors whom DoD has determined to be at risk of exposure to anthrax. Plaintiffs filed this suit to challenge the Food and Drug Administration's determination, a December 19, 2005 Order that Anthrax Vaccine Adsorbed ("AVA") is safe and effective and not misbranded. See 70 Fed. Reg. 75,180. Plaintiffs also challenge the DoD's decision to reinstate mandatory inoculations. Plaintiffs seek to proceed pseudonymously in this action. See Mot. for Leave to File Compl. using "John Does" and "Jane Does," Dkt. # 1. Acting Chief Judge Lamberth permitted the complaint to be filed with Plaintiffs named as Does, "without prejudice to further consideration by the assigned judge . . . if the defendants file an opposition . . . ." Order filed Dec. 14, 2006 [Dkt. # 2]. Defendants filed such an opposition on January 5, 2007; Plaintiffs replied on February 20, 2007; and Defendants were permitted to file a sur-reply which was filed March 13, 2007. This case was recently assigned to this Court,*fn1 and the issue of whether to permit the Plaintiffs to proceed anonymously remains pending.

In support of their claim that they should be permitted to proceed pseudonymously, the two co-counsel for Plaintiffs, Mark Zaid and John Michels, Jr., filed affidavits. The affidavits indicate that Plaintiffs fear retribution if they are named. They fear they will be labeled unpatriotic, denied advancement, assigned to less desirable duty, subjected to discipline, or dishonorably discharged. Pls.' Reply, Ex. 1 Zaid Aff. & Ex. 2 Michels Aff. Through the affidavits, counsel indicate that they and Plaintiffs have known others who were retaliated against due to opposition to the DoD's vaccination program, but the names of such individuals or other identifying information were not submitted. Only one of the Plaintiffs, John Doe # 5, indicated that he personally had been retaliated against. He alleges that he was previously grounded from his military flying position due to his previous objection to the anthrax immunization program. Zaid Aff. at 6. He asserts that it was seven years before he could find a military unit willing to hire him again, and that the unit did so only because they believed the anthrax program was no longer an issue. Id.

The Federal Rules of Civil Procedure and the Local Rules require that complaints state the names of the parties. Fed. R. Civ. P. 10(1) & LCvR. 5.1(e)(1). Disclosure of the parties' identities furthers the public interest in knowing the facts surrounding judicial proceedings. Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005). Even so, it is within the discretion of the district court to grant the "rare dispensation" of anonymity. U.S. v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)). Pseudonymous litigation has been permitted where the issues are "matters of a sensitive and highly personal nature such as birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families." Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979). The district court has a duty to consider the impact of a plaintiff's anonymity on both the public interest in open proceedings and on fairness to the defendant. Microsoft, 56 F.3d at 1464. See also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 490-92 (1975) (the public has a legitimate interest in access to court proceedings).

To determine whether a plaintiff should be permitted to proceed under a pseudonym, the court must "balance the presumption of openness with [the] plaintiff's privacy rights." Yacovelli v. Moeser, No. 02-596, 2004 WL 1144183, at * 6 (M.D.N.C. May 20, 2004). Factors to consider include:

(1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature;

(2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;

(3) the ages of the persons whose privacy interests are sought to be protected;*fn2

(4) whether the action is against a governmental or private party;*fn3 and

(5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.

Id. (citing James v. Jacobson, 6 F.3d at 238).*fn4

A request to proceed anonymously was recently denied in this district in Qualls v. Rumsfeld, 228 F.R.D. 8 (D.D.C. 2005). The plaintiffs in Qualls were soldiers serving in Iraq or en route to Iraq whose terms of service were involuntarily extended by the DoD's Stop Loss program. They claimed that if they were named that they could be subject to retaliation including physical harm. The plaintiffs submitted affidavits of three unrelated third parties which alleged retaliation or bias against military personnel who speak out against the President, the Iraq War, or war in general. The court rejected the plaintiffs' request to proceed as John Does, finding that they did not meet their burden of demonstrating a legitimate basis. The court emphasized that the affidavits did not allege potential physical harm and they did not discuss the individual plaintiffs' situations. Further, the court noted that "bringing litigation can subject a plaintiff to scrutiny and criticism and can affect the way [a] plaintiff is viewed by co-workers and friends, but fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups do not permit a plaintiff to proceed under a pseudonym." Id. at 12.*fn5 The court emphasized the public interest in full access to the courts as well as the need to encourage suits by the most "zealous, passionate, and sincere litigants, those who are willing to place their personal and public stamp of approval upon their causes of action." Id. at 13.

Plaintiffs point out that they fear retaliation and that their identity is not an issue with regard to their claim challenging the FDA's December 19, 2005 Order. The Court agrees. Nonetheless, the presumption of openness outweighs the interests presented by the Plaintiffs in support of their request to proceed pseudonymously. First, in this Circuit such a request should be granted only in rare instances. Microsoft Corp., 56 F.3d at 1464. Second, the public has a legitimate interest in open proceedings. Cox Broad. Corp., 420 U.S. at 490-92. Third, Plaintiffs' fears of retaliation are vague and unsubstantiated. The only person that Plaintiffs actually identify who has been subject to retaliation allegedly based on his objection to the anthrax vaccine is John Doe #5, and he alleges that he was retaliated against more than seven years ago. As Qualls instructs, "vague, unsubstantiated fears of retaliatory actions by higher-ups do not permit a plaintiff to proceed under a pseudonym." Accord Beaumont Indep. Sch. Dist., 172 F.R.D. at 217 ('it has happened before, therefore it might happen here' argument found to be insufficient). Further, the threat of economic harm alone, such as that alleged here, does not generally permit a court to let litigants proceed anonymously. Qualls, 228 F.R.D. at 12. Moreover, the Affidavits do not allege retaliation for filing a lawsuit. Under Qualls, this is insufficient. "[W]hile each declaration alleges retaliation or bias against free-speaking military personnel and their families, none alleges retaliation in connection with bringing suit in court." 288 F.R.D. at 11.

Finally, the concern for fairness to DoD as a defendant militates in favor of identification of Plaintiffs. DoD challenges Plaintiffs' standing to bring Count IV of the Complaint. Under Count IV, Plaintiffs contend that DoD has violated 10 U.S.C. § 1107, which provides that investigational new drugs or drugs unapproved for their applied uses may not be given to members of the Armed Forces without their informed consent, unless consent is waived by the President. Count IV alleges that "DoD has been following a vaccination schedule inconsistent with the schedule required by the AVA license." Compl. ¶ 98. DoD argues in the Motion to Dismiss that "Plaintiffs allege no specific facts that could suggest that any of the Plaintiffs has been ordered to undergo vaccination under any schedule inconsistent with the AVA license" and thus that Plaintiffs have not established standing to challenge the vaccination schedule.*fn6 Defs.' Mot. to Dismiss [Dkt. # 15] at 35. It is impossible for DoD to litigate standing without knowing who the Plaintiffs are. In addition, the Complaint makes class action allegations. Compl. ¶¶ 4-11. FDA and DoD need to identify the Plaintiffs in order to assess whether they would be adequate class representatives, whether their claims are typical of the class, and whether there is a conflict between the Plaintiffs and other members of the class. Fairness dictates that Plaintiffs' identities be revealed.

For the reasons stated above, the Court will deny Plaintiffs' request to proceed anonymously [Dkt. #1]. Plaintiffs shall file a notice with the Court no later than July 27, 2007, indicating how they wish to proceed: whether they will drop out of the suit, reveal their identities, seek a certification for appeal, and/or file an amended complaint. A memorializing order accompanies this Memorandum Opinion.

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