I.A. v. Barr ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
I.A. et al.,
Plaintiffs,
v.
Civil Action No. 19-2530 (TJK)
WILLIAM BARR et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs in this action are thirteen individuals and one organization seeking to challenge
the interim final rule “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829,
issued on July 16, 2019, by the Attorney General and the Acting Secretary of Homeland
Security. On August 21, 2019, the Court granted eight of those individual plaintiffs leave to
proceed using pseudonyms. See ECF No. 2. On September 10, 2019, Plaintiffs amended their
complaint, adding as plaintiffs five new individuals. Those individuals, each an asylum
applicant or the minor child of an applicant currently in the United States, have moved for leave
to proceed using pseudonyms on similar grounds. And they further request that the declarations
they filed under seal in support of that motion remain sealed. Defendants do not oppose
Plaintiffs’ motion. For the reasons set forth below, the Court will grant it.
Background
The new individual plaintiffs are five persons from three different countries seeking
asylum in the United States. They are comprised of four adults and one minor, all of whom
entered the United States at the southern border after July 16, 2019. Each individual, in an
accompanying declaration filed under seal, represents that he or she is fleeing threats of severe
violence or death, and they all state that they would fear for their own safety and that of their
families if their names were disclosed as a result of their participation in this lawsuit.
Accordingly, Plaintiffs seek leave of Court for the new individual plaintiffs to proceed
pseudonymously. And they further request that the individual plaintiffs’ declarations describing
in more detail the grounds for their request remain under seal. As already noted, Defendants do
not oppose Plaintiffs’ motion.
Legal Standard
Generally, a complaint must state the names of the parties. See Fed. R. Civ. P. 10(a);
LCvR 5.1(c)(1); LCvR 11.1. The public’s interest “in knowing the names of . . . litigants” is
critical because “disclosing the parties’ identities furthers openness of judicial proceedings.”
Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014); see also Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 597 (1978) (“[T]he courts of this country recognize a general right to inspect
and copy public records and documents, including judicial records and documents.” (footnotes
omitted)). The Federal Rules thus promote a “presumption in favor of disclosure [of litigants’
identities], which stems from the ‘general public interest in the openness of governmental
processes,’ and, more specifically, from the tradition of open judicial proceedings.” In re Sealed
Case, 931 F.3d 92, 96 (D.C. Cir. 2019) (internal citations omitted) (quoting Wash. Legal Found.
v. U.S. Sentencing Comm’n, 89 F.3d 897, 899 (D.C. Cir. 1996)).
Nevertheless, courts have, in special circumstances, permitted a party to “proceed
anonymously” when a court determines the need for “the plaintiff’s anonymity” outweighs “the
public interest in open proceedings” and considers the “fairness to the defendant.” Nat’l Ass’n of
Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90, 99 (D.D.C. 2008). The D.C. Circuit has
instructed that “the appropriate way to determine whether a litigant may proceed anonymously is
to balance the litigant’s legitimate interest in anonymity against countervailing interests in full
disclosure.” In re Sealed Case, 931 F.3d at 96. When weighing those concerns, five factors,
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initially drawn from James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993), serve as “guideposts
from which a court ought to begin its analysis.” In re Sealed Case, 931 F.3d at 97. These five
factors are:
[1] whether the justification asserted by the requesting party is merely to avoid the
annoyance and criticism that may attend any litigation or is to preserve privacy in a
matter of [a] sensitive and highly personal nature; [2] whether identification poses a
risk of retaliatory physical or mental harm to the requesting party or[,] even more
critically, to innocent non-parties; [3] the ages of the persons whose privacy interests
are sought to be protected; [4] whether the action is against a governmental or private
party; and, relatedly, [5] the risk of unfairness to the opposing party from allowing an
action against it to proceed anonymously.
Id. (citing James, 6 F.3d at 238). And when the individual in question is a minor, Federal Rule
of Civil Procedure 5.2(a) provides that any filing presumptively may only include the minor’s
initials. See also LCvR 5.4(f)(2) (“If the involvement of a minor child must be mentioned, only
the initials of that child should be used.”).
Ultimately, whether to grant the “rare dispensation” of anonymity is within the discretion
of the district court, provided that the court “inquire into the circumstances of [the] particular
case[].” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James,
6 F.3d at 238). This is not “a wooden exercise of ticking . . . boxes,” but rather a case-specific
approach that should “take into account other factors relevant to the particular” circumstances.
In re Sealed Case, 931 F.3d at 97 (quoting Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
190 (2d Cir. 2008)).
