Drug Enforcement Administration v. Utah Department of Commerce et al

Filing 64

MEMORANDUM DECISION granting 20 Motion to Proceed Using Pseudonyms. Signed by Magistrate Judge Dustin B. Pead on 3/10/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES DEPARTMENT OF
JUSTICE, DRUG ENFORCEMENT
ADMINISTRATION,
Petitioner,
Case No. 2:16-cv-00611-DN-DBP
v.
MEMORANDUM DECISION
UTAH DEPARTMENT OF COMMERCE
and
UTAH DIVISION OF OCCUPATIONAL &
PROFESSIONAL LICENSING,

District Judge David Nuffer
Magistrate Judge Dustin B. Pead

Respondents.
UNITED STATES DEPARTMENT OF
JUSTICE, DRUG ENFORCEMENT
ADMINISTRATION,
Petitioner,
v.
IAFF LOCAL 1696, EQUALITY UTAH,
AMERICAN CIVIL LIBERTIES UNION
OF UTAH, JOHN DOE 1, and JOHN DOE
2,
Respondents-Intervenors.
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(B). (ECF No. 28.) This
case involves a dispute over the Utah Department of Commerce and Utah Division of
Occupational & Professional Licensing’s duty to respond to an administrative subpoena issued
by the Drug Enforcement Administration (“DEA”). The case is presently before the court on the

“Motion to Proceed Using Pseudonyms” filed by IAFF Local 1696, Equality Utah, the American
Civil Liberties Union of Utah, John Doe 1 and John Doe 2 (“ACLU”). (ECF No. 20.)
DISCUSSION
I.

John Does 1 and 2 may proceed using pseudonyms
a. Parties’ arguments

ACLU argues that John Doe 1 and John Doe 2 (“Doe Intervenors”) should be allowed to
proceed using pseudonyms because disclosure of their true names will result in the very harm
they seek to avoid by this litigation. (ECF No. 20 at 3–6.) Doe Intervenors provided the court
with information about the medications they have been prescribed as well as the underlying
conditions those medications are intended to treat. (See ECF No. 19, Ex. 4–5.) Accordingly,
ACLU asserts that forcing Doe Intervenors to reveal their identities now would destroy the
privacy rights they assert to their prescription records held in Utah’s Controlled Substance
Database. Similarly, ACLU argues pseudonyms are appropriate because this case involves
“matters of a highly sensitive and personal nature.” (ECF No. 20 at 7.)
DEA argues this case is not an exceptional case that warrants use of pseudonyms because the
requested relief (requiring DEA to obtain a warrant to access CSD records) “has only an
attenuated connection to the public disclosure of the Doe Intervenors’ names as parties.” (ECF
No. 53 at 6.) DEA also argues that the nature of Doe Intervenors’ prescription information is not
sufficiently sensitive or personal to warrant protection because a broad range of litigation
requires plaintiffs to disclose medical information.
b. Analysis
The court enjoys discretion to allow a plaintiff to proceed using a pseudonym. Lindsey v.
Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979). Use of pseudonyms is “proper

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where ‘if plaintiffs are required to reveal their identity prior to the adjudication of the merits of
their privacy claim, they will already have sustained the injury which by this litigation they seek
to avoid.’” Id. (quoting Roe v. Ingraham, 364 F. Supp. 536, 541 (S.D.N.Y. 1973)). The
Ingraham court granted permission for several patients taking medications to proceed by
fictitious names in their constitutional challenge to New York’s statute requiring reporting and
collection of prescription information. 1 See Ingraham at 540–41.
The court finds Doe Intervenors fit easily within this framework and should be allowed to
proceed using pseudonyms. 2 Doe Intervenors intervened here to assert their constitutional right
to privacy in records contained in Utah’s Controlled Substance Database. Much like the
Ingraham intervenors, their attempt to assert a reasonable expectation of privacy could injure the
right they seek to protect. Public disclosure of their identities ties Doe Intervenors to the list of
medications and medical conditions they earlier provided to the court. Such disclosure would be
particularly harmful to John Doe 1, who has explained that “taking prescription medication is
taboo in [his] religious community.” (ECF No. 62 at 4.)
Additionally, requiring disclosure of Doe Respondents’ identities would not serve the
interests favoring disclosure as set forth in Lindsey. The Lindsey court was concerned with
prejudice to the defendants in discovery, “establishing their defenses, and in fixing res judicata
effects of judgments.” Lindsey at 1125. DEA does not identify any such prejudice here. ACLU,
including Doe Intervenors, plays a limited role in this case. (See ECF No. 47.) Doe Intervenors

