Case 3:17-cv-00557-WHO Document 12 Filed 02/02/17 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 JULIA HARUMI MASS, SBN 189649 MICHAEL T. RISHER, SBN 191627 WILLIAM S. FREEMAN, SBN 82002 NOVELLA Y. COLEMAN, SBN 281632 CHRISTINE P. SUN, SBN 218701 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Email: jmass@aclunc.org Attorneys For Plaintiffs Hadil Al-Mowafak, Wasim Ghaleb And John Doe, On Behalf Of Themselves And Others Similarly Situated; ACLU Of Northern California; Jewish Family & Community Services East Bay KEKER & VAN NEST LLP R. ADAM LAURIDSEN - # 243780 alauridsen@kvn.com JAY RAPAPORT - # 281964 jrapaport@kvn.com KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 Attorneys For Plaintiffs Hadil Al-Mowafak, Wasim Ghaleb And John Doe, On Behalf Of Themselves And Others Similarly Situated; ACLU Of Northern California; Jewish Family & Community Services East Bay 11 12 SEE NEXT PAGE FOR ADDITIONAL COUNSEL 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 18 Hadil Al-Mowafak, Wasim Ghaleb and John Doe, on behalf of themselves and others similarly situated; ACLU of Northern California; Jewish Family & Community Services East Bay, Case No. 3:17-cv-00557 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY 19 Plaintiffs, Date Filed: February 2, 2017 20 v. Trial Date: 21 22 23 24 25 26 Donald Trump, President of the United States; U.S. Department of State; U.S. Department of Homeland Security; U.S. Customs and Border Protection; Rex W. Tillerson, Secretary of State; John Kelly, Secretary of U.S. Department of Homeland Security; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Patrol; Carrie Azurin, Field Director, San Francisco Field Office of U.S. Customs and Border Patrol, 27 Defendants. 28 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY Case No. 3:17-cv-00557 1144665.01 Case 3:17-cv-00557-WHO Document 12 Filed 02/02/17 Page 2 of 6 1 2 3 4 AHILAN T. ARULANANTHAM, SBN 237841 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 977-5297 Email: aarulanantham@aclu-sc.org 5 6 7 8 9 BARDIS VAKILI, SBN 247783 DAVID LOY, SBN 229235 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 Telephone: (619) 232-2121 Facsimile: (619) 232-0036 Email: bvakili@aclusandiego.org 10 11 12 13 14 15 16 17 18 19 20 ANDRE SEGURA, SBN 247681 OMAR C. JADWAT* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2618 Facsimile: (212) 549-2654 Email: asegura@aclu.org CECILLIA D. WANG, SBN 187782 JENNIFER CHANG NEWELL, SBN 233033 AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 Facsimile: (212) 395-0950 Email: cwang@aclu.org 21 *Pro Hac Vice Forthcoming 22 23 24 25 26 27 28 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY Case No. 3:17-cv-00557 1144665.01 Case 3:17-cv-00557-WHO Document 12 Filed 02/02/17 Page 3 of 6 1 I. INTRODUCTION Plaintiffs move under Civil Local Rule 7-11 for leave to allow Plaintiff John Doe (“Doe”) 2 3 to proceed in this litigation under a fictitious name. The Court should allow Doe to proceed 4 under a pseudonym because he belongs to a group—non-citizen Muslims—whose members risk 5 loss of economic opportunities, deportation, and harassment. See Does I through XXIII v. 6 Advanced Textile Corp., 214 F.3d 1058, 1070-73 (9th Cir. 2000) (permitting plaintiffs working in 7 U.S. territory lawfully, but nonetheless at risk of deportation, to proceed anonymously). 8 II. FACTUAL BACKGROUND On January 27, 2017, Defendant Donald J. Trump signed an Executive Order entitled 9 10 “Protecting the Nation from Foreign Terrorist Entry into the United States.” Compl. ¶ 22. 11 Among other things, the Executive Order bars admission to the United States of aliens from seven 12 predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Id. ¶¶ 25, 13 29. On the same day, the Deputy Assistant Secretary for Visa Services at the Bureau of Consular 14 Affairs of the Department of State, relying in part on the Executive Order, issued a letter 15 purporting to provisionally revoke all valid immigrant and nonimmigrant visas of nationals of 16 those seven countries. Id. ¶ 27. As alleged in the complaint, numerous statements made by 17 Defendant Trump, his campaign, and his advisors, and statements made in the documents 18 themselves, collectively convey the intention to execute a “Muslim ban” in the United States. Id. 19 ¶¶ 30-42.1 John Doe is an Iranian national who holds a valid student visa and is a Ph.D candidate at 20 21 the University of California, Berkeley. Doe Decl. ¶ 3. Doe has a pending application for 22 Optional Practical Training, which would allow him to extend his stay in the United States, as 23 well as a job offer from a Fortune 50 Silicon Valley company. Id. ¶ 4. Doe fears retaliation 24 should his participation in this lawsuit become public. Id. ¶¶ 6-8. 