Boggs v. United States

In the United States Court of Federal Claims

No. 17-1946C

(Filed: June 25, 2019)

)

NICOLAS A. BOGGS, et al., ) Fair Labor Standards Act, 29 U.S.C. §§ 201-

) 219; motion to proceed anonymously.

Plaintiffs, )

)

v. )

)

UNITED STATES, )

)

Defendant. )

)

Linda Lipsett, Bernstein & Lipsett, P.C., Washington, D.C., for plaintiffs. With her were

Jules Bernstein and Michael Bernstein, Bernstein & Lipsett, P.C., and Daniel M. Rosenthal and

Alice Hwang, James & Hoffman, P.C., Washington, D.C.

Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With her were Joseph H. Hunt,

Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, and Tara K.

Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiffs Nicolas A. Boggs and 240 other individuals are current or former employees of

the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) who are or were employed

as Intelligence Research Specialists, Industry Operations Investigators, Industry Operations

Intelligence Specialists, or Senior Operations Officers (“ATF Agents”). They bring suit on

behalf of themselves and all others similarly situated seeking back pay, liquidated damages,

interest, and attorneys’ fees and costs for violations of the overtime pay requirements of the Fair

Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219.

Pending before the court is the ATF Agents’ motion to allow them to proceed

anonymously. Mot. for a Protective Order & to Permit Pls. & Putative Class Members to File

their Claims Anonymously (“Pls.’ Mot.”) at 1, ECF No. 90. The ATF Agents seek to shield their

identities and home addresses from public disclosure, arguing that the nature of ATF’s mission

makes all employees and their families “targets for attacks and harassment by violent criminals

and criminal organizations.” Id. at 1. The United States (the “government”) has responded in

opposition. Def.’s Resp. to [Pls.’ Mot.] (“Def.’s Opp’n”), ECF No. 91. After the ATF Agents

replied, see [Pls.’ Reply to Def.’s Opp’n] (“Pls.’ Reply”), ECF No. 92, the court held a hearing

on June 6, 2019.

BACKGROUND 1

ATF classified employees in the four job titles at issue as exempt from the FLSA until it

changed course and reclassified the positions as non-exempt on May 1, 2018. See Boggs v.

United States, 139 Fed. Cl. 375, 377 (2018). Four ATF employees representing two of the job

titles at issue initiated the suit on December 14, 2017. See Compl. In due course, additional

ATF employees joined, see, e.g., Pls.’ Unopposed Mot. for Leave to File Notices of Additional

Consents, ECF No. 51, and in August 2018, the court certified a collective action for employees

of ATF in the now-four job titles, Boggs, 139 Fed. Cl. at 379. More ATF employees

subsequently joined with the latest additions occurring in November 2018. E.g., Pls.’

Unopposed Notice of Filing Additional Party-Pls. & Their Consent to Sue Forms (Nov. 20,

2018), ECF No. 83. Presently, there are 241 named plaintiffs in this collective action. See Pls.’

Reply at 4.

Also in August 2018, the parties jointly requested entry of a protective order, to permit

the government to release to plaintiffs’ counsel personal information pertaining to the ATF

Agents that was covered by “the Privacy Act, 5 U.S.C. § 552a, and other laws, rules, or

regulations.” Joint Mot. for a Protective Order, ECF No. 42. The court granted the motion on

August 22, 2018. Protective Order (Aug. 22, 2018), ECF No. 44.

On April 17, 2019, more than 16 months since filing the original complaint, eight months

after issuance of the first protective order, and five months since the last addition of plaintiffs,

the ATF Agents now seek a second protective order that would “seal all pleadings identifying

any [p]laintiff by name” and allow the ATF Agents to proceed anonymously. Pls.’ Mot. Attach.

1, at 1. 2

ANALYSIS

Rule 10(a) of the Rules of the Court of Federal Claims (“RCFC”) and the corresponding

rule of the Federal Rules of Civil Procedure specify that the “title of the complaint must name all

the parties.” RCFC 10(a); Fed. R. Civ. P. 10(a). To protect privacy, the court may for good

cause “require redaction of . . . information” not subject to automatic redaction, RCFC 5.2(e)(1),

1

The recitations that follow do not constitute findings of fact by the court. Instead, the

recited factual elements are taken from the parties’ pleadings and from the pending motions and

exhibits. No factual disputes are involved with the present motion.

2

Several consent forms also contain personal information, such as home addresses and

personal contact information. The court will treat the ATF Agents’ motion as requesting privacy

of this information as well, separate from full anonymity.

2

or seal filings, RCFC 5.2(d), (e)(2). 3 “The use of pseudonyms in a complaint is contrary to this

requirement. Consequently, courts allow parties to proceed anonymously only where unusual

circumstances justify concealing a party’s identity.” Whalen v. United States, 80 Fed. Cl. 685,

691 (2008) (quoting Wolfchild v. United States, 62 Fed. Cl. 521, 552 (2004) (in turn citing Does I

Thru XXIII v. Advanced Textiles Corp., 214 F.3d 1058, 1067 (9th Cir. 2000))); see also, e.g.,

Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (recognizing a “limited

number of exceptions to the general requirement of disclosure”) (quoting Roe v. Aware Woman

Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001)); Advanced Textiles, 214 F.3d at 1067

(noting an exception “when special circumstances justify secrecy,” such as “to protect a person

from harassment, injury, ridicule or personal embarrassment”) (citations omitted).