1

These same litigants proceeded anonymously before the United States Supreme Court. See
Whalen v. Roe, 429 U.S. 589 (1977).
2
It does not appear that Doe Intervenors face the same textual requirement as a plaintiff to
proceed anonymously because they intervened as respondents in a case with no complaint. See
Fed. R. Civ. P. 10(a) (stating “[t]he title of the complaint must name all the parties”). Yet, the
court finds it need not consider the matter further because Doe Intervenors successfully argue
that they meet the standard applicable to a plaintiff.
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will not conduct discovery and they have filed no complaint for DEA to defend. Relatedly, there
is no apparent risk to finality here. This case involves a petition to enforce a single subpoena.
Doe Intervenors seek to quash or modify that subpoena, rather than affirmatively seek relief from
DEA. DEA supports its subpoena by arguing ACLU lacks standing. Thus, if the court accepts
DEA’s argument, the judgment would not preclude later substantive Fourth Amendment
challenges by Doe Intervenors, regardless of their identities. Also, there does not appear to be
any risk of a successive challenge by Doe Intervenors to this subpoena. While the court is
unable to determine DEA’s factual basis for its argument, DEA claims that Doe Intervenors’
records are not implicated by the subpoena here. (E.g. ECF No. 53 at 7.) Taking DEA at its
word, Doe Intervenors will not be challenging this subpoena again in any forum once the current
petition for enforcement is decided.
To support its argument against use of pseudonyms, DEA cites Femedeer v. Haun, 227 F.3d
1244 (10th Cir. 2000), in which the Tenth Circuit found an appellee could not proceed using a
pseudonym in his challenge to Utah’s sex offender notification scheme. While this court
acknowledges that both cases involved constitutional challenges to state statutes, the plaintiff’s
purportedly-private information in Femedeer was presumed to be a matter of public record. See
id. at 1246 (“While we appreciate [plaintiff]’s interest in attempting to prevent disclosure of his
status as a sex offender, such disclosure has presumably already occurred in the underlying
conviction.”). Here, nothing suggests Doe Intervenors’ prescription records or medical
conditions are a matter of public record. Accordingly, the court chooses not to follow Femedeer.
Next, and perhaps most troubling, DEA does not suggest that it might suffer any harm if Doe
Intervenors proceed by pseudonym. In fact, DEA goes so far as to call the information provided
by Doe Intervenors “irrelevant” to these proceedings. (ECF No. 53 at 10.) It is unclear to the

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court why DEA so vigorously opposes the motion if they can identify no harm stemming from
Doe Intervenors’ use of pseudonyms.
DEA raises one valid interest by inserting a few quotations regarding “First Amendment
protections of freedom of speech and press.” (Id. at 4.) Yet, DEA undermines this argument.
DEA suggests Doe Intervenors should have intervened under their true names and requested the
court seal their declarations containing medical information. (Id. at 10.) As ACLU points out,
DEA’s alternative would result in loss of public access to the information most pertinent to this
lawsuit. Doe Intervenors’ names have little bearing on the outcome of this case, but the details of
their medical records are relevant to their privacy concerns. Thus, the court will allow Doe
Intervenors to proceed using pseudonyms in this case.
The court does not reach ACLU’s second argument that Doe Intervenors’ prescription and
medical information involves “matters of a highly sensitive and personal nature.” (ECF No. 20 at
7) (quoting Femedeer at 1246.)
ORDER
Based on the foregoing, ACLU’s “Motion to Proceed Using Pseudonyms” is
GRANTED. (ECF No. 20.)
Dated this 10th day of March 2017.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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