DOE v. USA

Filing 12

UNREPORTED ORDER denying 2 Motion to Proceed Under a Pseudonym. On or before 3/20/2020, plaintiff is directed to file an amended complaint. The clerk's office is directed to strike 10 Administrative Record and 11 Motion to Dismiss. On or before 4/10/2020, defendant is directed to file its answer. Signed by Judge Patricia E. Campbell-Smith. (jt1) Service on parties made. Modified on 3/6/2020 - to correct filing date (jt1).

3Jn tbe Wniteb $)tates QCourt of jfeberal QCiaims
No. 19-1888C
(Filed: March 5, 2020)

NOT FOR PUBLICATION

JOHN DOE,
Plaintiff,
V.

THE UNITED STATES,
Defendant.
__________

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Motion to Proceed Under
Pseudonym; RCFC lO(a).

ORDER
On December 11, 2019, plaintiff filed a complaint under the name "John Doe,"
ECF No. 1, and a motion for leave to proceed under that pseudonym, ECF No. 2. In his
motion, plaintiff argues that special circumstances make it necessary for him to proceed
anonymously. See ECF No. 2. Defendant filed a response in opposition, ECF No. 8,
and plaintiff filed a reply, ECF No. 9. For the following reasons, plaintiffs motion for
leave to proceed under a pseudonym is DENIED.
I.

Background

Plaintiff served in the United States Marine Corps from 2001, until his discharge
in 2018. See ECF No. 1 at 3. During the relevant portion of his service, plaintiff
worked as an attorney in various capacities. See id. at 3-7. Plaintiff alleges that
"discrimination, assault, humiliation, and hazing" led him to file a complaint with the
Marine Corps Inspector General against his superior officer, which resulted in multiple
instances of retaliation and ultimately-through duress and coercion-led to his
wrongful discharge. See id. at 25-26.
In his motion to proceed anonymously, plaintiff asserts that, in light of his
retaliation allegations, his interest in maintaining his anonymity outweighs the public's
interest in the disclosure of his identity and any prejudice to defendant. See ECF No. 2
at 1. Plaintiff argues that the retaliation he experienced during his service caused him a
"significant amount of psychological harm" such that he has a reasonable fear of future

retaliation and a diminished reputation. Id. at 2-4. Defendant opposes plaintiffs
motion. See ECF No. 9. Plaintiffs motion is fully briefed and ripe.
II.

Legal Standards

Rule lO(a) of the Rules of the United States Court of Federal Claims (RCFC)
provides that the "title of the complaint must name all the parties." For good cause
shown, the court may allow the sealing of filings and subsequently the redaction of
filings to protect privacy. Because "the use of pseudonyms in a complaint is contrary
to" Rule lO(a)'s requirement, Whalen v. United States, 80 Fed. Cl. 685, 691 (2008), the
court may permit a party to proceed anonymously "only where unusual circumstances
justify concealing a party's identity," Boggs v. United States, 143 Fed. Cl. 508, 511
(2019) (quoting Whalen, 80 Fed. Cl. at 691)). 1
In deciding whether a party may proceed anonymously, the court balances the
party' s need for anonymity against the "general presumption that parties' identities
[will] be available to the public and the likelihood of prejudice to the opposing party."
Id. The court' s decision turns on its consideration of five factors first set forth by the
Ninth Circuit: ( 1) "the severity of the harm threatened against the party requesting
anonymity; (2) the reasonableness of the fear of that harm; (3) the requesting party's
vulnerability to such harm; (4) the public interest in permitting or denying anonymity;
and (5) prejudice to the opposing party." See id. at 512 (quoting in part Does I thru
XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000)); see also Doe
No. 1 v. United States, 143 Fed. Cl. 238, 240 (2019).
III.

Analysis
A.

Plaintiffs Interest in Proceeding Anonymously

Plaintiff argues that the retaliation he experienced during his tenure in the Marine
Corps caused him "a significant amount of psychological harm" and that continued
retaliation would compound that harm. ECF No. 2 at 2-3. Plaintiffs fear of continued
retaliation is reasonable, he contends, based on the retaliation he claims to have
experienced after his military discharge. See id. at 3. Plaintiff asserts that he is
particularly vulnerable to harm because, as an attorney, public information about his
Although the Whalen and Boggs decisions, and the cases on which they rely, are not
binding on this court, they are deemed persuasive authority here. See, e.g., W. Coast Gen.
Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994) ("Court of Federal Claims decisions, while
persuasive, do not set binding precedent for separate and distinct cases in that court.") (citations
omitted).

