International Refugee Assistance Project et al v. Trump et al

Filing 90

MOTION for Other Relief for Jane Doe #2 to Proceed Under Pseudonym by HIAS, Inc., Allan Hakky, International Refugee Assistance Project, Jane Doe 1, John Doe 1-4, Samaneh Takaloo (Attachments: # 1 Exhibit Decl. of Jane Doe #2)(Cox, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,
Civil Action No.: 8:17-CV-00361-TDC
Plaintiffs,
v.
DONALD TRUMP, et al.,
Defendants.

PLAINTIFF JANE DOE #2’S MOTION
FOR LEAVE TO PROCEED UNDER
PSEUDONYM AND MEMORANDUM
OF LAW IN SUPPORT THEREOF

TABLE OF CONTENTS
Page
INTRODUCTION AND STATEMENT OF FACTS ...............................................................1
ARGUMENT ...........................................................................................................................2
I.

LEGAL STANDARD ....................................................................................................2

II.

THE COURT SHOULD GRANT JANE DOE #2’S MOTION TO PROCEED
UNDER PSEUDONYM ...............................................................................................3
A.

Jane Doe #2 Seeks To Preserve Privacy in a Matter of Sensitive and Highly
Personal Nature .................................................................................................3

B.

Identification Poses a Risk of Retaliation, Harassment, and Even Violence
to Jane Doe #2 and to Her Family ....................................................................3

C.

Jane Doe #2 Risks Social Stigma, Harassment, and Even Violence if Her
Identity is Made Public .....................................................................................5

D.

This Action is Against the Government and Therefore Favors Anonymity ......5

E.

There is no risk of unfair prejudice to the government if Jane Doe #2 is
allowed to proceed anonymously .....................................................................6

F.

Permitting the Doe Plaintiffs to Proceed Anonymously Will Not Harm the
Public Interest in Open Proceedings ................................................................6

CONCLUSION ..........................................................................................................................7

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INTRODUCTION AND STATEMENT OF FACTS AND ISSUES
Plaintiff Jane Doe #2 respectfully requests leave to proceed under a pseudonym. In this
action, Jane Doe #2, along with several other named organizational and individual plaintiffs, some
of whom are already proceeding pseudonymously as Doe Plaintiffs, challenge the Executive
Order signed by President Trump on March 6, 2017 entitled, “Protecting the Nation from Terrorist
Entry into the United States” (hereinafter, the “Executive Order”). This Court previously granted
Plaintiffs’ motion to proceed anonymously for plaintiffs similarly situated to Plaintiff Jane Doe
#2 and Defendants did not oppose Plaintiffs’ prior motion. See Dkt. No. 66. J ane Doe #2’s
motion is supported by several independent grounds. See generally Decl. of Jane Doe #2, attached
as Exhibit A.
First, public disclosure of Jane Doe #2’s true identity and participation in this action could
seriously jeopardize her ability participate in this lawsuit and vindicate her constitutional rights.
Jane Doe #2 reasonably fears that if her identity were to become public, she and/or her family
members would be subjected to retaliation by federal government officials, particularly her sister,
a refugee in Saudi Arabia, who has a pending I-130 petition.
Second, Jane Doe #2 shares the same fear as other the Doe Plaintiffs in this litigation—
that, in light of the current heated debate over immigration generally and the Executive Order in
particular, revealing the true identities and personal stories of all the Doe Plaintiffs would subject
them to harassment and even physical harm from members of the public at large.
Third, the public’s interest in open judicial proceedings will only be minimally affected if
Jane Doe #2 is permitted to proceed anonymously. This a case against the government, not a
private party, and it turns on legal questions, not on the identities of any particular individuals,
which are not material to the resolution of any issues presented by the case.

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Fourth, Defendants will not be prejudiced if the Jane Doe #2 is permitted to proceed
anonymously.
ARGUMENT
I.

LEGAL STANDARD
When a party seeks to litigate under a pseudonym, the court must “ensure that

extraordinary circumstances support such a request by balancing the party’s stated interest in
anonymity against the public’s interest in openness and any prejudice that anonymity would pose
to the opposing party.” Doe v. Public Citizen, 749 F.3d 246, 274 (4th Cir. 2014). When
performing such a balancing test, courts consider the following nonexclusive factors:
Whether the justification asserted by the requesting party is merely to avoid the annoyance
and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive
and highly personal nature; whether identification poses a risk of retaliatory physical or
mental harm to the requesting party or even more critically, to innocent non-parties; the
ages of the persons whose privacy interests are sought to be protected; whether the action
is against a governmental or private party; and, relatedly, the risk of unfairness to the
opposing party from allowing an action against it to proceed anonymously.
James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (citations omitted). The court must “carefully
review all the circumstances of a given case and then decide whether the customary practice of
disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns.” Doe v.
Pittsylvania County, 844 F. Supp. 2d 724, 729 (W.D. Va. 2012) (internal punctuation and citation
omitted).
In this case, all these factors are relevant except for the one pertaining to age; Jane Doe #2
is an adult over the age of eighteen. As discussed below, the remaining factors weigh heavily in
favor of allowing Jane Doe #2 to proceed pseudonymously.

