Faith Action For Community Equity et al v. State of Hawaii et al

Filing 57

ORDER (1) AFFIRMING MAGISTRATE JUDGE'S DENIAL OF LEAVE TO PROCEED ANONYMOUSLY AND (2) DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT re 37 ; 44 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/29/2014. &quo t;The Magistrate Judge's order denying Plaintiffs leave to proceed anonymously is affirmed. Plaintiffs' motion for leave to file an amended Complaint is denied. Any new motion for leave or stipulation to the filing of an amended Comp laint must be submitted no later than February 19, 2014, and either document must include as an attachment the proposed amended pleading." (emt, )CERTIFICATE OF SERVICEParticipants registered to re ceive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FAITH ACTION FOR COMMUNITY
EQUITY; JOHN DOE 1 AND JANE
DOE 1,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII; HAWAII
)
DEPARTMENT OF TRANSPORTATION; )
GLENN OKIMOTO, in his
)
official capacity as the
)
Director of the Hawaii
)
Department of Transport,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00450 SOM/RLP
ORDER (1) AFFIRMING
MAGISTRATE JUDGE’S DENIAL OF
LEAVE TO PROCEED ANONYMOUSLY
AND (2) DENYING PLAINTIFFS’
MOTION FOR LEAVE TO FILE AN
AMENDED COMPLAINT

ORDER (1) AFFIRMING MAGISTRATE JUDGE’S DENIAL
OF LEAVE TO PROCEED ANONYMOUSLY AND (2) DENYING
PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
I.

INTRODUCTION.
On September 06, 2013, Faith Action for Community

Equity (“FACE”) and John Doe 1 and Jane Doe 1 (the “Doe
Plaintiffs”) filed a putative class action lawsuit against the
State of Hawaii, the Hawaii Department of Transportation
(“HDOT”), and its Director Glenn Okimoto.

FACE and the Doe

Plaintiffs (collectively, “Plaintiffs”) alleged in their original
Complaint that HDOT’s policy of offering the written portion of
the state driver’s examination in only English is the product of
intentional discrimination, and therefore violates the Fourteenth
Amendment’s guarantee of equal protection, Title VI’s prohibition

of disparate treatment in federally funded programs, and Hawaii
state law.
The State filed three motions in response to
Plaintiffs’ original Complaint.

First, the State asked this

court to dismiss the Doe Plaintiffs for failure to obtain
permission to proceed anonymously.

Second, the State asked that

FACE be dismissed for lack of organizational standing.

Finally,

the State asked that the Complaint as a whole be dismissed for
failure to state a claim.

See ECF Nos. 10, 11, 12. After these

motions had been filed, Plaintiffs belatedly sought permission
from the Magistrate Judge to proceed anonymously.

ECF No. 14.

On November 22, 2013, the Magistrate Judge issued an order
denying Plaintiffs’ request.

ECF No. 26.

The Magistrate Judge

declined to address the question of whether Plaintiffs’ failure
to timely file a motion constituted a procedural default and
instead denied Plaintiffs’ request on the substantive ground that
they had failed to demonstrate a sufficient likelihood of serious
injury, which, under Ninth Circuit law, is a necessary predicate
for proceeding anonymously.

Id.

On the day of this court’s hearing on the State’s three
motions to dismiss, Plaintiffs filed a motion for leave to amend
their Complaint, seeking to add an individual as a new named
plaintiff.

ECF No. 31.

At the hearing, the parties agreed that

Plaintiffs would withdraw their motion for leave to amend and

2

prepare a new motion for leave to amend, addressing concerns
raised by the State’s briefing.

The State agreed to withdraw its

motions to dismiss in anticipation of Plaintiffs’ new motion for
leave to amend.
On December 17, 2013, Plaintiffs filed the present
second motion for leave to amend their Complaint.

ECF No. 44.