In addressing a request by plaintiffs to proceed anonymously, this court has previously

“balance[d] the competing interests involved by weighing the party’s need for anonymity against

the general presumption that parties’ identities be available to the public and the likelihood of

prejudice to the opposing party.” Whalen, 80 Fed. Cl. at 691 (citing Advanced Textiles, 214 F.3d

at 1068; Wolfchild, 62 Fed. Cl. at 552-53). 4 The court considers five factors: (1) the severity of

the harm threatened against the party requesting anonymity; (2) the reasonableness of the fear of

that harm; (3) the requesting party’s vulnerability to such harm; (4) the public interest in

permitting or denying anonymity; and (5) prejudice to the opposing party. See, e.g., id. (quoting

Wolfchild, 62 Fed. Cl. at 553 (in turn quoting in part Advanced Textiles, 214 F.3d at 1068));

accord Doe No. 1 v. United States, ___ Fed. Cl. ___, ___, 2019 WL 2128215, at *2 (Fed. Cl.

May 15, 2019). The court evaluates the ATF Agents’ request to redact their home addresses or

other personal information under the same framework.

A. Prejudice to the Government from Plaintiff’s Anonymity

The ATF Agents summarily aver that the government will not face prejudice. Pls.’ Mot.

at 8-9. The government has not identified any particular prejudice to itself, but instead alleges

general prejudice from a growing pattern of granting anonymity in suits against the government

3

Pursuant to RCFC 5.2(a), a filing that contains a social security number, a taxpayer

identification number, or financial account number must be restricted to the last four digits.

RCFC 5.2(a). Further, a birth date and the name of a minor must be restricted to, respectively,

the birth year, or the minor’s initials. RCFC 5.2(a). “A person waives the protection of RCFC

5.2(a) as to the person’s own information by filing it without redaction and not under seal.”

RCFC 5.2(h).

4

The Courts of Appeals for the Eleventh and Fifth Circuits have articulated an alternate,

but similar, test that allows a “party [to] proceed anonymously in a civil suit in federal court by

showing that he ‘has a substantial privacy right which outweighs the customary and

constitutionally-embedded presumption of openness in judicial proceedings.’” Plaintiff B v.

Francis, 631 F.3d 1310, 1315 (11th Cir. 2011) (quoting Doe v. Frank, 951 F.2d 320, 323 (11th

Cir. 1992) (subsequent citation omitted); accord Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.

1981). The Court of Appeals for the Third Circuit has outlined a non-exhaustive nine-factor test.

E.g., Doe v. Megless, 654 F.3d 404, 408-09 (3d Cir. 2011).

3

on indefinite grounds, rather than granting anonymity based on articulation of a specific harm.

Def.’s Opp’n at 8-9.

Prejudice to the defendant refers to the harm, if any, caused by anonymity to the instant

case. E.g., Wolfchild, 62 Fed. Cl. at 553-54; see also Advanced Textiles, 214 F.3d at 1072. In

this case, the government knows the names and addresses of the ATF Agents. The pending

motion would only inhibit public disclosure. Proceeding with plaintiffs’ names under seal,

especially 17 months into litigation, would have negligible ill effects to the government’s

defense. 5 Concern with allowing assertions of general and indefinite harm to replace the

requirement of showing specific harm may, however, implicate the public interest, and is

addressed accordingly.

B. Prejudice to the ATF Agents from Proceeding in their Proper Names

The ATF Agents argue “that by virtue of their jobs, their identities alone implicate

legitimate privacy concerns.” Pls.’ Mot. at 6. The ATF Agents note that the Office of Personnel

Management (“OPM”) has previously determined in unrelated litigation “that the names of all

[ATF employees] must be kept secret to avoid a significant risk of harassment and other harm to

the employees.” Id. at 3, 5-6. The ATF Agents specifically note a “current polarized public

conversation on gun control” and cite two comments posted to Twitter within the last year. Id. at

3, 7. One comment, invoking ATF’s involvement in the 1993 raid and siege of the Branch

Davidian compound in Waco, Texas, that left 82 civilians and 4 ATF agents dead, remarked

sarcastically, “thank the next @ATFHQ agent you see for violating your rights!,” while the

second called ATF “a terrorist organization.” Id. at 3. Further, the ATF Agents argue that they

need not show actual threats or harm, but merely a “real possibility.” See Pls.’ Reply at 3

(quoting Whalen, 80 Fed. Cl. at 692-93).

The government contends that the ATF Agents “provide no probative evidence or

analysis of any actual threatened harm,” such as through affidavits or declarations attesting to

fears, Def.’s Opp’n at 3-4, nor have they demonstrated that their fears are reasonable or that they

are actually vulnerable to harm, id. at 6. Rather, it avers the ATF Agents advance “vague”

threats. Id. at 3-4. The government argues that anonymity is warranted in circumstances that

have not been demonstrated here, namely when a “case involves matters that are ‘highly

sensitive or of a personal nature.’” Id. at 4-5 (quoting Sealed Plaintiff, 537 F.3d at 190).

