# In the United States Court of Federal Claims

No . 19

- 259

(Filed: M ay 15 , 2019 )

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RCFC 10(a); Fed. R. Civ. P. 10(a); Anonymous or Pseudonymous

Plaintiffs

. *
DOE NO. 1

, et al.

, *

*
Plaintiff s
, *

*

v. *

* UNITED STATES, *

* Defendant, *

*

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Linda Lipsett

, with whom were Jules Bernstein and Michael Bernstein , Bernstein & Lipsett, P.C., Washington, D.C., and Daniel M. Rosenthal and Alice Hwang , James & Hoffman, P.C. , Washington, D.C., for Plaintiffs.

Ashley Akers , Trial Attorney, with whom were Joseph H. Hunt , Assistant Attorney General, Robert E. Kirschman, Jr. , Director, Tara K. Hogan

, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendant.

OPINION AND ORDER

WHEELER, Judge.

Plaintiffs in this case have filed a moti on for a protective order and for permission to file their claims anonymously, arguing that, as employees of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATF”), disc losing their names could open them to harassment or attack by third parties subject to BATF investigatory and enforcement

activities. Because (i) Plaintiffs work for a “sensitive” federal law enforcement agency

, (ii) the Government will not be prejudiced , and (iii) the public only has a slig ht interest in
Plaintiffs’ actual identities a nd the public’s view of the issues in the case will not be impaired , the motion is GRANTED.2 Background

Plaintiffs are Intelligence Research Analysts , In dustry Operations Investigators

, and Investigative Analysts with BATF

. Pls. Mot. for Protective Order, Dkt. No. 5 (“Pls. Mot.”)

at 1 . They allege that BATF violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §

201 et seq

. , by requiring that they earn compensatory time and t ravel compensatory time

, rather than pay

, for overtime hours worked. Id.

Plaintiffs filed their Complaint on February 15, 2019. Dkt. No. 1. On March 28, 2019, Plaintiffs filed the motion at issue here

. Pls. Mot., Dkt. No. 5. They assert that their
“work for BATF often involves classified a nd confidential law enforcement related duties ,” Pls. Mot. at 2, and

, “ because of the sensitive nature of their employment and occupational categories at BATF, publicly disclosing their names in this action increases their risk of

harassment or attack. ” I d. at 1

. For support, t hey point to Long v. OPM , 6 92 F.3d 185 (2d Cir. 2012), in which the Office of Personnel Manageme nt (“OPM”) withheld the names of

all BATF employees in answering a FOIA request on the grounds that BATF is a “sensitive” agency

, i d. at 189

.

The Government responds that Plaintiffs have not alleged a sufficiently reasonable and specific fear of harassment or attack to overcome the public ’s interest in open court proceedings. Dkt. No. 11, Def. Resp

. at 4

- 6

. The Government points out that Plaintiffs’

names have been public for more than a month already and that Plaintiffs in this case overlap with those in two other FLSA cases pending before the Court of Federal Claims,

in which their names are public

. Id. at 2, 6 (citing Fed. Cl. No. 17

- 1946 ; Fed. Cl. No. 18

- 520). 1

Plaintiffs filed their reply brief on May 3, 2019. Dkt. No. 14. The Court did not hold oral argument on the motion.

Analysis

Rule 10(a) requires that a Complaint name all of the plaintiffs to a suit and that the other pleadings must at least name the first p laintiff

. R CF C 10 (a). Identifying all parties to a lawsuit facilitates public scrutiny of judicial proceedings. See Does I Thru XXIII v.

Advanced Textile Corp

. , 214 F.3d 105 8, 1067 (9th Cir. 2000) (citations omitted). Nevertheless, many federal courts permit a plaintiff to proceed anonymously “when special circumstances justify secrecy,” such as when necessary “to protect a person from harassment, injury, ridicule or personal embarrassment.” Id. (citations omitted). In such

cases, “ t he plaintiff’ s interest in anonymity must be balanced against both the public

1 In anticipation of the other BATF FLSA cases possibly proceed ing anonymously, the Court refers to these cases by

Fed. Cl. case number only.3

interest in disclosure and any prejudice to the de fendant. ” Sealed Plaintiff v. Sealed

Defendant

, 537 F.3d 185, 189 (2d Cir. 2008).

