United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon United States District Judge
Plaintiff moves for leave to proceed under the pseudonym “John Doe.” For the following reasons, the court holds that his privacy interest outweighs the presumption of openness in judicial proceedings. It will thus grant the motion and enter a protective order prohibiting the use of his real name.
In August 2014, Doe enrolled as a freshman at James Madison University (JMU or University) in Harrisonburg, Virginia. Doe alleges that, during his first week on campus, he met and began a sexual relationship with another freshman, “Jane Roe.” Later that semester, she filed a charge of sexual misconduct against him, claiming that their first sexual encounter was not consensual. A hearing board found him “not responsible” for the charge, but an appeal board reversed, suspending him through the spring 2020 semester.
Seeking immediate readmission to JMU, Doe brought this case against the University’s president, defendant Jonathan Alger, and vice president of student affairs, defendant Mark Warner, in their official capacities under 42 U.S.C. § 1983. Doe claims that the disciplinary process by which he was found responsible for sexual misconduct and suspended was deficient and that, as a result, Alger and Warner deprived him of his liberty interest in his good name and of his property interest in his continued enrollment at JMU without due process of law, in violation of the Fourteenth Amendment to the Constitution.
Along with his complaint, Doe filed a motion for leave to proceed under a pseudonym and for a protective order prohibiting the use of his real name or the real names of Roe and the other students involved in the disciplinary process. (Pl.’s Mot. for Leave to Proceed Under Pseudonym 1–2, Dkt. No. 2.) At first, Alger and Warner did not “challenge [Doe’s] assertion that anonymity is appropriate” here, but requested that “the parties be forbidden from discussing [the case] with third parties, including the press, during [its] pendency.” (Defs.’ Resp. to Pl.’s Mot. for Leave to Proceed Under Pseudonym 2, Dkt. No. 12.) But after Doe opposed such a gag order (Pl.’s Reply Mem. in Supp. of Mot. for Leave to Proceed Under Pseudonym 2, Dkt. No. 16), Alger and Warner filed an amended response to the motion, this time arguing that anonymity was not appropriate in this case. (Defs.’ Am. Response to Pl.’s Mot. for Leave to Proceed Under Pseudonym 1, Dkt. No. 23.)
“The ultimate test for deciding if a plaintiff should proceed anonymously is whether he ‘has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.’” Doe v. Pittsylvania Cty., Va., No. 4:11-cv-43, 2012 U.S. Dist. LEXIS 13618, at *2–3 (W.D. Va. Feb. 3, 2012) (some internal quotation marks omitted) (quoting Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992)). This presumption of openness is well grounded in our nation’s laws. Id. at *3. “Courts have long held that the First Amendment protections of freedom of speech and press safeguard the public’s right to attend trials, which must be ‘open to the public absent an overriding and clearly articulated interest to the contrary.’” Id. (quoting Doe 1 v. Merten, 219 F.R.D. 387, 390–91 (E.D. Va. 2004)). In fact, “anonymity is not contemplated by the Federal Rules of Civil Procedure.” Id. Quite the opposite: Rule 10(a) provides that “[t]he title of the complaint must name all the parties.” Fed.R.Civ.P. 10(a) (emphasis added). The purpose of this rule “is to ‘apprise the parties of their opponents and to protect the public’s legitimate interest in knowing all the facts and events surrounding court proceedings.’” Pittsylvania Cty., 2012 U.S. Dist. LEXIS 13618, at *3 (quoting Doe v. Hallock, 119 F.R.D. 640, 643 n.1 (S.D.Miss. 1987)).
But the presumption of openness is not absolute; anonymity may be appropriate in some cases. “The crucial interests served by open judicial proceedings are not compromised by allowing a party to proceed anonymously.” Id. at *4. If a plaintiff is granted leave to proceed under a pseudonym, the public is not denied its right to attend the proceedings or inspect the court’s opinions and orders on the underlying constitutional issue. Id. “‘[T]he only thing potentially being shielded from the public is plaintiff’s name and any court proceedings or opinions that might be necessary to determine standing.’” Id. (quoting Doe v. Barrow Co., 219 F.R.D. 189, 193 (N.D.Ga. 2003)). Still, “it is the exceptional case in which a court allows a party to proceed anonymously.” Id.
Whether a plaintiff is allowed to proceed anonymously is a decision committed to the sound discretion of the district court. Id. at *6. To guide this decision, the Fourth Circuit has provided the following five factors:
 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 sensitive and highly personal nature;  whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;  the ages of the persons whose privacy interests are sought to be protected;  whether the action is against a governmental or private party; and  the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). Not all of these factors may be relevant to a given case, and there may be others that are. Id. At bottom, then, the trial court must “carefully review all the circumstances of [the] case and then decide whether the customary practice of disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns.” Pittsylvania Cty., 2012 U.S. Dist. LEXIS 13618, at *7 (quoting Frank, 951 F.2d at 323).
The court concludes that the factors relevant to this case weigh in ...