A straightforward application of the federal rules of procedure would require the ATF

Agents to disclose their identities. See, e.g., RCFC 10(a), Fed. R. Civ. P. 10(a); Sealed Plaintiff,

537 F.3d at 189 (“limited . . . exceptions”). To overcome that presumption, the ATF Agents

must reasonably show the severity of, and their vulnerability to, harm if they proceed according

to the rules. See Whalen, 80 Fed. Cl. at 691-92. The harm suggested by the ATF Agents is that

of “attacks and harassment by violent criminals and criminal organizations” against themselves

and their families. Pls.’ Br. at 1. They have not alleged other harms, such as retaliation by their

5

Concerns over the defendant’s right to know or confront its accuser, see, e.g., Megless,

654 F.3d at 408, are not implicated in this case.

4

employer or public embarrassment. Accordingly, the court evaluates whether the ATF Agents

have reasonable fears of violence and are vulnerable to it.

Actual violence would constitute severe harm. So too would potential violence, if the

ATF Agents demonstrated its reasonableness and their vulnerability. The ATF Agents have not,

however, adduced evidence of actual or threatened violence to themselves or their families.

Their showing suggests potential violence, based upon two comments on Twitter. While both

comments are critical of ATF, neither call for violence or even harassment against ATF

employees. The ATF Agents may not even know of such comments. As of May 2019, 51 of 56

ATF Agents with a LinkedIn social networking account felt comfortable enough to identify

publicly their employment with ATF. Pls.’ Reply Ex. A; Hr’g Tr. 5:10 to 7:18 (June 6, 2019). 6

Despite the identities of some plaintiffs being public for more than 16 months, they have

provided no evidence that they or their families have been targeted by criminals, criminal

organizations, the public, or anyone else.

Several courts have found that communications indicating general disapproval or

frustration with plaintiffs were insufficient to justify anonymity. E.g., Plaintiffs # 1-21 v. County

of Suffolk, 138 F. Supp. 3d 264, 272 (E.D.N.Y. 2015) (finding risk of retaliation to Latino

plaintiffs on other grounds but dismissing newspaper articles suggesting anti-Latino sentiment in

the community) (citing Doe v. Pittsylvania Cty., 844 F. Supp. 2d 724, 734-38 (W.D. Va. 2012)

(letters to the editor of a newspaper and online commentary critical of plaintiff’s counsel and

indicating opposition to her lawsuit, but with no specific threats, did not suffice)); see also Doe

v. Kamehameha Schools/Bernice Pauahi Bishop Estate, No. 08-00359, 2008 WL 4755674, at

*3-4 (D. Haw. Oct. 28, 2008) (rejecting anonymity because the “frustration” expressed was not a

threat, where internet comments implied child-plaintiffs would experience violence if they

attended the defendant’s school and contained other racial remarks), aff’d, 596 F.3d 1036 (9th

Cir. 2010). Two Twitter comments alone that do not advocate harassment or violence fail to

suggest a reasonable fear of violence or that any ATF Agents are vulnerable to violence.

The court accepts that association with the ATF may suffice for particularized harm if

ATF Agents had shown that others similarly situated to them have been harmed or threatened

based on association with ATF. E.g., Wolfchild, 62 Fed. Cl. at 552; but see Doe v. McKesson,

322 F.R.D. 456, 457-58 (M.D. La. 2017) (denying a police officer’s request for anonymity in a

suit for injuries caused by a protestor where the officer expressed a general fear of harm based on

actual violence committed against other police officers, but without particularized threats of

violence related to filing the instant lawsuit). The ATF Agents, however, have made no showing

that other ATF employees have been subjected to violence or threatened credibly with violence

simply because of their employment by ATF. See Hr’g Tr. 10:9-14, 20-23. It is highly unlikely

that this litigation will disclose specific investigative targets and correlate those targets to

specific ATF Agents. Even accepting the “current polarized public conversation on gun

control,” there is no showing how this translates into a reasonable potential for harm against any

ATF employees. Absent such evidence, the court lacks a basis to accept that the ATF Agents

fear violence or harassment, or whether such fear is reasonable, or whether they or their families

are vulnerable to it. See Whalen, 80 Fed. Cl. at 692-93 (“To establish cause [to file

anonymously], the plaintiffs must present more than the current bare allegation of retaliation;

6

The date will be omitted from further citations to the hearing held on June 6, 2019.

5

they must present evidence that potential retaliation is a real possibility, such that the court can

properly balance that possibility against the public interest in disclosure and any prejudice to the

defendant.”). 7

The ATF Agents’ arguments contrast with many other cases in which courts have

allowed anonymous plaintiffs. In Wolfchild, the court allowed some plaintiffs to join the

complaint anonymously where plaintiffs were members of or were seeking membership in Indian

communities that opposed their lawsuit and exercised “nearly a plenary power over community

membership.” 62 Fed. Cl. at 553-54. The court also noted that the public interest was not

impaired by allowing some plaintiffs to remain anonymous when 250 were already named. Id. at

554. In Advanced Textiles, the court allowed the use of pseudonyms by Chinese garment

workers in Saipan when they showed that filing labor complaints would subject them to reprisals

by their employer and return to China, to be followed by harassment by the Chinese government,

to include arrest of them and their families under state secret laws and physical harm. 214 F.3d

at 1064-65. In Doe v. Stegall, the court found that “[e]vidence on the record indicates that the

