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• 9TH CIRCUIT COURT

DOES ITHRU XXIII, on behalf of
themselves and all others similarly
situated,
Plaintiff-Appellant,

v.

ADVANCED TEXTILE CORPORATION, a
corporation; AMERICAN INVESTMENT
CORPORATION, a corporation;
AMERICAN PACIFIC TEXTILE, INC., a
corporation; CONCORDE GARMENT
MANUFACTURERS CORPORATION, a
corporation; DIORVA (SAIPAN) LTD.,
No. 99-16713
a corporation; GLOBAL
D.C. No.
MANUFACTURING INC., a
CV-99-00002-ARM
corporation; GRACE INTERNATIONAL
INC., a corporation; HANSAE                           OPINION
(SAIPAN), INC., a corporation; JOO
ANG APPAREL, INC., a corporation;
L & T INTERNATIONAL
CORPORATION, a corporation;
MARIANA FASHIONS, INC., a
corporation; MARIANAS GARMENT
MANUFACTURING, INC., a
corporation; MICHIGAN, INC., a
corporation; MICRONESIAN GARMENT
MANUFACTURING, INC., a
corporation; NEO FASHION, INC., a
corporation; N.E.T., d/b/a Suntex

5751


Manufacturing Corporation, a
corporation; PAN JIN SANG SA
CORPORATION, a corporation; SAKO
CORPORATION, a corporation; TOP
FASHION CORPORATION, a
corporation; TRANS ASIA GARMENT 
FORTE CORPORATION, a corporation; 
UNITED INTERNATIONAL
CORPORATION, a corporation; US
CNMI DEVELOPMENT CORPORATION,
a corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, District Judge, Presiding

Argued and Submitted
December 7, 1999--San Francisco, California

Filed June 2, 2000

Before: Myron Bright,1 Harry Pregerson and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Pregerson

SUMMARY 
 
The summary, which does not constitute a part of the opinion of the court, 
is copyrighted C 2000 by West Group. 
_________________________________________________________________

Labor and Employment/Unfair Labor Practices

The court of appeals reversed a judgment of the district
court. The court held that where named plaintiffs in a Fair
Labor Standards Act collective action demonstrate that they
have an objectively reasonable fear of extraordinarily severe
retaliation, they may conceal their identities from defendants
until the district court rules on plaintiffs' motion for court-
ordered notice to potential class members, and potential class
members have been given an opportunity to join the suit.

Twenty-three workers in Saipan's garment industry filed
suit against their employers, twenty-one garment manufactur-
ers operating on Saipan, alleging multiple violations of the
Fair Labor Standards Act (FLSA). The workers are all nonres-
idents of Saipan; twenty-one are citizens of the People's
Republic of China (China), and two are citizens of Bangla-
desh. They filed their complaint under the pseudonyms "Jane
Does I-XXIII," alleging that they feared that they and their
families would face physical and economic retaliation if their
true identity was revealed.

Chinese workers are enlisted to work in Saipan's garment
industry by recruiting agencies operating in China. Recruiters
require prospective workers to sign side-contracts with the
recruiting agency--one such contract required the employee
to surrender her passport upon entering Saipan and to return
to China immediately if she quit work without the recruiter's
permission. The recruiting agencies charge fees that can total
several thousand dollars.

Several workers testified that they feared the Chinese gov-
ernment would arrest them or their family members if they
breached the recruitment contract, or if they were unable to
pay their debts under the recruitment contract. Recruiters
warn workers that they must not complain about working con-
ditions, speak to Americans, or criticize the Chinese govern-
ment. When workers complained about working conditions,
their recruiters contacted family members in China and
demanded that the family members pay fines. Some workers
testified that they had been threatened with arrest for filing
labor complaints, or that they knew others who had been
threatened with arrest for doing so. Numerous workers testi-
fied that they feared the Chinese government would arrest
them or their family members because they filed a complaint
against their employer in Saipan.

In an attempt to dissuade workers from complaining, man-
agers in the manufacturers' factories interrogated workers
about whether they spoke to lawyers or filed complaints about
working conditions, warned them not to complain, and threat-
ened them with various reprisals, including termination,
blacklisting, deportation, and closing the factory. There was
also testimony that employers made oblique threats of physi-
cal harm to employees who complained about working condi-
tions.

The workers filed suit as a FLSA collective action on
behalf of approximately 25,000 similarly situated garment
workers. They moved the district court to authorize notice to
be sent to all potential workers under S 16(b) of FLSA, which
authorizes an employee to bring an action on behalf of simi-
larly situated employees, but requires that each employee opt-
in to the suit by filing a consent to sue with the district court.

Before the district court ruled on the workers' motion, all
the manufacturers except N.E.T. Corporation moved to dis-
miss the complaint for failure to include the workers' true
names and to strike the consents to sue filed under seal. The
workers cross-moved for leave to proceed under fictitious
names. N.E.T. did not oppose the workers' cross-motion. The
court denied the cross-motion and granted the manufacturers'
motion to dismiss. Instead of entering its order, the court
stayed the dismissal to permit the workers to amend their
complaint to include their true names.

The district court concluded that the workers' need for ano-
nymity did not outweigh the prejudicial effect on the manu-
facturers' ability to investigate and defend against claims by
unnamed plaintiffs, and the public's interest in a case of wide-
spread implications. The court gave five reasons for this con-
clusion: The district court (1) citing Article III's standing
requirement, suggested that it lacked jurisdiction to protect
plaintiffs from retaliation by nonparties to the suit; (2)
described the workers' evidence of threatened retaliation as
conjectural; (3) found that the workers' evidence did not dem-
onstrate a real danger of physical harm and that fear of eco-
nomic retaliation was not sufficient to support anonymous
proceedings; (4) observed that anonymity would serve no pur-
pose because the manufacturers already knew the identities of
many plaintiffs; and, (5) the court stated that other protections
were available to the workers.

