DOE et al v. United States of America

Filing 28

ORDER - the Court GRANTS plaintiffs' Motion for Leave to Proceed Under Pseudonym 2 , and GRANTS IN PART and DENIES IN PART the Government's Motion to Dismiss 14 . Plaintiffs shall be mindful in filing their Amended Complaint that Privacy Act claims may not be asserted against individual agency employees. The Court GRANTS the Government's Motion to Dismiss Helen Wong as a defendant and GRANTS the Motion to Dismiss Count III Constitutional Right to Privacy. The Court GRANTS the M otion to Dismiss Count I Federal Tort Claims Act Invasion of Privacy. The Court DENIES the Government's Motion to Dismiss Count II Government Disclosure of Private Identifying Information. Plaintiffs shall file an Amended Complaint which more fully expands upon this claim on or before October 7, 2016. Signed on 9/26/16 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOHN DOE and JANE DOE,
Plaintiffs,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants.

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) Case No.: 16-CV-00071-FJG
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ORDER
Currently pending before the court is plaintiff’s Motion to Proceed Under
Pseudonym (Doc. # 2) and defendant’s Motion to Dismiss (Doc. # 14).
I. BACKGROUND
The Does’ claims arise from an enforcement action filed by the Federal Trade
Commission. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), authorizes the FTC,
through its attorneys to initiate federal court proceedings to enjoin violations and to
secure equitable relief. In 2013, Helen Wong, an attorney with the FTC initiated an
investigation into John Doe’s employer. Based on the results of her investigation and
as part of her official duties, Wong filed a complaint against Doe’s employer and a
number of its executives alleging violations of Section 5(a) of the FTC Act. John Doe
was not named as a party, but was involved in the practices at issue and was deposed
by the FTC. During the deposition, John Doe provided personally identifiable
information (“PII”). In the course of her work on the case against the Does’ employer,
Wong prepared a reply brief in support of a motion for preliminary injunction. In his
deposition, Doe testified to facts which supported the FTC’s legal position. Thus, Wong

decided to include portions of the deposition transcripts in her reply suggestions. Wong
stated in her Affidavit that she instructed other employees of the FTC with whom she
was working to redact any personal identifiable information contained in the exhibits.
Wong states that the brief was filed under her ECF ID in the Court’s filing system.
Wong states in her affidavit that at the time the filing was complete, she believed that
the exhibits contained only the redacted deposition transcript. However, approximately
one hour after the reply suggestions had been filed, she learned that the unredacted
transcripts had been inadvertently attached as exhibits to the preliminary injunction
brief. In her affidavit, Wong states that she immediately tried to remove the documents,
but was unable to do so. She left a voicemail on the After Hours Emergency number for
the Western District of Missouri. She also emailed the Western District of Missouri
district court clerk and the FTC’s Privacy Officer to inform them that two exhibits that
contained the personally identifiable information had been inadvertently filed on the
court’s ECF system. The exhibits were eventually placed under seal.
Plaintiffs allege that the deposition, with the identifying information, was taken
from the Court’s electronic filing system and re-posted on the internet by third-parties.
Plaintiffs allege that following the reposting, they have been the victim of a variety of
attacks on their identities and physical threats have been made against them. On
January 28, 2016, plaintiffs filed a Complaint stating that their dates of birth, address,
driver’s license numbers, marital status, emails and Mr. Doe’s social security number
were put into the public court record by the FTC. Plaintiffs sued the United States of
America and Helen Wong, in her official capacity as legal counsel to the FTC. Plaintiffs
state that the Court has jurisdiction pursuant to the privacy protections of the

