The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From U.S. Army ROTC ECP Cadet Doe v. Biden, decided yesterday by Chief Judge Beryl Howell (D.D.C.) (contrary to decisions in M.D. Fla., N.D. Ill. and D. Colo., but consistently with this nonprecedential Seventh Circuit order):
Plaintiff, "a nineteen-year-old male ROTC Early Commissioning Program (ECP) candidate" who is "currently a drilling member of the Army National Guard," has moved to proceed under pseudonym in the instant action challenging defendants' vaccination policies and their interference with his "fundamental right to the free exercise of religion." For the reasons set forth below, plaintiff's motion is denied, subject to any further consideration by the United States District Judge to whom this case is randomly assigned….
Despite the presumption in favor of disclosure [of party names], … [c]ourts …, in special [and rare] 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.'" …
At this early stage of the litigation, plaintiff has not persuasively met the burden of showing that the legitimate privacy interests he holds outweigh the public's presumptive interest in knowing the details of this litigation. Plaintiff has articulated no privacy interest sufficient to rebut the presumption in favor of open proceedings….
[1.] Plaintiff argues that pseudonymity is justified because his "sincere religious beliefs" and "medical decisions and past infections" are "personal intimate information justifying anonymity." Plaintiff asserts, in conclusory fashion, that "[d]ecisions regarding vaccinations, illness and treatment … are just like decisions regarding birth control," which other circuits have cited as grounds to allow a plaintiff to proceed under pseudonym.
This is not an obvious conclusion to reach, since birth control methods and choices engage far more personal physical and medical details than, as here, a shot in the arm with a vaccination or identifying as a Christian, which millions of people do in this country and around the world. Without more, what plaintiff deems "personal intimate information" is insufficient grounds "to grant the rare dispensation of anonymity," and indeed plaintiff cites no cases from the D.C. Circuit in support of his position. Even if some information regarding the details of plaintiff's medical history and treatment, beyond having had COVID, were sensitive and highly personal, this would at most warrant limited sealing of that information. The first James factor weighs against permitting plaintiff to proceed pseudonymously….
[2.] [T]he asserted risk of retaliatory harm [to plaintiff] is both speculative and minimal. Plaintiff asserts that "[i]n the present climate, he is likely to be labeled as an 'anti-vaxer'—which he is not," and "his reputation tarnished both inside and outside of the military," which could make him "likely to be targeted for retaliation in the course of his career." The risk of retaliation that plaintiff describes is entirely speculative, however, and the risk of harassment and criticism represents the quintessential "annoyance and criticism that may attend any litigation," and is far less severe than the degree of serious mental harm or physical danger necessary to override the strong public interest in transparent legal proceedings. See Qualls v. Rumsfeld (D.D.C. 2005) ("bringing litigation can subject a plaintiff to scrutiny and criticism and can affect the way plaintiff is viewed by coworkers 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"); see also Doe v. Court of Common Pleas (W.D. Pa. Nov. 3, 2017) (denying request to proceed under pseudonym based on plaintiff's argument "that anonymity is necessary to protect her from unwanted media attention and a potentially negative public response to the allegations in the Complaint" as "not sufficient to outweigh the public's right to access court proceedings."). The second James factor thus weighs against granting plaintiff's motion….
[3.] [T]he fact that this suit is against the government, also weighs against granting plaintiff's motion, as the law is well-settled that "there is a heightened public interest when an individual or entity files a suit against the government." Here, plaintiff seeks an injunction "prohibiting the Defendants … from enforcing the vaccination policies challenged in this Complaint," and the public interest in knowing the detail of the litigation that could affect government policy broadly is particularly great.
[4.] [A]llowing plaintiff to proceed under pseudonym will not prejudice defendants in any way. Plaintiff's identity is presumably known to defendants through his ROTC enrollment, or could be disclosed to them through counsel. There is no reason to think that allowing plaintiff to proceed under pseudonym would compromise defendants' ability to defend this action or pose any "risk of unfairness to the opposing party." [Nonetheless, t]aking these factors together, plaintiff has presented no compelling justification for "the rare dispensation of pseudonymous status," and thus has failed to demonstrate a need for secrecy or identify consequences likely to befall plaintiff if he proceeds in his own name….
Note that pseudonymity tends to be more easily granted when people are making purely legal challenges, which don't turn much on the facts of the particular case (and thus on the identity of the party); but this doesn't seem to be such a case.