From yesterday’s published order in W.M.M. v. Trump (en banc), by Chief Judge Jennifer Walker Elrod:
In response to questions at oral argument and a later directive from the court, counsel for petitioners and the government revealed that the government has removed the three original named petitioners in this case. As there are currently no named petitioners in this appeal who are still in the United States, petitioners have moved to add five new class representatives on appeal—a motion that we deny today.
Petitioners have also moved for these five proposed class representatives to proceed pseudonymously on appeal, as well as for the sealing of their unredacted motion to add class representatives. The government does not oppose either motion.
But “the parties’ consent does not end the analysis when determining whether pseudonymization is appropriate. Instead, the court must conduct its own balancing of the public and private interests at stake.” We DENY these motions without prejudice to any future determination by the district court regarding whether to allow any new class representatives to proceed under pseudonyms or whether to seal a motion adding class representatives.
“What transpires in the court room is public property.” Indeed, disclosure is generally favored. And “[p]ublic naming of litigants is one aspect of the broader ‘presumption, long supported by courts, that the public has a common-law right of access to judicial records.'” Thus, “[a] strong presumption against party pseudonymity is generally well settled.”
Of course, this presumption can give way in appropriate circumstances… [O]ur court has articulated “three factors common to anonymous-party suits that … ‘deserve considerable weight'” in determining whether to allow parties to use pseudonyms: “(1) whether the plaintiff is ‘challeng[ing] governmental activity’; (2) whether the plaintiff will be required to disclose information ‘of the utmost intimacy’; and (3) whether the plaintiff will be ‘compelled to admit [his] intention to engage in illegal conduct, thereby risking criminal prosecution.'” … We have also considered, among other things, “the showing of possible threatened harm.”
These considerations do not weigh in favor of allowing the proposed new representatives to proceed pseudonymously here. First, while the petitioners certainly challenge governmental activity, “in only a very few cases challenging governmental activity can anonymity be justified.” Where “plaintiffs [a]re suing private individuals rather than a government agency,” a court may find “more reason not to grant the plaintiffs’ request for anonymity.” But that a plaintiff sues the government “does not stand … for the proposition that there is more reason to grant [that] plaintiff’s request for anonymity.”
Second, the proposed representatives have not shown that proceeding under their real identities would require them to disclose “information ‘of the utmost intimacy.'” … “‘[W]here the issues involved are matters of a highly sensitive and personal nature,’ such as birth control, abortion, homosexuality[,] or the welfare rights of illegitimate children or abandoned families, the normal practice of disclosing the parties’ identities yields ‘to a policy of protecting privacy in a very private matter.'” Religious beliefs may also qualify, depending on the circumstances. Courts have also “permitted plaintiffs to proceed anonymously in cases involving mental illness.”
Here, the proposed class representatives have not shown that disclosure of their names would “require[]” them “to disclose information ‘of the utmost intimacy.'” They insist that we should treat “immigration matters, like the ones here, that disclose personal information,” as intimate information warranting pseudonymity. But this argument fails. To begin, one of the proposed representatives says nothing about his immigration status at all, and another has temporary protected status. Neither explains how revelation of “immigration matters” related to him would “disclose [any] personal information,” let alone information that makes pseudonyms appropriate.
Of the other three proposed class representatives, one has an approved asylum application, and two represent that they are currently seeking asylum. But this, without more, does not demand pseudonymity. The proposed class representatives point out cases in which district courts allowed asylum applicants to proceed pseudonymously in asylum proceedings. But they do not argue that they have used pseudonyms in their own asylum proceedings. Nor have they shown that Venezuela penalizes asylum seekers. Without more, the asylum-seeker status of three of the five proposed class representatives does not counsel against the “strong presumption against party pseudonymity.”
The proposed representatives also fear that proceeding under their true names will cause the revelation of their physical characteristics. But it is difficult to see how physical characteristics that one exposes to the public count as intimate information—and the proposed representatives have not argued that they conceal the characteristics that they mention from the public. Even in the criminal context, one does not have a reasonable expectation of privacy in one’s visible physical characteristics. Absent more evidence than the proposed class representatives have presented here, we will not deem physical characteristics intimate information in the civil context….
Finally, by revealing their identities, the proposed class representatives will not “be ‘compelled to admit [their] intention to engage in illegal conduct, thereby risking criminal prosecution.'” Of course, a party need not necessarily “admit criminal conduct or criminal intent in order to proceed under a fictitious name.” A court could also allow a party to proceed pseudonymously if that party “had to admit that [he] either had violated state laws or government regulations or wished to engage in prohibited conduct.” … Here, the disclosure of their identities would not require the proposed class representatives to “express a desire to participate in proscribed activities.” Indeed, all of the proposed class representatives maintain that they want to contest their purportedly “false designation as a member of Tren de Aragua and the application of the Alien Enemies Act to” them. Moreover, the government, which knows their true identities, has already served them with notices of removal under the President’s Proclamation.
We have also considered “the showing of possible threatened harm” in determining whether to allow parties to use pseudonyms. Here, all five of the proposed class representatives express fear of retaliation “in the form of physical violence in Venezuela or third countries if their identities were to be revealed and if they were to be removed for being erroneously identified as members of TdA.” True, “[c]ourts generally allow pseudonymity if there is ‘reasonable[]’ ‘fear[]’ of ‘retaliatory physical … harm to the requesting party or even more critically, to innocent non-parties,’ which may be considered in light of ‘the anonymous party’s vulnerability to such retaliation.'” But “[l]ack of such express threats or incidents—or at least lack of highly plausible predictions of possible future violence—will usually count against pseudonymity.” And “this court does not usually allow parties to proceed anonymously based on generalized concerns.”
Here, the petitioners express only “generalized concerns” about potential retaliation, directed toward either them or their families, in Venezuela or other countries as a result of the U.S. government identifying them with TdA. They present zero “plausible predictions of possible future violence,” let alone evidence of “express threats or incidents” to anyone, including them or their families, arising out of identification with TdA. These evidence-less, generalized fears do not permit the proposed class representatives to overcome the presumption against pseudonymity….
