The Volokh Conspiracy

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Free Speech

Federal Government Lawyer Suing for Employment Discrimination Can't Sue Pseudonymously,

despite the argument that, “because she ‘defends federal agencies against employment discrimination claims,’ she may ‘make legal arguments that differ from the ones she has made and makes as an AUSA,’” so “proceeding under pseudonym will allow her ‘to make such arguments without the concern that opposing counsel will be able to identify her and/or her filings that take or may take a different legal position.’”


From Doe v. Garland, decided by Chief Judge Beryl A. Howell (D.D.C.) in April, but just posted on Westlaw:

Plaintiff is an Assistant United States Attorney ("AUSA") in the United States Attorney's Office for the District of Columbia, which is part of DOJ. Plaintiff alleges that DOJ has discriminated against her, and continues to do so, on the basis of her race, sex, age, and prior protected activity…. Plaintiff seeks to proceed under pseudonym primarily because of the "stigma" attached to the Department's imposition of discipline on her and to her "asserting Equal Employment Opportunity claims." …

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."). The Federal … Rules thus promote a "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' … and, more specifically, from the tradition of open judicial proceedings." That "presumption of openness in judicial proceedings is a bedrock principle of our judicial system." Accordingly, courts "generally require parties to a lawsuit to openly identify themselves to protect the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."

[Courts], in special circumstances, may permit a party to proceed anonymously. A party seeking to do so, however, "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." Once that showing has been made, "the court must then 'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure.'" … [The] "guideposts from which a court ought to begin its analysis" 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 relatedly, (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously….

At this early stage of the litigation, this Court is not persuaded that the plaintiff has met her burden of showing that her legitimate privacy interests outweigh the public's presumptive and substantial interest in knowing the details of this litigation. Plaintiff has demonstrated no legitimate privacy interest to rebut the presumption in favor of open proceedings….

Plaintiff first argues that the details of the Department's disciplinary process and her Equal Employment Opportunity claims are sensitive matters in which she has a legitimate interest to preserve her privacy. Employment discrimination claims that closely resemble those of plaintiff are, however, frequently litigated in federal court using plaintiffs' full names and there is nothing inherently "sensitive" or "highly personal" about that fact that one was been disciplined or alleged employment discrimination.. This holds true for employees of the Department of Justice bringing employment discrimination claims. Plaintiff presents no authority for the position that being disciplined by an employer or asserting Equal Employment Opportunity claims are the kinds of sensitive matters that warrant anonymity. Rather, disclosure of this kind of information is part of the "annoyance … that may attend any litigation."

Plaintiff makes a second, more novel, argument predicated on her position as an AUSA. Plaintiff argues that because she "defends federal agencies against employment discrimination claims," she may "make legal arguments that differ from the ones she has made and makes as an AUSA." Plaintiff explains that proceeding under pseudonym will allow her "to make such arguments without the concern that opposing counsel will be able to identify her and/or her filings that take or may take a different legal position." The interest plaintiff asserts here is not a privacy interest, however, that can merit pseudonymity. The interest in avoiding personal association with one's own legal arguments "bear[s] no resemblance to those types of intimate or sensitive personal information" that are traditionally recognized under this factor, "such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors." [The court then briefly analyzed the other factors, and concluded that on balance they cut against pseudonymity. -EV]

The docket reflects no further activity in the case, so it appears plaintiff dropped it. (She might have filed a different case under her own name, but I doubt it, since it would be easier and cheaper just to refile the Complaint under her own name in this case.)