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Constitution of the United States, the Privacy Act of 1974, 28 U.S.C.§ 552a, the Federal
Tort Claims Act and the law of the State of Missouri. Plaintiffs asserted three counts in
their Complaint: Count I - state law claim for Invasion of Privacy; Count II - Government
Disclosure of Private Identifying Information and Count III - Constitutional Right to
Privacy – Privacy Act. (Doc. # 1).
II. STANDARD
To survive a motion to dismiss under 12(b)(6), Aa complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its face.@
Ashcroft v. Iqbal, 556 U.S. 662,129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). A pleading that merely pleads Alabels and conclusions@ or a Aformulaic
recitation@ of the elements of a cause of action, or Anaked assertions@ devoid of Afurther
factual enhancement@ will not suffice. Id. (quoting Twombly). ADetermining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.@ Id.
at 1950. Under Fed. R. Civ. P. 12(b)(6) we must accept the plaintiff=s factual allegations
as true and grant all reasonable inferences in the plaintiff=s favor. Phipps v. FDIC, 417
F.3d 1006, 1010 (8th Cir. 2005).
In Driesen v. Smith, No. C13–4037–MWB, 2014 WL 24234 (N.D.Iowa Jan. 2, 2014),
aff'd, 584 Fed.Appx. 292 (8th Cir. 2014), the Court explained the standards for
Fed.R.Civ.P. 12(b)(1).
A motion attacking the court's subject matter jurisdiction is governed by
Federal Rule Civil Procedure 12(b)(1). A Rule 12(b)(1) motion can either
attack the complaint's claim of jurisdiction on its face or it can attack the
factual basis for jurisdiction.... In a facial challenge to jurisdiction, all of the
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factual allegations concerning jurisdiction are presumed to be true and the
motion is successful if the plaintiff fails to allege an element necessary for
subject matter jurisdiction.... If the [defendant] wants to make a factual
attack on the jurisdictional allegations of the complaint, the court may
receive competent evidence such as affidavits, deposition testimony, and
the like in order to determine the factual dispute.
Id. at * 6.
III. DISCUSSION
A. Motion for Leave to Proceed Under Pseudonym
Plaintiffs have filed a Motion for Leave to Proceed Under a Pseudonym. Plaintiffs
state that if they are required to proceed under their own names, it will require them to
re-disclose private information which was initially wrongfully disclosed. Plaintiffs also
argue that the Government will not be prejudiced if they are allowed to proceed under a
pseudonym because a Notice of Claim has been provided which lists their real names.
Additionally, plaintiffs state that the public interest in ascertaining their identity is minimal
when balanced against the harm it might potentially cause.
The Government states that Fed.R.Civ.P. 10(a) states that “[t]he title of the complaint
must name all the parties.” The Government also notes that there is a “strong
presumption against allowing parties to use a pseudonym.” W.G.A. v. Priority
Pharmacy, Inc., 184 F.R.D. 616, 617 (E.D.Mo.1999). The Government argues that
although the Does have asserted that some personally identifiable information was
disclosed in a previous lawsuit and that this information is still publicly available, that
does not necessarily mean that they should be allowed to proceed under a pseudonym
in this case. The Government states that to the extent that any personally identifiable
information needs to be disclosed to the Court, it may be redacted from the public filings
and unredacted documents may be provided to the Court.

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In the case In re Ashley Madison Customer Data Security Breach Litigation, MDL
No. 2669, 2016 WL 1366616 (E.D.Mo. Apr. 6, 2016), the Court stated:
The public has a First Amendment right to access judicial proceedings,
and that right includes the identity of the parties to litigation. . . .Indeed,
when a plaintiff commences an action in federal court, he invites public
scrutiny of the dispute and the proceeding. . . .The decision to allow
pseudonyms is within a court’s discretion. . . .Neither the Eighth Circuit nor
the Supreme Court has addressed the issue of when a pseudonym may
be used; however, many federal courts of appeal and numerous district
courts have reached this issue. . . .These courts have held that a totalityof-the circumstances balancing test must be used when deciding whether
a party can sue under a pseudonym; in other words, the court must
ascertain whether the plaintiff has a substantial privacy right which
outweighs the customary constitutionally-embedded presumption of
openness in judicial proceedings. . . .The courts have identified several
factors common to cases in which a plaintiff has been permitted to
proceed under a fictitious name, including (1) where the plaintiff is
challenging government activity; (2) where the plaintiff is required to
disclose information of the utmost intimacy; and (3) where the plaintiff
risks criminal prosecution through the information contained in the
pleading.
Id. at *2 (internal citations and quotations omitted).
In the instant case, plaintiffs have asserted Privacy Act claims against the
government, so it is arguable that they fit into the first category identified above –
challenging government activity. Additionally, plaintiffs state that as a result of the
Government’s disclosure, a third party has attempted to take out a loan in their name
and they have been forced to obtain restraining orders as a result of death threats made
against them. The Court finds that the Government would not be prejudiced if the
plaintiffs were allowed to proceed under a pseudonym, as the plaintiffs’ identities are
already known to the Government, as a result of the Notice of Claim plaintiffs filed.
Additionally, as the Court noted in M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998),
this may be a case where the “injury litigated against would be incurred as a result of