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II.

THE COURT SHOULD GRANT JANE DOE #2’S MOTION TO PROCEED
UNDER A PSEUDONYM
A.

Jane Doe #2 Seeks To Preserve Privacy in a Matter of Sensitive and Highly
Personal Nature

As already noted in the Doe Plaintiffs’ Motion for Leave to Proceed Under Pseudonyms
(“Doe Plaintiff Motion”), Dkt. No. 5, and the First Amended Complaint, Dkt. No. 89, the Doe
Plaintiffs in this litigation are directly affected by the Executive Order insofar as each Doe
Plaintiff has a relative or relatives whom the Executive Order bars from entering the United States
because of those relatives’ nationality, alienage, and/or actual or perceived religious affiliation.
The immigration status of not only these relatives but also the Doe Plaintiffs themselves is highly
sensitive information that is routinely protected from public disclosure in cases, like this one,
where requiring plaintiffs to disclose it could dissuade a reasonable person in their position from
seeking to vindicate their legal rights at all. See, e.g., Keller v. City of Fremont, No. 8:10-cv0270-LSC-FG3, 2011 WL 41902, at *2 (D. Neb. Jan. 5, 2011); see also Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1169 (9th Cir. 2000); Lozano v. Hazleton, 496 F. Supp.
2d 477, 508-09 (M.D. Pa. 2007), aff’d in relevant part, 620 F.3d 170, 194-96 (3d Cir. 2010). This
factor therefore weighs in favor of anonymity.
B.

Identification Poses a Risk of Retaliation, Harassment, and Even Violence to
Jane Doe #2 and to Her Family

In addition to the recent upsurge in anti-immigrant and anti-Muslim attacks in this country,
Jane Doe #2’s personal circumstances, as well as threats to her family members abroad, strongly
counsel in favor of allowing her to proceed anonymously.

See Lozano, 620 F.3d at 195

(anonymity warranted where “ethnic tensions had escalated” and plaintiffs “would face an
‘exponentially greater’ risk of harassment, and even physical danger, if their identities were
revealed”) (citation omitted); Roe v. Aware Woman Ctr. for Choice, 253 F.3d 678, 687 (11th Cir.
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2001) (anonymity warranted in abortion case, where the abortion issue had elsewhere “led to
death, injury, harassment, [and] fear . . .”).
Jane Doe #2 is a United States citizen of Syrian origin living in Mecklenburg County,
North Carolina. Decl. of Jane Doe #2 at ¶ 1. Even as a United States citizen, she is fearful of
leaving the United States because she is afraid the Executive Order may result in difficulty or
harassment upon her return to the United States. Id. ¶ 13. Jane Doe #2 is also aware that Muslims
in the United States are at risk of harassment for their religious and political beliefs, and she is
afraid that if she reveals her name in this lawsuit, she could also become a target of the current
anti-Muslim sentiment in the United States. Id. ¶¶ 12, 14; see also Dkt. No. 5.
Jane Doe #2’s sister, who is married and has two young children, is currently in Saudi
Arabia. Decl. of Jane Doe #2 ¶ 3. Jane Doe #2’s sister originally fled from her home town of
Damascus in 2012 because their neighborhood was bombed and their home was destroyed. Id.
In Yemen, she registered with the U.N. High Commissioner for Refugees and received a
temporary protection certificate explaining that she should be protected from forcible return to
Syria. Id. ¶ 5. The war in Yemen, however, forced Jane Doe #2’s sister to flee again, this time
to Saudi Arabia, where her family now lives in a refugee hotel close to the Saudi-Yemen border.
Id. ¶¶ 6, 7. They remain under constant threat from nearby rocket fire and military conflict. Id.
¶ 7.
Jane Doe #2 is concerned that her participation in this lawsuit could jeopardize her sister’s
visa application, which is currently pending. Id. ¶ 10. If and when the visa application is
approved, Jane Doe #2’s sister will be able to access the U.S. Refugee Admissions Program
(“USRAP”) through the Priority-2 Direct Access Program for Iraqi and Syrian Beneficiaries of
Form I-130 Petition for Alien Relatives. Id. Jane Doe #2 worries that her participation in this

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lawsuit may adversely impact her sister’s visa or refugee applications. Id. Any delay in the
processing of her application will prolong the period that Jane Doe #2’s sister and her family must
remain in their current, extremely dangerous living situation.
In addition to these concerns, Jane Doe #2 fears that her participation in this case could
result in harassment of her sister. Id. ¶ 11. Discrimination against Syrians in Saudi Arabia is
severe, and the Saudi Arabian government tries to make conditions in the country difficult for
Syrian refugees. Id. ¶¶ 8, 11. Jane Doe #2 fears that if she reveals her name in this lawsuit, it will
be easy to identify her sister and make her susceptible to harassment or further persecution. Id. ¶
11.
Under these circumstances, anonymity is warranted. See, e.g., Lozano, 620 F.3d at 19496; Stegall, 653 F.2d at 186; Barrow County, 219 F.R.D. at 193.
C.

