Ka$h Patel’s firing of “disloyal” FBI agents have given rise to a number of potential claims for wrongful discharge, but the former agents suing in Does v. Patel aren’t the one who were canned for doing their jobs in investigating Trump or the J6 insurrectionists, but the agents who took a knee after the killing of George Floyd.

The lawsuit says the agents were assigned to patrol the nation’s capital during a period of civil unrest prompted by Floyd’s death. Lacking protective gear or extensive training in crowd control, the agents became outnumbered by hostile crowds they encountered and decided to kneel to the ground in hopes of defusing the tension, the lawsuit said. The tactic worked, the lawsuit asserts — the crowds dispersed, no shots were fired and the agents “saved American lives” that day.

For Patel, however, this was deemed political expression, agents who chose sympathy with the protesters in conflict with Trump administration’s animosity toward the protests. For that, they were fired.

“Defendants dismissed Plaintiffs in a partisan effort to retaliate against FBI employees that they perceived to be sympathetic to President Trump’s political opponents,” the lawsuit states.

The former agents have moved to proceed pseudonymously before D.C. Chief District Judge James Boasberg, who granted the motion, applying the five-step balancing test.

As Plaintiffs’ Motion helpfully notes, moreover, the D.C. Circuit has repeatedly recognized that FBI agents — unlike most litigants — have a longstanding and legitimate interest in preserving the confidentiality of their identities when disclosure could subject them to harassment or danger.  Plaintiffs allege that they previously worked in counterterrorism, counterintelligence, and other sensitive investigative roles, and that their terminations have drawn significant public attention.

Given that background, and in light of the increasing incidence of doxing and SWATting directed at law enforcement (citing FBI Security Division memo and DHS press release identifying such risks), publicly linking their names to this litigation could materially increase the risk that they or their families will be targeted or subjected to physical or mental harm. For this reason, the first factor weighs in favor of pseudonymity.

While it may well be true that FBI agents perform functions, such as counterterrorism, that could play them or their families at risk. it is similarly true that they perform these functions while on the job when their identities are readily available as federal law enforcement agents. This contention, to a large extent, mirrors the argument underlying the use of masks to conceal the identity of ICE agents when engaged in the highly unpopular and controversial rounding up of random people who appear to be Hispanic. Such risks are inherent in the job of law enforcement, and are exacerbated when agents are ordered to perform unpleasant tasks.

The second factor asks “whether identification poses a risk of retaliatory physical or mental harm.” . . . Whether the risks alleged here are best categorized as implicating Plaintiffs’ privacy interests under factor (1) or their safety interests under factor (2) is ultimately of little consequence. What matters is that Plaintiffs allege a credible and non-speculative threat of retaliatory harm, as described above.

It’s credible, as are most claims for pseudonymity, but in the absence of any attempt to do harm since their identities are already well known and there are images of these agents kneeling, it’s hard to understand Judge Boasberg’s unexplained conclusion that they are non-speculative.

The third factor addresses the ages of the individuals whose privacy interests are at stake. Plaintiffs are all adults, so this factor typically weighs against pseudonymity. Plaintiffs argue, however, that disclosure would also threaten the safety of their minor children, who “in some cases shar[e] uncommon last names.”

This, too, seems a given, as most law enforcement agents have families, children, who could be threatened for their parents’ jobs.

The fourth factor tips the scale further in favor of pseudonymity. That factor, the defendant’s identity, usually favors pseudonymity when a plaintiff sues the government, J.W., 318 F.R.D., at 201, as is the case here. This factor additionally takes into account whether the plaintiff is requesting individualized relief. See, e.g., Doe v. Blinken, No. 24-1629, ECF No. 3 (Mem. Op. & Order) at 5 (D.D.C. June 11, 2024) (“When a plaintiff requests individualized relief against a government defendant[,] . . . the fourth factor favors pseudonymity.”). And Plaintiffs do here, asking for reinstatement, expungement of personnel records, and backpay based on their own terminations. That weighs in favor of pseudonymity.

Every cop and law enforcement agent works for a government entity of some sort. One might suspect that it militates against pseudonymity, having chosen to take a position where one cashes a public paycheck and putatively serves the public good, thus choosing to subject themselves to public scrutiny.

Finally, allowing Plaintiffs to proceed pseudonymously would not prejudice Defendants. This factor favors pseudonymity when defendants already know the plaintiffs’ identities. In re Sealed Case, 971 F.3d at 326 n.1. Plaintiffs were terminated by the FBI shortly before filing this action, and they have agreed to submit their identities to Defendants for review under seal. See Mot. at 9. Defendants therefore suffer no litigation disadvantage if Plaintiffs proceed under pseudonyms.

This is true in essentially every case. Proceeding pseudonymously doesn’t mean the plaintiffs’ identities are concealed from the defendant, but from the public.

Nowhere is it mentioned that the fear giving rise to the plaintiffs concerns aren’t from foreign terrorists or spies, but from Trump sycophants who might attack them or their families for having taken a knee during a Black Lives Matter protest. Ironically, this issue is raised again by Judge Esther Salas, whose husband and son were murdered, as threats and doxxing of federal judges grow under attacks by Trump and his minions for issuing rulings against him.

The problem is that the same arguments accepted by Judge Boasberg for his grant of pseudonymity will serve any cop, any FBI agent, any ICE agent, in future suits against the government without regard to the misconduct, harm and constitutional violations at issue. No doubt these former agents have good reason to fear the MAGA faithful, but fear of retribution was always part of the job for law enforcement agents. If pseudonymity is warranted here, where won’t it be appropriate?