The workers appealed the dismissal of their action.

[1] Ordinarily, the court of appeals does not have jurisdic-
tion to hear appeals from nonfinal district court decisions.
Under the collateral order doctrine, the court of appeals may
exercise its jurisdiction to review a district court order that is
not a final decision if three requirements are met. The order
must (1) conclusively determine the disputed question, (2)
resolve an important issue completely separate from the mer-
its of the action, and (3) be effectively unreviewable on
appeal from a final judgment.

[2] The district court's order satisfied all three require-
ments. First, nothing in the court's order suggested that it
would reconsider its ruling that the plaintiffs may not litigate
this case under fictitious names. [3] Second, the question
whether plaintiffs may proceed anonymously is separate from
the question whether defendants violated federal wage and
hour law. [4] Finally, if plaintiffs amended their complaint to
reveal their identities and litigated their FLSA claims under
their true names, the question whether plaintiffs may use
pseudonyms would be moot.

[5] The collateral order doctrine requires finality. The dis-
trict court's order must conclusively determine the disputed
question. But the essential feature of the collateral order doc-
trine -- that which distinguishes it from ordinary appellate
review -- is that the collateral order doctrine permits appel-
late review of final orders prior to the entry of a final judg-
ment. Thus, a rule requiring plaintiffs to obtain a final
judgment on a collateral issue that is completely separate
from the merits of the dispute would defeat the central pur-
pose of the collateral order doctrine.

[6] Requiring plaintiffs to obtain a final decision dismissing
their case prior to appellate review of the anonymity question
would place them in a Catch-22. If plaintiffs amended their
complaint to state their true names, they would lose the
opportunity to have the anonymity question decided by an
appellate court. Plaintiffs could have obtained immediate
review by not amending their complaint and instead allowing
the district court to enter a final judgment. But if they lost on
appeal of the anonymity issue, they would have lost the
option to pursue their FLSA claims under their real names
because the district court would have already entered a final
judgment dismissing the case.

[7] A party may preserve his or her anonymity in judicial
proceedings in special circumstances when the party's need
for anonymity outweighs prejudice to the opposing party and
the public's interest in knowing the party's identity. Where
pseudonyms are used to shield the anonymous party from
retaliation, the district court should determine the need for
anonymity by evaluating the following factors: (1) the sever-
ity of the threatened harm; (2) the reasonableness of the anon-
ymous party's fears; and (3) the anonymous party's
vulnerability to such retaliation.

[8] The balance between a party's need for anonymity and
the interests weighing in favor of open judicial proceedings
may change as the litigation progresses. In cases where the
plaintiffs have demonstrated a need for anonymity, the district
court should use its powers to manage pretrial proceedings,
and to issue protective orders limiting disclosure of the
party's name to preserve the party's anonymity to the greatest
extent possible without prejudicing the opposing party ability
to litigate the case.

[9] The district court abused its discretion in denying plain-
tiffs permission to proceed anonymously. The court erred by
failing to consider evidence of threatened retaliation by par-
ties not before the court; concluding that risks of extraordi-
nary economic injury are insufficient as a matter of law to
satisfy plaintiffs' burden; failing to consider as a factor plain-
tiffs' vulnerability to retaliation; failing to identify specific
prejudice to defendants; and failing to decide whether the
public's interest was best served by requiring plaintiffs to
reveal their identities. Based on the extreme nature of the
retaliation threatened against plaintiffs coupled with their
highly vulnerable status, plaintiffs reasonably feared severe
retaliation, and this fear outweighed the interests in favor of
open judicial proceedings. No factors weighed against con-
cealing plaintiffs' identities. The defendants have suffered no
prejudice by not knowing the identities of named plaintiffs
because the district court had not ruled on plaintiffs' motion,
and discovery was stayed. The public's interest in the case
could be satisfied without revealing the plaintiffs' identities.

_________________________________________________________________

COUNSEL

Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon &
Rubin, San Francisco, California, for the plaintiffs-appellants.

Stephen V. Bomse, Heller, Ehrman, White & McAuliffe, San
Francisco, California, for defendants-appellees Advanced
Textile Corporation, et al.

G. Anthony Long, Long & Brown, Saipan, Mariana Islands,
for defendant-appellee N.E.T.

William Stone, United States Department of Labor, Washing-
ton, D.C., for amicus curiae Secretary of Labor.

_________________________________________________________________

OPINION

PREGERSON, Circuit Judge:

This case requires us to decide whether the named plaintiffs
in a Fair Labor Standards Act, 29 U.S.C. S 201 et seq., collec-
tive action may, in the caption of their complaint, use pseud-
onyms in place of their true names. Plaintiffs in this case are
foreign garment workers on the island of Saipan. They used
fictitious names in their complaint because they fear that, if
their identities are disclosed to defendants and other nonpar-
ties to this action, they will be fired from their jobs, deported
from Saipan, and arrested and imprisoned by the People's
Republic of China. The district court dismissed the action
with leave to amend the complaint to state plaintiffs' true
names. We have jurisdiction under the collateral order doc-
trine, and we reverse. We hold that where, as here, the named
plaintiffs in a Fair Labor Standards Act collective action dem-
onstrate that they have an objectively reasonable fear of
extraordinarily severe retaliation, they may conceal their iden-
tities from defendants at least until the district court rules on
plaintiffs' motion for court-ordered notice to potential class
members,2 and potential class members have been given an
opportunity to join the suit.
I