25 26 27 28 1 In addition to Defendant Trump, the other Defendants in this action are the U.S. Department of State; U.S. Department of Homeland Security; U.S. Customs and Border Protection; Rex W. Tillerson, Secretary of State; John Kelly, Secretary of U.S. Department of Homeland Security; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Patrol; Carrie Azurin, Field Director, San Francisco Field Office of U.S. Customs and Border Patrol, (collectively, “Defendants”). 1 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY Case No. 3:17-cv-00557 1144665.01 Case 3:17-cv-00557-WHO Document 12 Filed 02/02/17 Page 4 of 6 1 2 III. ARGUMENT Although Federal Rule of Civil Procedure 10(a) requires that the title of a complaint 3 “name all the parties,” the Ninth Circuit has held “that a party may preserve his or her anonymity 4 in judicial proceedings in special circumstances when the party’s need for anonymity outweighs 5 prejudice to the opposing party and the public’s interest in knowing the party’s identity.” 6 Advanced Textile, 214 F.3d at 1068. These circumstances include when identification creates a 7 risk of retaliatory physical, mental, or economic harm. Id. at 1068, 1070. 8 9 In determining whether to allow a party to proceed anonymously, “a district court must balance five factors: ‘(1) the severity of the threatened harm, (2) the reasonableness of the 10 anonymous party’s fears, . . . (3) the anonymous party’s vulnerability to such retaliation,’ (4) the 11 prejudice to the opposing party, and (5) the public interest.” Doe v. Kamehameha Sch./Bernice 12 Pauahi Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010) (quoting Advanced Textile, 214 F.3d 13 at 1068). All five factors favor allowing Doe to proceed anonymously here. 14 A. 15 Because “the public interest sets the stage” for a motion for leave to proceed The public interest favors allowing Doe to proceed anonymously. 16 anonymously, it is appropriate to begin there. Kamehameha Sch., 596 F.3d at 1042. “Action that 17 may chill a party’s willingness to litigate constitutional issues and violations of statutes is 18 generally considered against public policy.” See A.B.T. v. United States Citizenship & 19 Immigration Servs., No. 2:11-CV-02108 RAJ, 2012 WL 2995064, at *6 (W.D. Wash. Jul. 20, 20 2012). Doe fears retaliation should his participation in the lawsuit become known. Doe Decl. 21 ¶ 6. Forcing him “to disclose [his] identity would likely chill [his] willingness to challenge 22 statutory and constitutional violations.” A.B.T., 2012 WL 2995064, at *6. Permitting the use of a 23 pseudonym thus serves the public’s “interest in seeing this case decided on the merits.” 24 Advanced Textile, 214 F.3d at 1073. 25 Conversely, the public interest in open proceedings will not be impaired if Doe proceeds 26 anonymously. Plaintiffs challenge actions that apply across the board to non-citizen Muslims; 27 there is no reason to think that Doe’s individual circumstances will affect the resolution of this 28 2 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY Case No. 3:17-cv-00557 1144665.01 Case 3:17-cv-00557-WHO Document 12 Filed 02/02/17 Page 5 of 6 1 matter. For that reason, the use of a pseudonym will not “obstruct public scrutiny of the 2 important issues in this case.” Id. at 1072. 3 B. 4 Doe reasonably fears that he will suffer severe harm if forced to disclose his identity. Absent leave to proceed anonymously, Doe believes that he faces the risk of reprisal, 5 including the loss of work opportunities and his visa status. Doe Decl. ¶¶ 6-8. The Ninth Circuit 6 and other courts recognize these dangers as “extraordinary.” Advanced Textile, 214 F.3d at 1071; 7 see also Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004); Hispanic Interest Coal. of 8 Ala. v. Governor of Ala., 691 F.3d 1236, 1247 n.8 (11th Cir. 2012). And in this case, Doe’s fears 9 are well-grounded. 