From Judge Mark Kearney (E.D. Pa.) yesterday in Doe v. Trustees of the Univ. of Penn.(for more on the quote in the title of this post, see here):
A white non-Jewish male sues the University of Pennsylvania for denying him admission to its Wharton business school master's program because he is not Jewish…. He claims widespread animus in the business community to non-Jewish men and disclosing his name will subject him to physical harm because of "Jewish agencies" ability to harm non-Jewish men. He does not show reasonable fear of severe harm resulting from litigating without a pseudonym. And even if he did, his reasonable fear of severe harm does not outweigh the public's interest in open litigation examining his claims an internationally known business school denies admission of white men because they are not Jewish….
Mr. Doe identifies three harms if he discloses his name: (1) "permanent professional disbarment"; (2) "social stigma"; and (3) "threat of physical violence." Mr. Doe claims in his unidentified "industry," the human resources department are "led and disproportionately staffed by Jewish women" who "already discriminate against non-Jewish White males such as [himself.]" He alleges twenty-five of his co-workers with "Jewish names" received early promotions.
He further argues "many high level managers at large employers have publicly stated their organizations [sic] policies prohibit the hiring of White males;" "some" of these unidentified employers "implement policies" to allow for the hiring of a white male only if an "'exception' were granted," and to Mr. Doe's knowledge these "exceptions" are "given exclusively to Jews;" and the "willingness of [Human Relations] Jews to discriminate against non-Jewish White males" makes it reasonable to conclude he "would be completely debarred from traditional employment" if his name is revealed in his lawsuit against the University for "favoring treatment of Jews" in admissions. Mr. Doe also alleges he "considered establishing his own firm as a work-around to discrimination," but he would need an investment from venture capitalists which are "run by [Venture Capitalist] Jews" who "usually don't invest in firms owned by non-Jewish White males."
Mr. Doe suggests a threat of physical violence to him because Israel's intelligence agency Mossad murdered President John F. Kennedy nearly sixty-three years ago (and "possibly [President Kennedy's] family members") to obstruct President Kennedy's opposition to the interests of "Jewish Supremacists." He claims Mossad is "still active and apparently very powerful" in the United States because of some nebulous connection to the Jeffrey Epstein scandal. Mr. Doe argues litigating under a pseudonym would deter "Jewish agencies" from "murdering" him and he "may have already survived an assassination attempt" through a romantic liaison with a Jewish woman who allegedly attempted to poison him….
We start with the fundamental principle judicial proceedings should be public. Federal Rule of Civil Procedure 10(a) requires litigants to identify themselves in their pleadings. As explained by our Court of Appeals, "[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." Defendants "have a right to confront their accusers" and a plaintiff's use of a pseudonym "runs afoul of the public's common law right of access to judicial proceedings." … Our Court of Appeals allow parties to proceed anonymously only in "exceptional cases" ….
Mr. Doe does not offer a reasonable fear of severe harm [that would make this case exceptional -EV]. Mr. Doe offers, at best, generalized and speculative personal opinions asserting every human resources department in businesses across the country are run by Jewish women and any investment he may possibly require from venture capitalists in some possible future business deal are run by "Venture Capitalist Jews" and revealing his name would somehow cause "severe harm" in the form of "permanent professional debarment" requiring anonymity. Economic harm is not sufficient ….
Our Court of Appeals recently rejected a similar argument brought by a Jane Doe against the University of Pennsylvania. Ms. Doe sued the University under Title VI alleging a professor discriminated against her on the basis of her race and, after she reported the discrimination, the University suspended her from a pre-med baccalaureate program. Ms. Doe moved to proceed under a pseudonym …. Judge Rufe rejected Ms. Doe's argument the disclosure of her identity would associate her with the University's suspension and may hinder her chances of acceptance into medical school or her ability to pursue future career opportunities. Judge Rufe concluded Ms. Doe's argument her anonymity is necessary to prevent possible embarrassment and economic harm is insufficient to justify the use of a pseudonym under Megless. Judge Rufe also noted two decisions in this District holding diminished chances of acceptance into professional schools does not warrant anonymity. Our Court of Appeals affirmed Judge Rufe's decision finding allegations of possible harm in acceptance to medical school or to secure future employment in the medical profession constitute embarrassment and economic harm insufficient to proceed under a pseudonym….
We conclude the type of harm alleged by Mr. Doe—possible discrimination by unidentified human resources specialists at unidentified employers and unidentified venture capitalists—constitutes embarrassment and economic harm and does not rise to extraordinary cause required by our Court of Appeals to allow Mr. Doe to proceed anonymously.