[plaintiffs] may expect extensive harassment and perhaps even violent reprisals if their identities

are disclosed to [a] community hostile to the viewpoint reflected in plaintiffs’ complaint,” and

that the “threats of retaliation . . . must also be assessed in light of the special vulnerability of

these child-plaintiffs.” 653 F.2d at 186. 8 Children and rape victims have been identified as

“particularly vulnerable” to merit fictitious names. Doe v. Blue Cross & Blue Shield United of

Wis., 112 F.3d 869, 872 (7th Cir. 1997); see also Doe ex rel. Doe v. Kamehameha

Schools/Bernice Pauahi Bishop Estate, 625 F.3d 1182, 1189 (9th Cir. 2010) (Kozinski, J.

dissenting) (arguing against denial of en banc rehearing of denial of anonymity when plaintiffs

were children). In Casaretti v. United States, this court allowed federal air marshals to file their

opt-in consent forms under seal, having made public only the original plaintiff. Fed. Cl. No. 15-

294, ECF Nos. 5 & 6. The marshals alleged that by merely revealing their identities, they would

violate agency policy regarding disclosure of sensitive information and could thus face

retaliation by their employer. Fed. Cl. No. 15-294, Pl.’s Mot. to File Unredacted Consents Under

Seal, ECF No. 5. In that case, the court found that revealing identities may not only subject each

marshal to personal harm through retaliation, but could harm national security and flight safety.

Id. While the allegations of harm in Casaretti were more general than those made in Wolfchild,

Advanced Textiles, or Stegall, it is reasonable to accept that undercover officers disclosing their

identities would compromise the public interest in aviation safety or subject them to discipline

from their employer because their undercover status would be compromised.

7

To the extent that some ATF Agents could demonstrate particularized harm, the degree

of risk likely differs based upon location, job, and whether the ATF Agents are current or former

employees. The ATF Agents, for example, hail from at least 38 states.

8

But see Stegall, 653 F.2d at 186, 188 (Gee, J., dissenting) (noting that, in contrast to

these school-children who need not disclose their religious belief to challenge the

constitutionally of religious observances in public schools, that “[o]ne may . . . search the annals

of school desegregation and civil rights cases in vain before finding ‘Roe v. Connor’ or ‘Doe v.

Wallace.’ Those who brought those cases were willing to avouch their causes before the

world.”).

6

The ATF Agents rely on a declaration by OPM in a 2012 Freedom of Information Act

(“FOIA”) suit, Long v. Office of Personnel Management, 692 F.3d 185, 192 (2d Cir. 2012), in

which a court accepted that OPM need not release the names of federal employees in sensitive

occupations. See Pls.’ Br. at 5-6. In Long, two professors routinely accessed an OPM database

of federal Executive branch employees to provide transparency on activities, staffing, and

spending of the government. Long, 692 F.3d. at 188. In 2005, OPM changed its data-release

policy to redact the names and locations for all employees in five sensitive federal agencies, to

include the ATF, and employees of any other agency who are employed in 24 “sensitive”

occupation categories. Id. at 189 & n.4. This policy covered over 800,000 federal civilian

employees. Id. at 189. OPM defended the complaining professors’ suit by invoking FOIA

Exemption 6, which protects from disclosure “personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personnel privacy.” Id. at

189-90 (quoting FOIA Exemption 6, 5 U.S.C. § 552(b)(6)) (emphasis added). In affirming the

district court’s decision to permit OPM to redact names, the Court of Appeals for the Second

Circuit first addressed the inquiry required when assessing FOIA Exemption 6: initially

determine whether the privacy interest was more than “de minimis,” and if so, balance it against

the “only public interest cognizable under FOIA[, i.e.,] ‘understanding of the operations or

activities of the government.”’ Id. at 191, 193 (quoting United States Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)) (subsequent citation

omitted). The court found a “cognizable privacy interest in keeping [the] names from being

disclosed wholesale,” because “OPM’s submissions sufficiently demonstrated that . . . federal

employees in the sensitive agencies and occupations face an increased risk of harassment or

attack.” Id. at 192. The court posited that the analysis must be “context specific,” because

“[n]ames and other identifying information do not always present a significant threat to an

individual’s privacy interest.” Id. at 191 (citation omitted). The privacy interest depends “upon

the characteristics revealed by virtue of being on the particular list, and the consequences likely

to ensue.” Id. at 192 (quoting United States Dep’t of State v. Ray, 502 U.S. 164, 176 n.12

(1991)). The court, however, did not opine on the extent of the privacy interest attached to one’s

name. In its view, disclosure of the names was not relevant to understanding government

activities, and the two professors “identified no appreciable public interests militating in favor of

the wholesale disclosure of names,” and thus even a small privacy interest would outweigh “the

nonexistent public interest.” Id. at 194-95.

