No Pseudonymity for Non-Citizen Challenging Law Limiting Non-Citizens' Participation in Voter Registration

From Chief Judge Mark Walker's opinion yesterday in Hispanic Federation v. Byrd (N.D. Fla.); the pseudonymous plaintiff is apparently a lawful permanent resident:

{This case involves a constitutional challenge to a newly-enacted law regulating third-party voter registration organizations. Plaintiff Doe seeks to proceed anonymously to avoid retaliation or harassment considering their immigration status and due to the "elevated political climate" concerning immigration more broadly.}

Ordinarily, parties referred to in a complaint must be identified by their real names. The Federal Rules of Civil Procedure specifically provide that "[t]he title of the complaint must name all the parties." Similarly, courts have long recognized that "[l]awsuits are public events" and that the public has a "legitimate interest in knowing all of the facts involved [in a case], including the identities of the parties." …

The Eleventh Circuit has made clear that pseudonyms may only be used in "exceptional" cases, and that there is "a strong presumption in favor of parties' proceeding in their own names." That presumption can only be overcome where the party seeking to proceed pseudonymously shows that they have "a substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" In determining whether Plaintiff Doe has such a right, this Court considers the following three factors: (1) whether they are "seeking anonymity challenging government activity," (2) whether they will be "required to disclose information of the utmost intimacy", and (3) whether they will be "compelled to admit their intention to engage in illegal conduct and thus risk criminal prosecution."

As to the first factor, [that] Plaintiff Doe is challenging government activity … only has a neutral effect. Cf. Frank , 951 F.2d at 324 ("[T]he fact that Doe is suing the Postal Service does not weigh in favor of granting Doe's request for anonymity."); cf. also Roe v. Aware Women Ctr. for Choice, Inc., 253 F.3d 678, at 686 (11th Cir. 2001) ("[N]o published opinion that we are aware of has ever permitted a plaintiff to proceed anonymously merely because the complaint challenged government activity.").

As to the second factor, the Eleventh Circuit has explained that "the 'information of utmost intimacy' standard applies to cases involving issues such as abortion … and prayer and personal religious beliefs." One would think that the standard covers more, but apparently it does not. Indeed, courts have denied the use of pseudonyms in cases involving matters that many would consider extremely private [citing cases involving abortion, alleged sexual assault victims, plaintiffs who were disclosing their alcoholism, attempted suicide by a police officer, abortion, and other matters].

Here, Plaintiff Doe identifies their immigration status as information raising a privacy concern sufficient to warrant permission to proceed under a pseudonym. But this Court is not persuaded that Plaintiff Doe's temporary protected status raises the same privacy concerns as the information at issue in cases where pseudonyms have been allowed. Cf. SMU, 599 F.2d at 712–13 (collecting cases and listing "birth control, abortion, homosexuality, [and] the welfare rights of illegitimate children or abandoned families" as examples of "matters of a sensitive and highly personal nature" (footnotes omitted)). Accordingly, this factor also is of little help to Plaintiff Doe.

Finally, the third factor does not help Plaintiff Doe either. That is, there is no information in the record suggesting that A. Doe has engaged in criminal activity or that they intend to do so. Nor have they alleged that such information may become part of this case in the future. Accordingly, none of the three factors weigh in favor of using a pseudonym.

Of course, none of these three factors take into account Plaintiff Doe's concerns about the potential harassment and threats they face. To be clear, this Court does not intend to diminish those concerns. This Court recognizes that it has "discretion" and "should carefully review all the circumstances of a given case" before deciding "whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns."

Even so, the precedent binding this Court seems to counsel against granting the requested relief…. "The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." …. This Court finds that mere allegations of threats and harassment is insufficient to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings. This is especially true where the targets of such threats and harassment are not minors and where the subject at issue does not involve matters of utmost intimacy.