From today's Ninth Circuit 2-1 panel decision in Doe v. Ventura Unified School Dist., by Judge Richard Paez and Consuelo Callahan:
[1.] To proceed pseudonymously, a "plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." These are the "two most important factors," id., because a plaintiff must establish "a need for the cloak of anonymity."
The district court's determination that Doe failed to show she reasonably feared severe harm was not an abuse of discretion. Doe's interactions with public officials do not establish that the media or community members would retaliate against her in a severe manner, and Doe failed to identify other probative evidence rendering her fears reasonable. Rather, she expresses concern about what "could" or "probably would" happen. But bare assertions are insufficient to establish a reasonable fear of severe harm. Likewise, the district court did not abuse its discretion in determining that Doe's fear of "social stigma" does not amount to severe harm. The prospect of being publicly linked to an unpopular viewpoint alone does not warrant anonymity absent evidence linking disclosure to a severe injury.
[2.] The district court did not abuse its discretion in evaluating Doe's vulnerability. The district court properly considered the factors suggesting Doe was particularly vulnerable and those suggesting she was not particularly vulnerable, and reasonably concluded that it was appropriate to give "little weight" to her vulnerability.
{The dissent argues that the district court erred by failing to analyze Child 1's vulnerability as a factor supporting her own pseudonymity and Doe's privacy interests…. "[F]ear of severe harm is irrelevant if the plaintiffs do not reasonably fear severe harm." As described, Doe failed to identify probative evidence supporting the reasonableness of her fear of severe retaliation.
Moreover, after oral argument, Plaintiff's counsel informed the court that Plaintiff and her child do not share the same last name, further attenuating Doe's fear that disclosure of her name would yield severe retaliation against Child 1.} {The district court properly acknowledged that Federal Rule of Civil Procedure 5.2(a)(3) presumptively requires pseudonymizing the names of children, like Child 1, with only initials "[u]nless the court orders otherwise." This appeal only pertains to Doe's pseudonymization.}
[3.] The district court's determination that anonymization "may" result in
prejudice to a Defendant was not based on a clearly erroneous factual finding…. Doe had not affirmatively agreed to disclose her identity to all the Defendants and failed to respond to one Defendant's objections to anonymization based on the lack of knowledge of her identity. Therefore, the district court's determination that anonymization might prejudice Defendants was not based on a clearly erroneous assessment of the evidence.
[4.] The district court did not abuse its discretion in weighing the public interest factor against pseudonymity. The court properly invoked precedents describing the "paramount importance of open courts," which is the source of the presumption that parties will litigate under their real names. Nor does the fact that the public could scrutinize the legal issues in this case without Plaintiff's identity require that the district court weigh the public interest factor in favor of anonymity.
Moreover, the value of open courts extends beyond permitting public scrutiny of the legal issues in a given case. The public's interest in having justice delivered openly, not "in a corner nor in any covert manner," is heightened in cases involving high-stakes, constitutional issues.
