The Volokh Conspiracy
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Still No Pseudonymity for Sorority Members Suing to Challenge Sorority's Admission of Transgender Student
From Judge Alan Johnson's decision today in Doe v. Kappa Kappa Gamma Fraternity (D. Wyo.) (the "fraternity" is really a sorority), declining to reconsider an earlier decision:
I yearn for the day where litigants seek their courts unburdened by the mere possibility of physical reprisal. That hope may be quixotic today. The digital age is one of comprehensive access, whether via electronic case files, search engines, or Twitter updates. Gone are the days where motions and orders collected dust in the anachronistic file rooms below this courthouse. Litigants' privacy expectations have too changed. Federal lawsuits are, more and more, above-the-fold news. Add in salacious claims against one, who Plaintiffs concede, stands in the public forum and the media spotlight bums brighter. "But the threat of significant media attention—however exacerbated by the modem era—alone does not entitle a plaintiff to the exceptional remedy of anonymity under [Fed. R. Civ. P.] 10." Rapp v. Fowler (S.D.N.Y. 2021). {"In private civil suits, courts recognize there is a significant interest in open judicial proceedings since such suits do not only advance the parties' private interests, but also further the public's interest in enforcing legal and social norms." Doe v. Leonelli (S.D.N.Y. 2022).} Plaintiffs insert themselves into a contentious debate gripping our nation; their collective residence in a known location is cause for concern.
However, Plaintiffs' conclusory fears of unspecified retaliation, sans any particularized facts, are insufficient to meet the exceptional circumstance of pseudonymity. See also Doe v. Lee (M.D. Tenn. 2022) (holding that a plaintiff's: (1) concerns that a lawsuit "might receive press attention that might expose him to harm from members of the public" were speculative; and (2) failure to offer evidence "that such harm [was] likely" was insufficient to warrant pseudonymity); Doe v. Weber State Univ. (D. Utah Oct. 29, 2021) (rejecting a physical-harm exception where the adult plaintiff provided "no information, evidence, or particularized facts supporting" her claim) (also noting that the plaintiffs sexual misconduct allegations "all relate[d] to how [the public university] addressed, or failed to address, [her] complaints"). While Plaintiffs offer no authority prompting reconsideration, the Court cannot unearth a single instance where the Tenth Circuit has granted the physical-harm exception.
Forced to turn elsewhere, I find that our sister circuits have granted the exception to incarcerated plaintiffs, fearful of their fellow inmates, and those facing severe repercussions like imprisonment or deportation. See, e.g., Doe v. Ayers (9th Cir. 2015) (granting pseudonymity where a plaintiff-inmate made a "strong showing, based on the affidavit of a highly-qualified correctional expert," that disclosure of repeated episodes of extreme sexual abuse while incarcerated "would create a significant risk of severe harm at the hands of other inmates, a risk to which [the plaintiff] would be quite vulnerable"); cf. In re: Chiquita Brands Int'l, Inc. (11th Cir. 2020) (rejecting anonymity where movants presented "general evidence showing that those who oppose [Colombian] paramilitary groups or paramilitary-affiliated entities face risks of paramilitary violence"); see also Doe v. Mass. Inst. of Tech. (1st Cir. 2022) (holding that even "[a] reasonable fear of severe harm is not a sine qua non for allowing plaintiffs to seek Doe status"). [I think the court may has misunderstood what Doe v. MIT meant here, since Doe v. MIT was arguing that Doe status is sometimes available even without reason to fear severe harm to the plaintiff. -EV] {See also Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) (allowing anonymity where textile-worker-plaintiffs presented significant evidence of retaliation by blacklisting and legitimately "fear[ed] extraordinary retaliation, such as deportation, arrest, and imprisonment"); cf Doe v. Kamehameha Sch/Bernice Pauahi Bishop Est. (9th Cir. 2010) (denying anonymity to minor plaintiffs in a suit challenging school's race-based admission policy despite plaintiffs' claimed fears of physical harm if their names were disclosed).}
By contrast, Plaintiffs present little to demonstrate that they, themselves, are in "real, imminent personal danger." For example, it is unclear if Plaintiffs have, in fact, faced threats or harassment. Compare ECF No. 4, 13 ("To the extent that this Court requires concrete evidence of threats of violence directed against each individual Plaintiff, this is impossible: no one knows their identities."), with ECF No. 2,16 ("The young people who are parties to this litigation have already faced threats, harassment, and safety concerns.") (seemingly referring to Smith, rather than Plaintiffs). The tragic, yet distant, events in Nashville, or a politician's ill-advised innuendos, are irrelevant. Nor am I convinced that this is such an unusual case that Plaintiffs' collective safety cannot be entrusted in the first instance to the University of Wyoming Police Department. Plaintiffs counter that my prior ruling "eliminated protection for all litigants." I disagree. Plaintiffs' reliance on the public's "intense interest" in this case is a double-edged sword. On one hand, they argue that the case presents a groundbreaking issue of first impression with national implications. But, on the other, they say that same generalized scrutiny precipitates security risks and warrants their anonymity. Plaintiffs cannot have it both ways.
This Court exists to serve the public. There is a universal public interest in access to Plaintiffs' identities—one that is "presumptively paramount[] against those [interests] advanced by [Plaintiffs]." See Crystal Grower's Corp. v. Dobbins (10th Cir. 1980); see also Doe v. Megless (3d Cir. 2011). {See Signature Mgmt. Team, LLC v. Doe (E.D. Mich. 2018) ("The public has a right to know who the parties are in almost every case before a federal district court as a matter of 'public confidence in and understanding of the judicial system."'); Mass. Inst. of Tech. ("A judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts' work."); see also Roe v. Does 1-11 (E.D.N.Y. 2020) ("Allowing a plaintiff to proceed anonymously may also hamper witnesses coming forward of their own volition to either bolster or refute a plaintiff's allegations.").}
Plaintiffs have chosen to level accusations of impropriety against Defendants. They must now shoulder the burden of those accusations and walk in the public eye. Balancing the public interest against Plaintiffs' showings of personal physical harm, I arrive where I landed last week: this is not one of those few exceptional cases involving a real danger of physical harm.
