UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

LINDA YAM AN, on behalf of h erse lf

and m inors KY and EY, P laintif f,
v. Civil Action No. 10-00818 (JD B) UNITED STAT ES DEPARTMENT OF STATE , et al., Defendan ts.

MEMORAN DUM OP INION & ORDER On May 17, 2010, L inda Yama

n (" plaintiff" ), a dua l U.S.-Turkish citizen, filed this action on her own behalf

and on beha lf of her

two minor daug hters, who a re a lso dual U.S.-Turkish citizens curre ntly

residingwith plaintiff in the United States. In her c omplaint, plaintiff seeks revie w under

the Administrative Proce dure A ct (" APA") of the State De partment' s decision to g rant he r daughters dire ct re turn, limit ed validity passports rather than unr estricted pa ssports. I n related litigation, which ha s now bee n consolidated with this case , plaintiff see ks to obtain a copy of the wr itten findings a

nd rec ommendation of the he aring office r who pre sided over he r daug hters' administrative passport proc eeding s. See Yaman v. U.S. Dep' t of State, 709 F. Supp. 2d 85, 89 (D.D.C. 2010), vacate d and remande d , 634 F.3d 610, 614 ( D.C. Cir. 2011). Presently befor e the Court is plaintiff' s motion for leave to file her a ddress unde r sea l and ex parte, a nd for leave to file portions of her motion in s upport there of under seal a s well. See Pl.' s Mot. for L eave to File Unde r Seal (" Pl.'s Mot.") [Docket Entry 50]. Defenda

nts oppose plaintiff' s reque st to file her a ddress unde r sea l and ex parte, a rguing that plaintiff' s addre ss is required by L ocal Civil -1-Rules 5.1(e) a nd 11.1 and is " pertinent to ong oing matters" : namely , the alleg ed attempts of plaintiff' s ex-husband to file a petition under the Hague Convention, seekingthe re turn of his daug hters to Turke y . See De fs.' Mot. to Com pel [Docket Entry 42] at 5. For the r easons de tailed below, the Court will g rant plaintiff' s motion t o file her addre ss under sea l and ex parte. BACK GR OUND The pre sent dispute arises a g ainst the bac kdrop of a n international c ustody

battle. Be tween January

2003 and De cembe r 2004, plaintiff lived in Turke y with her now e x -husband, I smail Ozgur Ya

man (" Mr. Yama

n") , and their two minor da ug hters, EY a

nd KY. See F irst Am. Compl. (Redacted) [Docket Entry 20] ¶ 8. After plaintiff be g an to suspect that Mr. Y aman wa s sexually abusingat least one of their da ug hters, the c ouple commenc ed divorc e proc eeding s. I d. ¶ 9. The T urkish Fa

mily Court that oversaw

the divorce awa

rded f ull custody

of EY a nd KY to Mr. Yama

n, despite the a lleg ations that he had c ommitt ed sexual abuse. I d. Howeve r, Mr. Yaman did not exerc ise his custody rights, and EY and K

Y continued to re side with plaintiff in Turkey , althoug h Mr. Yama n visited them on a wee kly basis. I d. ¶ 10. In or ar ound August 2007, following the denial of plaintiff' s appea l of the custody order , plaintiff and he r daughters fled Tur key for a n undisclosed Europe an location. I d. ¶ 11. Mr. Yama

n reta ined EY a

nd KY' s orig inal U.S. passports and re fused to provide them to plaintiff, or to conse nt to the issuance of new pa ssports for the g irls. I d. ¶ 12. Plaintiff there fore applied for

new pa ssports for her

daug hters at a

U.S. Consulate abroa d, seekinga wa iver of the require ment that both pare nts must consent to the issuance of a minor' s passport. I d. ¶¶ 13- 14. The State De partment initially denied plaintiff' s reque st, id. ¶ 15, but afte r plaintiff filed a n administrative appe al, the De partment he ld a hea ringon the matter ( over which a he aringoffice r -2-presided) , id. ¶¶ 16, 20-21, a nd the Deputy

Assistant Secreta

ry issued a fina l decision g ranting EY and K Y limited, one-wa

y passports for tr avel to the United States, id. ¶¶ 29, 33. Plaintiff and her da ug hters then use d the passports to come to the United States in April 2010. I d. ¶ 11. When plaintiff filed this complaint in May 2010, she and he r daughters had not yet established a pe rmane nt residenc e in the countr y . See Pl.'s Mot. to Use D iffer ent Addre ss [Docket Entry

