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Bird v. Barr

United States District Court, District of Columbia

July 3, 2019

PAULA BIRD, et al, Plaintiffs,
v.
WILLIAM BARR Defendant.

          MEMORANDUM OPINION AND ORDER

          BERYL A. HOWELL CHIEF JUDGE

         Eleven of the sixteen plaintiffs in this lawsuit have filed a third motion to proceed under pseudonyms in their instant suit against the Department of Justice alleging, individually and on behalf of a class of female New Agent Trainees and Intelligence Analyst Trainees, violations by the Federal Bureau of Investigation ("FBI") of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12111 et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq. See Compl. ¶ 1. The plaintiffs' original motion to proceed under pseudonyms was denied on June 6, 2019, because the moving plaintiffs failed to provide sufficient detail to assess the privacy interests at stake and therefore failed to meet their burden of showing that those privacy interests outweighed the public's presumptive and substantial interest in knowing the details of judicial litigation. See Memorandum & Order, Bird v. Barr, 19-cv-1581 (D.D.C. June 6, 2019) at 4-5, ECF No. 3. All sixteen plaintiffs, were, however, permitted to seal their home addresses in light of their "risk of being targeted for threats of violence or retaliation from subjects of [an] investigation." Id. at 8 (internal quotation marks and citation omitted). The plaintiffs' second motion to proceed under pseudonyms was also denied on June 26, 2019. See Min. Order (June 26, 2019) (noting that second motion appeared to be in "draft" form, with the majority of supporting declarations undated and unsigned, with attempts to reach counsel telephonically unsuccessful).

         The moving plaintiffs' third motion supplies additional facts, supported with sworn declarations, concerning each plaintiffs reasons for seeking to proceed under a pseudonym. Each moving plaintiff, with the exception of L.M., highlights the concomitant risks posed to her safety and career in law enforcement and intelligence agencies, and potential operations of those agencies, should her name, position, location, and other personal details be made publicly available. For the reasons set forth below, the moving plaintiffs' motion is granted in part and denied as to L.M., subject to any further consideration by the United States District Judge to whom this case is randomly assigned.[1]

         I. BACKGROUND

         The plaintiffs allege that, since April 10, 2015 and continuing to the present, while attending the FBI's Training Academy in Quantico, Virginia, they were sexually harassed, subjected to a hostile work environment and outdated gender stereotypes, terminated, constructively discharged, or otherwise subjected to retaliation in whole or in part because of their gender or disability. Compl. ¶ 1. Eight of the eleven moving plaintiffs seeking to proceed under pseudonyms currently work in law enforcement or the intelligence communities and fear that disclosure of their identities will put their safety at risk, damage their reputation at work, inhibit their ability to complete undercover assignments or other investigations in which their true identities must be shielded, possibly jeopardizing the success of such assignments and investigations, or will violate policies requiring that their work and/or identities be kept confidential. See Pls.' Mem. Supporting Mot. to Proceed Anonymously ("Pls.' Mem.") at 6-9. Further, the plaintiffs allege that two of the named plaintiffs in this case have already been retaliated against for their participation in this lawsuit, including one plaintiff who has been threatened with dismissal, and that they therefore have a reasonable fear of retaliation if their names are exposed. See Id. at 2-5.

         II. LEGAL STANDARD

         Generally, a complaint must state the names of the parties and address of the plaintiff. Fed.R.Civ.P. 10(a) ("The title of the complaint must name all the parties."); LCvR 5.1(c)(1) ("The first filing by or on behalf of a party shall have in the caption the name and full residence address of the party," and "[f]ailure to provide the address information within 30 days of filing may result in the dismissal of the case against the defendant."); LCvR 11.1 (same requirement as LCvR 5.1(c)(1)). These rules promote the public's interest "in knowing the names of [ ] litigants" because "disclosing the parties' identities furthers openness of judicial proceedings," Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014); see also Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992) (per curiam) ("This rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."). Thus, the D.C. Circuit has instructed that "parties to a lawsuit must typically openly identify themselves in their pleadings," with "[b]asic fairness dictat[ing] that those among the defendants' accusers who wish to participate ... as individual party plaintiffs must do so under their real names." United States v. Microsoft Corp., 56 F.3d 1448, 1463-64 (D.C. Cir. 1995) (per curiam) (internal quotation marks and citations omitted, alteration in original).