Saipan is the main island of the Commonwealth of the
Northern Mariana Islands ("CNMI"), and garment manufac-
turing is one of Saipan's principal industries. The garment
industry has flourished on Saipan because employers in Sai-
pan are not obligated to pay the federal minimum wage, and
clothing made in Saipan, a commonwealth of the United
States, can be sold in the United States without payment of
import duties. Nonresident foreign workers make up roughly
half of Saipan's population, and as many as 25,000 may sew
clothing for the garment industry. Induced to travel to Saipan
by recruiting agencies operating abroad, foreign workers typi-
cally pay several thousand dollars to secure a job in Saipan,
sign a contract agreeing to work only for a specific employer
and to return home when employment ends, and reside in
company housing while in Saipan.3

A

Twenty-three workers in Saipan's garment industry filed
this suit against their employers, alleging multiple violations
of the Fair Labor Standards Act ("FLSA"). Specifically,
plaintiffs allege that their employers have a pattern, practice,
or policy of failing to pay overtime; failing to pay the legally
required overtime; deducting excessive sums for unsanitary
housing and food which plaintiffs are required to purchase as
a condition of employment; and failing to keep adequate
records. They named as defendants twenty-one garment man-
ufacturers operating on the island.4 The plaintiffs are all non-
residents of Saipan; twenty-one are citizens of the People's
Republic of China ("China"), and two are citizens of Bangla-
desh.

Plaintiffs filed their complaint under the pseudonyms "Jane
Does I-XXIII." The complaint alleges that plaintiffs "fear that
if their true identity is revealed, they will face actual physical
violence, the threat of physical violence, immediate deporta-
tion to China or their country of origin, likely arrest upon
arrival in China or their country of origin and an order by
China and other authorities accelerating the repayment of debt
incurred for recruitment fees" and that they "reasonably fear
that their families may face similar threats of physical and
economic retaliation if their true identity is revealed."

Plaintiffs filed this suit as a FLSA collective action on
behalf of approximately 25,000 similarly situated garment
workers. Section 16(b) of FLSA authorizes an employee to
bring an action on behalf of similarly situated employees, but
requires that each employee opt-in to the suit by filing a con-
sent to sue with the district court. See 29 U.S.C. S 216(b).5 To
facilitate this process, a district court may authorize the
named plaintiffs in a FLSA collective action to send notice to
all potential plaintiffs, see Hoffman-La Roche Inc. v. Sperling,
493 U.S. 165, 169  (1989), and may set a deadline for plain-
tiffs to join the suit by filing consents to sue, id. at 172.
Accordingly, plaintiffs in this suit moved the district court to
authorize notice to be sent to all potential plaintiffs
("Hoffman-La Roche motion").

Before the district court ruled on plaintiffs' Hoffman-La
Roche motion and while discovery was stayed, all defendants,
except N.E.T. Corporation ("N.E.T."), moved to dismiss the
complaint for failure to include plaintiffs' true names and to
strike the consents to sue filed under seal. Plaintiffs then filed
a cross-motion for leave to proceed under fictitious names.
N.E.T. did not oppose plaintiffs' cross-motion. The district
court denied plaintiffs' cross-motion and granted defendants'
motion to dismiss. Instead of entering its order, the court
stayed the dismissal to permit plaintiffs to amend their com-
plaint to include their true names.6 Plaintiffs appeal the dis-
missal of their action.

The district court concluded that plaintiffs' need for ano-
nymity did not outweigh "the prejudicial effect on defendants'
ability to investigate and defend against claims by unnamed
plaintiffs," and the public's interest in a "case [of] widespread
implications." The court gave five reasons for this conclusion.
Citing Article III's standing requirement, the district court
suggested that it lacked jurisdiction to protect plaintiffs from
retaliation by nonparties to the suit. The court also described
plaintiffs' evidence of threatened retaliation as "prospective
and conjectural, based in large part on hearsay and innuendo."
Third, the court found that plaintiffs' evidence did not demon-
strate a "real danger of physical harm" and that "[m]any of
the fears revolve around economic retaliation which is not
sufficient to support anonymous proceedings." Fourth, the
court observed that anonymity would serve no purpose
because defendants already know the identities of many plain-
tiffs. Finally, the court stated that other protections are avail-
able to plaintiffs, including the United States marshal service,
FLSA's prohibition on employer retaliation against employ-
ees who file labor complaints, 29 U.S.C. S 215(a)(3), and the
CNMI's Non-Resident Workers Act, 3 N. Mar. I. Code
S 4434(g), which prohibits summary deportation of foreign
workers upon termination from their employment.

B

In support of their motion to proceed under fictitious
names, plaintiffs filed with the district court evidence of
working conditions in Saipan's garment industry and the par-
ticular risks that Chinese workers face if their identities are dis-
closed.7 Chinese workers are enlisted to work in Saipan's
garment industry by recruiting agencies operating in China.
Recruiters require prospective workers to sign side-contracts
with the recruiting agency. One such contract requires the
employee to surrender her passport upon entering Saipan and
to return to China immediately if she quits work without the
recruiter's permission. The recruiting agencies charge pro-
spective workers a "recruitment fee" to secure a position in
the CMNI and a "performance of contract" deposit which is
forfeited if the worker does not complete her contract. These
fees total several thousand dollars. In addition, prospective
workers must find a guarantor, usually a relative, to assume
joint liability for any debts owed by the worker.