4] at 1. The Court theref ore grante d plaintiff' s reque st to li st her counse l's a ddress on the complaint " until such tim e as Plaintiffs have established a pe rmane nt residential addr ess in the United States." See 5/17/10 Orde r [Docket Entry 5]. On Februa

ry 10, 2011, plaintiff filed a "N otice of Chang e of A ddress," in which she listed her mother' s addre ss in Michiga n as her "pe rmane nt residential addr ess." See Notice of Chang e of A ddress (" Notice" ) [Docket Entry 41];

see a lso Pl .' s Opp. to Defs.' Mot. to Com pel (" Pl.'s Opp." ) [Docket Entry 45] at 2. S pecif

ically , plaintiff noted that her

"pe rmane nt residential addr ess" was the Michig an addr ess, " c/o Kar en Poliz zi" -- i.e., " in car e of" her mother . See Notice

. Def endants re sponded with a motion to compel plaintiff to comply with the May

17, 2010 Orde r, ar g uing that the Orde r -- as we ll as the Court' s local rules - - re quire plaintiff to file a notice indicatingwher e she a nd her da ug hters ar e cur

rently living, and tha

t beca use of the " c/o" desig nation in plaintiff' s notice, it is unclear whether plaintiff and he r daughters ac tually reside at the Michig an addr ess. See De fs.' Mot. to Compel at 4 (c iting L ocal Civ. R. 5.1(e)( 1)). Def endants fur

ther e x plained that the State De partment ne eds to know the location of plaintiff and her children so that it ca

n fulfill its obl iga

tions under the Ha g ue Convention, as implemented by the International Chil d Abduction Remedies Ac t (" I CARA") . See De fs.' Reply in Supp. of Def s.' Mot. to Com pel at 3-6. A ccor ding to the State D epar tment, Mr. Yaman ha s reque sted its

-3-assistance in filing a petition under the I CARA to have his daug hters re turned to Turke y , and the State Depa

rtment nee ds to ascer

tain plaintiff' s addre ss so that it can advise Mr. Y aman a s to the appropr iate jurisdiction in which to commence these proc eeding s. I d. at 3-4. Plaintiff opposed the motion to compel, assertingthat her mother ' s addre ss was, in fac t, her " perma

nent" residential a ddress, a nd that she nee d not disclose wher e she a nd her da ug hters had bee n "te mporarily

living since arr iving in the c ountry " f or purpose s of compliance with the local rule s and this Court's May 17, 2010 Orde r. See Pl.' s Opp. at 2. As for the State 1 Depa rtment' s desire to obtain plaintiff' s addre ss to fulfill it s alleg ed oblig ation under the I CARA, plaintiff ar g ued that the De partment ha d no such oblig ation, and that the Department wa s merely seeking"to use this Court t o serve its own purposes in obtaining inf ormation to which it is not otherwise e ntitled." See id. at 5-6. On Mar ch 1, 2011, this Court held a telephonic status confe renc e to discuss the par ties' respe ctive positions on the matter, and or dere d that plaintiff provide he r cur

rent " full residenc e addr ess" -- i.e., where she and he r childre n phy sically reside -

- to the Court by

not later than Ma

rch 4, 2011. See 3/2/11 Order [Docke t Entry 49]. The Court noted, howeve r, that plaintiff c ould move to file her " full residenc e addr ess" under se al and e x parte , if she believe d that such a c ourse of action wa s nece ssary . I d. Plaintiff has now filed suc h a motion, in which she see ks leave to file her f ull residence addre ss, as well as por

tions of the motion it self, under seal a nd ex parte. Plaintiff arg

ues that such mea sures a

re ne cessa

ry to protect the sa fety

of her minor daug hters; def

endants c ounter that Alongwith her opposition to defenda nts' motion to compel, plaintiff filed a motion for 1 leave to file attac hments to her opposition under sea l. See Pl.'s Mot. for L eave to File Attachments Unde r Seal [Docket Entry 46]. Beca

use the Court has a lrea dy g rante d defe ndants' motion to compel, the Court will t erminate plaintiff' s motion for leave to file attac hments under seal a s moot. -4-plaintiff should not be " permitted to eva de ser vice a nd frustrate proc eeding s under the H ague Convention through a

specia l dispensation in these tang entially related proc eeding s." See Def s.' Opp. to Pl.'s Mot. (" Def