Plaintiffs also appealed the Magistrate Judge’s order denying
their request to proceed with Doe Plaintiffs.

ECF No. 37.

The

State filed an opposition to both Plaintiffs’ appeal and their
motion, arguing that the Magistrate Judge’s decision regarding
anonymity was correct, and that Plaintiffs should be denied leave
to amend because any amendment would be futile.

This court held

a single hearing addressing both Plaintiffs’ appeal and the
motion for leave to amend.
The court now affirms the Magistrate Judge’s order
denying the Does leave to proceed anonymously.

Because

Plaintiffs’ proposed First Amended Complaint includes Does, the
court’s affirmance requires the denial of Plaintiffs’ motion for
leave to file their proposed FAC.
II.

BACKGROUND
Between 2001 and 2010, the HDOT provided translations

of the State’s written driver’s license exam in eight languages:
Japanese, Mandarin, Korean, Samoan, Tagalog, Vietnamese, Laotian,
and Tongan.

Complaint ¶ 33, ECF No. 1.

3

In 2010, after adding

new questions, HDOT stopped providing translated versions of the
exam.

Id. ¶ 36.
FACE is a “faith-based grassroots non-profit

organization” whose mission is “to engage[] in actions that
challenge[] the systems that perpetuate poverty and injustice.”
Id. ¶ 12.

FACE alleges that one of its “primary areas of

advocacy is seeking to address and remedy problems faced by
recent immigrants to Hawaii.”

Id.

Plaintiff John Doe 1 is a Chuukese citizen of the
Federated States of Micronesia who has lived on Maui since 2007.
Id. ¶ 10.

He has allegedly taken and failed the written driver’s

exam four times since 2008.

Id.

John Doe 1 alleges that he is

continuing to drive without a license because on Maui the “bus
service is limited and irregular,” and using it would entail “a
daily seven-hour commute” to work.

Id. ¶ 50.

John Doe 1 alleges

that he “is a good driver, has never been in an accident, and
drove for years in his homeland of Chuuk prior to moving to
Hawaii.”

Id. ¶ 51.
Plaintiff Jane Doe 1 is a Marshallese citizen of the

Republic of the Marshall Islands.

Id. ¶ 11.

She claims to have

driven for almost 10 years in the Marshall Islands before moving
to Maui in 1999.

Id.

She has failed the driver’s exam in Hawaii

twice, and has allegedly “never been offered a translated exam.”
Id.

Jane Doe 1 alleges that she has been “ticketed for not

4

having a license” and told by a judge that “she will go to jail
if she drives again without a license.”

Id. ¶ 53.

Nevertheless,

she continues to drive without a license “out of necessity so she
can get to work to support her family.”

Id.

The original Complaint includes claims under the Equal
Protection Clause, section 601 of Title VI, and section 321C-3 of
Hawaii Revised Statutes.

Plaintiffs argue that HDOT’s “English-

only” policy is the product of intentional discrimination against
individuals of limited English proficiency (“LEP”), in violation
of federal and state law.
The proposed First Amended Complaint adds Tochiro
Kochiro Kovac as an individual plaintiff, adds more allegations
regarding the injuries suffered by FACE, see, e.g., Proposed FAC
¶¶ 14-16, 52-54, and adds some further allegations challenging
the adequacy of the State’s proffered reasons for changing its
policy.
III.

See, e.g., id. ¶¶ 8, 65-66.
LEGAL STANDARD.
A district court may designate a magistrate judge to

determine any nondispositive pretrial motions.
§ 636(b)(1)(A).

28 U.S.C.

A party may appeal a magistrate judge's

determination of a pretrial nondispositive matter to the district
court, and the district court may modify or set aside any portion
of the magistrate judge's order found to be “clearly erroneous or
contrary to law.”

28 U.S.C. § 636(b)(1)(A).

5

Plaintiffs, citing

to district court authority, argue that only questions of fact
are reviewed under a “clearly erroneous” standard, while
questions of law must be assessed de novo.