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impacted mental health would "diminish [his] reputation in society, among lawyers,
[and] among potential clients," and would also diminish his economic prospects by
compromising the likelihood of his prospective employment. Id. at 3-4.
Defendant responds that plaintiff has failed to identify a specific, and thereby a
reasonable, fear of retaliation that adequately overcomes the public's interest in open
court proceedings. See ECF No. 8 at 4. Defendant asserts that plaintiffs alleged harms
are "hypothetical" and do not "constitute the kind of unusual, severe, or extraordinary
harms sufficient to justify proceeding under a pseudonym." Id. at 4-5. Defendant posits
that because plaintiff is no longer employed by the government, the government's ability
to retaliate against him is diminished. See id. at 7. Defendant further posits that because
plaintiffs identity is already known to the government, any potential retaliation would
not be prevented by allowing him to proceed anonymously. See id. Defendant contends
that plaintiffs concerns are more suitably addressed by a protective order and
appropriate redaction. See id. at 8.
The court agrees with defendant. Plaintiffs expressed generalized fear of
retaliation and reputational harm appears to be consistent with the sort of concern that
might exist whenever a plaintiff elects to bring this type of case. A review of the cases
in which a fearful plaintiff has been permitted to proceed anonymously indicates that
plaintiff has done so based on either: (1) an actual threat posed by an entity in a position
to exercise power over a portion of that plaintiffs life, see, e.g., Advanced Textiles, 214
F.3d at 1065 (allowing plaintiffs to proceed anonymously where filing a complaint could
subject them to reprisals by their employer and their home country's government);
Wolfchild v. United States, 62 Fed. Cl. 521, 553 (2004) (allowing plaintiffs to proceed
anonymously where they were seeking membership status in a community that opposed
their lawsuit and that had "nearly a plenary power over community membership"); (2)
an actual threat of physical harm, see, e.g., Doe No. 1, 143 Fed. Cl. at 241 (allowing
employees of the Bureau of Alcohol, Tobacco, Firearms and Explosives who could be
endangered by the release of their names to proceed anonymously); or (3) a particularly
vulnerable status, see, e.g., Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) (finding the
plaintiffs' status as children "especially persuasive" in the decision to allow them to
proceed anonymously). See also Boggs, 143 Fed. Cl. at 514 (reciting cases detailing
sufficient severity of harm). Here, plaintiffs fear, as articulated, is not founded on any
of these bases. Without more, the court is unable to evaluate properly whether
plaintiffs expressed fears are reasonable. But the court does find that plaintiffs
expressed fears do not rise to the level of "unusual circumstances" sufficient to justify
proceeding anonymously-the legally relevant standard. See id. at 511.

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B.

Defendant's Interest in Disclosure of Plaintiffs Identity
1.

Prejudice to Defendant

Plaintiff argues that granting anonymity would not prejudice the defendant. ECF
No. 2 at 4-5 (citation omitted). Plaintiff insists that because the "'risk of reputational or
economic harm is not a consideration"' for the government, defendant will not be
prejudiced. ECF No. 9 at 5 (emphasis in original) (quoting Candidate No. 452207 v.
CFA Inst., 42 F. Supp. 3d 804, 810 (E.D. Va. 2012)). The court agrees that the
government, as defendant, is not prejudiced by the sought anonymity, given that it is
aware of plaintiffs identity.
2.

The Public Interest

Plaintiff also argues that granting anonymity would not "obstruct the public's
view of the issues." ECF No. 2 at 4-5 (citation omitted). Defendant responds that
plaintiff may not invoke his privacy interest to obstruct the public interest in
transparency in judicial proceedings. See ECF No. 8 at 9-10. The court finds that the
public has an important interest in judicial transparency.
RCFC lO(a) "serves more than administrative convenience. It protects the
public's legitimate interest in knowing all of the facts involved, including the identity of
the parties." Boggs, 143 Fed. Cl. at 517-18 (quoting PlaintiffB v. Francis, 631 F.3d
1310, 1315 (11th Cir. 2011)). As informed by the purpose of the court's rule, and
persuaded by the jurisprudential interpretation thereof, the court determines that a shift
of Rule l0(a)'s presumption of transparency "requires [a] showing that the suit could
serve an important public interest but would otherwise not be brought if plaintiffs were
required to identify themselves." Id. at 520. Here, plaintiff has not made a showing
sufficient to rebut that presumption.
C.

Balancing the Interests

Although plaintiff has alleged fear of harm, his allegations are generalized and
speculative and thus, do not demonstrate the required type of harm that legally militates
in favor of anonymity. As such, the public interest in transparency would be
compromised by permitting plaintiff to proceed anonymously. The balance of interests
in this case weighs against plaintiffs request to proceed under a pseudonym.

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IV.

Conclusion
Accordingly, for the foregoing reasons:
(1)

Plaintiffs motion to proceed under a pseudonym, ECF No. 2, is DENIED;

(2)

On or before March 20, 2020, plaintiff is directed to FILE an amended
complaint to comply with RCFC lO(a);

(3)

The clerk's office is directed to STRIKE the administrative record in the
case, ECF No. 10, which was filed under seal, and defendant's motion to
dismiss, ECF No. 11; ancj

(4)

On or before April 10, 2020, defendant is directed to FILE its answer or
otherwise respond to plaintiffs amended complaint.

IT IS SO ORDERED.

~~'"'~<Z-~-~
ATRICIA E. CAMPBEL-SMiTH
1

Judge

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