 

LA. etal,

Plaintiffs,
v.

WILLIAM BARR et al.,

Defendants.

 

 

FILED

AUG 21 2015

UNITED STATES DISTRICT COURT Clerk, U.S. District and
FOR THE DISTRICT OF COLUMBIA

Bankruptcy Courts

Case: 1:19-cv—02530

Assigned To : Kelly, Timothy J.
Assign. Date : 8/21/2019
Description: GEN CIV (E-DECk)

MEMORANDUM OPINION AND ORDER

Plaintiffs in this action are eight 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. The individual plaintiffs, each an asylum applicant or the minor child of an applicant

currently in the United States, seek leave to proceed using pseudonyms and to file their proposed

complaint accordingly. They further seek leave to file under seal the accompanying declarations

in support of their motion for leave to proceed pseudonymously. Defendants do not oppose

Plaintiffs’ motion. For the reasons set forth below, the Court will grant it.

I, Background

The individual plaintiffs are eight persons from five different countries seeking asylum in

the United States. They are comprised of five adults and three minors, all of whom entered the

United States at the southern border on or after July 16, 2019. Each individual adult plaintiff and

the one unaccompanied minor plaintiff, 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
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.
Il. Legal Standard

Generally, a complaint must state the names of the parties and the address of the plaintiff.
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 Commce’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, No. 17-1212, 2019 WL 3367999, at *3 (D.C. Cir. July 26,
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’! 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, 2019 WL 3367999, at *3. When weighing those concerns, five

factors, 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, 2019 WL

3367999, at *4. 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 ina
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, 2019 WL 3367999, at *4 (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

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.
Wil. 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 individual plaintiffs maintain that the facts underlying their claims involve “highly
sensitive and personal” information, such that their names should not be eximosed to the public.
Plaintiffs’ Unopposed Motion for Leave to Proceed Under Pseudonyms and to File Supporting
Exhibits Under Seal (“Pls.’ Mot.”) at 3. Furthermore, they explain that their identities are
particularly sensitive because publicly disclosing their participation in this lawsuit could place
them and their families at risk of future harm. See id. at 2-3.

As described in his declaration, Plaintiff I.A. fled his home country of Pakistan after he
was physically assaulted, and he and his family were further threatened, due to his religious
beliefs. He fears for both his own safety and that of his family, who live in Pakistan, if his
identity is revealed. See Sealed Ex. 1.

Plaintiff E.B. describes fleeing his home country of Guatemala after being physically
abused by his uncle due to his sexual orientation and physically and sexually abused by his
stepfather. He worries in particular that his stepfather, whom E.B. identifies as a gang “leader,”
would locate him and harm him if his identity were revealed. See Sealed Ex. 2.

Plaintiff L.C. describes leaving her home country of Guatemala with her minor son,

M.X., to escape physical and sexual abuse from her husband. She worries that she and her son,
as well as her family back in Guatemala, would be put at risk of harm if her husband learned of
her whereabouts and participation in this lawsuit. See Sealed Ex. 3.

Plaintiff L.A. describes fleeing her home country of Cameroon after she was arrested,
beaten, and raped for her support for the independence movement for English-speaking
Cameroonians. She fears that she and her family in Cameroon would be at risk of harm if her
identity were revealed. See Sealed Ex. 4.

Plaintiff A.L.G. describes fleeing her home country of Honduras with her minor
daughter, A.G., out of fear of persecution due to her sexual orientation. She describes physical
abuse at the hands of her family, and fears that she and her daughter would be put at risk of harm
if her identity and her sexual orientation were made public. See Sealed Ex. 5.

Finally, Plaintiff N.B., a minor from Cameroon, describes fleeing his home country after
he was beaten and detained by military officials due to their suspicion that he was a supporter of
the English-speaking independence movement there. He also describes facing harassment and
forced recruitment from members of that movement. He fears for his safety and that of his
family, who still live in Cameroon, if his participation in this lawsuit is revealed. See Sealed Ex.
6.

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 7, there is little risk of
prejudice to Defendants in allowing the individual plaintiffs to proceed pseudonymously.
Finally, as the Court noted, the minor plaintiffs, M.X., A.G., and N.B., are to presumptively
remain anonymous under the applicable federal and local rules in any event.

For similar reasons, the Court finds that the accompanying declarations should be filed
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.

IV. 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 1.A., E.B., L.C., M.X., L.A., A.L.G., A.G., and N.B. may proceed in the case using
their initials only and without providing their addresses, and the declarations supporting
Plaintiffs’ motion may be filed under seal.

It is further ORDERED that Defendants are prohibited from publicly disclosing the
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: August 21, 2019