See, e.g, Lovell v.

United Airlines, Inc., 728 F. Supp. 2d 1096, 1100 (D. Haw. 2010).
The parties dispute whether the Magistrate Judge’s determination
constitutes a question of fact or of law.

This court need not

resolve this dispute because it would affirm the Magistrate
Judge’s decision applying either standard of review.
IV.

ANALYSIS.
“To determine whether to allow a party to proceed

anonymously when the opposing party has objected, a district
court must balance five factors: ‘(1) the severity of the
threatened harm, (2) the reasonableness of the anonymous party's
fears, ... (3) the anonymous party's vulnerability to such
retaliation,’ (4) the prejudice to the opposing party, and (5)
the public interest.”

Doe v. Kamehameha Sch./Bernice Pauahi

Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010) (quoting Does
I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th
Cir. 2000).1

1

There is some dispute between the parties as to whether
this five-part test, which derives from the Ninth Circuit's
decision in Advanced Textile, is applicable whenever a plaintiff
seeks anonymity, or only when there is a threat of retaliation by
a private party. The Magistrate Judge appeared to read Advanced
Textile as only requiring the use of the five-part test when
private retaliation is threatened. Therefore, he declined to
apply the Advanced Textile test "because the Doe Plaintiffs d[id]
not allege that they have been threatened with retaliatory
6

“In this circuit, the common law rights of access to
the courts and judicial records are not taken lightly.”
Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d at 1042.
The “general rule [is that] the identity of the parties in any
action . . . should not be concealed.”

United States v.

Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008) (internal quotation
omitted).

This presumption is significant in light of nearly

every civil litigant’s interest in proceeding anonymously.

Any

individual who is challenging a state policy, revealing personal
information, or engaging in unpopular litigation would naturally
prefer not to have to reveal his or her identity.

But covert

litigation would be pervasive in the federal courts if anonymity
were granted in all such situations.

Instead, it is only in

“exceptional cases [that] the need for party anonymity overwhelms
the presumption of disclosure mandated by procedural custom.”

physical or mental harm" but "[i]nstead . . . assert that they
are compelled to admit their intention to engage in illegal
conduct and are at risk for criminal prosecution." ECF No. 26.
at 5 n.2. Instead of assessing the Advanced Textile factors, the
Magistrate Judge appeared to conduct a more general balancing
test between the “Doe Plaintiffs' need for anonymity” and the
"prejudice to defendants and the public interest.” Plaintiffs
take issue with the Magistrate Judge’s failure to precisely apply
the Advanced Textile factors. However, the general balancing
test utilized by the Magistrate Judge appears to simply be a more
abstract version of the Advanced Textile test, and Plaintiffs
fail to explain how the Magistrate Judge's decision would have
materially differed if he had labeled his analysis under the
Advanced Textile rubric. In any event, this court concludes
that, even applying the Advanced Textile factors as Plaintiffs
request, the Does are not entitled to proceed anonymously.
7

Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) (emphasis
added).
This court recognizes that fear of criminal
prosecution--and potentially subsequent deportation--is indeed a
“serious injury.”

There is precedent for “permit[ing] plaintiffs

to use pseudonyms . . . when the anonymous party is compelled to
admit [his or her] intention to engage in illegal conduct,
thereby risking criminal prosecution.”

Advanced Textile Corp.,

214 F.3d at 1068; see also S. Methodist Univ. Ass'n of Women Law
Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)
(noting that anonymity may be warranted when plaintiffs must
“admit that they either had violated state laws or government
regulations or wished to engage in prohibited conduct”).
However, even though criminal prosecution undoubtedly
constitutes a serious injury, the “fear of severe harm is
irrelevant if the plaintiffs do not reasonably fear severe harm.”
Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d at 1044
(emphasis added).

