No Pseudonymity for Plaintiffs Challenging Government's Cancellation of DEI Jobs

From Chief Judge James Boasberg (D.D.C.) yesterday in Doe v. Rollins:

Plaintiffs … worked at the Department of Agriculture in jobs related to diversity, equity, and inclusion…. On the first day of his new Administration, Trump issued an executive order that denounced federal DEI programs as "shameful discrimination," charged them with "immense public waste," and directed federal agencies to end them. Days later, Plaintiffs were placed on administrative leave. The Office of Personnel Management then issued guidance that, Plaintiffs allege, shows that they would soon be fired and would be allowed to apply for reassignment only to other DEI-focused jobs—which, thanks to the recent Executive Order, no longer existed.

Plaintiffs are challenging their placement on leave and OPM's guidance as violations of the Administrative Procedure Act and the First and Fifth Amendments. And they have moved to bring that challenge under pseudonyms. For the reasons below, the Court will deny their Motion to proceed pseudonymously….

Generally, a complaint must identify the plaintiffs. See Fed. R. Civ. P. 10(a); [D.D.C. Local Civil Rule] 5.1(c)(1), 11.1. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." As a result, the court must "'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure'" … Plaintiffs have not met their burden to show that their privacy interests outweigh the public's presumptive and substantial interest in learning their identities.

Start with whether this case concerns "a matter of a sensitive and highly personal nature." Plaintiffs argue that it does because they fear that being outed as having worked on DEI programs will damage their professional prospects.

True, this factor favors pseudonymity when plaintiffs show that being publicly identified would inflict serious and substantiated professional damage. For instance, it favored pseudonymity for a doctor who was accused of misconduct that, if disclosed, would have prevented her from practicing. [Citing to other D.D.C. cases here and later in the paragraph. -EV] Ditto for someone who worked in national security and was accused of being a terrorist and a traitor. But when identification poses only an unsubstantiated or speculative professional risk, this factor cuts against pseudonymity. [Many other courts generally refuse to allow pseudonymity merely to protect against professional, economic, or reputational harm, see pp. 1457-60 of The Law of Pseudonymous Litigation, in part because the risk of such harm is present in so many cases; but D.D.C. district court cases are indeed more split on that. -EV]

Plaintiffs' arguments fall on the wrong side of the line. They point out that the President has inveighed against DEI programs as "dangerous, immoral, and illegal" and that the Administration is seeking to purge the federal government of employees who worked on them. But if they fear what would happen if the government discovered that they had worked on DEI, pseudonymity will not help. Their Complaint alleges that their employers already know that they had worked on DEI programs and so have already exiled them to administrative leave.

If Plaintiffs instead worry that other employers will refuse to hire anyone bearing the stigma of a DEI-related job, they offer no support for that speculation…. In the end, Plaintiffs are seeking to distance themselves from ordinary job titles. That is information people usually include in their resumes or broadcast on LinkedIn, not a "matter of a sensitive and highly personal nature." …

Now consider "whether identification poses a risk of retaliatory physical or mental harm." Plaintiffs assert that the answer is yes, but they do not offer much explanation. If it is because the Administration has denounced DEI programs as discriminatory, the Motion never connects that fact to a substantiated risk that disclosing Plaintiffs' identities would expose them to physical or mental harm….