The D.C. Circuit has also instructed that, as a general matter, courts are to apply an
analogous set of factors when determining whether court filings should be sealed from public
view. See United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980). Those include: (1)
the need for public access to the documents at issue; (2) the extent of previous public access to
the documents; (3) the fact that someone has objected to disclosure, and the identity of that
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person; (4) the strength of any property and privacy interests asserted; (5) the possibility of
prejudice to those opposing disclosure; and (6) the purposes for which the documents were
introduced during the judicial proceedings.
Analysis
Upon consideration of Plaintiffs’ motion and the supporting declarations, the Court finds
that they have met their burden of showing that their privacy interests outweigh the public’s
presumptive and substantial interest in knowing the details of this litigation. Furthermore, the
Court concludes that the declarations submitted in support of Plaintiffs’ motion should remain
under seal.
The new individual plaintiffs maintain that the facts underlying their claims involve
“sensitive and highly personal” information, such that their names should not be exposed to the
public. ECF No. 24 (“Pl.’s Mot.”) at 1 (quoting Chao, 587 F. Supp. 2d at 99). Furthermore, they
explain that their identities are particularly sensitive because they “face a significant risk of
persecution—including possible physical harm or death—if their identifies are publicly revealed
through this lawsuit.” Id. at 3.
As described in her declaration, Plaintiff C.S. is a transgender woman who fled her home
country of El Salvador after she was repeatedly attacked and threatened with rape or death on
account of her status and community activism. She fears for both her own safety and that of her
daughter in El Salvador if her identity is revealed. See ECF No. 24-1.
Plaintiff Y.D. describes fleeing his home country of Cuba after he was arrested and
detained on multiple occasions for protesting against the government. He states that some of his
acquaintances were allegedly beaten while detained, and he fears that he too would be arrested
and beaten if his participation in this lawsuit were revealed and he were returned to Cuba. He
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also fears that his wife and child, who remain in Cuba, would be targeted by the government if
his identity were revealed. See ECF No. 24-2.
Plaintiff D.C. describes leaving his home country of Honduras after he was repeatedly
targeted and chased by members of gangs he used to investigate and testify against when he
worked in the government’s gang investigation unit. He states that two of his former colleagues
were murdered by gang members. And he fears that if his identity, location, and participation in
this lawsuit were revealed, he and his family would be at risk of harm. See ECF No. 24-3.
Lastly, Plaintiff P.P. describes fleeing her home country of Honduras with her minor son,
Plaintiff A.C., after P.P.’s partner and A.C.’s father was murdered by a rival family. She states
that the family had killed other members of her partner’s family and that they had threatened to
eliminate the entire family. She fears that she and, in particular, her son, who shares his father’s
last name and who resembles him, would be at risk of harm if their identities and whereabouts
were made public. See ECF No. 24-4.
These allegations are sensitive and highly personal in nature, and identifying the
individuals making them could place them and their families at risk of further harm. The
public’s interest in judicial transparency, though substantial, is outweighed by the acute privacy
interests and safety concerns implicated here. Moreover, Defendants do not oppose Plaintiffs’
requests, and because the identities of the individual plaintiffs and the factual allegations
underlying their claims for asylum are already known to the government in connection with their
asylum applications and immigration proceedings, see Pls.’ Mot. at 6–7, there is little risk of
prejudice to Defendants in allowing the new individual plaintiffs to proceed pseudonymously.
Finally, as the Court noted, the minor plaintiff, A.C., is to presumptively remain anonymous
under the applicable federal and local rules in any event.
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For similar reasons, the Court finds that the accompanying declarations should remain
under seal as well. Submitted for the purpose of supporting Plaintiffs’ motion to proceed
anonymously, they recount intimate details of each individual plaintiff’s experience, including
details of physical and sexual violence. Making the declarations publicly available could, as
noted, subject the plaintiffs and their families to a risk of harm. The public’s interest in
accessing these declarations, which have never been accessible, does not outweigh those
considerations. And importantly, Defendants have not objected to placing the declarations under
seal. For these reasons, the Court concludes that, on balance, the applicable factors weigh in
favor of allowing these declarations to be filed under seal.
Conclusion and Order
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Unopposed Motion for
Leave to Proceed Under Pseudonyms and to File Supporting Exhibits Under Seal is GRANTED.
Plaintiffs C.S., Y.D., D.C., P.P., and A.C. may proceed in the case using their initials only, and
the declarations supporting Plaintiffs’ motion shall remain under seal.
It is further ORDERED that Defendants are prohibited from publicly disclosing the new
individual plaintiffs’ identities or any personal identifying information that could lead to the
identification of the plaintiffs by nonparties, except for the purposes of investigating the
allegations contained in the Complaint and for preparing an answer or other dispositive motion in
response.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 11, 2019
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