The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Third Circuit: No Pseudonymity for Challenge to Health System's "Tracking Pixel" System
Plaintiff argued (with no opposition from the defendant),
Proceeding under a pseudonym is appropriate in this appeal because the facts of the underlying case directly relate to Plaintiff's sensitive health information. Specifically, Plaintiff alleges that Capital Health installed a tracking pixel on its website that transmits its patients' names and protected health information (PHI) to third parties, including Facebook and Google, without its patients' consent. This PHI is highly sensitive and includes confidential information that patients communicated to Capital Health's website, such as the types of medical appointments they made, the date of their appointments, and the specific doctors who treated them.
While this appeal focuses solely on Capital Health's conduct and whether it meets the test for federal officer jurisdiction, information regarding Plaintiff's PHI will necessarily be disclosed during the litigation of the appeal. Accordingly, it is necessary to continue proceeding with the use of a pseudonym to protect the confidentiality of Plaintiff's medical information.
Plaintiff[ has] a strong privacy interest in proceeding under a pseudonym as this case implicates her medical privacy. Indeed, the very core of Plaintiff's claims is that Capital Health is unlawfully disclosing information regarding her identities and medical treatment to third-parties. If Plaintiff were required to publicly disclose her name in connection with this lawsuit, she would therefore suffer the very harm for which they seek redress….
This case alleges disclosure of medical information. Federal law presumptively views this information as private, and health care providers face criminal penalties for knowingly disclosing protected health information to another person….
Conversely, there are no factors weighing against Plaintiff continuing to proceed with a pseudonym. There is no "particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained." Simply put, the public does not need to know Plaintiff's name to understand the facts of this appeal.
Finally, allowing Plaintiff to continue pursuing this appeal under a pseudonym will not prejudice Capital Health's appellate rights. This appeal focuses solely on whether Capital Health should be considered a federal officer for purposes of federal officer jurisdiction.
Plaintiff never intended for either third-party companies or the public to know about her private medical conditions. Indeed, that is precisely why she brought suit to enjoin Capital Health from further violating the privacy of its patients by selling their health information to Facebook and Google. Plaintiff should not be required to disclose her identity as the cost of litigating this case….
No, Third Circuit Judge David Porter held, in a one-judge order (not binding precedent, but a good indication of what appellate judges are likely to think, in my experience):
Our legal system operates under a strong presumption of public proceedings and publicly filed documents, including the names of the parties filing the documents. Parties are sometimes allowed to proceed anonymously in "exceptional cases" where there is a showing of "severe harm" or the reasonable fear of severe harm. "That a plaintiff may suffer embarrassment or economic harm is not enough."
Plaintiff has not made a showing of severe harm or the reasonable fear of severe harm. Plaintiff's motion refers to the type of medical appointments she makes, the date of her appointments and the identity of treating physicians. That does not implicate the type of sensitive privacy concerns presented by the examples that we enumerated in Megless [the Third Circuit precedent on pseudonymity]. See also, Doe v. Coll. of N.J., 997 F.3d 489 (3d Cir. 2021) (affirming denial of motion to proceed anonymously where plaintiff sought to prevent "the publicizing of very personal information involving her minor children, pregnancy, and miscarriage"). Short of that, simply wanting to proceed anonymously is not enough to overcome the "thumb on the scale that is the universal interest in favor of open judicial proceedings."
Counsel is directed to provide Appellee's name to the Clerk's Office within 10 days of the date of this order.
