Even so,
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it is within the discretion of the district court to grant the "rare dispensation" of anonymity. U.S. v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)). When a party raises a privacy interest, a court must balance that interest against the "customary and constitutionally-embedded presumption of openness in judicial proceedings." Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981); accord Yacovelli v. Moeser, No. 02-596, 2004 WL 1144183, at *6 (M.D.N.C. May 20, 2004). To determine whether a party may proceed anonymously, a court should consider the impact of the plaintiff's anonymity on the public interest in open proceedings and on fairness to the defendant. Microsoft, 56 F.3d at 1464. In balancing the competing interests involved, factors to consider include:
(1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature;8
(2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;
(3) the ages of the persons whose privacy interests are sought to be protected;
(4) whether the action is against a governmental or private party;9 and
(5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
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See Yacovelli, 2004 WL 1144183, at * 6-8.
Pseudonymous litigation has been permitted "only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Doe v. Frank, 951 F.2d 320, 322-23 (11th Cir. 1992). In contrast, requests to proceed anonymously have been denied where the plaintiff merely cites personal embarrassment as the basis of the need for confidentiality. In Qualls, for example, the plaintiffs were soldiers serving in Iraq or en route to Iraq whose terms of service were involuntarily extended by the Department of Defense's Stop Loss program. Qualls, 228 F.R.D. at 9. They claimed that if they were named they could be subject to retaliation including physical harm, and they submitted affidavits of unrelated third parties which alleged retaliation or bias against military personnel who speak out against the President, the Iraq War, or war in general. Id. at 11. The court rejected the plaintiffs' request to proceed as John Does, finding that they did not meet their burden of demonstrating a legitimate basis for granting anonymity in the face of the public interest in full access to the courts. The affidavits did not allege potential physical harm and they did not discuss the individual plaintiffs' situations. Id. at 111-12. Further, the court noted that "bringing litigation can subject a plaintiff to scrutiny and criticism and can affect the way [a] plaintiff is viewed by coworkers and friends, but fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups do not permit a plaintiff to proceed under a pseudonym." Id. at 12; accord Doe v. Frank, 951 F.2d at 322-23 (the court denied plaintiff's request to proceed under a pseudonym in a discrimination lawsuit where the plaintiff sought to prevent public disclosure of his alcoholism).
The Anonymous Claimant Rule does not require the closure of administrative
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hearings or the withholding of ALJ decisions and orders. Further, the Rule does not permit claimants to proceed anonymously; indeed, the claimant's identity continues to be known to all parties to an administrative proceeding. The Anonymous Claimant Rule only requires that claimants be referenced by their initials when ALJ decisions and orders are published on the Internet. The Chief ALJ instituted the Rule to protect the privacy interests of claimants, deeming the publication of highly personal medical information on the Internet to be an unnecessary intrusion into the claimant's privacy. Because the Rule reflects an appropriate balancing of interests in compliance with the First Amendment, Plaintiffs have not alleged a First Amendment violation here.
C. Right to Notice and Comment under the APA
Plaintiffs also contend that their right to notice and comment under the APA was violated when the Chief ALJ instituted the Anonymous Claimant Rule by memorandum and when the Secretary repealed, without notice and comment, the regulation that required the claimant's name to be stated in claims under the Black Lung Act. See 5 U.S.C. § 553(b) (requiring notice and public comment); Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980) (the requirement of notice and comment ensures public participation and fairness to affected parties). The Secretary argues that the notice and comment procedures did not need to be followed because the Anonymous Claimant Rule is merely procedural. See 5 U.S.C. § 553(b)(A) (exempting rules of agency procedure and practice from the notice and comment process). Because the Rule does not affect the filing of a claim or the presentation of evidence, the Secretary argues that it is not substantive.
To determine whether a rule is substantive or procedural, courts examine whether the rule "encodes a substantive value judgment." Public Citizen v. Dep't of State, 276 F.3d 634, 640 (D.C. Cir. 2002). In Public Citizen, the Circuit considered a rule adopting the date of a FOIA request
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as the date to cutoff an agency's search for records. The court found that the rule was procedural because it applied to all FOIA requests, made no distinction based on subject matter, and thus encoded no value judgment. Id. at 641.