         The reasons that public disclosure of litigants' identities is generally required include that "[p]ublic openness may cause all trial participants to perform their duties more conscientiously," In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig. ("OPM Breach Litig."), No. 17-5217, 2019 WL 2552955, at *28 (D.C. Cir. June 21, 2019) (Williams, J., concurring in part and dissenting in part) (internal quotation marks and citations omitted); such openness "induce[s] unknown witnesses to come forward with relevant testimony," id. (internal quotation marks and citation omitted); requiring parties to disclose their identities "foster[s] an appearance of fairness, thereby heightening respect for the judicial process," id. (internal quotation marks and citation omitted); and disclosure of litigants' identities is "a matter of 'basic fairness, '" id. (quoting Microsoft Corp., 56 F.3d at 1463 (alteration omitted), because a "case brought anonymously can let a winning plaintiff inflict 'disgrace' on a defendant and can let a losing plaintiff launch defamatory charges 'without shame or liability, '" id. (quoting Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005)), creating a "structural asymmetry that can tilt the scales unfairly," id.

         Notwithstanding these good reasons for public openness about litigants' identities, "a district court has discretion to 'grant the 'rare dispensation' of anonymity against the world, '" id. (quoting Microsoft Corp., 56 F.3d at 1464 (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993))), and the Federal Rules recognize that privacy protections may be necessary for filings made with the Court. Specifically, in 2007, Federal Rule of Civil Procedure 5.2 was adopted in response to the E-Government Act of 2002, which "requires the Supreme Court to prescribe rules 'to protect privacy and security concerns relating to electronic filing of documents and the public availability ... of documents filed electronically.'" Fed.R.Civ.P. 5.2, Adv. Comm. Note (2007) (quoting Pub. L. No. 107-347, § 205(c)(3)). To this end, Rule 5.2, for example, requires, "[u]nless the court orders otherwise," that certain personal information be redacted as well as that only a "minor's initials" be used, Fed.R.Civ.P. 5.2(a)(1)-(4), and further authorizes the court, "[f]or good cause," to issue a protective order that "require[s] redaction of additional information" or restricts "a nonparty's remote electronic access to a document filed with the court," id. 5.2(e).

         Courts have employed two different but analogous multi-factor tests in determining whether a party may be permitted "to proceed anonymously" by evaluating whether "the impact of the plaintiffs anonymity" outweighs "the public interest in open proceedings" and the "fairness to the defendant." Nat'l Ass'n of Waterfront Emp'rs v. Chao ("Chao"), 587 F.Supp.2d 90, 99 (D.D.C. 2008) (RMC). The first test consists of the six factors set forth in United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980):

(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the document prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purpose for which the documents were introduced.

Doe v. CFPB ("Doe I"), No. 15-cv-l 177 (RDM), 2015 WL 6317031, at *2 (D.D.C. Oct. 16, 2015). In other cases, a "five-part test to balance the concerns of plaintiffs seeking anonymity with those of defendants and the public interest" has been applied. Eley v. District of Columbia, No. 16-cv-806 (BAH), 2016 WL 6267951, at *1 (D.D.C. Oct. 25, 2016). These five factors, drawn from James, 6 F.3d at 238, are:

(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 a 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; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.

Chao, 587 F.Supp.2d at 99 (citing Yacovelli v. Moeser, No. 1:02CV596, 2004 WL 1144183, at *6-8 (M.D. N.C. May 20, 2004) (quoting James, 6 F.3d at 238)); Roe v. Doe, No. 18-cv-666 (CKK), 2019 WL 1778053, *2 (D.D.C. Apr. 23, 2019); Doe v. Teti, No. 15-mc-01380 (RWR), 2015 WL 6689862, at *2 (D.D.C. Oct. 19, 2015); Roe v. Bernabei & Wachtel PLLC,85 F.Supp.3d 89, 96 (D.D.C. 2015) (TSC); Doe v. U.S. Dep't of State, No. 15-cv-01971 (RWR), 2015 ...


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