The Volokh Conspiracy
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Can Plaintiff Who Lost a Case Get Retroactively Pseudonymized, Because of Fear of Employment Consequences?
Two Central District of California case reach different results.
From Redacted v. Barr, decided April 19 by Judge Cormac Carney (C.D. Cal.):
In this case, Plaintiff [Redacted], acting pro se, challenged child pornography statutes in this era of advanced technology. The Court granted Defendants' motion to dismiss on December 11, 2019, and the Ninth Circuit affirmed on April 22, 2021. Recently, Plaintiff was fired from his job and has faced obstacles with respect to future employment opportunities. Based on an email on which Plaintiff believes he was "mistakenly included" that refers to his "extracurricular legal activities," Plaintiff believes that his involvement in this litigation is the reason he was fired and has faced these obstacles. Now before the Court is Plaintiff's unopposed petition to reopen this case in order to redact his name from the docket and proceed instead under the pseudonym "John Doe."
Plaintiff's unopposed petition is GRANTED. There is a "strong presumption" in favor of public access to court records "based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice."
However, "a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." In cases when "pseudonyms are used to shield the anonymous party from retaliation," courts determine the need for anonymity by evaluating (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, and (3) the anonymous party's vulnerability to such retaliation.
Here, Plaintiff's asserted need for anonymity outweighs any prejudice to the government or the public's interest in knowing his identity. This case has been over for over a year, the government did not file any opposition to Plaintiff's motion, and the public's interest in this case primarily centers around the underlying nature of the action rather than Plaintiff's identity. See Doe v. L. Offs. of Winn & Sims, 2021 WL 2662311, at *1 (S.D. Cal. June 29, 2021) [part of the litigation campaign I described in this post -EV]. Moreover, there appears to be a need for anonymity given that there is meaningful threatened harm, Plaintiff's fears appear to be reasonable, and he appears vulnerable to the purported retaliation.
Consistent with this Order, the Court DIRECTS the Clerk to replace Plaintiff's name with "John Doe" on the docket and in all publicly and electronically available documents so as to conceal his true name. Thereafter, the Court directs the Clerk to re-close the case.
On the other hand, here's Newell v. Newsom (appeal pending), decided June 29 by Judge Fernando Aenlle-Rocha (C.D. Cal.):
On September 29, 2020, Plaintiff filed the Complaint against Defendants Gavin Newsom, Xavier Becerra, and Jackie Lacey, alleging that various provisions of the California Family Code violate certain fundamental and constitutional rights.
On April 26, 2021, the court granted Defendant Xavier Becerra's Motion to Dismiss because Plaintiff lacked standing to bring the action. On June 14, 2021, the court granted Plaintiff leave to file an amended complaint within twenty-one days. Rather than file an amended complaint, Plaintiff instead requested the court enter a "final, appealable order" and dismiss the action with prejudice. The court subsequently granted Plaintiff's request and dismissed the action with prejudice.
Plaintiff appealed to the Ninth Circuit. On August 26, 2022, the Ninth Circuit affirmed this court's Order dismissing Plaintiff's claims with prejudice.
On April 5, 2023, Plaintiff filed the Petition, seeking to re-open the action and redact his personal information from the docket. Pet. Plaintiff alleges he was recently terminated by his employer and given "a cursory explanation for his firing." He claims he was subsequently copied on an email "which appears to reveal the true reason for Plaintiff's firing: Plaintiff's involvement in this litigation." Plaintiff further alleges his "involvement in this litigation has been circulating in reference checks and precluding future employment opportunities." The Petition, therefore, requests the court review the docket and redact all instances of Plaintiff's name, telephone number, and physical address….
Federal courts recognize a long-standing right to inspect judicial records and documents…. [T]he Ninth Circuit [has] outlined three factors district courts are to consider when determining the appropriateness of preserving anonymity in judicial proceedings: "(1) the severity of the threatened harm, … (2) the reasonableness of the anonymous party's fears, … and (3) the anonymous party's vulnerability to such retaliation[.]"
Having considered [these] factors …, the court finds Plaintiff has not shown his need for anonymity outweighs the common law right of access to judicial proceedings.
First, Plaintiff does not demonstrate the threatened harm is more severe than that of any other plaintiff alleging similar claims…. [W]hile evidence of economic harm is not "always irrelevant to the question of whether plaintiffs may proceed anonymously," a plaintiff presenting evidence of only economic harm must demonstrate he faces a "greater threat of retaliation than the typical plaintiff." In fact, the Ninth Circuit categorized "threats of termination and blacklisting" as "perhaps typical methods by which employers retaliate against employees who assert their legal rights."
Here, Plaintiff asserts only economic harm; specifically, he alleges future employers may become aware of his participation in this action and terminate his employment. Plaintiff, however, has not demonstrated he is subject to extraordinary harm, particularly given the nature of the claims he brought in this action. In other words, Plaintiff does not demonstrate how any potential retaliation he may face is "greater … than the typical plaintiff" asserting similar claims.
Second, Plaintiff's fears are not reasonable. While Plaintiff need not prove that a party "intend[s] to carry out the threatened retaliation," he must show that he was "threatened, and that a reasonable person would believe that the threat might actually be carried out." Plaintiff's Petition fails to carry this burden. Plaintiff alleges he was "mistakenly cc'd on an email which appears to reveal the true reason for Plaintiff's firing: Plaintiff's involvement in this litigation." In reviewing the email (included as Exhibit 1 to the Petition), however, the court is not convinced of Plaintiff's interpretation. As Plaintiff admits, the email which he attaches to his Petition is not from the employer that terminated him; rather, the email comes from a prospective employer who refers to Plaintiff's "extracurricular legal activities." Even assuming the referenced "extracurricular legal activity" refers to this action, Plaintiff does not demonstrate he has been threatened simply by virtue of losing out on employment he never secured. {[The assumption in the preceding sentence] is not a safe assumption. As Plaintiff concedes, he is involved in at least one other civil rights action in this district.}
Further, even if the email Plaintiff provides could be construed as a "threat," the threat does not rise to the level set forth in [the Ninth Circuit precedent], where "plaintiffs were interrogated about, warned against, and threatened for making complaints about their working conditions by defendants and recruiting agents." Simply put, based on the evidence before it, the court is not persuaded that a reasonable person would be fearful of a foreclosure of all future employment opportunities.
Finally, Plaintiff is not especially vulnerable to retaliation…. "[T]he threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." When courts do make a ruling to allow anonymity, it is typically upon some showing of great vulnerability by the movant. See, e.g., Doe v. Stegall (5th Cir. 1981); United States v. Doe (9th Cir. 1980) (prison inmates). Plaintiff has not made any showing that he is one such vulnerable person.
The court, having considered the factors set forth in [the Ninth Circuit precedent] concludes Plaintiff has not demonstrated his desire for anonymity outweighs the presumed public right to access of court records. In short, Plaintiff has not demonstrated he is actively subject to any harm whatsoever….
To be sure, the two statutes being challenged here are different: Challenging a child pornography statute may lead people to take a dimmer view of the challenger (on the theory that he must have some personal interest in child pornography) than would challenging a law that kept some parents from relinquishing a child for adoption. But it seems to me that the general logic of the two decisions is quite different, even apart from that factual distinction.
