Home » Alleged Panama Papers Leaker Still May Not Sue in Federal Court While Hiding His Name from the Court

Alleged Panama Papers Leaker Still May Not Sue in Federal Court While Hiding His Name from the Court

From Doe v. Federal Republic of Germany, decided yesterday by Magistrate Judge Gary Stein (S.D.N.Y.):

In brief, Plaintiff, the individual who allegedly leaked the “Panama Papers,” claims that Defendants, the Federal Republic of Germany (“Germany”) and the Bundeskriminalamt of Germany (“BKA”), failed to pay sums due under a contract whereby Plaintiff provided them with access to the Panama Papers for use in identifying tax fraud and other financial offenses.

In addition to allegations regarding Defendants’ purported breach of contract, Plaintiff, in his Complaint and other filings, raises concerns for his safety if his identity were to become public. Plaintiff avers that should his identity become known, his “life would be in immediate peril” and he “would likely be killed.” Plaintiff specifically references a 2017 docudrama aired by Russian news channel RT, which he calls “an explicit and credible death threat” against him.

In a motion filed simultaneously with the Complaint, Plaintiff explains that the Russian Federation, Chinese Communist Party, and Saudi government—the leaders of which were implicated by the Panama Papers leak—”are known for their repressive regimes,” including “extralegal murders and kidnappings.” Plaintiff references several instances of alleged extralegal violence undertaken by Russia, China, and Saudi Arabia on foreign soil (none of which were connected to the Panama Papers), as well as the murders of a Maltese and a Slovak journalist who exposed official corruption in their countries (who allegedly did make use of the Panama Papers). From these assertions, Plaintiff concludes that “[i]t is likely [he] would be treated in similar fashion by such state actors.” He avers, based on the Russian docudrama, that “President Putin wants [him] dead.” Plaintiff further maintains that “identification of [his] true identity would immediately expose dozens of individuals to likely physical harm.”

Based on these safety concerns, Plaintiff filed [a] motion … for leave to proceed under a pseudonym…. [In October, t]he Court … denied, with leave to renew, Plaintiff’s motion to proceed pseudonymously. The October Order noted that Plaintiff filed this action after failing to comply with an order entered by Chief Judge Boasberg in a substantially identical action filed by Plaintiff in federal court in the District of Columbia (the “D.C. Action”) directing him to provide his identity under seal to the court…. The Court concluded that, under the Second Circuit’s decision in Publicola v. Lomenzo (2d Cir. 2022), as well as other authorities, any litigant seeking to avail themselves of this forum must provide identifying information to the court, even if they are granted leave to proceed pseudonymously….

Plaintiff still has not provided his identity to the Court or indicated his willingness to do so. Nonetheless, he filed the current Motion claiming that, despite the Court’s prior rulings, … Plaintiff should be relieved of the requirement to provide his identity under seal to the Court….

No, said the magistrate judge:

Plaintiff must divulge his identity to the Court if he wishes to proceed with this litigation. The Second Circuit has held that parties cannot shield their identities from the court. See Publicola (finding that a pro se appellant’s “refusal to disclose his identity to the court” warranted dismissal of his case). Furthermore, parties proceeding anonymously in this District are routinely required to reveal their true names (as well as other identifying information) to the Court ex parte and under seal.

Despite this Court’s prior rulings, Plaintiff claims he should be relieved of this “vital” and “well-established requirement.” Publicola. Plaintiff principally argues that “the facts of this … case are not fully addressed by precedent,” and that the “types of risks involved with providing [Plaintiff’s] identity to the Court ‘under seal'” will expose Plaintiff to “substantial” risk. But as Chief Judge Boasberg held when Plaintiff sought an exemption from this requirement in the D.C. Action, courts “routinely require that even pseudonymous filers facing grave and specific threats to their safety file their identifying information under seal.” Doe v. Fed. Republic of Ger. (D.D.C. 2023)

As an example, Chief Judge Boasberg cited Sponsor v. Mayorkas (D.D.C. 2023). There, the plaintiffs, members of a family of Afghan nationals hiding in Pakistan, sued U.S. government defendants for actions taken in connection with the denial of their humanitarian parole applications. Plaintiffs moved to proceed pseudonymously, arguing that “in light of … one Plaintiff’s extensive work on behalf of the United States” and plaintiffs’ minority status, revealing their identities would increase the risks of violent attacks against them in Pakistan by terrorist groups hostile to the U.S. One plaintiff identified “many threats” to his life made “‘by fellow Afghans’ on account of his work” for the U.S. government, “including ‘threatening phone calls and messages at his door.'” Notably, plaintiffs alleged that a terrorist group—the Taliban—”previously used the family’s identification information to issue specific threats that drove them from their home.” Notwithstanding the foregoing, the court (after granting plaintiffs’ motion to proceed pseudonymously) required plaintiffs to file declarations containing their real names and residential addresses ex parte and under seal. Plaintiffs complied.

In a subsequent case, asylum seekers from South and Central America fleeing or hiding from serious threats of persecution brought a lawsuit challenging expedited removal policies issued by the U.S. Department of Homeland Security. M.A. v. Mayorkas (D.D.C. 2023). In accompanying declarations, the plaintiffs “put forth compelling narratives about the risks they face should gangs, paramilitary groups, or former abusers discover their whereabouts and actions.” These included accounts from plaintiffs who had “received direct death threats,” who “identified specific instances of torture,” and who in one instance said that “gang members tracked her down at her parents’ house and continued to return there even after she fled.” Again, while allowing plaintiffs to proceed under pseudonyms, the court required them to file sealed declarations containing their real names and addresses. And again, plaintiffs complied with this requirement.