The ATF Agents further offer Wood v. Federal Bureau of Investigation, 432 F.3d 78, 88

(2d Cir. 2005), also a case brought under FOIA, as additional evidence of judicial recognition

that “government investigative personnel have ‘an interest against possible harassment and

embarrassment.’” Pls.’ Mot. at 5 (quoting Wood, 432 F.3d at 88). In Wood, the court upheld the

FBI’s decision to withhold from a reporter the identities of specific FBI agents who conducted an

investigation into particular individuals. The court found minimal public interest in disclosure

under FOIA because “revealing the identities of the investigators assigned to the case would add

little to the public’s understanding of how the [government] performed its duties,” especially

when the employees “are of relatively low rank and the identities of the decision-makers have

already been disclosed.” Wood, 432 F.3d at 88. Because the public interest in knowing the

agents’ identities was “minimal at best,” it therefore could not overcome what was at least a

“measurable privacy concern” of “possible harassment and embarrassment.” Id. at 88-89.

7

The ATF Agents’ primary reliance on FOIA cases is telling. The court accepts that a

privacy interest attaches to one’s name or address. But although similarities exist between parts

of the inquiry for examining FOIA Exemption 6 and for proceeding anonymously under Rule

10(a), the inquiries are different. Distinctions fall into two general categories: the public interest

and the nature of the disclosure.

The “only public interest cognizable” under FOIA is understanding government

operations. Long, 692 F.3d. at 193 (citation omitted). By contrast, the public interest under Rule

10(a), is a constitutionally-based interest in judicial transparency. See, e.g., Stegall, 653 F.2d at

185-86. The wholesale disclosure of employee names does not inherently advance the first

interest, but the wholesale disclosure of parties’ names does advance the second interest.

Therefore, while generalized risk may suffice under FOIA to overcome a minimal public interest

in disclosing employee information, generalized risk is insufficient to overcome the public

interest in judicial disclosure served by Rule 10(a).

Relatedly, the nature of the disclosure under Rule 10(a) varies from that of FOIA. Under

FOIA, employees are not consulted by the agency about disclosure of their personal information.

They may not even be aware it occurred. See, e.g., Long, 692 F.3d at 189. FOIA Exemption 6

protects the release of a person’s private information by a third-party, i.e., the government. In

contrast, the ATF Agents, like all plaintiffs, chose voluntarily to invoke the courts. FOIA

Exemption 6 exists to preserve anonymity, but Rule 10(a) exists to prevent anonymity. In other

words, government employees subjected to disclosure under FOIA are involuntary participants,

whereas plaintiffs voluntarily invoke the courts.

The ATF Agents argue that it is “not fair or reasonable to say that . . . they have forfeited

their protection from a risk of harm” by having “merely sought to vindicate their legal rights

under the FLSA.” Pls.’ Reply at 7-8. To the contrary, it seems unfair or unreasonable to allow

ATF Agents to circumvent the standard applied to other litigants. Public employees suing under

the FLSA should not be allowed to proceed under a presumption of privacy while private sector

employees must proceed under a presumption of public disclosure. The ATF Agents are not

unique in using the courts to vindicate legal rights. Every party in a litigated case has that aim,

and every party must proceed in their proper name absent a showing of a reasonable fear of

particularized harm.

The ATF Agents cite several cases to argue that suits against the government weigh in

favor of anonymity. Pls.’ Reply at 7. This argument presents a unique challenge for this court,

which only hears suits against the federal government. 9 In contrast to the ATF Agents’

contention, some courts have taken the position that suing the government weighs against

9

For example, the ATF Agents cited two pending cases where the court granted

anonymity to certain federal employees by virtue of the agency or position in which they

worked: Plaintiff No. 1 v. United States and Plaintiff No. 1 v. United States. See Hr’g Tr. 4:20 to

5:9. The ATF Agents provided the docket numbers: 18-393C and 18-102C, respectively, but

because both cases are sealed and the motions were granted without a public opinion, the court

cannot ascertain any background by which to compare or contrast the cases. The court, however,

presumes that the reasoning is likely similar to that of Doe No. 1 v. United States, ___ Fed. Cl.

___, 2019 WL 2128215.

8

anonymity. E.g., Doe v. Public Citizen, 749 F.3d 246, 274 (4th Cir. 2014); Megless, 654 F.3d at

411. Indeed, most courts that have ruled in favor of anonymity in suits against the government

have done so in only a narrow set of circumstances that are inapplicable here. “In only a very

few cases challenging government activity can anonymity be justified.” E.g., Stegall, 653 F.2d

at 186 (opposing government-sanctioned religious observances in public schools); accord

Publius v. Boyer-Vine, 321 F.R.D. 358, 366 (E.D. Cal. 2017) (“Although the government

defendant factor can go either way, here, the fact that [d]efendant is a government entity tips the

balance in [p]laintiffs’ favor because of the nature of this case—a legal challenge to the

constitutionality of a California statute as applied to the content of Publius’ speech.”) (citations

omitted); EW v. New York Blood Ctr., 213 F.R.D. 108, 112 (E.D.N.Y. 2003) (“[W]here a

plaintiff attacks governmental activity, for example a governmental policy or statute, the

plaintiff’s interest in proceeding anonymously is considered particularly strong . . . [because] the

plaintiff presumably represents a minority interest (and may be subject to stigmatization), and

there is arguably a public interest in a vindication of his rights.”). What makes relevant the

government’s status as defendant are either circumstances implicating a substantial

constitutionally-grounded privacy right or claims seeking to vindicate a constitutional right.