s.' Opp." ) [Docket Entry

54] at 4. DISCUSSIO N Under L ocal Civil Rules 5.1(e)(1) and 11.1, a pa rty is require d to provide both her na me and " full residenc e addr ess" in her fir st filing with the Court. Howe ver, just as " it is wit hin the discretion of the district court to g rant the ' rar e dispensation' of anony mity ," U .S. v. Microsoft, 56 F.3d 1448, 1464 ( D.C. Cir. 1995); see a lso Sealed Plaintiff v. Sealed D efe ndant, 537 F.3d 185, 189 (2d Cir. 2008) (e x plaining that "a plaintiff may

be allowe d to maintain an ac tion under a pseudony m" whe re the plaintiff' s interest in anony mity outweig hs "the public interest in disclosure a

nd any prejudice to defe ndant" ), so, too, may a cour t permit the filing unde r sea l of a party ' s addre ss where the circ umstances so re quire, see , e.g ., Newdow v. Roberts, No. 09-5126 (D.C. Cir. J uly

19, 2009) (grantingmotion for leave to submitchild-identifying inf ormation under se al, and dire ctingthe par ties "to file unde r sea l any information, includingaddre sses, that could lead to the ide ntification of any appellant who is a

minor") (empha sis added). Despite " this country ' s strong tradition of ac cess to judicial proc eeding s," the re a re situations in which "a pa

rty ' s interest in privac y

or conf identiality

. . . outweig hs this st rong presumption in favor of

public acc ess." J ohnson v. Grea ter Se. Cmty . Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991). Courts assessingthe nee d for a sealingorder

g ener ally apply the fac tors enumer ated by

the D.C. Circuit in United States v. Hubbard, 650 F .2d 293, 317-22 (D.C. Cir. 1980). Ther e, the c ourt examined whether the public should be grante d acc ess to documents that the g overnme nt had seized from the Churc h of Scientology , and that Church of ficials under

-5-indictment subsequently introduced dur ing a

pre- trial suppression hea ring . I d. at 296-98. In

reve rsingand re mandingthe lower court' s decision to unseal the doc uments, the D.C. Circuit identified seve ral fa ctors for courts to consider

in assessingthe proprie ty of a se alingorder , including " (1) the ne ed for public acc ess to the documents at issue; (2) the extent to which the public had ac cess to the doc uments prior to the sea ling or der; (3) the fa ct that a pa rty has objec ted to disclosure and the identity of that par

ty ; (4) the stre ng th of the prope rty and priva cy

interests involved; (5) the possibility of pre judice to those opposingdisclosure; and ( 6) the purpose s for which the doc uments were introduced." J ohnson, 951 F.2d at 1277 (citing Hubbar d, 650 F.2d at 317-22). De fenda

nts urg e this Court to apply these six Hubbard fac tors in evaluatingplaintiff' s motion to fil e her

addre ss under sea l and ex parte. See Def s.' Opp. at 2-3. But g iven the natur e of the information that plaintiff see ks to file under se al and e x parte , it seems more a

ppropriate to examine plaintiff's r equest usingthe fra mework that courts have develope d to decide whether a plaintiff should be a llowed to proce ed anony mously . See, e.g ., Nat' l Ass'n of

Waterfr ont Emp'r s v. Chao, 587 F. Supp. 2d 90, 99 (D.D .C. 2008) (outlining fac tors for c ourts to consider in asse ssing a plaintiff' s reque st to procee d under a pseudony

m); Doe #1 v. Von E schenba ch, 2007 WL1848013, at *2 (D.D .C. J une 27, 2007) ( same). Plaintiff' s sole objection to the public re lease of her addre ss is that itwould allow Mr. Yaman to identify the location of his two minor daughters, EY a nd KY, who a

re c urre ntly

residingwith plaintiff. In

essenc e, then, plaintiff is simply reque sting that a ll of her minor da ug hters' identify

ing information -- not just their name s -- be kept private . The priva cy interests at stake here are thus

more c ompara

ble to those at stake when a pa rty seeks to proc eed a

nony mously than to those at stake whe n a par

ty seeks to pre serve the conf identiality

of docume nts that it i ntroduce d duringa -6-pre- trial suppression hea ring , as wa s the ca se in Hubbar d. Henc e, plaintiff' s reque st to file her a ddress unde r sea l and ex parte will be a ssessed by applying the fac tors that courts in this Circuit have used to dete rmine whe ther a plaintiff should be allowe d to proce ed anony mously