In Kamehameha, the Ninth Circuit held that the

child plaintiffs in that case did not reasonably fear severe
harm, despite a record that included direct evidence of threats
made to them as a result of their participation in the
litigation.

The panel held that the district court did not abuse

its discretion in concluding that the children’s fear was

8

unreasonable, because the threats made against the children were
not credible.
The record in Kamehameha was considerably thicker than
the speculative allegations made by Plaintiffs here.

Plaintiffs

do not allege or provide even a scintilla of evidence that the
State intends to retaliate against them through criminal
prosecution.

Instead, Plaintiffs rely entirely on the allegation

that some of the Does have been stopped by the police for driving
illegally.

Those allegations provide no support for the

proposition that the Does risk criminal prosecution by
participating in this litigation.

Prior police stops speak only

to the fact that any driver might be stopped by the police for,
say, a traffic inspection, random alcohol check, or other
matters, and that, by driving without a license, the Does risk
prosecution for reasons wholly independent of whether they are
litigants.
At the hearing on the present appeal, Plaintiffs’
counsel stressed that the context of this case was “nearly
identical” to that of Advanced Textile, because, in that case,
the Doe plaintiffs were similarly threatened with prosecution,
deportation, and loss of employment.

But simply listing a series

of grave consequences is unavailing if Plaintiffs are unable to
at least plausibly allege that those consequences may indeed
occur.

9

In Advanced Textile, foreign workers sought to bring a
Fair Labor Standards Act action against their employers in Saipan
in the Commonwealth of the Northern Mariana Islands.

Those

workers were threatened “on numerous occasions . . .

[that]

making complaints about their working conditions . . . [could
lead to] deportation, arrest and imprisonment.”
Corp., 214 F.3d at 1071.

Advanced Textile

The court specifically noted that the

employers could “terminate plaintiffs at will and apparently also
ha[d] the power to have foreign workers deported almost
instantly.”

Id. at 1072.

The court further noted that “evidence

of collaboration between [the employers] . . . and China’s
government suggests that threats [of imprisonment] may be carried
out.”

Id. at 1071.

In other words, the plaintiffs in Advanced

Textile had been directly threatened with deportation and
potential imprisonment in connection with their participation in
litigation.
While stressing similarities between the penalties that
face them and those that faced the Advanced Textile plaintiffs,
Plaintiffs in the present case ignore the fundamental distinction
that, here, no State official has threatened to prosecute the
Does based on their status as litigants.

Moreover, the

surrounding facts of the Does’ case makes such retaliatory
prosecution exceedingly unlikely.

Retaliatory prosecution would

require elaborate collaboration between various independent

10

governmental agencies.

Assuming the Complaint in this civil case

would be insufficient to secure a criminal conviction by itself,
the State of Hawaii would presumably have to enlist the aid of
county police officers to watch for and arrest the Does, and then
convince a county prosecutor to undertake a retaliatory
prosecution.

No allegation in the Complaint suggests such an

unlikely outcome.
At the hearing, Plaintiffs’ counsel suggested that
retaliation could be undertaken by a “rogue officer” who read
about this litigation and decided to punish the Does for
challenging the State’s policy.

Plaintiffs described possible

surveillance by such an officer outside the Does’ homes,
presumably for the purpose of catching the Does in the act of
getting into their cars and driving.

Leaving aside the issue of

how a “rogue officer” would find the Does, whose names are not in
any drivers’ database, Plaintiffs provide no reason that an
officer would become so incensed by a legal challenge to the
drivers’ exam that he or she would seek out and arrest the
litigants involved.

Plaintiffs say that one cannot speculate as

to what goes through the mind of an individual who is, by
definition, “rogue.”

But any plaintiff challenging a public

policy can speculate that some hypothetical “rogue officer” could
become obsessed with defending that policy.

Granting anonymity

based on the mere possibility of a “rogue officer” would

11

therefore require courts to grant anonymity as a matter of course
in litigation challenging governmental action.
Instead, the relatively few cases in which litigants
have been given leave to proceed anonymously based on fear of
criminal prosecution have all involved politically charged and
controversial issues.