Jane Doe #2 Risks Social Stigma, Harassment, and Even Violence if Her
Identity is Made Public

As already set out in the previously filed Doe Plaintiffs’ Motion, recent events have
illustrated a significant escalation in the targeting of Muslim and Arab-Americans in the United
States for harassment and even criminal behavior, demonstrating the objective reasonableness of
Jane Doe #2’s fear regarding the consequences of proceeding under her real identity. See Lozano,
620 F.3d at 195; see also Dkt. No. 5. Given the numerous examples of recent harassment and
violence directed at Muslim- and Arab-Americans, Jane Doe #2 reasonably fears that if her
identity were made public, she and her family would also be subjected to harassment and violence.
D.

This Action is Against the Government and Therefore Favors Anonymity

An additional factor weighing in favor of permitting Jane Doe #2 to proceed anonymously
is that this is an action against the federal government, rather than a private party. See John Does
1-5 v. McCrory, No. 1:13CV711, 2014 WL 29352, at *2 (M.D.N.C. Jan. 3, 2014). As courts have
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recognized, “[a]ctions against the government do no harm to its reputation, whereas suits filed
against private parties may damage their good names and result in economic harm.” Pittsylvania
County, 844 F. Supp. 2d at 730 (citation omitted); see also Candidate No. 452207 v. CFA Institute,
42 F. Supp. 3d 804, 810 (E.D. Va. 2012); McCrory, 2014 WL 29352, at *2.
E.

There is no risk of unfair prejudice to the government if Jane Doe #2 is
allowed to proceed anonymously

Similarly, there is no risk of unfair prejudice to the Defendants if the Court permits Jane
Doe #2 to proceed anonymously, as this case involves strictly legal issues and does not turn on
questions of the individual Doe Plaintiffs’ background or credibility. See Pittsylvania County,
844 F. Supp. 2d at 731. Because the issues presented in this case are purely legal, the Doe
Plaintiffs’ particularized facts and circumstances play “a relatively minor role in this litigation,”
and therefore “the risk of unfairness to defendants by allowing plaintiff[s] to proceed
anonymously is relatively low.” Id. at 731. Indeed, Defendants declined to oppose the previous
Doe Plaintiffs’ Motion.
In short, the federal government faces no unfair prejudice if Jane Doe #2 is allowed to
proceed under pseudonym, particularly at this early stage of the litigation. And if the government
can later articulate and substantiate a need for particularized information about the Doe Plaintiffs,
the Court can consider at that stage whether a different balance should be struck regarding the
Doe Plaintiffs’ privacy.
F. Permitting the Doe Plaintiffs to Proceed Anonymously Will Not Harm the Public
Interest in Open Proceedings
Finally, in the circumstances of this case, anonymity does not compromise in any way the
public interest in open judicial proceedings. This particular case turns on legal questions, not the
identities of individuals. If the Doe Plaintiffs are granted leave to proceed under pseudonym, “the

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public is not denied its right to attend the proceedings or inspect the orders or opinions of the court
on the underlying constitutional issue.” Pittsylvania County, 844 F. Supp. 2d at 728 (citing
Barrow County, 219 F.R.D. at 193).
CONCLUSION
Jane Doe #2 and her family members would be at risk of great harm if her identity were
made public in this litigation. Permitting her to proceed anonymously would neither materially
harm the public interest in open court proceedings nor risk unfair prejudice to the government.
Jane Doe #2 therefore respectfully requests that this Court permit her to proceed under a
pseudonym in this action.

Dated: March 10, 2017

Respectfully submitted,
/s/ Justin B. Cox
Justin Cox (Bar No. 17550)
National Immigration Law Center
1989 College Ave. NE
Atlanta, GA 30317
T: 678.404.9119
[e-mail]
Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
T: 213.639.3900
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
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Hugh Handeyside†
Sarah L. Mehta†
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Cecillia D. Wang†
Cody H. Wofsy†
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
[e-mail]
[e-mail]
David Cole†
Daniel Mach†
Heather L. Weaver†
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar No.19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
[e-mail]
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[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of March, 2017, I caused a PDF version of the
foregoing document and any accompanying exhibits to be electronically transmitted to the Clerk
of the Court, using the CM/ECF System for filing and for transmittal of a Notice of Electronic
Filing to all CM/ECF registrants.

Dated: March 10, 2017

Respectfully submitted,
/s/ Justin B. Cox

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