. In makingthat deter mination, courts examine "( 1) whe ther 2 the justification asser

ted by the re questing party

is merely to avoid the annoyance and cr iticism that may attend any

litigation or is to prese rve pr ivacy in a matter of

a sensitive and highly persona l nature; (2) whether identification poses a

risk of re taliatory

phy sical or menta l harm to the re questing party

or eve n more c ritically , to innocent non-pa rties; (3) the a g es of the pe rsons whose priva cy

interests ar e soug ht to be protec ted; (4) whe ther the a ction is ag ainst a g overnme ntal or private party ; and (5) the risk of unfa irness to the opposingparty from allowing

The Court notes, howe ver, tha t the outcome of its ana ly sis would be the same unde r 2 Hubbar d. Wit h respe ct to the first Hubba rd fa ctor, ther e is no nee d for public a cce ss to plaintiff's addre ss in connection with this lit igation. Although the State De partment maintains that Mr. Yaman ne eds to know plaintiff' s addre ss in order to see k relief under the I CARA, Mr. Yaman' s alleg ed intere st in obtaining the re turn of his daug hters to Turke y is not related to this liti g ation, which conc erns only

the proprie ty

of the State De partment' s decision to g rant EY a nd KY limit ed, re stricted passpor ts. As for the se cond Hubba rd fa ctor -- whether

the public has previously

been a ble to acc ess the information now sought to be pr otected - - it does not appea r that plaintiff' s curr ent addr ess has e ver be en made public. See Hubba rd, 650 F .2d at 318 (explaining that " [p] revious ac cess is a f actor which may

weig h in favor of

subsequent ac cess" ). The third, four

th, and fifth Hubba

rd fa ctors also we igh in f

avor of allowingplaintiff to file her addre ss under sea l and ex parte. Plaintiff has vig orously objected to the public disc losure of he r addre ss on the g round that it could jeopar dize the safety of her minor daug hters by

enablingMr. Yaman - - who ha s been a ccuse d of sexual abuse -- to locate the g irls. Given the g ravity of the harm that c ould result if plaintiff' s alleg ations and re sulting fe ars a re true , plaintiff' s interest in maintaining the privac y

of her addre ss is paramount. Fina lly , the last Hubbar d fac tor-- the purpose f or which the information was introduc ed -- also milit ates a g ainst public disclosure her e. Plaintiff's a ddress wa s not introduced bec ause it wa s somehow re levant to the substance of these proce eding s; instead, plaintiff only filed a N otice of A ddress in orde r to comply with L ocal Civil Rules 5.1(e)( 1) and 11.1, which re quire the disclosure of a " full residenc e addr ess" to fac ilitate service of proc ess and e ffe ctive communication between the parties. Ne ither of these purposes would be under

mined by permitting pla intiff to file her a ddress unde r sea l and ex parte.

-7-an ac tion ag ainst it to proceed a nony mously ." N at' l Ass'n of

Waterfr ont Employ ers, 587 F . Supp. 2d at 99. Where a

n action is brought ag ainst a g overnme nt entity rathe r than a

private pa

rty , or wher e it involves the privac y interests of minor c hildren, cour ts are mor e likely

to allow a plaintiff to proce ed anony mously . See Von Esc henbac h, 2007 WL1848013, at *2. Her e, ea ch of the se six fac tors milit ates in favor of a llowing plaintiff to pr eser ve the confide ntiality

of all of he r daughters' identifying inf ormation, including their addr ess. To beg in with, plaintiff' s proffe red justification for see king to f ile the addr ess under

seal a nd ex parte -- a desire to pr otect the sa fety of EY a nd KY fr om Mr. Yaman, who has alleg edly subjected the m to sexual abuse in the past -- is both serious and leg itimate, and not "va g ue and unsubstantiate d." I d. For purposes of this motion, the Court need not dete rmine whe ther the a ccusations ag ainst Mr. Yama

n are true; it is sufficient that plaintiff ha s prese nted spec ific evide nce te nding to show that disclosure of a

ny of her daughters' identify

ing inf ormation, includingtheir addr ess, has the potential to place the m at g rave risk of phy sical and e motional harm at the ha nds of their fa

ther. Moreove r, the intere sts that plaintiff seeks to protec t are those of her minor daug hters, and plaintiff' s motion m ust be assesse d "in light of the spec ial vulnera bility of these c hild-plaintiffs." Doe v. Steg all, 653 F.2d 180, 186 ( 5th Cir. 1981); see also Doe v. Porter, 370 F .3d 558, 561 (6th Cir. 2004) (findingthat court did not abuse its discre tion by allowingplaintiffs to proce ed anony mously , wher e ca se wa s "br oug ht on behalf of very y oungchildren, to whom we g rant a heig htened pr otection" ); Doe v. D el Rio, 241 F.R.D. 154, 158 (S.D.N.Y. 2006) (explaining that courts ar e more inclined to protec t the privac y interests of c hildren than a dults, "whe ther be cause children a re c onceive d as more vulne rable or bec ause the child whose priva cy is at stake has not chosen f or himself or he rself to pursue the litigation" ) (inter nal citations omitted).

