Disbarred Lawyer Can’t Pseudonymously Challenge Her Disbarment

From the Tenth Circuit today in Roe v. Colo. Jud. Dep’t, decided by Judge Richard Federico and Judges Scott Matheson and Nancy Moritz:

Appellant previously held a Colorado law license. As alleged in her complaint, Colorado attorney regulators first found her disabled from the practice of law and then disbarred her. The Colorado Supreme Court later precluded her from representing herself in Colorado courts. She then filed this pro se federal civil action against the Colorado Judicial Department and officials involved in the disability and disciplinary proceedings, alleging those proceedings were discriminatory and unlawful in numerous ways.

Appellant filed her complaint using the pseudonym Jane Roe instead of her real name…. Nonparties the Colorado Freedom of Information Coalition (CFIC) and Eugene Volokh filed an objection to her motion to restrict….

“… Federal Rule of Civil Procedure 10(a) requires the names of all parties to appear in the caption of a complaint, and the title of all other pleadings must name the first party on each side.” … “‘[L]awsuits are public events’ and ‘there is no legal right in parties to be allowed anonymity.'” “‘Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.'” …

“A plaintiff should be permitted to proceed anonymously 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.” “The risk that a plaintiff may suffer some embarrassment is not enough.” …

Appellant fails to show the district court abused its discretion in denying her request to use a pseudonym….

First, we are not persuaded this case involves “matters of a highly sensitive and personal nature” to any degree that outweighs the presumption of openness…. Past cases in which plaintiffs have been allowed to use a pseudonym have commonly required them to “divulge[] personal information of the utmost intimacy,” or “admit that they either had violated state laws … or wished to engage in prohibited conduct.” But neither is true here.

Appellant acknowledges her identity was made public in the underlying disbarment proceeding but argues disclosing it in this case “would expand stigma.” However, her own “embarrassment” regarding the disability and disbarment proceedings “is not enough” to support her use of a pseudonym….

Second, Appellant has not shown she faces “real dangers of physical harm.” She claims there are “concrete risks of retaliation and stigma.” Op. But this assertion is conclusory.

She does not explain how public disclosure of her identity would place her in danger of suffering harm.

{Our cases have referred to “dangers of physical harm.” Courts [citing a Second Circuit case] have also inquired more broadly “whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties.” Here, Appellant has not shown disclosure of her identity would present any risk of either physical or mental harm sufficient to warrant use of a pseudonym.}

Third, we are unpersuaded by Appellant’s argument that “[t]he very harm at issue—retaliation by judicial actors—would be aggravated by disclosure” of her identity. The use of a pseudonym may be appropriate “where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity.” However, it is not required when a plaintiff is “not suing … to prevent the disclosure,” but instead “for compensation for disclosure that has already happened.”

Appellant claims defendants had discriminatory motives for the disability and disciplinary proceedings and conducted them unlawfully. The injury she is litigating against is not the disclosure of her identity, but alleged improprieties in the proceedings and particularly their result, namely the termination of her law license. To the extent her claims relate to identity disclosure, they seek relief for “a previous alleged defamation and disclosure,” not to prevent an injury that would “be incurred because of the disclosure of her identity in this case.”

Appellant has therefore not shown her case presents “exceptional circumstances” that warrant the use of a pseudonym….

[Appellant] argues defendants would not be prejudiced because they and the court know her identity, and that “keeping [her] name out of the public would keep the focus on the merits” of her legal claims. But these arguments—which might be raised in almost any lawsuit—fail to show her case is “exceptional,” or that the “unusual procedure” of using a pseudonym is appropriate.

Appellant also argues CFIC and Volokh have improper motives for advocating public filing. We see no improper motive. And in any event, it was Appellant’s burden to overcome the presumption of openness. Whatever CFIC and Volokh’s motives may be, she has not carried that burden….