Public Citizen did not examine a rule affecting First Amendment rights. Also, informational rights are substantive and merit APA protections. See Chrysler Corp. v. Brown, 441 U.S. 281, 302-03 (1979). In Chrysler, the Supreme Court found that regulations promulgated by the Department of Labor's Office of Federal Contract Compliance, which require that reports related to affirmative action programs be made available to the public, are substantive rules. Id. at 302. "[T]he promulgation of these regulations must conform with any procedural requirements imposed by Congress. . . . The pertinent procedural limitations in this case are those found in the APA." Id. at 303.
By instituting the Anonymous Claimant Rule, the Chief ALJ made a value judgment — he determined that, in all claims for benefits under the Longshore Act and the Black Lung Act, the claimant's privacy interest trumped the right to public access to administrative decisions and orders posted on the Internet. Thus, Plaintiffs have stated a claim that the Rule, and the accompanying repeal of the Black Lung Act regulation requiring the naming of claimants, is a substantive rule that should have been subject to APA formal rulemaking procedures.
D. Authority of Chief ALJ to Institute Rule Change
Plaintiffs also challenge the authority of the Chief ALJ to enact the Anonymous Claimant Rule. The Secretary contends that the Chief ALJ has the authority to administer the agency website because the Secretary delegated to agency heads the responsibility for the management of Department of Labor communications services, including websites. See 70 Fed.
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Reg. 59,200 (Oct. 11, 2005). However, as explained above, the Plaintiffs assert that the Anonymous Claimant Rule is not a mere procedural or administrative rule regarding the formatting of documents on a website, but that the Rule is substantive because it encodes a value judgment. The Secretary's delegation of authority to agency heads to administer websites did not include the authority to institute the formal APA rulemaking that is required for substantive rules. See Def.'s Reply at 5 n.3 ("Defendant does not contend that the Chief Administrative Law Judge has any authority to adopt rules regarding the interpretation of a statute, or to otherwise set substantive policy for DOL.") Accordingly, Plaintiffs have stated a claim challenging the Chief ALJ's authority to promulgate the Anonymous Claimant Rule.
E. Freedom of Information Act
Plaintiffs also allege that the Anonymous Claimant Rule violates § 552(a) of FOIA. See Intervenors' Compl. ¶ 35. FOIA requires that when an agency makes information available or publishes an opinion, it may delete identifying details to prevent an unwarranted invasion of privacy, but in each case must explain in writing the justification for the deletion. 5 U.S.C. § 552(a)(2). The Secretary points out that this section simply does not apply to the circumstances at issue here, as it does not control how an agency creates its documents. FOIA governs how an agency redacts information from documents that are made publicly available, but not how documents are created initially. Under the Anonymous Claimant Rule, ALJ decisions and orders are created using first and last initials only; no information is deleted from them, and thus they are not redacted documents. Because FOIA does not apply, Plaintiffs have failed to state a FOIA claim.
F. Longshore and Black Lung Acts
Plaintiffs also allege that the adoption of the Anonymous Claimant Rule violates the
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Longshore Act and the Black Lung Act because the Rule was not adopted in accordance with the "procedural requirements" of the Acts and because the Rule violates these Acts. See Compl. ¶¶ 33, 35; Intervenors' Compl. ¶¶ 35, 37. However, Plaintiffs fail to identify any part of these Acts that sets forth such alleged procedural requirements or that requires the Department of Labor to publish full claimant names in ALJ decisions and orders. Thus, Plaintiffs have not stated a claim for relief under the Longshore Act or the Black Lung Act.
G. Fifth Amendment
Plaintiffs also allege that the Anonymous Claimant Rule infringes their right to due process under the Fifth Amendment. The Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend V. The Fifth Amendment "only requires that a person receive his ‘due' process, not every procedural device that he may claim or desire." Johnson v. United States, 628 F.2d 187, 194 (D.C. Cir. 1980). To determine what process is due, courts weigh three factors:
the nature of the benefit or status of which the individual is being deprived; the need for the government to act efficiently and expeditiously in terminating this type of benefit or status; and the extent to which the decisionmaking process would be aided by the presence of the procedural safeguard that the individual seeks.
Id. "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Matthews v. Eldridge, 424 U.S. 319, 333 (1976).