-8-The Court also finds that the State De partment -- the opposing party in this l itigation -- would not be unfa irly

prejudice d by

an orde r allowingplaintiff to file her addre ss under sea l and ex parte. The State D epar tment claims that it needs plaintiff' s addre ss to assist Mr. Yaman in filing a petition under the Ha g ue Convention, seekingthe re turn of his daug hters to Turke y . The I CARA, which implements the Convention, does provide that " [a] ny person se ekingto initi ate judicial proce eding s under the Conve ntion for the re turn of a c hild . . . may do so . . . by

filing a petition for the re lief soug ht in any court . . . whic h is authorized to ex erc ise jurisdiction in the place wher e the c hild is l ocate d at the time the petition is filed." 42 U .S.C. § 11603(b) (emphasis added) . Henc e, Mr. Ya

man would nee d to asce rtain his daug hters' location in order to determine the prope r jurisdiction in which to file his petition under the Convention. The State De partment, as " Central Authority " unde r the Convention, is under a n obligation "to fa cilitate the instituti on of judicial or a dminist rative pr ocee dings w ith a view to obtainingthe re turn of the c hild" and to "take all appr opriate me asure s . . . to discover the where abouts of a c hild who has bee n wrong fully

remove d or re tained" (empha sis added). See International Chil d Abduction Convention Betwe en the United States of Americ a and O ther Gove rnments Done A t the Hague, Oct. 25, 1980, T.I .A.S. No. 11,670 Art. 7(f ),(a ); see a lso 22 C.F.R. § 94.6(b) (e x plaining w ith respe ct to applications under the Convention that the U.S. Central Authority shall "[c]onfirm the child' s location, or, whe re ne cessa ry , seek to a scer

tain its location"). F or this rea son, the State Depa rtment argues, it "c annot proc eed unde r its Convention obli g ations until i t determines with

some ce rtainty

the location of the children, at least the city and state." Def

s.' Opp. at 6. That may be so. B ut this l itigation is not at this tim e the a ppropriate forum throug h which to obtain that information. Nor is this Court under any obligation to order the r elea se of

-9-plaintiff' s addre ss simpl y beca use it may

be usef ul to the State Depar

tment (or Mr. Ya

man) in other, unre lated, not y et initiated proce eding s. The State De partment a nd its officer s, who are the sole defe ndants in this case, a re in no wa

y prejudice d by

an orde r allowingplaintiff to file her addre ss under sea l and ex parte. Plaintiff has not soug ht to lit iga te her entitlement to custody

of her minor da

ug hters, nor ha s she asser ted any claims ag ainst Mr. Yama n. Instead, she only

seeks to challeng e (1) the State Depa rtment' s decision to ref

use to provide he r with ac cess to the written finding s and re commendation of the hear ing of fice r who pre sided over he r daughters' administrative passport proc eeding s; and (2) the State Depa rtment' s decision to g rant he r daug hters dire ct re turn, limit ed validity passports rather than unr estricted pa ssports. In mounting its defense to these cha lleng es, the State De partment ha s no need to know the specific state and city in which plaintiff cur

rently resides. F or purpose s of this lit iga tion, then, the Court finds that at this tim e plaintiff' s interest in protec ting the sa fety of her minor daug hters outweighs any alleg ed State De partment intere st in obtaining plaintiff' s addre ss for purpose s unrelate d to the

curr ent dispute betwe en the pa rties. 3 Acc ording ly , it is hereby ORDERED that [50] plaintiff' s motion for leave to file her Notice of Chang e of A ddress unde r sea l and ex parte, a nd for lea ve to file portions of the motion in support thereof

under se al, is GR

ANTED ; and it is further ORDERED that plaintiff' s Notice of Cha ng e of A ddress, a s well as the por tions of the motion in s upport there of that we re submitted to the Court under se al and e x parte , shall remain under se al and e x parte , pendingfurther order of the Court.

The Court leaves for

another day the question whethe r cha ng ed fa cts and c ircumstance s 3 could alter

this assessment. -10-SO ORDERED

. /s/ J OHN D. B ATES United States District J udg e Dated: Ma

y 16, 2011

-11-