Mr. Doe next argues disclosure of his name will cause "social stigma" constituting severe harm …. Mr. Doe relies solely on Doe v. Hartford Life and Accident Insurance Company to support his "social stigma" argument. In Hartford Life, Judge Linares allowed a John Doe plaintiff (an attorney with mental illness concerns) to proceed in pseudonym in claims against a long term disability plan for denial of benefits. The claimant-lawyer suffered from bipolar disorder and sought to proceed under a pseudonym, asserting damage which might result to his professional career as an attorney if his medical condition became public knowledge. Judge Linares reasoned almost twenty years ago mental illness then carried a stigma which "society may not yet understand or accept," and analogized the stigma of mental illness to a woman seeking an abortion or "a homosexual fired from his job because of his sexual orientation" justifying anonymity.
Mr. Doe argues the social stigma he faces is "markedly more severe" than the attorney before Judge Linares with a mental health diagnosis. Mr. Doe candidly characterizes his complaint as making "inflammatory claims" and "[p]eople who mak[e] such claims face enormous social stigma, commonly being branded as 'antisemitic,' 'Nazi,' 'racist,' 'misogynist,' 'homophobic,' 'crackpot,' or 'unpatriotic.'" He claims being called an "antisemite" and "Nazi" in "contemporary times" means "the pinnacle of evil" subjecting him, and other plaintiffs like him, to a "dehumanizing stigma."
Mr. Doe does not offer legal authority supporting his argument social and reputational fears created by his allegations he candidly describes as "inflammatory" constitute a reasonable fear of severe harm. Our study further confirmed social stigmatization is insufficient to support a request for anonymity. For example, in Doe v. Rider University, Judge Bongiovanni denied an expelled college student's request to proceed under a pseudonym. The expelled student Doe asserted federal and state law claims against his university arising from a disciplinary hearing charging him with sexual assault of a female student. Mr. Doe alleged the university's flawed disciplinary process resulted in his expulsion. He sought to proceed under a pseudonym arguing if he is forced to proceed publicly, he will suffer from the severe social stigma attached to accused sex offenders making it difficult for him to be admitted to other colleges and obtain employment.
Judge Bongiovanni concluded the social stigma attached to accused sex offenders is insufficient to support anonymity. She reasoned whether Mr. Doe committed sexual assault is not the issue; the issue is whether the university subjected him to an unfair disciplinary hearing. We are persuaded by Judge Bongiovanni's reasoning as applied to Mr. Doe's unwillingness to disclose his name. The issue is not whether Mr. Doe is an antisemite based on the words he chose to include in his complaint; the issue is whether the University denied him admission to its business school because of his race and "non-Jewish heritage."
Mr. Doe lastly identifies the threat to his physical safety based on Mossad's role in the United States and a claimed risk of poison from a romantic partner as a reasonable fear of severe harm if required to litigate without a pseudonym. We again are not persuaded.
There must be a legitimate threat of physical harm, not "perceived threats or mere frustration voiced by the public." We are persuaded by our colleagues rejecting similar allegations of perceived harm. For example, in B.L. v. Fetherman, a parent sued the school district alleging its curriculum discriminated against white students. The parent moved to proceed under a pseudonym, claiming his portrayal within the community as a "villain" for challenging the school's curriculum and citing threats including a third-party message on LinkedIn making "alarming comments" about his professional life, media outlets identifying the parent and his spouse and where they live and perhaps encouraging vandalism at his home, and an online post purporting to identify the parent's then-college-aged child encouraging people to contact the college to pressure the school to rescind its offer of acceptance. Judge Allen found the parent's "vague reference" to some members of the public's anger with him for filing the lawsuit "amounts to mere frustration rather than a credible risk of harm" because the parent only referred to a "vague possibility of physical harm" and found "a lack of any credible threats of harm based on [parent's] general statements … and does not provide any reasonable basis for his fear."
In Doe v. Felician University, relied on by Judge Allen, a Muslim woman of Palestinian descent sued Felician University claiming it discriminated against her because of her creed, ancestry, and national origin. Ms. Doe moved to proceed anonymously alleging stalking, cyberbullying, derogatory blog posts, and threats of physical harm by students and faculty at the university. Judge Mannion found "disapproval and frustration voiced by some members of the public on the blog post do not amount to threats" and while the "blog post and comments are filled with hate speech and offensive comments, … none of the language create a risk of retaliatory harm and do not threaten Ms. Doe." Judge Mannion concluded Ms. Doe's allegations the specific blog promoted violence against Muslims did not contain promotion of violence either towards all Muslims or Ms. Doe individually and a blog comment "if anyone knows Ms. Doe's identity, [the blogger] will post it on the blog does not qualify as a substantial threat warranting protection." Judge Mannion found no specific credible threat leading him to deny the motion to proceed anonymously….