Several workers testified that they fear the Chinese govern-
ment will arrest them or their family members if they breach
the recruitment contract, or if they are unable to pay the debts
acquired under the recruitment contract. Recruiters warn
workers, prior to departing China, that they must not com-
plain about working conditions, speak to Americans, or criti-
cize the Chinese government. Recruiters continue to meet
with and police the conduct of their recruits after they arrive
in Saipan. When workers complained about working condi-
tions, their recruiters contacted family members in China and
demanded that the family members pay fines. Some workers
testified that they had been threatened with arrest for filing
labor complaints, or that they knew others who had been
threatened with arrest for doing so. Numerous workers testi-
fied that they fear the Chinese government will arrest them or
their family members because they filed a complaint against
their employer in Saipan. Plaintiffs also presented evidence
that China's state secrets law has been used to prosecute and
imprison workers for complaining about their working condi-
tions abroad.

Finally, managers of defendants' factories have attempted
to dissuade workers from complaining about their working
conditions. Managers interrogated workers about whether
they spoke to lawyers or filed complaints about working con-
ditions, warned them not to complain, and threatened them
with various reprisals, including termination, blacklisting,
deportation, and closing the factory. There is also testimony
that employers made oblique threats of physical harm to
employees who complained about working conditions.

To refute plaintiffs' allegations, defendants submitted dec-
larations by Chinese workers who had completed a tour in
Saipan and testified that they experienced no work-related
problems; declarations by Chinese workers who are currently
employed in Saipan and who had filed labor complaints, stat-
ing that they suffered no retaliation as a result of filing those
complaints; and evidence that plaintiffs in other FLSA actions
against employers in Saipan's garment industry revealed their
identities. Defendants also presented testimony by garment
factory managers, recruiting agents, and the Chinese govern-
ment, denying that they threaten or retaliate against workers
who file labor complaints. Finally, defendants presented evi-
dence that they had ascertained the identities of as many as
ten of the twenty-three plaintiffs.

II

[1] We begin with the question of our jurisdiction to review
the district court's order dismissing the case with leave to
amend the complaint. Ordinarily, we do not have jurisdiction
to hear appeals from nonfinal district court decisions. See 28
U.S.C. S 1291.8 A final decision is one that " `ends the litiga-
tion on the merits and leaves nothing for the court to do but
execute the judgment.' " Coopers & Lybrand v. Livesay, 437
U.S. 463, 467 (1978) (quoting Catlin v. United States, 324
U.S. 229, 233 (1945)). The collateral order doctrine creates an
exception to the final decision rule. This court may exercise
its S 1291 jurisdiction to review a district court order that is
not a final decision if three requirements are met. The order
must "[1] conclusively determine the disputed question, [2]
resolve an important issue completely separate from the mer-
its of the action, and [3] be effectively unreviewable on
appeal from a final judgment." Id. at 468; see also K. V. Mart
Co. v. United Food & Commercial Workers Int'l Union,
Local 324, 173 F.3d 1221, 1223 (9th Cir.), cert. denied, 120
S. Ct. 176 (1999).

[2] The district court's order before us satisfies all three
Coopers & Lybrand requirements. An order "conclusively
determines the disputed question" if it is " `made with the
expectation that [it] will be the final word on the subject
addressed.' " Jackson v. Vasquez, 1 F.3d 885, 887 (9th Cir.
1993) (quoting Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 276  (1988)). This requirement is satis-
fied because nothing in the district court's order suggests that
the district court will reconsider its ruling that plaintiffs may
not litigate this case under fictitious names. Contrary to the
defendants' argument, the district court's decision to stay the
dismissal of the suit in order to permit plaintiffs to amend
their complaint has no effect on the finality of the order. The
district court's order is final, even if it will not take effect
immediately. See Moses H. Cone Memorial Hospital v. Mer-
cury Constr. Corp., 460 U.S. 1, 12  (1983) (stating that there
is no practical distinction between a stay and dismissal for the
purpose of the collateral order doctrine).

[3] The second Coopers & Lybrand  requirement is also sat-
isfied, as defendants concede, because the question whether
plaintiffs may proceed anonymously is separate from the
question whether defendants violated the federal wage and
hour law.

[4] The third Coopers & Lybrand  requirement is that the
district court order be "effectively unreviewable on appeal
from final judgment." Midland Asphalt Corp. v. United
States, 489 U.S. 794, 799  (1989). This means that " `the legal
and practical value of [permission to proceed anonymously
will] be destroyed if [ ] not vindicated before trial.' " Id.
(quoting United States v. MacDonald, 435 U.S. 850, 860
(1978)). Plaintiffs have also fulfilled this requirement. If
plaintiffs amend their complaint to reveal their identities and
litigate their FLSA claims under their true names, the question
whether plaintiffs may use pseudonyms will be moot. Appel-
late review of the district court order after the district court
renders a final decision on the FLSA claims will have no legal
or practical value.

Defendants argue, however, that the district court's order
can be reviewed on appeal from the final judgment. If plain-
tiffs do not amend their complaint prior to the expiration of
the stay order, the district court will enter a final decision dis-
missing their complaint, and that order will be appealable
under S 1291. Defendants correctly point out that a district
court order dismissing a case with leave to amend is not
appealable under S 1291 as a final decision. See WMX Tech-
nologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997)
(en banc); Santoro v. CTC Foreclosures Svcs. Corp., 193 F.3d
1106, 1107 (9th Cir. 1999). We have never decided whether
the WMX Technologies rule applies when a plaintiff appeals
a district court's order under the collateral order doctrine.