Although Plaintiffs assert that the Anonymous Claimant Rule impairs the ability of parties in Longshore Act and Black Lung Act litigation to research and identify applicable case law, and that it impairs the right of employers and insurers to research the claims history of individual claimants, see Intervenors' Compl. ¶ 32, Plaintiffs fail to indicate how this affects their Fifth
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Amendment rights. The allegation that Plaintiffs' ability to research and identify applicable case law has been affected by the Anonymous Claimant Rule is unsupported by the facts Plaintiffs allege. The facts alleged "must be enough to raise a right to relief above the speculative level," Twombly, 127 S. Ct. at 1965, and a court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning, 292 F.3d at 242. Decisions in Longshore Act and Black Lung Act cases continue to be published and may be researched and cited in ALJ proceedings. The law and the facts of those decisions have not been altered by the Anonymous Claimant Rule. The use of the claimants' initials in decisions and orders posted on the Internet does not affect the ability to research applicable case law.
Plaintiffs also assert that the Anonymous Claimant Rule impairs the alleged right of employers and insurers to research the claims history of individual claimants. See Intervenors' Compl. ¶¶ 32 & 37. The claims history of an individual claimant can be obtained through discovery, which is available in administrative proceedings. See, e.g., 29 C.F.R. §§ 18.14(a) (discovery of any relevant matter that is not privileged is allowed), 18.13 (providing for discovery by deposition, interrogatory, and production of documents). "[T]he conduct and extent of discovery in agency proceedings is a matter ordinarily entrusted to the expert agency in the first instance." Trailways Lines, Inc. v. ICC, 766 F.2d 1537, 1546 (D.C. Cir. 1985). The alleged right to research claims history is not a right to life, liberty, or property, protected by the Fifth Amendment due process. Accordingly, Plaintiffs have failed to state a claim under the Fifth Amendment.
IV. CONCLUSION
For the reasons explained above, the Secretary's motion to dismiss [Dkt. # 10] will be granted in part and denied in part. Plaintiffs' claims under the First and Fifth Amendments to the
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U.S. Constitution, FOIA, the Longshore Act, and the Black Lung Act will be dismissed. Plaintiffs' claims under the APA remain at issue. A memorializing order accompanies this Memorandum Opinion.
Date: November 13, 2008
ROSEMARY M. COLLYER
United States District Judge
[ENDNOTES]
1 The ALJ's decision is reviewable by the Benefits Review Board and those decisions are subject to review in the federal circuit courts of appeal. See 33 U.S.C. § 921.
2 See Electronic Freedom of Information Act Amendments of 1996, Pub. L. 104-231, 110 Stat. 3028, codified in various sections of 5 U.S.C. § 552, including § 552(a)(2). Final decisions by ALJs in Longshore Act and Black Lung Act cases are published on the Internet at http://www.oalj.dol.gov.
3 Regulations that govern the filing and adjudication of claims for benefits are found at 20
C.F.R. §§ 702.301 - 702.394 (Longshore Act claims) and 20 C.F.R. §§ 725.301 - 725.483 (Black Lung Act claims). The regulations promulgated under the Longshore Act were and are silent on the issue of claimant names.
4 The existence of an alternate remedy could require dismissal under Rule 12(b)(6) for failure to state a claim, see Williams v. Conner, 522 F. Supp. 2d 92, 107 (D.D.C. 2007), or under 12(b)(1) for lack of jurisdiction, if the alternate remedy is viewed as an exception to the waiver of sovereign immunity. See People for the Ethical Treatment of Animals v. Dep't of Agric., 2007 WL 1720136, at *7 (D.D.C. June 11, 2007).
5 The right of public access in civil cases is embodied in the Rules of Civil Procedure. See Fed. R. Civ. P. 77(b) ("All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room.").
6 The common law also provides the media a limited right of access to judicial records. Application of A.H. Belo, 66 F. Supp. 2d at 48.
7 See Fed. R. Civ. P. 10(a) (requiring that complaints in federal district court state the names of the parties).
8 Matters of a sensitive and highly personal nature include those dealing with birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families. Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979).
9 "When a plaintiff challenges the government or government activity, courts are more like[ly] to permit plaintiffs to proceed under a pseudonym than if an individual has been accused publicly of wrongdoing." Yacovelli, No. 02-596, 2004 WL 1144183, at * 8.