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the disclosure of the plaintiff’s identity.” Accordingly, after weighing all of the factors, the
Court finds that the plaintiffs’ interest in maintaining their anonymity outweighs the
public’s right of access to judicial proceedings. Accordingly, the Court hereby GRANTS
plaintiffs’ Motion to Proceed under a Pseudonym (Doc. # 2).
B. Motion to Dismiss
1. Constitutional Right to Privacy – Count III
In its Motion to Dismiss, the Government stated that the Does’ claims under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
619, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) may not be maintained against Wong or the
United States. See Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998)(“It is well
settled that a Bivens action cannot be prosecuted against the United States and its
agencies because of sovereign immunity.”). Plaintiffs in response agreed that it may
not maintain this claim and have voluntarily withdrawn their claims asserted under
Bivens. Accordingly, the Court hereby GRANTS the Government’s Motion to Dismiss
Count III – Constitutional Right to Privacy.
2.

Federal Tort Claims Act - Invasion of Privacy – Count I

In their Complaint, the Does seek to assert FTCA claims against both the United
States and Helen Wong, as legal counsel for the FTC. However, the Government notes
in its Motion to Dismiss that the claims against Wong are redundant of the FTCA claims
being asserted against the United States and must be dismissed. In Hernandez v.
United States, 34 F.Supp.3d 1168,1176-77 (D.Colo. 2014), the Court stated: “Congress
has explicitly provided that the only proper party in an action under the FTCA is the
United States, not the agency nor federal officials or employees. . . .In other words,

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federal agencies and federal employees acting within the scope of their employment,
are not proper defendants under the FTCA.” Accordingly, the Court finds that Wong is
not a proper defendant under the FTCA claim and accordingly DISMISSES plaintiffs’
claims against Wong.
Under the Federal Tort Claims Act, the government cedes its sovereign
immunity to the extent that it will allow itself to be sued “in the same
manner and to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674 (2000). Thus, when a private party
asserts a tort claim against the United States, the United States, subject to
certain exceptions not here in play, may be held liable to the same extent
as if it were an ordinary tortfeasor under state law.
Audio Odyssey, Ltd. v. United States, 373 F.3d 870, 872 (8th Cir. 2004). “When a claim
is brought under the FTCA, the law of the state where the alleged wrongful act occurred
is used to define the elements of the tort allegedly committed by a federal employee.”
Drapeau v. United States, No. Civ. 04-4091, 2006 WL 517646, *4 (D.S.D. 2006).
Plaintiffs state that Missouri law applies to this claim. (Complaint, ¶24). In Howard v.
Frost National Bank, 458 S.W.3d 849 (Mo.App. 2015), the Court stated:
The tort of invasion of privacy actually consists of four separate causes of
action, (1) intrusion on the plaintiff’s seclusion or private affairs; (2) public
disclosure of embarrassing private facts; (3) publically placing plaintiff in a
false light; and (4) the appropriation of plaintiff’s name or likeness. St.
Anthony’s Medical Center v. H.S.H., 974 S.W.2d 606, 609 (Mo.App.E.D.
1998).
Id. at 854. In the instant case, the only cause of action applicable would be public
disclosure of embarrassing private facts. In McNally v. Pulitzer Pub. Co., 532 F.2d 69
(8th Cir.) cert. denied, 429 U.S. 855 (1976), the Court stated,”[t]he generally recognized
elements of the tort of public disclosure of private facts are (1) the publication, (2)
absent any waiver or privilege, (3) of private matters in which the public has no