The Federal Circuit has n ever addressed the issue of when a plaintiff may proceed anonymously. The Court of Federal Claims has confronted the issue twice in the context

of the risk of a defendant’s retaliating against a known plaintiff

. See Whalen v. United

States , 80 Fed. Cl. 685, 690

- 93 (2008); Wolfchild v. United States , 62 Fed. Cl. 521, 552

- 54 (2004). In both cases , the court a pplied t he Ninth Circuit’s five

- factor test , which

accounts for : (1) the severity of the threatened harm to the party ; (2) the reason ableness of the party’s fears; (3) the party’s vulne rability to potential harm; (4) the public interest; and (5) any prejudice to the opposing party at each stage of the proceedings. Whalen , 80 Fed.

Cl. at 691 (citing Wolfchild , 62 Fed. Cl. at 553; Advanced Textile , 214 F.3d at 10 67

- 68).

Other circuits use a similar approach. See , e. g.
, Sealed Plaintiff , 537 F.3d at 188

- 90 (applying ten factors addressing the severity and likelihood of harm, the public interest, and prejudice to the opposing party ). The fi rst three of the five factors captur e the weight of a plaintiff’s privacy interest. Cf. id. at 189; Advanced Textile , 214 F.3d at 1067

- 68. The

Court will address this factor first , then discuss prejudice and the public interest.

I. Plaintiffs’ Interest in Proceeding Anonymously

In assessing the weight of a plaintiff’s privacy interest in proceeding anonymously, courts generally conclude that a threat of p hysical or psychological harm is sufficient ly

severe

. See

, e.g.
, Doe v. Ayers , 789 F.3d 944 (9th Cir. 2015) (inmate’s presenting evidence

of past assault in habeas proceeding exposed him to risk of further assault). But th at threat cannot be “speculative” or “unsubstantiated

. ” Doe v. Pub. Citizen , 749 F.3d 246, 274 (4th Cir. 2014). A reasonable person must believe that the risk of harm could materialize.

Advanced Textile

, 214 F.3d at 1071

.

The Government argues that Plaintiffs’ asserted risk of harm is “potential” and non

specific, and it notes that Plaintiffs have not submitte d any declarations stating that they “have a legitimate fear of attack.” Def. Resp

. at 4

- 5 (citing Pls. Mot. at 1, 4). It also argues that the FOIA case Plaintiffs cite for support involve s an entirely different legal context. Finally, t he Government contends that the “cat is out of the bag” because Plaintiffs ’ names have been public for over a month, and, in any case, at least two Plaintiffs disclose that they work for BATF on the social media website LinkedIn. Def. Resp

. at 5.

First, the Govern ment’s “cat is out of the bag” argument fails because the fact that Plaintiffs have not been harassed or attacked yet does not imply that anonymizing their names now has no value. Further, disclosure on social media by one or more Plaintiffs

cannot waive the privacy interest arguments of every Plaintiff in the case. And at least one of the Plaintiffs the Government pointed to on LinkedIn has deleted his account. Pls. Reply at 7, Ex. A.4

Second, in Long v. OPM

, 6 92 F.3d 185 (2d Cir. 2012)

, the FOIA case Plaintiffs rely

on, OPM claimed that it could withhold the names of BATF employees from its response to a FOIA request pursuant to Exemption 6, which allows agencies to refuse to disclose
information where disclosure would “constitute a clear ly unwarranted invasion of personal

pr ivacy

, ” i d. at 189

- 9 1 (citing 5 U.S.C. § 552(b)(6)). In Long

, OPM asserted that BATF is a “sensitive” law enforcement agency and that disclosing its employees’ names could subject them to harassment or attack. Id. OPM provided two declarations from agency officials to support its contention. Long v. OPM , 2007 WL 2903924, at *15

- 16 (N.D.N.Y. Feb. 23, 2010). And b oth the district court and the appellate court agreed with OPM

.

