United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
Pending
before the Court is the parties' joint motion for entry
of protective order. (Doc. 55.) The parties contend their
proposed order is necessary (1) to “protect[] the
identities of the parties and witnesses due to the sensitive,
personal nature of the sexual misconduct allegations raised
in the First Amended Complaint” and (2) “to allow
for the disclosure of confidential records otherwise
protected by federal or state laws, such as the [FERPA], 20
U.S.C. § 1232g.” (Id. at 2.)
Although
the parties' proposed order is generally acceptable, the
Court has some concerns about the second sentence of the
first paragraph, which provides: “Moreover, due to the
sensitive nature of the allegations in this matter, the Court
agrees that the names of the plaintiff and certain witnesses
to the administrative hearing (collectively, the
‘Protected Persons') along with their personally
identifiable education records should be kept
confidential.” (Doc. 55-1 at 2.) Specifically, it is
unclear to the Court whether the plaintiff in this case
should be allowed to litigate under a pseudonym.
The
amended complaint identifies the plaintiff as “John
Doe.” (Doc. 37 ¶ 27.) In a nutshell, it alleges
that Doe, a former student at Arizona State University, was
expelled from school after being found guilty of sexual
misconduct. (See generally Doc. 55 at 3-7.) It
contends there were various flaws in the administrative
proceedings that resulted in Doe's expulsion and seeks
monetary damages and injunctive and declaratory relief.
(Id.)
Although
the Court does not quarrel with the parties' assertion
that this case involves issues of a “sensitive,
personal nature, ” the general rule in federal court is
that the parties in all cases-even sensitive cases-must
identify themselves by their true names, not pseudonyms.
See Fed. R. Civ. P. 10(a). “Courts have
explained that Federal Rule of Civil Procedure 10(a)
illustrates the principle that judicial proceedings, civil as
well as criminal, are to be conducted in public. Identifying
the parties to the proceeding is an important dimension of
publicness.” Doe v. Megless, 654 F.3d 404, 408
(3d Cir. 2011) (citations and internal quotation marks
omitted). Put simply, a plaintiff's “use of
fictitious names runs afoul of the public's common law
right of access to judicial proceedings.” Does I
thru XXIII v. Advanced Textile Corp., 214 F.3d 1058,
1067 (9th Cir. 2000).[1]
Given
this backdrop, the rule in the Ninth Circuit is that a party
may “proceed anonymously” only in an
“unusual case” in which “special
circumstances justify secrecy.” Id. at 1067-68
(citation omitted). The Ninth Circuit has further clarified
when a party wishes to proceed under a pseudonym in an effort
to avoid “retaliation, ” which the Court presumes
is Doe's rationale here, “the district court should
determine the need for anonymity by evaluating the following
factors: (1) the severity of the threatened harm, (2) the
reasonableness of the anonymous party's fears, and (3)
the anonymous party's vulnerability to such retaliation.
The court must also determine the precise prejudice at each
stage of the proceedings to the opposing party, and whether
proceedings may be structured so as to mitigate that
prejudice. Finally, the court must decide whether the
public's interest in the case would be best served by
requiring that the litigants reveal their identities.”
Id. at 1068.
It is
well settled in the Ninth Circuit that a party who was the
victim of sexual assault should be allowed to
litigate under a pseudonym. See, e.g., Doe v.
United Airlines, Inc., 2018 WL 3997258, *2 (D. Nev.
2018) (“District Courts within the Ninth Circuit
uniformly allow plaintiffs alleging sexual assault to proceed
under pseudonyms.”) (quotation omitted); Jordan v.
Gardner, 986 F.2d 1521, 1525 n.4 (9th Cir. 1993)
(“In keeping with the tradition of not revealing names
of the victims of sexual assault, we use initials here to
protect the privacy of the inmates.”). However, it is
less clear that a party in Doe's situation-a person
who's been found liable in an administrative proceeding
of committing sexual assault but contends the
administrative process was flawed and the finding should be
overturned-should be allowed to proceed in the same fashion.
