The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

No Pseudonymity for Lawyer Who Wants to Conceal Litigation Against Government from Future Clients


From Chief Judge Beryl Howell's opinion in Doe v. U.S. Dep't of Homeland Security (D.D.C. Mar. 14, 2022):

Plaintiff, an attorney, has moved to proceed pseudonymously as he litigates his instant claim under the Freedom of Information Act seeking information from various government agencies about a January 2021 incident, during which plaintiff was stopped at an international airport while attempting to reenter the United States and subjected to an interrogation "about legal representation he has provided and continues to provide." …

Plaintiff, an attorney licensed in Texas, represents "individuals in U.S. Immigration and Naturalization matters" and "criminal and national security investigations," including clients "who are under investigation by the FBI." … In 2021, plaintiff "was attempting to reenter the United States … through a Global Entry kiosk" at an international airport located in Dallas, Texas. He was "rejected entry at the kiosk and transferred to an in-person primary inspection, and then to a secondary inspection area," where he was "separately interrogated" by a CBP officer and two Department of Homeland Security ("DHS") employees "about his law practice, personal life, parents, and his personal U.S. immigration history."

One of the officers then asked him to "unlock his iPhone so that the digital contents … could be inspected," to which request plaintiff responded "he could not consent" because "the iPhone contained extensive privileged information and allowed for the accessing of privileged information that is stored remotely." In the face of plaintiff's denial of the request for access to his iPhone, the officer "informed Plaintiff that DHS was seizing the iPhone and that the digital contents would be searched" and "physically assaulted" plaintiff. Thereafter, plaintiff "submitted FOIA requests for documents, records and videos pertaining to the Plaintiff and the January 3, 2021, incident" to each of the defendant agencies.

Due to the defendants' alleged failure timely to comply with plaintiff's FOIA requests, plaintiff brings this suit challenging their denials and inaction under FOIA. He seeks to proceed under pseudonym because of "safety concerns for Plaintiff and his family given that part of this litigation involves an assault that occurred by an employee" of one of the defendants, and because "third parties associated with Plaintiff could be negatively impacted or harmed by the nature of this litigation."

The court noted the strong presumption against pseudonymity, and held it wasn't rebutted in this case; here's an excerpt from the reasoning:

Plaintiff asserts that he "has reasonable concerns that if he is unable to proceed anonymously, his career and practice would suffer considerably," due to "past experiences where clients have declined to do business with Plaintiff in fear that their cases could be negatively impacted if Plaintiff is consumed by litigation with the Defendants and/or being investigated by the Defendants." Plaintiff adds that "[t]he stigma associated with this litigation has already caused Plaintiff a great deal of mental anguish" and that making his name public "would cause further harm by damaging his reputation with his clients and the legal community."

Without more, however, "a threat of economic harm alone does not generally permit a court to let litigants proceed[] under pseudonym." At this early stage, plaintiff has not demonstrated a non-speculative risk of physical or mental harm sufficient to outweigh the strong public interest in knowing the identity of litigants.