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legitimate concern, (4) such as to bring shame or humiliation to a person of ordinary
sensibilities.” Id. at 78.
The Government states that plaintiff cannot assert a claim under the FTCA
because the actions of Helen Wong are protected by absolute immunity. Section 2674
of the FTCA states:
[w]ith respect to any claim under this chapter, the United States shall be
entitled to assert any defense based upon judicial or legislative immunity
which otherwise would have been available to the employee of the United
States whose act or omission gave rise to the claim, as well as any other
defenses to which the United States is entitled.
28 U.S.C.§ 2674 (emphasis added). In Doe v. U.S., 829 F.Supp. 59, 61 (S.D.N.Y.
1993), the Court found that the United States was entitled to assert the defense of
prosecutorial immunity in FTCA cases. Prosecutorial immunity has also been extended
to federal agency officials and agency attorneys. In Butz v. Economou, 438 U.S. 478,
98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Court stated:
We also believe that agency officials performing certain functions
analogous to those of a prosecutor should be able to claim absolute
immunity with respect to such acts. The decision to initiate administrative
proceedings against an individual or corporation is very much like the
prosecutor’s decision to initiate or move forward with a criminal
prosecution. An agency official, like a prosecutor, may have broad
discretion in deciding whether a proceeding should be brought and what
sanctions should be sought. . . .We believe that agency officials must
make the decision to move forward with an administrative proceeding free
from intimidation or harassment. . . .We turn finally to the role of an
agency attorney in conducting a trial and presenting evidence on the
record to the trier of fact. We can see no substantial difference between
the function of the agency attorney in presenting evidence in an agency
hearing and the function of the prosecutor who brings evidence before a
court. . . .We therefore hold that an agency attorney who arranges for the
presentation of evidence on the record in the course of an adjudication is
absolutely immune from suits based on the introduction of such evidence.

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Id. at 515-17. This protection also extends to officials in a civil context. In McCreary v.
Heath, No. Civ.A. 04-0623 PLF, 2005 WL 3276257, *6 (D.D.C. Sept. 26, 2005), the
Court noted that “[p]rosecutors and agency officials performing functions analogous to
those of prosecutors enjoy absolute personal immunity from civil suits arising from acts
or omissions in these capacities.”
In Nixon v. Francis, No. CV-15-00247-TUC-JGZ(CRP), 2016 WL 825094 (D.Ariz.
Feb.16, 2016), the Court stated:
In determining whether the actions of government officials come within the
scope of absolute immunity, courts consider the “nature of the function
performed, not the identity of the actor who performed it.” Buckley v.
Fitzsimmons, 509 U.S. 259,269 (1993). Under this approach, absolute
immunity extends to the conduct of prosecutors that is “intimately
associated with the judicial phase of the criminal process.” Id. at 270
(citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). . . .Prosecutorial
immunity may appropriately be asserted as a defense in cases where the
United States has been substituted as the defendant.
Id. at *4. In considering what types of actions qualify for absolute immunity, courts have
found that “[t]he advocacy function is not limited to activity which takes place in the
courtroom. It also entails obtaining, reviewing, and evaluating evidence, as well as
conducting discovery and filing pleadings and motions with the court.” Moore v.
Schlesinger, 150 F.Supp.2d 1308,1313 (M.D.Fla. 2001). See also Smith v. Erickson,
884 F.2d 1108, 1111 (8th Cir.1989)(“the filing of complaints and other documents is an
integral part of the judicial process and [the district court clerk] would be protected by
judicial immunity from damages for civil rights violations committed in connection with
the performance of such tasks.”).
In the instant case, plaintiffs claim that Helen Wong, counsel for the FTC, filed a
pleading with the Court which contained an unredacted exhibit. The exhibit was a

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deposition transcript which contained the Does’ personally identifiable information. In
her affidavit, Ms. Wong states that “as part of my official duties as an attorney at the
FTC and in the course of my work as an FTC attorney on the case against Employer, I
prepared a reply brief in support of a preliminary injunction against Employer and its
executives. Because Doe had testified in his . . .deposition to facts supporting the
FTC’s legal position, two exhibits which contained the transcript of the deposition were
attached to the brief. In the course of my work as an FTC attorney, I instructed other
employees of the FTC with whom I was working to redact any PII contained in the
exhibits. The brief was filed at my direction and under my Case Management/Electronic
Case Files (“ECF”) ID in the ECF filing system of the United States District Court in the
Western District of Missouri. (Wong Affidavit, ¶¶ 10-11). The Court finds that the actions
of Ms. Wong are protected under the absolute immunity doctrine, because the filing of a
pleading is an action which is part of the advocacy function of agency counsel.
Accordingly, the Court hereby GRANTS the Government’s Motion to Dismiss Count I –
Invasion of Privacy.
3. Count II - Government Disclosure of Private Identifying Information –
Privacy Act Claim
Plaintiffs state in the Complaint that the Court has jurisdiction pursuant to “the
privacy protections of the Constitution of the United States, the Privacy Act of 1974, 28
U.S.C. §552a, the Federal Tort Claims Act and the law of the state of Missouri.”
(Complaint, ¶ 10). The United States in the Motion to Dismiss stated that in the
Complaint the Does did not plead or assert any direct private-right-of-action claim for
damages for any direct violation of the Privacy Act. The Government stated that the