Here, t he Government offers nothing to discredit OPM’s representation in Long that BATF employees could be at risk of attack o r harassment if their names are publicly

disclosed. Although the tests for proceeding anonymously and for reviewing an agency’s invocation of FOIA Exemption 6 differ , determining the weigh t of the relevant individuals’ privacy interests is essential to both. Plaintiffs here rely on OPM’s previous representation that BATF is a sensitive law enforcement agency and that disclosing the names of BATF employees could endan ger them. OPM’s representation provides evidence that Plaintiffs

have a non

- trivial privacy interest in keeping their names private

. And this does not, as the Government contends, create a presumption that BATF employees can sue anonymously ; Plaintiffs still have to show that prejudice to the Government and the public’s interest in open judicial proceedings do not outweigh their privacy interest s

.

II. Prejudice to the Government

In assessing prejudice to a defendant, courts examine a variety of facto rs, such as whether a jury would view an anonymous plaintiff differently, see Doe v. Delta Airlines,

Inc. , 310 F.R.D. 222, 225 (S. D.N.Y. 2015), aff ’ d , 672 F. App’ x 48 (2d Cir. 2016) ; whether anonymity would depriv e the defendant of potential witness es
, see id. ; whether the

defendant knows the plaintiff’s true identity, see Doe v. United States , 210 F. Supp. 3d 1169, 1173 (W.D. Mo. 2016) ; and whether anonymity would impact discovery, see Doe

No. 2 v. Kolko , 242 F.R.D. 193, 198 (E.D.N.Y. 2006) , among other things

.

The Government would suffer little or no prejudice from Plaintiffs’ proceeding anonymously. The Government does not even allege any prejudice

. Instead, it recites the prejudice factor in its statement of the law , and then argue s that it would be “nonsensical” to anonymize Plaintiffs here

, but not in the other two BATF FLSA cases before the Court

of Federal Claims

, because those cases and this case involve overlapping plaintiffs. See

De f. Resp

. at 9 (citing Fed Cl. No. 17

- 1946 ; Fed. Cl. No. 18

- 520)

. The Government then
repeats that Plaintiffs have not articulated a sufficiently specific risk of harm.

T hese arguments have nothing to do with prejudice to the Government. I n any

event , the p laintiffs in the other two cases have also filed motions to proceed anonymously5

and under protective orders

. No. 17

- 1946 , Dkt. No. 90 ; No. 18

- 520 , Dkt No. 26. And only

some of the 17

- 1946 plaintiffs , and none of the 18

- 520 plaintiffs , overlap with Plaintiffs in this case. Pls. Reply at 11. Granting Plaintiffs’ motion would not impact the Government’s ability to conduct discovery, impeach any Plaintiff, locate relevant witnesses, or otherwise

mount a successful defense . The administrative burden on the Government is minimal

,

a nd the Governme nt already knows Plaintiffs’ identities and can access them pursuant to the protective order. If prejudice to the D efendant changes as the case progresses, the Court may revisit the issue

.

III. The Public I nterest

Generally, a plaintiff ’s “use of [a] fictitious name [] runs afoul of the public’s common law right of access to judicial proceedings.” Advanced Textile , 214 F.3d at 1067 (citing Nixon v. Warner Commc’ns, Inc. , 435 U.S. 589, 598

- 99 (1978)). However, the public interest in knowing a plaintiff ’s name is weaker where anonymity does not obstruct the public’s view of the issues. Id. at 1068

- 69 , 107 2 (citation omitted)

.

This case presents just such a situation. Granting Plaintiffs’ request would not impair the public’s view of the pr esentation and resolution of the FLSA issues. But, a s with the prejudice factor , the Court may revisit this issue as the case progresses.

Conclusion

Accordingly, Plaintiffs’ no n

- trivial interest in keeping their names private outweighs the minimal prejudice to the Government and the insignificant impairment of the publi c ’s interest in open court proceedings

. Therefore, Plaintiffs’ motion for a protective order and to permit P laintiffs and putative class members to file their claims anonymously is GRANTED.

T he Clerk is directed to seal all pleadings identifying any Plaintiff by name. The Plaintiffs shall then file public versions of those documents, using anonymous identifiers. The parties may also file future pleadings using anonymous ident ifiers. The parties shall file, under seal, a key identifying all parties. The Court will enter the requested protective order on the docket separately.

IT IS SO ORDERED.

s/ Thomas C. Wheeler

THOMAS C. WHEELER Judge