Since August 1, 2006, the Department of Labor has mandated that real names be excised from published decisions for fear of being subject to lawsuits for damaging an individual's right to privacy.  Now employers and carriers are left with an alphabet soup of claimants' initials instead of real names.  At first this was just an administrative policy, but in the face of criticism by some ALJs and a real concern that such secrecy actually violates the Administrative Procedure Act (5 U.S.C.S. §§ 701-706), the U.S. Department of Labor has now rushed out a final regulation on this point that applies, however, to only Black Lung cases. This policy was adopted in response to a lawsuit filed by a disgruntled federal worker whose FECA claim decision contained some personal medical history (Federal Employees Compensation Act, 5 U.S.C.S. § 8101 et seq.).  Because FECA decisions, like all OALJ decision, are posted on the Internet, an Internet search by another person apparently resulted in the disclosure of medical information the plaintiff wished kept confidential.  The OALJ’s policy, which reflects a directive from the Secretary of Labor, is explained by Chief Judge John M. Vittone in a July 3, 2006, letter now posted on the OALJ website, at

www.oalj.dol.gov/PUBLIC/RULES_OF_PRACTICE/REFERENCES/MISCELLANEOUS/CLAIMANT_NAME_POLICY_PUBLIC_ANNOUNCEMENT.HTM

The Department of Labor has formalized these rules for Black Lung cases at 20 C.F.R. § 725; 72 Fed. Reg. 4204 (January 30, 2007), but not for Longshore cases.

The statute that applies to government privacy determinations is 5 U.S.C.S. § 552: 

[E]ach agency, in accordance with published rules, shall make available for public inspection and copying . . . final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases. For records created on or after November 1, 1996 . . . each agency shall make such records available, including by computer telecommunications or . . .by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion . . . However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. . . Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any [such final opinions]. . . A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if (i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof.  (Emphasis supplied by author.)

Clearly, the statutory language mandates that a privacy analysis must be made before information may be withheld from the public.

The use of fictitious names is not explicitly authorized by the amended regulation or by the federal rules. See Coe v. United States Dist. Ct. for the Dist. of Colorado, 676 F.2d 411, 415 (10th Cir. 1982) (plaintiffs not permitted to proceed under fictitious name, because ``use of pseudonyms concealing plaintiff's real names has no explicit sanction in the federal rules''). Instead, the recently amended regulation no longer makes it mandatory to include a name in the caption of the decision. This policy ignores the public right to full disclosure and gives blanket anonymity to only Black Lung and Longshore claimants, without any individual analysis as to whether there is a clearly unwarranted invasion of privacy or the required written justification for the deletion of a claimant's name. For example, what unwarranted invasion of privacy could possibly exist involving a claimant in a § 8(f) dispute case (33 U.S.C.S. § 908(f)), where the claimant does not even have an interest?

The statute (5 U.S.C.S. § 552) clearly provides that the public has an interest in knowing what the administrative procedure system is doing. The courts have been almost unanimous in finding that this interest is frustrated when any part of litigation is conducted in secret. Also, if a claimant's allegations are false, anonymity provides a shield behind which defamatory charges may be launched without shame or liability (Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005); Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) (public access to names of plaintiffs ``is more than a customary procedural formality [because] First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings''); Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997) (use of fictitious names disfavored because identifying parties is important aspect of public trials); Doe v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) (``use of fictitious names runs afoul of the public's common law right of access to judicial proceedings'').

Courts have allowed the use of fictitious names for parties who have shown that disclosure of their identities would subject them to harm. However, this should be the exception, rather than the rule. A party should be allowed to proceed under a fictitious name only with leave of court and after a proper showing of good cause. Without this permission, the court lacks jurisdiction over the fictitiously named parties, who are not properly before the court (see Doe v. Shakur, 164 F.R.D. 359, 360-361, 1996 U.S. Dist. LEXIS 573, (S.D.N.Y. 1996) (ex parte order allowing plaintiff to file complaint using fictitious name did not entitle plaintiff to prosecute entire lawsuit anonymously without court permission); National Commodity & Barter Ass'n, Nat’l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (district court lacked jurisdiction over unnamed plaintiffs who had made no request to proceed anonymously); Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1256-1257 (N.D. Ala. 2003) (court lacked jurisdiction when plaintiffs filed their claims under fictitious names but did not seek leave to proceed anonymously). The anonymity sought by the Office of Workers' Compensation Programs, U.S. Department of Labor, should, under the Administrative Procedure Act, be the exception and not the rule.

Cases that have raised sufficient privacy concerns for plaintiffs to warrant an exception to the general rule of disclosure have involved such matters as birth control (see, e.g., Poe v. Ullman, 367 U.S. 497, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (1961)), illegitimacy (see, e.g., Doe v. Shapiro, 302 F. Supp. 761 (D. Conn. 1969)), abortion (see, e.g., Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973)), transsexuality (see, e.g., John Doe v. Blue Cross & Blue Shield, 794 F. Supp. 72 (D.R.I. 1992)), homosexuality (see, e.g., Webster v. Doe, 486 U.S. 592, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988)), mental illness (see, e.g., Doe v. Colautti, 592 F.2d 704 (3rd Cir. 1979)), AIDS (see W.G.A. v. Priority Pharmacy, Inc., 184 F.R.D. 616, 1999 U.S. Dist. LEXIS 3073 (E.D. Mo. 1999)), and rape (see, e.g., Doe v. Lally, 467 F. Supp. 1339 (D. Md. 1979)).  In contrast, courts find insufficient privacy concerns to allow the use of fictitious names if only ``personal embarrassment'' or some ``social stigma'' will result from disclosure of the plaintiff's identity (see, e.g., Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (disclosure required of claimant with job loss claim who avers employer stated job loss resulted from inability to perform, irregular attendance, and reporting to work while intoxicated). This is primarily because the courts have held that the public's right to know far outweighs the plaintiff's privacy concerns (see, e.g., Coe, supra, at 418 (no right to proceed anonymously because public's right to know outweighs plaintiff's privacy concerns)).  Courts have required specific judicial analysis to determine whether a plaintiff's privacy interests substantially outweigh the presumption of open judicial proceedings. They include: (1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information ``of the utmost intimacy;'' (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children (see Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004)). This type of analysis is required by the APA in every case and requires a full written justification for any deletion from the otherwise required disclosure.  There is no concern about anonymity for employer or carriers, and public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings.  To be sure, the Courts of Appeal are not subject to the Department of Labor's regulations, and they continue to clearly display the names of claimants in the captions and body of their opinions.

© Copyright 2008 by LexisNexis. All rights reserved. This article, which was written by Thomas C. Fitzhugh III, Fitzhugh, Elliott & Ammerman, P.C., Houston, Texas, originally appeared in the Benefits Review Board Service Longshore Reporter (Release 689).