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Does’ Complaint did “not even plead or reference any specific provision of the Privacy
Act.” (Motion to Dismiss, Doc. # 14, p.19, n.5).
Plaintiffs in response state that the “FTC’s own public admissions show that plaintiffs
in this case have been actually damaged (Ex. 2) and the damages alleged have not
been challenged (Ex. 1). Any suggestion that the Privacy Act claims are somehow
barred is simply not accurate. The Privacy Act is implicated for the type of disclosure
that occurred here.” (Suggestions in Opposition, Doc. # 24, pp. 10-11). In reply, the
Government states that the Court should not now read into the Complaint allegations
that are neither directly pleaded nor supported by any factual contentions. The
Government continues to argue that the Complaint “asserts no claim for a statutory
violation of the Privacy Act. The eleventh hour attempt by the Does to suggest that the
Complaint does include such a claim is unsupported by the law and by the plain and
straightforward language of the Complaint itself. To the extent the Does are now
alleging some supposed violation of the Privacy Act, they have failed to plead facts and
law sufficient to state a claim upon which relief may be granted against either the United
States or the FTC.” (Reply Suggestions, Doc. # 27 p. 8).
In reviewing the Does’ Complaint, it is clear that they did make reference to the
Privacy Act, citing it under the Jurisdiction and Venue heading in ¶ 10. Additionally,
plaintiffs title their third count as “Constitutional Right to Privacy – Privacy Act.” In their
second count titled “Government Disclosure of Private Identifying Information” plaintiffs
state the following:
33. The defendants have a duty to foresee that its actions would expose plaintiffs
to an unreasonable risk of aggression by others.

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34. Defendants breached their duty by negligently disclosing plaintiffs’ Private
and Sensitive Identifying Information, exposing plaintiffs to an unreasonable risk of
aggression by others.
35. Defendants’ actions damaged plaintiffs.
In order to state a wrongful disclosure claim under 5 U.S.C. §552a(g)(1)(D):
Plaintiffs must allege the following elements to maintain a wrongful
disclosure claim: (1) the information released was covered under the
Privacy Act as a “record” contained in a “system of records”; (2) an agency
disclosed the information; (3) the disclosure had an adverse effect on the
plaintiff; and (4) the disclosure was willful or intentional.
Afshar v. Everitt, No. 04-1104-CV-W-FJG, 2005 WL 2898019, *3 (W.D.Mo. Oct. 31,
2005). Although the Does’ Complaint alleges a violation of the Privacy Act, there are no
allegations in the Complaint which meet these elements. This might explain the
Government’s confusion as to whether plaintiffs were asserting a claim under this
statute. In light of the Court’s rulings on plaintiffs’ other claims and in order to allow
plaintiffs an opportunity to clarify their Privacy Act claim, the Court will allow plaintiffs an
opportunity to file an Amended Complaint. The Amended Complaint shall not include
any claims or defendants 1 which the Court has dismissed, and shall provide additional
details regarding their claim for relief pursuant to the Privacy Act. Plaintiffs shall file
their Amended Complaint on or before October 7, 2016.
IV. CONCLUSION
Accordingly, for the reasons stated above, the Court hereby GRANTS plaintiffs’
Motion for Leave to Proceed Under Pseudonym (Doc. # 2), and GRANTS IN PART and
DENIES IN PART the Government’s Motion to Dismiss (Doc. # 14).
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Plaintiffs shall be mindful in filing their Amended Complaint that Privacy Act claims
may not be asserted against individual agency employees.
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The Court GRANTS the Government’s Motion to Dismiss Helen Wong as a
defendant and GRANTS the Motion to Dismiss Count III – Constitutional Right to
Privacy.
The Court GRANTS the Motion to Dismiss Count I – Federal Tort Claims Act –
Invasion of Privacy.
The Court DENIES the Government’s Motion to Dismiss Count II – Government
Disclosure of Private Identifying Information. Plaintiffs shall file an Amended Complaint
which more fully expands upon this claim on or before October 7, 2016.

Date: September 26, 2016
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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