[5] The WMX Technologies rule is consistent with the long-
standing principle that finality is a condition of appellate
review. See 104 F.3d at 1136 ("[T]he rule we reaffirm today
. . . provides for a final look before the arduous appellate pro-
cess commences."). The collateral order doctrine also requires
finality: the district court's order must "conclusively deter-
mine the disputed question." Coopers & Lybrand, 437 U.S. at
468. But the essential feature of the collateral order doctrine
-- that which distinguishes it from ordinary appellate review
under S 1291 -- is that the collateral order doctrine permits
appellate review of final orders prior to the entry of a final
judgment. Thus, a rule requiring plaintiffs to obtain a final
judgment on a collateral issue that is completely separate
from the merits of the dispute would defeat the central pur-
pose of the collateral order doctrine.

[6] Our decision not to apply the WMX Technologies rule
to collateral orders of the district court produces a fair result
in the case before us. Requiring plaintiffs to obtain a final
decision dismissing their case prior to appellate review of the
anonymity question would place plaintiffs in a Catch-22. If
plaintiffs amend their complaint to state their true names,
plaintiffs will lose the opportunity to have the anonymity
question decided by an appellate court. Plaintiffs could obtain
immediate review by not amending their complaint and
instead allowing the district court to enter a final judgment.
But if they lose on appeal of the anonymity issue, they will
have lost the option to pursue their FLSA claims under their
real names because the district court will have already entered
a final judgment dismissing the case. A plaintiff seeking
review under S 1291 of a final decision does not face the same
quandary.

In sum, we conclude that the district court's order satisfies
all three Coopers & Lybrand criteria and as a result, we have
jurisdiction to hear plaintiffs' appeal. In reaching this conclu-
sion, we join two of our sister circuits that have exercised
jurisdiction in similar circumstances. See James v. Jacobson,
6 F.3d 233, 237 (4th Cir. 1993) (district court order prohibit-
ing plaintiffs from testifying anonymously at trial is an
appealable order); Doe v. Stegall, 653 F.2d 180, 183 (5th Cir.
1981) (trial court order granting plaintiffs leave to amend
their complaint to add more plaintiffs, but requiring that addi-
tional plaintiffs' identities be disclosed, is appealable under
the collateral order doctrine); Southern Methodist Univ. Ass'n
of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 711
(5th Cir. 1979) (same).

III

Plaintiffs' use of fictitious names runs afoul of the public's
common law right of access to judicial proceedings, see Nixon
v. Warner Communications, Inc., 435 U.S. 589, 598-99
(1978); EEOC v. Erection Co., Inc., 900 F.2d 168, 169 (9th
Cir. 1990), and Rule 10(a)'s command that the title of every
complaint "include the names of all the parties, " Fed. R. Civ.
P. 10(a). Nevertheless, many federal courts, including the
Ninth Circuit, have permitted parties to proceed anonymously
when special circumstances justify secrecy. See, e.g., Doe v.
Madison School Dist. No. 321, 147 F.3d 832, 833 n.1 (9th
Cir. 1998), vacated on other grounds, 177 F.3d 789 (9th Cir.
1999) (en banc); Doe v. Blue Cross & Blue Shield United of
Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997); James, 6 F.3d
at 239; Doe v. INS, 867 F.2d 285, 286 n.1 (6th Cir. 1989)
("Doe I"); Stegall, 653 F.2d at 186; Moe v. Dinkins, 533
F.Supp. 623, 627 (S.D.N.Y. 1981), aff'd, 669 F.2d 67 (2d Cir.
1982).9

In this circuit, we allow parties to use pseudonyms in the
"unusual case" when nondisclosure of the party's identity "is
necessary . . . to protect a person from harassment, injury, rid-
icule or personal embarrassment." United States v. Doe, 655
F.2d 920, 922 n.1 (9th Cir. 1981) ("Doe II") (using pseud-
onyms in opinion because appellant, a prison inmate,"faced
a serious risk of bodily harm" if his role as a government wit-
ness were disclosed); see also Madison School Dist., 147 F.3d
at 834 n.1 (stating that plaintiff filed case as "Jane Doe"
because she feared retaliation by the community). We have
not, however, decided an appeal from a district court's order
granting or denying permission to proceed anonymously. As
a result, we have had no opportunity to set out the legal stan-
dard governing a district court's discretionary decision to per-
mit a party to proceed anonymously.10

Four federal Courts of Appeals have heard appeals from a
district court's order refusing to allow plaintiffs to use pseud-
onyms. These courts held that a district court must balance the
need for anonymity against the general presumption that par-
ties' identities are public information and the risk of unfair-
ness to the opposing party. See M.M. v. Zavaras , 139 F.3d
798, 803 (10th Cir. 1998); James, 6 F.3d at 238 (Fourth Cir-
cuit); Doe v. Frank, 951 F.2d 320, 323-24 (11th Cir. 1992);
Stegall, 653 F.2d at 186 (Fifth Circuit). Applying this balanc-
ing test, courts have permitted plaintiffs to use pseudonyms in
three situations: (1) when identification creates a risk of retal-
iatory physical or mental harm, see Stegall, 653 F.2d at 186;
Gomez v. Buckeye Sugars, 60 F.R.D. 106, 107 (N.D. Ohio
1973) (permitting FLSA plaintiffs to use pseudonyms to pro-
tect them from employer reprisals); (2) when anonymity is
necessary "to preserve privacy in a matter of sensitive and
highly personal nature," James, 6 F.3d at 238; see also Doe
v. United Services Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y.
1988) (allowing plaintiff to sue insurance company anony-
mously to protect against identification as a homosexual);
Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974) (per-
mitting plaintiff in abortion suit to use pseudonym due to the
personal nature of pregnancy); and (3) when the anonymous
party is "compelled to admit [his or her] intention to engage
in illegal conduct, thereby risking criminal prosecution," Ste-
gall, 653 F.2d at 185; see also Doe v. Commonwealth's Attor-
ney for City of Richmond, 403 F.Supp. 1199 (E.D. Va. 1975),
judgment aff'd by 425 U.S. 985 (1976).

