No Pseudonymity for Plaintiff in Lawsuit That Would Further Publicize His Criminal History

From Doe v. HireRight LLC, decided yesterday by Judge Stephen McNamee (D. Ariz.):

Four years ago, Plaintiff was charged with two felonies. As part of a plea agreement, he pled guilty to both charges in exchange for one of the charges being downgraded to a misdemeanor. Thus, he was convicted of one felony and one misdemeanor.

In January 2023, Plaintiff applied for a position at CloudKitchens. During the interview process, Plaintiff disclosed that he had been convicted of a felony but was told that this would not prohibits his hiring. Toward the end of the application process, CloudKitchens hired Defendant HireRight to perform an employment-purposed consumer report on Plaintiff, which included a criminal background check. This report ultimately stated, inaccurately, that Plaintiff had been convicted of two felonies—not the single felony that Plaintiff had previously reported to CloudKitchens. As a result of this report, CloudKitchens rescinded its job offer….

Doe sued under the Fair Credit Reporting Act, but the court refused to allow him to proceed pseudonymously:

Federal Rule of Civil Procedure 10 requires that "the title of the complaint must name all the parties." This rule reflects the "paramount importance of open courts" such that the "default presumption is that plaintiffs will use their true names."

Nonetheless, the Ninth Circuit allows parties to proceed pseudonymously when special circumstances justify secrecy…. Plaintiff acknowledges that his is not a situation that the Ninth Circuit has determined necessitates anonymity. Instead, Plaintiff argues that because he "worked incredibly hard to get back on track and contribute positively to society" after his convictions, he should not be forced to publicly identify himself as a felon. Plaintiff characterizes the potential harms of having to litigate under his own name as ridicule and deprivation of employment. Specifically, Plaintiff fears the "stigma of a felony conviction."

The Court recognizes that this lawsuit might bring attention to Plaintiff's convictions, which could in turn make finding employment more difficult. Under Ninth Circuit precedent, however, this is not the type of harm that requires anonymity. Unlike most of the cases granting anonymity, Plaintiff does not face retaliation as a direct result of this lawsuit. See U.S. v. Doe, (9th Cir.) (prisoner plaintiff faced retaliation in the form of serious bodily harm by fellow inmates for his cooperation with the government); Doe v. Ayers (9th Cir.) (finding that petitioner's "exceptional case met the high bar for proceeding under a pseudonym" where there was "credible evidence that he would likely be subjected to more violence if his name was revealed ….")

Any harms that Plaintiff might face stem from his prior convictions, which are—as Plaintiff acknowledges—already publicly available information. Indeed, this lawsuit is evidence that Plaintiff is already susceptible to these harms regardless of this lawsuit. Further, these harms are distinguishable from the kinds of harms for which courts typically provide anonymity—such as serious physical harm, imprisonment, or deportation.

Although courts have allowed parties to proceed pseudonymously to avoid embarrassment, these cases tend to involve allegations of sexual abuse against minors, rape victims, and other particularly vulnerable parties. E.g., Doe v. Krogh (D. Ariz. 2021). Although Plaintiff might be embarrassed by his criminal convictions, these convictions are already public and do not rise to the same level of seriousness as do details of sexual abuse. As such, Plaintiff's embarrassment alone cannot tip the scales in favor of anonymity. Moreover, since the Plaintiff seeks to correct the record regarding his conviction status, there is a potential salient benefit to the Plaintiff in avoiding anonymity.

Courts grant anonymity in "unusual," "extraordinary," or "special" cases. This case is none of those things. Plaintiff's alleged harms are far from unusual—countless Americans face difficulty finding employment as a result of their criminal record….