The threats to the life and safety of the plaintiffs in Sponsor and M.A. appear to have been at least as serious, and at least as concrete, as the concerns raised by Doe here. Doe nonetheless claims that the protections afforded to

those plaintiffs are not good enough for him. Without citing any authority for his position, Doe argues that his safety concerns “must supersede any related precedent.” The reasons he offers in support of this argument are entirely unpersuasive.

First, Doe argues he is entitled to special treatment because he cannot rely on the integrity and competence of the federal judiciary. He questions “the robustness of the sealing process” and “the trustworthiness of the judge and the judge’s staff.” He claims that this Court has already given him reason “to acutely distrust its ability to handle a matter as sensitive as [his] identity.” He contends he was forced to file a duplicative action in this Court because of the D.C. Court’s “inflexibility” and “refusal to acknowledge any shortcomings in CM/ECF.” And he posits that, should Donald Trump—who, according to Plaintiff, “has long been an agent of the Russian Federation (and before that, the former Soviet Union)”—be re-elected as President, “[Trump] could use his malign influence to force or otherwise convince the Court to disclose [his] ‘sealed’ identity,” noting that Trump “appointed numerous judges.”

Suffice it to say that I disagree that this Court would be unable to protect Plaintiff’s identity. Plaintiff is entitled to his own views, and to make his own judgment about whether disclosing his identity under seal to the Court would pose an inordinate risk to his personal safety. But he is not entitled, on the basis of these assertions, to special dispensation from the well-established

requirements of the law.

Second, Plaintiff argues that he should not have to heed the Second Circuit’s command in Publicola unless “it has been conclusively established” that providing his identity to the Court “is absolutely necessary to achieve reasonable judicial objectives such as those described in Publicola.” (Mot. at 3; emphasis added). He then claims that those judicial objectives would not be advanced by disclosure of his identity here. He represents that he is willing to “certify under penalty of perjury” the absence of any potential conflict of interest within the meaning of 28 U.S.C. § 455 (without explaining how he could make such a certification pseudonymously, or how any “penalty” could be imposed or enforced unless he disclosed his identity). He further assures the Court that revealing his identity is unnecessary because “[n]o sanctionable conduct has arisen in this action,” “it is likely that none ever will,” and even if he did engage in sanctionable conduct, the “best and proper sanction” would be dismissal of the action with prejudice. But see, e.g., McMunn v. Mem. Sloan-Kettering Cancer Ctr., 191 F. Supp. 2d 440, 461-62 (S.D.N.Y. 2002) (determining that both dismissal with prejudice and a monetary penalty were appropriate sanctions against pro se plaintiff).

Plaintiff’s argument—based on the premise that, although he cannot trust the judicial system, the judicial system should trust him—fails to show that the underlying purposes of the Publicola rule are not implicated here.

More fundamentally, the argument misconstrues the rule itself. Publicola sets forth a prerequisite for a litigant to seek relief in a federal court, not a balancing test that depends on the facts and circumstances of a particular case or the district court’s assessment of the plaintiff’s credibility. The court’s holding is clear and simple: “court filings must disclose the identity of the filer.”

Accordingly, Plaintiff (like any other litigant seeking relief in this forum) is subject to Publicola’s requirement that he disclose his identity to the Court. The Court adheres to its prior rulings to that effect….

Plaintiff has now made his position clear. In his current Motion, Plaintiff unequivocally “decline[s]” to disclose his identity to the Court under seal. His Motion also confirms what could only be inferred previously: that he abandoned the D.C. Action and filed a duplicative action in this District in the hopes that he could avoid having to disclose his identity to the Court. Yet Plaintiff continues to seek relief from this Court while simultaneously declaring he will not comply with its rules.

The Court has been, and remains, sensitive to Plaintiff’s safety concerns. Those concerns may well justify allowing Plaintiff to proceed pseudonymously (as Chief Judge Boasberg found in the D.C. Action). But (as Chief Judge Boasberg also found in the D.C. Action) they do not justify waiving the “well-established” and “vital” requirement, that Plaintiff disclose his identity to the Court.

Plaintiff has elected to invoke the jurisdiction of this federal court, a public institution that uses public resources to adjudicate disputes in accordance with law. Plaintiff is not obligated to prosecute this case. If Plaintiff believes that the risk of engaging in litigation in federal court outweighs the benefit he might obtain if he prevails on his claims, it is Plaintiff’s prerogative to drop this suit. If Plaintiff wishes to proceed in this forum, however, the law requires that he provide his true name and other identifying information to the Court.

Accordingly, if Plaintiff intends to prosecute this litigation, Plaintiff is directed to submit a letter to the Court by February 8, 2024, indicating his willingness to submit his name and residential address under seal. If Plaintiff submits such a letter, the Court will then provide instructions for submitting a sealed filing outside the CM/ECF process, assuming Plaintiff prefers to submit his filing in hard-copy form. If no such letter is received by the foregoing date, I will recommend to Judge Broderick that this case be dismissed. See Publicola (dismissing appeal after litigant submitted letter indicating his refusal to comply with court’s order to disclose his identity)….


January 2024