E.g., Plaintiff B v. Francis, 631 F.3d 1310, 1317 (11th Cir. 2011) (“descriptions of the

[p]laintiffs in various stages of nudity and engaged in explicit sexual conduct while they were

minors”); Stegall, 653 F.2d at 186 (challenge to state-sponsored religious observances in public

schools, as “religion is perhaps the quintessentially private matter”); Publius, 321 F.R.D. at 361

(First Amendment challenge against California law prohibiting disclosure of the addresses and

phone numbers of state legislators that plaintiff “might have violated or intends to violate”); Doe

v. Purdue Univ., 321 F.R.D. 339, 341-42 (N.D. Ind. 2017) (Fourteenth Amendment Due Process

claim involving accusation of sexual assault and implicating plaintiff’s sexual history); New York

Blood Ctr., 213 F.R.D. at 112 (“embarrassment and fear of stigmatization because [plaintiff] has

. . . a sexually and blood-transmitted disease”); see also Megless, 654 F.3d at 408 (noting, in

affirming the denial of anonymity to a plaintiff challenging the implication by a school district

that he was a pedophile, that “courts have allowed pseudonyms [in] cases involving ‘abortion,

birth control, trans[s]exuality, mental illness, welfare rights of illegitimate children, AIDS, and

homosexuality.”) (quoting Doe v. Borough of Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990)).

And invocation of such intimate topics may still fail to qualify for use of pseudonyms. E.g., Doe

v. Merritt Hospitality, LLC, 353 F. Supp. 3d 472, 474-75, 482 (E.D. La. 2018) (HIV status in an

employment discrimination suit). A Fair Labor Standards Act suit regarding the proper amount

of overtime compensation, by contrast, implicates none of the concerns identified as relevant for

anonymity in suits challenging the government.

The government further contends that “the cat is already out of the bag” considering the

identities of ATF Agents have been public for up to 16 months, and that “many plaintiffs post

their names, specific positions, and employment at ATF on public social media and the Internet.”

Def.’s Opp’n at 5, 9 (quoting Doe v. National Conf. of Bar Examiners, No. 16-CV-264, 2017

WL 74715, at *3 (E.D.N.Y. 2017)). The ATF Agents argue a right to mitigate harm and counter

that public disclosure by 51 should not imperil the rights of the remaining 190. Pls.’ Reply at 4-

5. The ATF Agents certainly have a right to mitigate harm. But they must nonetheless make a

showing of harm to mitigate. If general association with ATF correlated with a potential for

harm, the ATF Agents should be able to provide examples after 16 months in which their names

and address were publicly available and when at least 51 plaintiffs identified themselves as ATF

employees on social media. The lack of such evidence undercuts the reasonableness of their

9

fears. 10 Further, there has already been one published opinion in this case, meaning that for at

least Mr. Boggs, his association with ATF will remain public. See Boggs, 139 Fed. Cl. at 375.

In sum, because the ATF Agents’ suit does not implicate a constitutionally-protected

privacy concern, they must show actual harm, credible threats of harm, or that others similarly-

situated to them have experienced such conduct based on association. The ATF Agents’ reliance

on two non-specific comments on Twitter and the government’s past representations of a general

potential for harassment for ATF employees, leaves the court with little harm for the court to

evaluate and little evidence to inform that evaluation.

C. Public Interest Regarding Anonymity

The ATF Agents contend that “no specific interest is served by publicly disclosing

Plaintiffs’ names and addresses,” Pls.’ Reply at 6, and that the public interest against anonymity

is weak because only legal issues are involved, Pls.’ Mot. at 8. The government argues that there

exists “a strong public interest in judicial transparency,” especially in suits against federal

agencies. Def.’s Opp’n at 7.

Again, it bears repeating that both RCFC 10(a) and its companion in the Federal Rules of

Civil Procedure require that the “title of the complaint [must] name all the parties.” RCFC 10(a);

Fed. R. Civ. P. 10(a). “This rule serves more than administrative convenience. It protects the

public’s legitimate interest in knowing all of the facts involved, including the identities of the

parties.” Francis, 631 F.3d at 1315 (quoting Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992))

(subsequent citations omitted); accord Sealed Plaintiff, 537 F.3d at 188-89 (Rule 10(a) “serves

the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set

aside lightly”).

While this Fair Labor Standards Act case may not engender widespread attention and

knowing the names of the plaintiffs might be of limited concern to nearly all court watchers, as

would be true for most other civil cases, the public interest is not so limited. Requiring the ATF

Agents to proceed publicly serves the same public interest that is served by disclosure in every

other civil case: judicial transparency. Proceeding in one’s proper name facilitates the

“customary and constitutionally-embedded presumption of openness in judicial proceedings.”

Stegall, 653 F.2d at 186; see also Sealed Plaintiff, 537 F.3d at 189 (“Identifying the parties to the

proceeding is an important dimension of publicness. The people have a right to know who is

using their courts.”) (quoting Blue Cross & Blue Shield, 112 F.3d at 872); Joan Steinman, Public

Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities

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This court rejected the government’s “cat is already out of the bag” argument in Doe

No. 1 v. United States. There, plaintiffs’ names had been public for six weeks when plaintiffs

filed their motion for a protective order. See Doe No. 1, ___ Fed. Cl. at ___, 2019 WL 2128215,

at *2. In both Plaintiff No. 1 cases, 13 months and five months had elapsed, respectively,

between the complaint and the motion requesting anonymity. See Fed. Cl. Nos. 18-102C & 18-

393C. Even so, the court has not accepted the government’s argument. Rather, it observes the

lack of harm after 16 months. While the court does not suggest a wait-and-see approach to see

whether harm develops, if months do otherwise elapse, what actually occurs, or does not occur,

becomes relevant to the inquiry.

