Chang v. Republic of S. Sudan
| Decision Date | 09 July 2021 |
| Docket Number | Civil Action No. 21-1821 |
| Citation | 548 F.Supp.3d 34 |
| Parties | Natalie CHANG, et al., Plaintiffs, v. The REPUBLIC OF SOUTH SUDAN, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Scott A. Gilmore, Hausfeld LLP, Washington, DC, for Plaintiffs.
Plaintiffs have moved to substitute counsel's business address for their residence addresses in their initial pleading, to file under seal and ex parte their residence addresses, and to permit two plaintiffs to proceed under pseudonym. Pls.’ Ex Parte Mot. for Waiver of LCvR 5.1(c)(1) and 11.1 and for Leave to Proceed Anonymously and Mem. Supp. ("Pl.’s Mot.") at 1, ECF No. 2. For the reasons set forth below, plaintiffs’ motion is granted, subject to any further consideration by the United States District Judge to whom this case is randomly assigned.1
Plaintiffs are citizens of various countries, including the United States, who were employees of an American non-governmental organization, Internews, that operated in South Sudan or, in the case of one plaintiff Rebecca Chol Nygundeng, the survivor of an Internews employee. Compl. ¶ 2, ECF No. 1. Plaintiffs allege that on July 11, 2016, armed forces of the Republic of South Sudan stormed a humanitarian aid compound, the Terrain Hotel, which was used by Internews for its operations in South Sudan. Id. After they broke into the compound, South Sudanese forces "subjected [plaintiffs] Natalie Chang, Irene Scott, Jeana Graham, Jane Doe, and Mary Roe to horrific gang-rape and other forms of sexual violence at the barrel of AK-47s, as well as beatings and threatened executions," and executed plaintiff Nygundeng's husband, John Gatluak. Id. ¶ 4. Plaintiff Gian Libot was held at gunpoint and witnessed the execution of John Gatluak. Id. ¶ 101. Plaintiffs allege that the attackers were "agents of South Sudan's armed forces, ... subordinate to the Ministry of Defense, and acting under actual or apparent authority, or color of law, of South Sudan," and that these attackers committed the attack on the Terrain Hotel "as part of a nation-wide pattern and practice of weaponizing rape to terrorize perceived opponents." Id. ¶ 3
Plaintiffs have brought claims of assault, id. ¶¶ 142-48; battery, id. ¶¶ 149–54; wrongful death, id. ¶¶ 155–58; intentional infliction of emotion distress, id. ¶¶ 159–165; and negligent retention, training, and supervision, id. ¶¶ 164–68, against the Republic of South Sudan and the South Sudan Ministry of Defense and Veteran Affairs.
Plaintiffs seek to use only the address of counsel in their public filings, to seal their residence addresses, and for two of the plaintiffs to proceed under pseudonym due to their "well-founded fear of stigmatization and harassment for the allegations of human rights abuses, including sexual assault allegations, raised in this case." Pls.’ Mot. at 1–2.
Generally, a complaint must state the names of the parties and address of the plaintiff. FED. R. CIV. P. 10(a) (); LCVR 5.1(c)(1) (); LCvR 11.1 (same requirement as LCvR 5.1(c)(1) ). The Federal and Local Rules thus promote a "presumption in favor of disclosure [of litigants’ identities], which stems from the ‘general public interest in the openness of governmental processes,’ ... and, more specifically, from the tradition of open judicial proceedings." In re Sealed Case , 931 F.3d 92, 96 (D.C. Cir. 2019) (internal citations omitted) (quoting Wash. Legal Found. v. U.S. Sentencing Comm'n , 89 F.3d 897, 899 (D.C. Cir. 1996) ). That "presumption of openness in judicial proceedings is a bedrock principle of our judicial system." In re Sealed Case , 971 F.3d 324, 325 (D.C. Cir. 2020) (citing Courthouse News Serv. v. Planet , 947 F.3d 581, 589 (9th Cir. 2020) ). Accordingly, courts "generally require parties to a lawsuit to openly identify themselves to protect the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." Id. (internal quotation marks and alterations omitted) (quoting United States v. Microsoft Corp. , 56 F.3d 1448, 1463 (D.C. Cir. 1995) (per curiam)).