In such exceptional cases, it is more

likely that prosecution might be used as a tool to suppress the
litigation, or that individual officers could feel so strongly
about an issue as to personally retaliate against the plaintiffs.
See, e.g.,

Roe v. Wade, 410 U.S. 113, 120 (1973) (challenge to

Texas law criminalizing abortion); Doe v. Commonwealth’s Attorney
for City of Richmond, 403 F. Supp. 119, 120 (E.D. Va. 1975)
(challenge to Virginia’s law criminalizing sodomy); Doe v.
Shapiro, 302 F. Supp. 761, 761-62 (D. Conn. 1969) (plaintiffs’
challenge to Connecticut welfare regulation that necessarily
required plaintiffs to admit they had engaged in the crime of
adultery).

There is no allegation before this court, nor any

other reason to believe, that the HDOT’s policy is the kind of
hot-button social issue that could potentially inspire such
reactions.

Plaintiffs do nothing to distinguish their case from

the usual civil case challenging government policy.

While the

State may prefer not to litigate this action, there is nothing to
suggest that it might undertake a bad-faith arrest or prosecution
to stifle it.

Moreover, given the potential presence of other

12

named Plaintiffs, any criminal prosecution would have no effect
on the suit’s ultimate viability, making it even less likely that
the State would initiate a criminal case as a means of
suppression.
Plaintiffs’ purported reasons for requiring anonymity
are unavailing for a separate reason.

As the Magistrate Judge

pointed out, nothing in the nature of Plaintiffs’ claim “compels”
the Does to reveal that they are currently breaking the law.

A

woman challenging a state’s abortion law, for example, may be
compelled to admit her intent to violate that law to ensure she
has standing to challenge it.

By contrast, the Does can assert

sufficient injury-in-fact to trigger Article III standing by
alleging an inability to pass the driver’s exam in English.
There is no need for them to also affirmatively state that they
are breaking the law.

If the Does’ superfluous statements are

sufficient to require anonymity, then any party could manufacture
the need for anonymity by gratuitously alleging a violation of
law.

In short, the Does’ voluntary and unnecessary admission to

criminal activity, standing alone, cannot allow them to proceed
anonymously.
Instead of offering allegations or evidence supporting
the reasonableness of the Does’ fears, Plaintiffs choose to
emphasize other parts of the Advanced Textile test--the serious
consequences of criminal prosecution, and the lack of prejudice

13

to Defendants flowing from the Does’ anonymity.

In particular,

Plaintiffs argue that, because arguments at the motion to dismiss
stage are purely legal and do not depend on the precise
identities of the parties, it would not greatly prejudice
Defendants at this stage of the litigation for the Does to
proceed anonymously.

See Advanced Textile, 214 F.3d at 1068

(“The court must also determine the precise prejudice at each
stage of the proceedings to the opposing party, and whether
proceedings may be structured so as to mitigate that
prejudice.”).

As Kamehameha makes clear, however, that rationale

is only persuasive if Plaintiffs are able to allege facts
supporting the reasonableness of their fear of retaliation.
Simply stating that one is afraid of retribution is not enough to
justify anonymity, even at the motion to dismiss stage.
At most, Plaintiffs have noted that a state court judge
has indicated that a prison sentence could be imposed on a Doe
for continued unlicensed driving.

But nothing Plaintiffs have

alleged suggests that a prison sentence would be imposed in
retaliation for participating in the present litigation.

And, of

course, before any sentence could be imposed, the Doe would have
to have been cited for a violation of the law and found guilty,
circumstances that have to be tied to their participation in the
present lawsuit to have any relevance to their request to proceed
anonymously.

14

Overall, Plaintiffs simply do not provide sufficient
allegations supporting the reasonableness of their fears.
Plaintiffs could insulate themselves from prosecution by removing
allegations regarding their criminality from the Complaint.