10 Doe personally knows Muslim students and Iranian nationals who have experienced 11 significant and unexplained delays in the processing of immigration benefits. Doe Decl. ¶ 7. 12 Moreover, certain officers acting at the direction of Defendants reportedly have exerted undue 13 pressure on those who are subject to the Executive Order—including pressuring individuals to 14 waive their rights to reside in the United States and forcibly removing them before courts could 15 rule on their challenges to the Order.2 16 Doe also faces threats of harassment and intimidation that justify shielding his identity. 17 Hispanic Interest Coal. of Ala., 691 F.3d at 1247. Leading up to and continuing after the 2016 18 election, the nation experienced a disturbing increase in anti-Muslim harassment and violence, 19 including at California universities.3 Doe should not have to face such risks if he does not wish 20 to. 21 22 23 24 25 26 27 28 2 See Oliver Laughland and Joanna Walters, Immigration officials coerced Yemenis to sign away green cards, suit claims, The Guardian, Jan. 30, 2017, available at https://www.theguardian.com/us-news/2017/jan/30/trump-travel-ban-yemenis-coercedrelinquish-green-card (last visited February 2, 2017); Matt Zapotosky, Federal judge orders U.S. to return Iranian who was deported under new order, Washington Post, Jan. 29, 2017, available at https://www.washingtonpost.com/news/postpolitics/wp/2017/01/29/banorder/?utm_term=.00ea8aee3144 (last visited February 2, 2017). 3 Sarah Ravani, Islamic Center of Davis vandalized; incident probed as hate crime, San Francisco Chronicle, Jan. 24, 2017, available at http://www.sfgate.com/bayarea/article/Vandalized-mosqueleaves-Davis-resident-in-10881175.php (last visited February 2, 2017); Chris Nguyen, Muslim student attacked for wearing hijab in Stanford Athletics ad, ABC7 News, Sept. 13, 2016, available at http://abc7news.com/news/muslim-student-attacked-for-hijab-in-stanford-athleticsad/1510536/ (last visited February 2, 2017). 3 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY Case No. 3:17-cv-00557 1144665.01 Case 3:17-cv-00557-WHO Document 12 Filed 02/02/17 Page 6 of 6 1 C. Doe is vulnerable to retaliation. 2 Doe’s vulnerability to the harms discussed above is plain. On its face, the Provisional 3 Revocation Letter revokes Doe’s visa, rendering him vulnerable to removal. See Advanced 4 Textile, 214 F.3d at 1072. Further, as noted above, certain Defendants allegedly have disregarded 5 the judicial process in other challenges to the Executive Order and removed individuals even 6 while courts are in the process of considering their requests for temporary relief. And, of course, 7 publicly naming himself in a legal challenge to Defendants’ actions makes Doe a likelier target 8 for anti-Muslim harassment. 9 D. Defendants will not be prejudiced if Doe proceeds anonymously. 10 Defendants do not need to know Doe’s identity to resolve the issues in this case, 11 especially at this early stage of the litigation. As noted above, this case involves constitutional 12 and statutory violations that apply broadly to non-citizen Muslims. If Defendants later have a 13 valid need for discovery that requires disclosure of Doe’s identity—a purely hypothetical scenario 14 for now—the parties can meet and confer on an appropriate protective order at that time. 15 IV. 16 17 CONCLUSION For the foregoing reasons, the Court should grant Doe leave to proceed anonymously in this action. 18 19 KEKER & VAN NEST LLP Dated: February 2, 2017 20 By: 21 /s/ Jay Rapaport R. ADAM LAURIDSEN JAY RAPAPORT 22 Attorneys For Plaintiffs Hadil Al-Mowafak, Wasim Ghaleb And John Doe, On Behalf Of Themselves And Others Similarly Situated; ACLU Of Northern California; Jewish Family & Community Services East Bay 23 24 25 26 27 28 4 PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO PROCEED ANONYMOUSLY Case No. 3:17-cv-00557 1144665.01