Despite the presumption in favor of disclosure, the Federal Rules of Civil Procedure describe circumstances in which filings may be redacted and where access to public filings may be limited. FED. R. CIV. P. 5.2. Minors, for example, must be referred to using only their initials. FED. R. CIV. P. 5.2(a)(3). The court may also, for good cause, "require redaction of additional information." FED R. CIV. P. 5.2(e)(1).
Courts have also, in special circumstances, permitted a party to proceed anonymously. A party seeking to do so, however, "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." Id. Once that showing has been made, "the court must then ‘balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure.’ " Id. (quoting In re Sealed Case , 931 F.3d at 96 ). When weighing those concerns, five factors, initially drawn from James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993), serve as "guideposts from which a court ought to begin its analysis." In re Sealed Case , 931 F.3d at 97. These five factors are:
(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; (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; and relatedly, (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
Id. (citing James , 6 F.3d at 238 ).
At the same time, a court must not simply "engage in a wooden exercise of ticking the five boxes." Id. Rather, the "balancing test is necessarily flexible and fact driven" and the five factors are "non-exhaustive." In re Sealed Case , 971 F.3d at 326. In exercising discretion "to grant the rare dispensation of anonymity ... the court has ‘a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted’ ... tak[ing] into account the risk of unfairness to the opposing party, as well the customary and constitutionally-embedded presumption of openness in judicial proceedings." Microsoft Corp. , 56 F.3d at 1464 (). When a plaintiff requests to file her address under seal and ex parte , the plaintiff's interest in keeping personal information from the public is assessed under the James factors. See Yaman v. U.S. Dep't of State , 786 F. Supp. 2d 148, 152 (D.D.C. 2011)
At this early stage of the litigation, this Court is persuaded that plaintiffs have met their burden of showing that their privacy interests outweigh the public's presumptive and substantial interest in knowing the details of judicial litigation. The public's interest in knowing the addresses of the plaintiffs and the identities of plaintiffs Jane Doe and Mary Roe is de minimis compared to the significant privacy interests of the plaintiffs, who have well-founded and legitimate fears of stigmatization, harassment, and further violence. See Pls.’ Mot. at 1–2.
First, as the description of plaintiffs’ claims makes clear, plaintiffs do not seek to limit disclosure of their residence addresses and names "merely to avoid ... annoyance and criticism," but to "preserve privacy in a matter of [a] sensitive and highly personal nature." In re Sealed Case , 931 F.3d at 97. Plaintiffs state that they "fear that disclosing their residence address[es] may subject them to retaliation from the government of South Sudan or its supporters" and that this constitutes a "reasonable threat of physical or emotional harm." Pls.’ Mot. at 3. Plaintiffs point out that not only have they personally "been the victims of deliberate attacks orchestrated by the government of South Sudan," but that South Sudan has carried out "cross-border harassment, intimidation, and attacks against critics of the government of South Sudan." Id. at 4 (citing Human Rights Watch, South Sudan Events of 2019 , https://www.hrw.org/world-report/2020/country-chapters/south-sudan#). Moreover, five of the plaintiffs were victims of rape or sexual assault, which are by their very nature highly sensitive, personal, and warrant protection from public disclosure. See Doe 1 v. George Washington Univ. , 369 F. Supp. 3d 49, 64 (D.D.C. 2019). This factor weighs heavily in plaintiffs’ favor.
Second, and for the same reasons, plaintiffs have shown that they would face a serious risk of retaliatory harm if they were forced to provide their residence addresses or, in the case of Jane Doe and Mary Roe, provide their full names. After all, plaintiffs allege that they were previously viciously attacked and face an ongoing threat of retaliation. Pls.’ Mot. at 5–6. This factor, too, weighs heavily in plaintiffs’ favor
Third, "the ages of the persons whose privacy interests are sought to be protected," In re Sealed Case ...
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