“The common thread running through [cases where anonymity was warranted] is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to disclosure of their identities to the public record.”
How later courts described this case
- “The common thread running through [cases where anonymity was warranted] is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to disclosure of their identities to the public record.”
Written by the judges who cited it.
The opinion
CORRECTED
In the United States Court of Federal Claims
No. 21-1157
(Filed Under Seal: July 5, 2022)
(Reissued for Publication: October 11, 2022)1
NOT FOR PUBLICATION
**************************************
A.M., *
*
Plaintiff, *
*
Motion to Seal; Motion to Proceed
v. *
Anonymously.
*
THE UNITED STATES, *
*
Defendant. *
**************************************
Bruce I. Afran, Princeton, NJ, counsel for Plaintiff.
Sarah E. Kramer, U.S. Department of Justice, Civil Division, Washington, DC, counsel for
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff seeks to preserve his anonymity in this case by sealing his name, the nature of
his prior criminal conviction, and other identifying information from the public record. The
government opposes Plaintiff’s motion to seal in its entirety. Because the Court finds that
Plaintiff has shown that his privacy interests outweigh the prejudice to the government and the
public’s interest in disclosing his identity, the Court grants his motion to seal.
I. BACKGROUND
Plaintiff filed a complaint under seal and with redactions in this Court on April 5, 2021,
challenging his removal from federal employment by the
and seeking restoration to his
position and recoupment of withheld salary and benefits. See Compl., ECF No. 1. The
removed Plaintiff after a jury in state court found him guilty of [a criminal offense]. Id.
¶¶ 13-15. Subsequently, Plaintiff’s conviction was vacated pending his completion of pre-trial
probation, . See Pl.’s Decl. ¶ 3, ECF No. 3-
2. Plaintiff appealed his removal to the Merit System Protection Board (“MSPB”), and his appeal
was dismissed because the MSPB lacked a quorum. Compl. ¶¶ 16, 24-25. Plaintiff then brought a
1
This Memorandum Order and Opinion was originally filed under seal on July 5, 2022. See ECF No. 25. It is now
reissued with the appropriate redactions as set forth in the Memorandum Opinion and Order. See id. at 4.
claim in this Court challenging, on constitutional grounds, the legal authority to remove
him from federal service. See generally id.
Concurrent with his complaint, Plaintiff filed a motion to seal requesting that he be
permitted to proceed with his case anonymously. Pl.’s Mot. to Seal, ECF No. 3. In his motion,
Plaintiff requests that the Court redact his name and job title, the name of the agency he worked
at, his address and state of residence, and the nature of his prior criminal conviction that led to
his removal from federal service. Id. at 1. The government filed a motion to dismiss Plaintiff’s
complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the
United States Court of Federal Claims (“RCFC”) and deferred responding to the motion to seal
until the Court resolved its motion to dismiss. Def.’s Mot. to Dismiss at 1 n.1, ECF No. 9.
The Court granted the government’s motion and dismissed Plaintiff’s complaint on
January 28, 2022. See Order & Op., ECF No. 15. The Court issued its opinion under seal
pending the outcome of Plaintiff’s motion to seal. Id. at 1 n.1. As part of the opinion, the Court
ordered the parties to file a joint status report with proposed redactions and for the government to
state whether it opposes Plaintiff’s motion to seal. Id. at 5. In a joint status report filed on
February 11, 2022, the government stated that it opposes Plaintiff’s motion to seal in its entirety.
Joint Status Report, Feb. 11, 2022 at 1, ECF No. 16. The parties proceeded with briefing
Plaintiff’s motion to seal. The motion to seal is now fully briefed, and the Court has determined
that oral argument is not needed.
II. DISCUSSION
Plaintiff argues in his motion to seal that “little purpose would be served by allowing
publication of [his name and [criminal offense] conviction] through this civil proceeding[,]” and
his privacy interests outweigh the general presumption of public access. Pl.’s Mot. to Seal at 6.
The government, in opposition, argues that Plaintiff cannot proceed anonymously because “his
[criminal offense] legal proceedings are already publicly available information and because he
has proceeded under his own name in his challenge to the same removal action before the
[MSPB.]” Def.’s Resp. to Pl.’s Mot. to Seal at 1, ECF No. 18 [hereinafter Def.’s Resp.]. As
explained below, the Court finds that Plaintiff has met his burden of overcoming the presumption
of public access, and, accordingly, grants his motion to seal.
RCFC 10(a) instructs that a complaint filed in this Court “must name all the parties.”
RCFC 10(a) serves the important function of protecting the public’s common law right of access
to judicial proceedings. See Doe No. 1 v. United States, 143 Fed. Cl. 238, 240 (2019)
(“Identifying all parties to a lawsuit facilitates public scrutiny of judicial proceedings.”). Thus,
“courts allow parties to proceed anonymously only where unusual circumstances justify
concealing a party’s identity.” Boggs v. United States, 143 Fed. Cl. 508, 511 (2019) (citing
Whalen v. United States, 80 Fed. Cl. 685, 691 (2008)). The Court has discretion to seal
information from disclosure if the public’s right of access is outweighed by the competing
interests. Black v. United States, 24 Cl. Ct. 461, 464 (1991). In making the determination
whether to permit a party to proceed anonymously, the Court weighs the party’s need for
anonymity against the general presumption that the party’s identity be available to the public and
the likelihood of prejudice to the opposing party. See Does I thru XXIII v. Advanced Textile
2
Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). The Court may allow a party to proceed
anonymously to “protect a person from harassment, injury, ridicule or personal embarrassment.”
Id. at 1067. The party requesting that the Court seal information bears the burden of overcoming
the strong presumption of public access. See Black, 24 Cl. Ct. at 464.