[7] We join our sister circuits and hold that a party may
preserve his or her anonymity in judicial proceedings in spe-
cial circumstances when the party's need for anonymity out-
weighs prejudice to the opposing party and the public's
interest in knowing the party's identity. We further hold that
in cases where, as here, pseudonyms are used to shield the
anonymous party from retaliation, the district court should
determine the need for anonymity by evaluating the following
factors: (1) the severity of the threatened harm, see Southern
Methodist Univ., 599 F.2d at 713; (2) the reasonableness of
the anonymous party's fears, see Stegall, 653 F.3d at 186; and
(3) the anonymous party's vulnerability to such retaliation,
see id. (discussing vulnerability of child plaintiffs); Doe II,
655 F.2d at 922 n.1 (recognizing enhanced risks to long-term
prison inmate). The court must also determine the precise
prejudice at each stage of the proceedings to the opposing
party, and whether proceedings may be structured so as to
mitigate that prejudice. See James, 6 F.3d at 240-41 (evaluat-
ing defendants' assertions that plaintiffs' use of pseudonyms
would prejudice the jury against the defendants and would
impair defendant's ability to impeach plaintiffs' credibility).
Finally, the court must decide whether the public's interest in
the case would be best served by requiring that the litigants
reveal their identities. See Stegall, 653 F.2d at 185 (recogniz-
ing that "[p]arty anonymity does not obstruct the public's
view of the issues joined or the court's performance in resolv-
ing them.").

[8] We recognize that the balance between a party's need
for anonymity and the interests weighing in favor of open
judicial proceedings may change as the litigation progresses.
In cases where the plaintiffs have demonstrated a need for
anonymity, the district court should use its powers to manage
pretrial proceedings, see FED. R. CIV. P. 16(b), and to issue
protective orders limiting disclosure of the party's name, see
FED. R. CIV. P. 26(c), to preserve the party's anonymity to the
greatest extent possible without prejudicing the opposing
party's ability to litigate the case. It may never be necessary,
however, to disclose the anonymous parties' identities to non-
parties to the suit.

IV

We now examine the district court's decision not to allow
plaintiffs to remain anonymous at this preliminary stage of the
litigation. We review a district court's case management deci-
sions for an abuse of discretion. See Muckleshoot Tribe v.
Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir. 1998);
accord James, 6 F.3d at 238 (reviewing for an abuse of dis-
cretion a district court's decision denying plaintiffs permis-
sion to use fictitious names); Stegall, 653 F.2d at 184 (same).
Thus, we may reverse the district court's decision if the dis-
trict court relied on an erroneous view of the law, made a
clearly erroneous assessment of the evidence, or struck an
unreasonable balance of the relevant factors. See K. V. Mart
Co., 173 F.3d at 1223; Creative Tech., Ltd. v. Aztech Sys.
PTE, Ltd., 61 F.3d 696, 699 (9th Cir. 1995).

[9] We conclude that the district court abused its discretion
in denying plaintiffs permission to proceed anonymously at
this stage of the litigation. The district court erred by failing
to consider evidence of threatened retaliation by parties not
before the court; concluding that risks of extraordinary eco-
nomic injury are insufficient as a matter of law to satisfy
plaintiffs' burden; failing to consider as a factor plaintiffs'
vulnerability to retaliation; failing to identify specific preju-
dice to defendants; and failing to decide whether the public's
interest was best served by requiring plaintiffs to reveal their
identities. We also conclude, based on the extreme nature of
the retaliation threatened against plaintiffs coupled with their
highly vulnerable status, that plaintiffs reasonably fear severe
retaliation, and that this fear outweighs the interests in favor
of open judicial proceedings. No factors weigh against con-
cealing plaintiffs' identities. At present, defendants suffer no
prejudice by not knowing the identities of named plaintiffs
because the district court has not ruled on plaintiffs' Hoffman-
La Roche motion, and discovery is stayed. The public's inter-
est in this case can be satisfied without revealing the plain-
tiffs' identities.11
A

Severity of the Threatened Injury

The district court evaluated the severity of the threatened
injury to plaintiffs, but in doing so, it improperly discounted
much of plaintiffs' evidence. First, the court stated that Arti-
cle III's standing requirement bars a court from redressing
injuries inflicted by third parties, such as the Chinese govern-
ment and recruiting agencies. Second, the court concluded
that anonymity may never be used to protect against eco-
nomic harm. Each of these conclusions is incorrect as a matter
of law.

Article III's standing requirement does not prevent a court
from allowing plaintiffs to proceed anonymously simply
because plaintiffs seek to protect themselves from retaliation
by third parties.12 A district court with subject-matter jurisdic-
tion over a case has the power to issue orders relating to third
parties. See, e.g., Seattle Times v. Rhinehart, 467 U.S. 20, 37
(1984) (affirming district court's entry of a protective order
limiting disclosure of the products of pretrial discovery); FED.
R. CIV. P. 26 (c) (authorizing the district court to enter protec-
tive order limiting public disclosure of discovery). More to
the point, this court and others have concealed parties' identi-
ties in order to protect them from retaliation by third parties
and also to protect nonparties from reprisals. See Doe II, 655
F.2d at 922 n.1 (using pseudonyms in opinion to protect
defendant and other nonparties from retaliation by prison
inmates); Doe I, 867 F.2d at 286 n.1 (allowing asylum peti-
tioner to use pseudonym in order to protect family in China
from reprisals). Thus, the district court erred as a matter of
law by refusing to take into account evidence of threatened
retaliation by the Chinese government and the Chinese
recruiting agencies.