Even

if they do not do that, there is no reason to believe their
admission will trigger a conspiracy between the State, any County
prosecutor, and police officials designed to intimidate a
nonessential party from pursuing litigation that raises no
emotion-charged issue.
“The federal courts must be safe havens for those who
seek to vindicate their rights [and n]o litigant should fear for
his safety, or that of his family, as a condition of seeking
justice.”

Doe ex rel. Doe v. Kamehameha Sch./Bernice Pauahi

Bishop Estate, 625 F.3d 1182 (9th Cir. 2010) (Kozinski, J.,
dissenting from denial of rehearing en banc).

But at the same

time, allowing anonymity to be triggered by wholly speculative
fears of reprisal and to be based on unnecessary admissions of
criminality would make the federal courts a haven for secret
litigation.

The public character of judicial proceedings would

be severely damaged if anonymity were so freely granted.

“A

party may [only] 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.”

15

Advanced

Textile, 214 F.3d at 1068.

Having failed to demonstrate any need

for the Does’ anonymity, Plaintiffs do not establish that this is
the “exceptional case” in which anonymity is justified.
Because the Does may only remain in this lawsuit under
their real names, the court will not allow Plaintiffs to file
their proposed First Amended Complaint, which contains pseudonyms
in the caption.

Therefore, Plaintiffs’ motion for leave to amend

their Complaint is denied.
The State asks the court to deny Plaintiffs’ motion for
leave to amend on the further ground that granting such leave
would be futile.

Given the presence of anonymous individuals in

the case caption, the court need not address the futility issue
here.

See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

Cir. 1988) (“[A] proposed amendment is futile only if no set of
facts can be proved under the amendment to the pleadings that
would constitute a valid and sufficient claim . . . .”).
Plaintiffs may bring another motion for leave to file
an amended Complaint, and may, in the process, supplement and
strengthen their substantive allegations to overcome the State’s
concerns.

“[T]he underlying purpose of Rule 15(a) ... [is] to

facilitate decisions on the merits, rather than on technicalities
or pleadings.”

In re Morris, 363 F.3d 891, 894 (9th Cir. 2004).

It would be unfortunate if important legal questions of great

16

public interest are placed beyond this court’s review by a
party’s inability to get a pleading on file.
To facilitate review on the merits, Plaintiffs and the
State are directed to confer no later than February 5, 2014,
regarding the possibility of entering into a stipulation
regarding another proposed First Amended Complaint.

Without

waiving any potential challenge to the sufficiency of the
pleadings through a motion to dismiss, the State should consider
whether Plaintiffs’ future amendments are sufficient to allow the
parties to stipulate to the filing of a First Amended Complaint.
Until that time, this court’s denial of Plaintiffs’
motion for leave to file their proposed First Amended Complaint
means that the original Complaint remains the operative pleading
in this action, and the Does are dismissed as Plaintiffs from
that Complaint.
V.

CONCLUSION
The Magistrate Judge’s order denying Plaintiffs leave

to proceed anonymously is affirmed.

Plaintiffs’ motion for leave

to file an amended Complaint is denied.

Any new motion for leave

or stipulation to the filing of an amended Complaint must be
submitted no later than February 19, 2014, and either document
must include as an attachment the proposed amended pleading.

17

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 29, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Faith Action For Community Equity; John Doe 1 and Jane Doe 1, v. State of
Hawaii; Hawaii Department of Transportation; Glenn Okimoto, in his official
capacity; Civ. No. 13-00450 SOM/RLP; ORDER (1) AFFIRMING MAGISTRATE JUDGE’S
DENIAL OF LEAVE TO PROCEED ANONYMOUSLY AND (2) DENYING PLAINTIFFS’ MOTION FOR
LEAVE TO FILE AN AMENDED COMPLAINT.

18