10

Confidential?, 37 Hastings L.J. 1, 18-22 (1985) (discussing the tensions between pseudonymous

litigation and public access, and how use of pseudonyms “may tend to undermine the confidence

of the public in the administration of the law,” “hampers the structural function of the [F]irst

[A]mendment,” and may “conflict with the public’s right of access to judicial records”).

The ATF Agents’ contend that prior decisions have found that the “public interest in

revealing [p]laintiffs’ identities [is] ‘virtually non-existent.’” Pls.’ Mot. at 8 (quoting Long v.

Office of Pers. Mgmt., No. 5:05-cv-1522, 2007 WL 2903924 (N.D.N.Y. Sept. 30, 2007), aff’d in

part, 692 F.3d 185. Accepting this argument would render the public interest factor inapplicable

to most cases, contravening widespread judicial acknowledgement that anonymity deviates from

the “customary and constitutionally-embedded presumption of openness in judicial proceedings.”

E.g., Stegall, 653 F.2d at 186. As discussed, the ATF Agents misplace their reliance on Long;

the public interest served by FOIA differs from the public interest served by Rule 10(a). Thus,

Long’s analysis cannot be transferred here.

The ATF Agents further argue that this case “involves a particularly weak public interest

[because] it involves only legal issues.” Pls.’ Mot. at 8. While several courts have recognized

this proposition, it is inapposite here. Cases that involved “only legal issues” are those that are

not fact-sensitive. They are typically instances where plaintiffs challenged the constitutionality

of a statute, i.e., where the plaintiff is one of many who could make the challenge and where the

results would be widely felt among the public. Cf. Megless, 654 F.3d at 410 (“not a purely legal

claim”); see, e.g., Pittsylvania Cty., 844 F. Supp. 2d at 731. In contrast, this case by the ATF

Agents involves many factual issues. The ATF Agents’ are not challenging the FLSA, but

whether ATF policies as related to specific employees and circumstances violate the FLSA. The

ATF Agents must adduce evidence of their duties, FLSA classifications, and work hours. A

dispute could arise over whether a FLSA exemption applies. Seventh Am. Compl. ¶ 55. The

ATF Agents’ seek liquidated damages, Seventh Am. Compl. at 15, against which ATF can

defend by showing good faith and a reasonable basis in classification. The ATF Agents also

allege that the ATF acted willfully, Seventh Am. Compl. ¶¶ 60, 62, 69, adding another factual

showing to the plaintiffs’ burden. The ATF Agents recitation of “involv[ing] only legal issues,”

Pls. Mot. at 8, ignores the sets of factual issues that could and probably will arise.

Disclosure of the ATF Agents’ identities would not hinder the public interest, as it might

when a case that could vindicate an important public right would not be brought if plaintiffs had

to disclose their identities. E.g., Stegall, 653 F.2d at 186 (permitting use of pseudonyms by

children who sought to “vindicate establishment clause rights” by opposing religious

observances in public schools and where “[e]vidence on the record indicates that the [plaintiffs]

may expect extensive harassment and perhaps even violent reprisals if their identities are

disclosed.”). In this case, the original four ATF employees brought suit in their proper names.

Since then, another 237 have joined. And this is hardly the first Fair Labor Standards Act suit

brought in this court under the proper name of a government employee who occupied a sensitive

position. E.g., Shea v. United States, ___ Fed. Cl. ___, 2019 WL 2332249 (May 31, 2019)

(Naval Criminal Investigative Services Surveillance Specialist); Adams v. United States, 141

Fed. Cl. 428 (2019) (U.S. Border Patrol agents); Akpeneye v. United States, 138 Fed. Cl. 512

(2018) (Pentagon Force Protection Agency officers); Almanza v. United States, 135 Fed. Cl. 113

(2017) (Customs and Border Protection Officers and Border Patrol Agents). The ATF Agents

argue that anonymity serves “the public’s interest” by protecting employees whose job is to

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protect the public. Pls.’ Mot. at 8. While the government does have an interest in protecting its

employees, along with all people generally who use its courts, the argument presumes that a

harm exists, and that the harm suffices to override the public interest in judicial transparency.

Granting anonymity for government employees by virtue of their employer and without a

showing of any particularized harm would unduly expand a practice reserved for unique

circumstances. The logic of the ATF Agents could be applied to many government employees.

Generic threats from terrorist organization and hostile governments or potential harassment from

anti-war protesters could warrant allowing any current or former members of the military to

proceed anonymously. 11 If the “current polarized public conversation on gun control” warrants

blanket anonymity for ATF employees, Pls.’ Mot. at 3, so too would the polarized public

conversations on immigration, environmental regulations and climate change, taxation, and

warrants issued by the Foreign Intelligence Surveillance Court, to name a few, in turn justify

blanket anonymity for employees of Immigrations and Customs Enforcement, the Environmental

Protection Agency, the Internal Revenue Service, or the Federal Judiciary. It is also questionable

why only federal employees should enjoy immunity from RCFC 10(a). Businesses challenging

government procurement decisions might argue that they should be entitled to blanket anonymity

to avoid a potential for harassment from their association with certain government agencies, such

as the Departments of Defense or Homeland Security, or to avoid the general potential for

retaliation by the government when bidding on future contracts.