The Court finds that Plaintiff’s privacy interests in keeping his identity and the nature of
his criminal conviction sealed sufficiently overcome the general presumption that a party’s
identity in judicial proceedings be available to the public. Mere embarrassment from a criminal
conviction is ordinarily not sufficient to seal a record or allow a party to proceed anonymously.
See Whalen, 80 Fed. Cl. at 692 (highlighting that “some embarrassment or economic harm is not
enough.” (quoting Doe v. Rostker, 89 F.R.D. 158, 162 (N.D. Cal. 1981))). However, Plaintiff’s
concern with public disclosure of his identity and prior conviction understandably goes beyond
mere embarrassment. A criminal conviction for [Plaintiff’s criminal offense] is especially
stigmatizing relative to other types of convictions. See United States v. , F. App’x
(10th Cir. 2019) (acknowledging the “opprobrium not inherent in other crimes” of
[criminal offense]). Furthermore, Plaintiff’s conviction has been vacated (pending his completion
of pre-trial probation), and . Pl.’s Decl. ¶
3. Denying Plaintiff’s request to proceed anonymously would shed unnecessary light onto his
prior conviction and increase the likelihood of further social stigma as a result of his now vacated
conviction. See Rostker, 89 F.R.D. at 161 (“The common thread running through [cases where
anonymity was warranted] is the presence of some social stigma or the threat of physical harm to
the plaintiffs attaching to disclosure of their identities to the public record.”).
The government challenges Plaintiff’s privacy interests on the grounds that “[t]he cat is
already out of the bag [and that] there is nothing left for this Court to keep private regarding
Plaintiff’s [criminal offense] conviction.” Def.’s Resp. at 6. The Court is not persuaded by this
argument. The fact that Plaintiff’s identity and the nature of his criminal conviction are already
publicly available through other means, such as the media, and that Plaintiff has filed a separate
action under his name before the MSPB do not extinguish Plaintiff’s privacy interests in this
case. A disclosure by third parties of Plaintiff’s identity and his prior conviction does not result
in a waiver of his privacy interests in this case. See Doe No. 1, 143 Fed. Cl. at 241. Further,
Plaintiff’s disclosure of his identity to the MSPB, which has its own procedures for concealing
sensitive information, is a separate matter from disclosure of his identity to the general public.
See Doe v. United States, No. 19-720T, 2019 WL 3406800, at *3 (Fed. Cl. July 29, 2019)
(stating that “the disclosure of Plaintiff's identity to the government is a separate issue from
potential harm arising from disclosure to the public at large.”). These arguments are not enough
to defeat Plaintiff’s privacy interests.
Plaintiff’s privacy interests outweigh the prejudice to the government and the public
interest in disclosure of Plaintiff’s identity and the nature of his criminal conviction. Plaintiff’s
case has already been dismissed for lack of jurisdiction. See Order & Op. Thus, allowing
Plaintiff to preserve his anonymity at this stage of the litigation will not result in any prejudice to
the government. See Boggs, 143 Fed. Cl. at 512 (“Proceeding with plaintiffs’ names under seal,
especially [seventeen] months into litigation, would have negligible ill effects to the
government’s defense.”). The government essentially concedes this point by not alleging any
prejudice in its response to Plaintiff’s motion to seal. See generally Def.’s Resp. at 1-11.
3
Further, the public interest in disclosing Plaintiff’s identity and the nature of his criminal
conviction is minimal because his identity and the nature of his criminal conviction are not
essential to the public’s understanding of the issues before the Court and the Court’s decision.
While his removal from federal service may have been a consequence of his conviction,
Plaintiff’s claim before this Court focuses on the “separate and distinct constitutional claim that
the [g]overnment cannot refuse to pay a federal employee during a period when the MSPB could
not hear the disciplinary case due to a lack of quorum.” Pl.’s Reply at 5, ECF No. 24. Plaintiff’s
identity and the nature of his criminal conviction are not at all relevant to his claim before this
Court, and granting Plaintiff’s request to remain anonymous “[will] not impair the public’s view
of the presentation and resolution” of the issues. See Doe No. 1, 143 Fed. Cl. at 242. Because
allowing Plaintiff to preserve his anonymity will not prejudice the government and will not
impair the public’s understanding of the issues in the case, the public interest is better served by
ensuring that Plaintiff and others in his position are able to use the courts to seek a judicial
remedy for alleged wrongs without the fear of compounding the stigma that they likely already
face. See Advanced Textile, 214 F.3d at 1073.
III. CONCLUSION
In sum, without a showing of prejudice or impairment to the public interest, the Court
finds that Plaintiff’s privacy interests outweigh the presumption of public access. Accordingly,
Plaintiff’s motion to seal is GRANTED. Plaintiff’s name and job title, the name of the federal
agency where he was employed, his address and state of residence, and the nature of his criminal
conviction that led to his removal from federal service SHALL BE SEALED.2 All unsealed
documents shall contain the following redactions:
▪ Plaintiff’s name shall be inserted as “A.M.” in the caption and “Plaintiff” wherever
the name “ ” or “ ” appears;
▪ References to his conviction for or similar references
shall be replaced with “criminal offense;”
▪ References to the “
” shall be redacted;
▪ References to “ ” in connection with his conviction shall be redacted;
▪ Plaintiff’s job title shall be redacted; and
▪ Plaintiff’s address and state of residence shall be redacted.
The parties SHALL FILE redacted versions of their filings on the public docket on or before
August 4, 2022.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
2
The government argues that Plaintiff’s proposed redactions are overly broad and only the nature of his conviction
should be redacted and sealed. See Def.’s Resp. at 10-11. The Court disagrees and finds that Plaintiff’s proposed
redactions are appropriately tailored to effectively maintain his anonymity and minimize impairment to the public’s
understanding of the issues and resolution in this case.
4