Indeed,
there has been a profusion of lawsuits in recent years by
college students seeking to challenge the administrative
processes by which they were found to have engaged in sexual
misconduct, and the Court's review of those decisions
shows that many of the plaintiffs have litigated under their
real names, [2] while others have been allowed to proceed
as John Does, [3] with no seeming rhyme or reason to these
varying approaches. The Court further notes that, in Coe
v. United States District Court for the District of
Colorado, 676 F.2d 411 (10th Cir. 1982), the Tenth
Circuit upheld the district court's conclusion that the
plaintiff-a doctor facing disciplinary proceedings by a state
medical board related to allegations of sexual
misconduct-shouldn't be allowed to proceed anonymously in
a federal lawsuit challenging those proceedings, even though
the doctor argued that the “disclosure of his true
identity would cause irreparable and immediate destruction of
his property and liberty interests which he seeks to
protect.” Id. at 413.
The
Court will thus order the parties to submit briefing on
whether Doe should be allowed to litigate under a pseudonym
(and whether the protective order should be structured
accordingly). Cf E.E.O.C v. ABM Indus., Inc., 249
F.R.D. 588, 592-93 (E.D. Cal. 2008) (noting that, although
some courts require a party wishing to litigate anonymously
to file a motion at the outset of the case, other courts
“will grant plaintiffs limited permission to commence
an action under a pseudonym, but then request further
memoranda demonstrating the need for anonymity before issuing
a more permanent protective order”). Doe must file his
brief by September 13, 2019, Defendants must
file any response by September 27, 2019, and
Doe must file any reply by October 4, 2019.
---------
Notes:
[1] See generally Steven S.
Gensler, 1 Federal Rules of Civil Procedure, Rules and
Commentary, Rule 10, at 2011 (2018) (“The Federal Rules
of Civil Procedure do not explicitly provide for using
pseudonyms in the caption of the complaint. Strictly applied,
the text of Rule 10(a) requires that the title and caption
include ‘the names' of all the parties. This is
generally interpreted to mean that parties must use their
real names. . . . [However], the lower courts will allow
parties to use pseudonyms . . . in limited
circumstances.”).
[2] See, e.g., Haidak v. Univ. of
Mass.-Amherst, __ F.3d __, 2019 WL 3561802, *1 (1st Cir.
2019) (“In the wake of allegations that student James
Haidak assaulted a fellow student, the University of
Massachusetts at Amherst . . . suspended and then expelled
Haidak. Seeking compensatory damages, declaratory relief, and
an injunction preventing the university from enforcing the
expulsion, Haidak filed this suit against the university and
several of its officials.”); Rolph v. Hobart &
William Smith Colleges, 271 F.Supp.3d 386, 389 (W.D.N.Y.
2017) (“Plaintiff Matthew Rolph . . . was expelled . .
. after having been found to have violated the school's
Sexual Misconduct Policy by having non-consensual sex with a
female classmate. Plaintiff brings suit against HWS, alleging
that HWS's disciplinary process and expulsion of him
violated federal and state law.”); Ruff v. Bd. of
Regents of the Univ. of N.M., 272 F.Supp.3d 1289, 1291
(D.N.M. 2017) (same); Johnson v. Western State Colorado
Univ., 71 F.Supp.3d 1217, 1220 (D. Colo. 2014)
(“Plaintiff Keifer Johnson . . . brings this action
against Western State University and some of its employees .
. . under 42 U.S.C. § 1983 and Title IX of the Civil
Rights Act of 1964 arising out of disciplinary action taken
against him for a sexual relationship he engaged in with
another student.”).
[3]
See, e.g., Doe v. Baum, 903
F.3d 575, 578-79 (6th Cir. 2018) (lawsuit by “John Doe,
” a student at the University of Michigan, alleging
that the university violated Doe's due process rights
during an administrative proceeding concerning whether Doe
committed “sexual misconduct” by “having
sex with an incapacitated person”); Doe v.
Cummins, 662 Fed. App'x 437, 438 (6th Cir. 2016)
(“John Doe I and John Doe II were both students at the
University of Cincinnati . . . . [who were] charged with
violating UC's Code of Conduct for allegedly sexually
assaulting female students.... Doe I and Doe II [later] filed
suit against UC and various school administrators . . .
alleging that UC's disciplinary process did not afford
them due process as required by the Fourteenth
Amendment.”); Doe v. Columbia Univ., 831 F.3d
46, 48 (2d Cir. 2016) (“Plaintiff, a Columbia
University student who is identified by the pseudonym ...