The Volokh Conspiracy
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Fourth Circuit Affirms Two Decisions Denying Pseudonymity for Plaintiffs Alleging Disabilities
Monday's Fourth Circuit opinions from Judges Robert King, Marvin Quattlebaum, and Henry Floyd (Smith v. Towson Univ. and Doe v. ABA Accredited Univ.) were nonprecedential, and upheld the lower court decisions under an "abuse of discretion" standard. This basically means that the Court of Appeals concluded that the lower court decisions weren't clearly wrong; it didn't hold that they were the only right possible answer. Nonetheless, the court's action struck me as sufficiently worth noting; here is one of the decisions that the court upheld, Judge Rubin's decision in Smith v. Towson Univ. (D. Md.):
Self-represented plaintiff John Smith, filed the above-captioned Complaint. Plaintiff alleges that, among other things, his rights under the Rehabilitation Act were violated and he was discriminated against based on his mental health disability by Defendant and its employees….
Plaintiff seeks an order allowing him to proceed in this action under the pseudonym "John Smith." In support of this motion, Plaintiff provides minimal information to support his request but states that he is "mentally disabled" and was "stigmatized and subjected to disparate treatment" due to this status.. He states that the claims in his Complaint concern the animus of Defendant's staff toward him and their expectation that due to his mental disability he would be violent. He further contends that
the political landscape [is] increasingly divisive surrounding the stereotypical association between mental illness and school shootings [and he] would be subjected to irreparable harm that would exacerbate his mental disabilities, would permanently expose private and sensitive information that's protected under HIPPA laws, would result in the loss of future career opportunities that would discriminate against Plaintiff for the slander Defendants have created fueled by Plaintiff's mental disabilities, and without such protections, would act as a severe deterrent form similarly situated Plaintiff from pursuing litigation in exercising their rights.
Therefore, Plaintiff claims he should be permitted to pursue his claim under a pseudonym so that he can "expose corruption without the fear of it causing irreparable harm to his medical conditions and his future career." …
The United States Court of Appeals for the Fourth Circuit provides [under the James v. Jacobson precedent] five non-exclusive factors to determine whether to grant a request to proceed pseudonymously:
 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 sensitive and highly personal nature;  whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;  the ages of the persons whose privacy interests are sought to be protected;  whether the action is against a governmental or private party; and  the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously….
Taking the first factor, Plaintiff's allegations pertaining to his alleged disparate treatment due to his mental disability appear to be of a "sensitive and highly personal nature," although the plaintiff is not entitled to a pseudonym "merely to avoid the annoyance and criticism that may attend any litigation." In considering disabling conditions and social stigma, other circuits have emphasized how exceptional and stigmatizing the issues must be to allow anonymity. See, e.g., Doe v. Blue Cross & Blue Shield United of Wisconsin (7th Cir.1997) (holding that plaintiff's obsessive-compulsive disorder was a "common enough" disorder and not so "shameful" that it warranted anonymity); Doe v. UNUM Life Ins. Co. of Am. (N.D. Ca. 2016) (holding "lawyer-plaintiff whose claim centers upon when he became disabled due to mental illness" was not entitled to anonymity); Doe v. Garland (S.D. Ga. 2021) (holding "the fact information about a litigant's mental health may be revealed, without more, does not permit a party to proceed anonymously."); Doe v. Berskshire Life Ins. Co. of Am. (D. Colo. 2020) (denying motion to proceed using pseudonym where request was based on potential embarrassment due to plaintiff's diagnosis of post-traumatic stress disorder); Doe ex rel. Doe v. Harris (W.D.La. 2014) (finding plaintiff's mental disorder, which "rendered him perpetually childlike and vulnerable," was not so stigmatizing as to require anonymity). Plaintiff's case does not involve exceptional circumstances.
The second factor considers whether Plaintiff's proceeding publicly "poses a risk of retaliatory physical or mental harm." This factor is not addressed by Plaintiff in his motion other than his conclusory statement that failure to proceed anonymously may worsen his condition and/or cause future harm in employment. But "[t]hat the plaintiff may suffer some embarrassment or economic harm is not enough" to warrant anonymity. Accordingly, the second James factor weighs against permitting Plaintiff to proceed with a pseudonym.
The third factor considers "the ages of the persons whose privacy interests are sought to be protected." Plaintiff is not a minor, and age is not a factor. Accordingly, the third James factor weighs against permitting Plaintiff to proceed with a pseudonym.
The fourth James factor considers whether Plaintiff's action is against a governmental or private party whose reputation may be harmed unfairly if Plaintiff is permitted to proceed anonymously. Plaintiff names Towson University as the sole Defendant but lists a number of private individuals in the body of his Complaint who he alleges discriminated against him. "When a Plaintiff challenges the government or government activity, courts are more like[ly] to permit Plaintiffs to proceed under a pseudonym than if an individual has been accused publicly of wrongdoing." Unlike actions against private parties, "[a]ctions against the government do no harm to its reputation[.]" Id. Accordingly, the fourth factor does not weigh in favor of granting Plaintiff a pseudonym because Plaintiff identifies individual employees of Towson University and does risk harm to the reputation of those private individuals.
With respect to the fifth James factor, the Court examines whether there is a "risk of unfairness to the opposing party from allowing an action against it to proceed anonymously." Here, Plaintiff has filed under seal his true identity. Thus, allowing Plaintiff to proceed pseudonymously is not unfair to Defendant, because defendant is fully aware of Plaintiff's identity.
Weighing all of the factors together, Plaintiff has not met the onerous burden to proceed pseudonymously in this case and his motion will be denied. The Court notes that going forward Plaintiff may move to file particular documents under seal or for a protective order pursuant to Fed. R. Civ. P. 5.2 and 26(c), if applicable.
And here is the second decision that was upheld, Magistrate Judge John Anderson's decision in Doe v. ABA Accredited University (E.D. Va.); from the filings in the case, it appears that the defendant is Hofstra University in Long Island:
Plaintiff seeks to proceed under the pseudonym Jane Doe and has named one of the defendants under the pseudonym ABA Accredited University. Plaintiff wants to proceed without disclosing plaintiff's true name because of the potential of "national attention" and the desire to protect certain private, medical, religious, and family related information….
The lawsuit alleged, among other things, that the defendant had a disability, the details of which were redacted from the publicly filed complaint, and which was presumably a large part of the basis for the motion for pseudonymity. (Unfortunately, the motion for pseudonymity is itself sealed, so I can't know for sure what exactly the arguments were.) But the court rejected the attempt to proceed pseudonymously:
A review of [the] five factors reveals that plaintiffs motion should be denied. First, plaintiff's concern about national interest falls within the category of merely seeking to avoid annoyance and criticism that may attend the litigation. Any legitimate concerns involving highly sensitive, personal information can be addressed through redacting that specific information in public filings. There is no evidence that plaintiff or defendant ABA Accredited University faces a risk of retaliatory physical or mental harm. Plaintiff is a college graduate, has completed at least one year of legal education, and is not a minor. This action is against a University, the American Bar Association, and the Department of Education and they could face substantial unfairness in having to proceed in this action anonymously. For these reasons, the motion to proceed under a pseudonym will be denied.
Courts are divided, with little pattern behind the division, on when plaintiffs may proceed pseudonymously in order to keep their disabilities confidential, see The Law of Pseudonymous Litigation.