The district court also erred in concluding that anonymity
can never be used to shield plaintiffs from economic injury.
The district court based this conclusion on the Fifth Circuit's
decision in Southern Methodist University. In that case, an
organization of women law students brought a class action
suit against two law firms, alleging that the firms discrimi-
nated against women in hiring. Four individual lawyers
sought to join the suit as anonymous plaintiffs because they
feared job-related retaliation. See 599 F.2d at 710. The Fifth
Circuit denied their motion, stating that they "face no greater
threat of retaliation that the typical plaintiff alleging Title VII
violations, including the other women who, under the real
names and not anonymously, have filed sex discrimination
suits against large law firms." Id. at 713 (emphasis added).
Contrary to the district court's conclusion, Southern Method-
ist University does not stand for the proposition that evidence
of economic harm is always irrelevant to the question of
whether plaintiffs may proceed anonymously. Rather, the
court in Southern Methodist University simply held that it was
not faced with a case meriting anonymity because the threat-
ened retaliation was not extraordinary.

Here, plaintiffs do face "greater threat[s ] of retaliation than
the typical [FLSA] plaintiff." While threats of termination and
blacklisting are perhaps typical methods by which employers
retaliate against employees who assert their legal rights, the
consequences of this ordinary retaliation to plaintiffs are
extraordinary. As guest workers in Saipan, plaintiffs may be
deported if they lose their jobs. See 3 N. Mar. I. Code
S 4434(g). Moreover, if plaintiffs are fired, blacklisted, or
deported, they will be burdened with debts arising from their
contracts with the recruiting agencies. Plaintiffs fear accruing
debts because they know Chinese citizens who have been
threatened with arrest and incarceration because they could
not pay their debts to recruiters.

The district court also described plaintiffs' evidence of
physical injury as "based on speculation, hearsay and innuen-
do." Without deciding whether the district court's ruling was
correct, we wish to make clear that where, as here, plaintiffs
fear extraordinary retaliation, such as deportation, arrest, and
imprisonment, plaintiffs do not need to prove that they face
a danger of physical injury.

B

Reasonableness of Plaintiffs' Fears

The district court's description of plaintiffs' evidence of
threatened retaliation as "prospective and conjectural [and]
based in large part on hearsay and innuendo," 13 also suggests
that plaintiffs failed to prove that their fears were reasonable.
This ruling was in error because plaintiffs are not required to
prove that the defendants intend to carry out the threatened
retaliation. What is relevant is that plaintiffs were threatened,
and that a reasonable person would believe that the threat
might actually be carried out.

We believe that plaintiffs satisfied this burden. On numer-
ous occasions, plaintiffs were interrogated about, warned
against, and threatened for making complaints about their
working conditions by defendants and recruiting agents.
Threats ran the gamut from termination and blacklisting, to
deportation, arrest, and imprisonment. Plaintiffs' employers
have the power to terminate workers, and cause them to be
deported. In addition, the government of China has the ability
to arrest and imprison its citizens. Evidence of collaboration
between defendants, the recruiting agencies, and China's gov-
ernment suggests that threats made by defendants and the
recruiting agents may be carried out by China's government.
The fact that the Chinese government has punished workers
for complaining about their working conditions abroad also
bolsters the reasonableness of plaintiffs' fears.

Nor do post hoc remedies for retaliation available in the
district court make plaintiffs' fears unreasonable. First, the
district court clearly erred in deciding that it could remedy
any harm to plaintiffs for the obvious reason that the court has
no ability to protect plaintiffs from reprisals when they return
to China or to protect plaintiffs' family members who reside
in China. Second, complaining employees are more effec-
tively protected from retaliation by concealing their identities
than by relying on the deterrent effect of post hoc remedies
under FLSA's anti-retaliation provision, 29 U.S.C. 
S 215(a)(3).14 See Wirtz v. Continental Finance & Loan Co. of
West End, 326 F.2d 561, 563-64 (5th Cir. 1964) (stating that
"the most effective protection from retaliation is the anonym-
ity of the informer"); Mitchell v. Roma, 265 F.2d 633, 637
(3rd Cir. 1959) ("The statutory prohibition against retaliation
provides little comfort to an employee faced with the possibil-
ity of subtle pressures by an employer, which pressures may
be so difficult to prove when seeking to enforce the prohibi-
tion."); Gomez, 60 F.R.D. at 107 (granting FLSA plaintiffs
anonymity because "[t]he method proposed by plaintiffs
affords them a higher degree of security than does
[S 215(a)(3)] without being subject to the vagaries that prom-
ises").

C

Plaintiffs' Vulnerability to Retaliation

The district court failed to consider plaintiffs' vulnerability
to retaliation. Plaintiffs are nonresident foreign workers, pres-
ent in Saipan for the sole purpose of working in defendants'
garment factories. Under the terms of the recruitment con-
tract, they do not have the freedom to quit working for one
employer and seek employment at another factory on Saipan.
Defendants may terminate plaintiffs at will and apparently
also have the power to have foreign workers deported almost
instantly, despite CNMI law prohibiting summary deporta-
tion. See DEP'T OF THE INTERIOR II, at 8. Also, plaintiffs reside
in company housing, and evidence in the record indicates that
at least some employers attempt to prevent their employees
from leaving the "barracks" without permission. See DEP'T OF
THE INTERIOR I, at 6.