Plaintiffs could try to distinguish between government employees whose work “involves

classified and confidential law enforcement duties” or similar sensitive duties, see Pls.’ Mot. at 2,

7, and those whose work does not, see Pls.’ Mot. at 7. But it is not evident that those expressing

non-specific criticisms of a federal agency would make a distinction between employees based

on job titles. Even with such a limitation, a large swath of federal civilian employees would be

categorically exempted from having to show anything more than their employer to overcome the

requirement of Rule 10(a). 12 Under the same logic, the exemption should attach to all 1.3

11

For example, “[The Islamic State of Iraq and Syria’s] videos and propaganda

specifically advocate for attacks against soldiers, law enforcement, and intelligence community

personnel.” Current Threats to the Homeland Before the S. Homeland Sec. & Gov’t Affairs

Comm. at 2 (2017) (statement of Christopher A. Wray, Director, Fed. Bureau of Investigation),

https://www.hsgac.senate.gov/hearings/09/18/2017/threats-to-the-homeland.

12

The Office of Personnel Management’s policy regarding Freedom of Information Act

requests for the names of Executive branch employees redacts the names of all employees in five

sensitive federal agencies and all other employees in 24 sensitive categories. See Long, 692 F.3d

189. In 2012, this amounted to 800,000 Executive branch civilian employees, see id., of 2.1

million total civilian employees, see Office of Pers. Mgmt., Sizing up the Executive Branch: FY

2017, at 4 (2018), https://www.opm.gov/policy-data-oversight/data-analysis-

documentation/federal-employment-reports/reports-publications/sizing-up-the-executive-branch-

2016.pdf.

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million active-duty military members, 13 and to large numbers of other non-federal public sector

employees. The exception subsumes the rule, making many government employees members of

a protected class based on little more than generalized criticisms of the government.

In sum, transparency in judicial proceedings serves the public interest, and accordingly a

presumption favors transparency, as shown by the rule mandating proceeding in one’s proper

name. Shifting this presumption requires showing that the suit could serve an important public

interest but would otherwise not be brought if plaintiffs were required to identify themselves.

The ATF Agents’ suit indicates the opposite. A present, 241 ATF employees signed onto the

suit in their proper names, the last of which joined five months before the anonymity request was

made. Accordingly, the public interest weighs against ATF Agents’ motion for anonymity.

D. Balancing the Interests

The government’s interest, as the defendant, is not prejudiced by anonymity. The

government is already aware of the litigants’ identities. Plaintiffs’ motion would only conceal

their personal information from the public.

The public interest in judicial transparency is prejudiced by allowing plaintiffs to proceed

anonymously. Contrastingly, the prejudice to the public interest from withholding home

addresses or personal contact information is less, especially as the court’s rules do not contain

such requirements. See Hr’g Tr. 9:11-19. The public can assess who is using the courts without

knowing where litigants reside or how to contract them. Unlike in district court, this court’s

nationwide jurisdiction preempts any challenges to personal jurisdiction or venue that might

make an address particularly relevant.

Although the ATF Agents have alleged severe harm, the showing is generalized and

speculative, and the court cannot give controlling weight to the harm or evaluate plaintiffs’

vulnerability. Employment may certainly be relevant in showing particularized harm. But,

particularized harm must still be shown for the court to deviate from Rule 10(a). The applicable

standard should not vary based on the whether a party is employed by the government.

Separately, the court recognizes that a greater privacy interest exists in a person’s home address

and personal contact information. Also, while many plaintiffs may feel comfortable disclosing

their association with ATF, it is unlikely that they would do so in conjunction with disclosing

their home address or personal contact information.

Accordingly, the balance of interests weigh against plaintiffs’ request to proceed

anonymously but in favor of their request to seal their home addresses or personal contact

information. Plaintiffs’ general allegations of harm cannot overcome the public interest in

judicial transparency served by requiring plaintiffs to proceed in their proper name. But, because

no comparable public interest exists in knowing a plaintiff’s home address or personal contact

information and because plaintiffs have privacy interests in these respects, the generalized harm

13

See generally Defense Manpower Data Ctr., DoD Personnel, Workforce Reports &

Publications, https://www.dmdc.osd.mil/appj/dwp/dwp_reports.jsp (last visited June 5, 2019)

(presenting historical reports of the size of the U.S. military); see also Wray, supra n.11.

13

the ATF Agents allege suffices to permit them to seal their home addresses or other personal

contact information and to redact that information from any public filings.

CONCLUSION

For the foregoing reasons, the ATF Agents’ motion is GRANTED in part and DENIED

in part. The ATF Agents have not demonstrated sufficient cause for collectively or individually

proceeding anonymously. To protect the home addresses or personal contact information of the

ATF Agents, they may seal consent forms or other filings with their home address or personal

contact information, and may file under seal additional consent forms or other documents that

contain home addresses or personal contact information. Plaintiffs shall file redacted versions of

any sealed documents for public disclosure; where home addresses are redacted, the state,

district, or territory of residence or employment must be provided.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge

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