In addition, plaintiffs' vulnerability to retaliation is
enhanced at this stage of the litigation because they are
twenty-three individuals among an estimated workforce of
25,000. We acknowledge that plaintiffs' vulnerability may
lessen as their co-workers join the suit, providing them with
safety in numbers. Cf. Engineered Building Products, Inc.,
162 N.L.R.B. 649, 1967 WL 18948, at * 4 (1967) (stating that
"when virtually every employee is wearing a union button the
danger to each of them is greatly lessened"); The Borden Co.,
157 N.L.R.B. 93, 1966 WL 18212, at * 19 (1966) (finding
that employer deprived employees of "safety in numbers . . .
by calling attention to the small number of union adherents").

D

Prejudice to Defendants

The district court correctly considered prejudice to defen-
dants as a factor in its analysis, but failed to explain how
defendants would be prejudiced. In their brief to this court,
defendants argued that they face tremendous adverse publicity
as a result of this lawsuit, but do not explain how knowledge
of plaintiffs' identities will enable them to counter that
adverse publicity. At oral argument, defendants asserted that
they would be unable to mount a defense unless they knew
the plaintiffs' identities. We recognize that at some later point
in the proceedings it may be necessary to reveal plaintiffs'
identities to defendants so that defendants may refute individ-
ualized accusations of FLSA violations. At present, however,
discovery is stayed and district court has not yet ruled on
plaintiffs' Hoffman-La Roche motion. Thus, at present defen-
dants suffer no prejudice by not knowing the names of plain-
tiffs.

E

Public Interest

The district court aptly characterized this case as one with
"widespread implications . . . of interest to the public at
large," but concluded, without analysis, that the public inter-
est would be served by requiring plaintiffs to reveal their
identities. The district court did not explain, and we fail to
see, how disguising plaintiffs' identities will obstruct public
scrutiny of the important issues in this case.15 In FLSA actions
brought by the Secretary of Labor, the "informant's privilege"
may be used to conceal names of employees who precipitated
the suit by filing complaints with the Department of Labor.
See Usery v. Ritter, 547 F.2d 528, 531 (10th Cir. 1977) (hold-
ing that "informants privilege" protects names of complaining
workers from discovery); Brennan v. Engineered Products,
Inc., 506 F.2d 299, 303 (8th Cir. 1974) (same); United States
v. Hemphill, 369 F.2d 539, 542 (4th Cir. 1966) (same); Wirtz,
326 F.2d at 564 (same); Mitchell, 265 F.2d at 637 (same).
Plaintiffs simply attempt to accomplish the same result in a
suit brought under FLSA's private cause of action.

The public also has an interest in seeing this case decided
on the merits. Employee suits to enforce their statutory rights
benefit the general public. See Wirtz v. C & P Shoe Corp., 336
F.2d 21, 30 (5th Cir. 1964) (stating that in a FLSA suit
brought by the Secretary of Labor, "the Government becomes
an active protagonist for the double purpose of protecting pri-
vate interests and vindicating public rights"); Plourde v. Mas-
sachusetts Cities Realty Co., 47 F.Supp. 668, 670 (D. Mass.
1942) ("An employee, exercising his rights under[FLSA],
exercises them, not only for his own benefit, but also for the
benefit of the general public."); see also Alexander v.
Gardner-Denver Co., 415 U.S. 36, 44  (1974) (stating that a
private Title VII plaintiff "not only redresses his own injury
but also vindicated the important congressional policy against
discriminatory employment practices"). Moreover, as the
Supreme Court has recognized, fear of employer reprisals will
frequently chill employees' willingness to challenge employ-
ers' violations of their rights. See Mitchell v. Robert De Mario
Jewelry, Inc., 361 U.S. 288, 292  (1960) ("[I]t needs no argu-
ment to show that fear of economic retaliation might often
operate to induce aggrieved employees quietly to accept sub-
standard conditions."); see also NLRB v. Robbins Tire & Rub-
ber Co., 437 U.S. 214, 240  (1978) ("The danger of witness
intimidation is particularly acute with respect to current
employees . . . over whom the employer, by virtue of the
employment relationship, may exercise intense leverage.").

Thus, permitting plaintiffs to use pseudonyms will serve the
public's interest in this lawsuit by enabling it to go forward.

V

We reverse the district court order granting defendants'
motion to dismiss and denying plaintiffs' cross motion to pro-
ceed anonymously. Defendants may renew their motion to
dismiss after the district court rules on plaintiffs' Hoffman-La
Roche motion and the deadline for additional plaintiffs to join
the suit expires.

REVERSED.
_______________________________________________________________

FOOTNOTES

1 The Honorable Myron Bright, Circuit Judge for the Eight Circuit Court
of Appeals, sitting by designation.
2 See Hoffman-La Roche v. Sperling , 493 U.S. 165, 169  (1989).
3 See UNITED STATES DEP'T OF THE INTERIOR, FEDERAL-CNM
              I INITIA-
TIVE ON LABOR, IMMIGRATION, AND LAWENFORCEMENT IN THE CNMI 17 (4th
Annual Report 1998) ("DEP'T OF THE INTERIOR I"); UNITED STATES DEP
              'T OF
THE INTERIOR, FEDERAL-CNMI INITIATIVE ON LABOR, IMMIGRATION, AND
               LAW
ENFORCEMENT IN THE CNMI 8 (3d Annual Report 1997) ("DEP'T OF THE
INTERIOR II"); Congressman George Miller and Democratic Staff of the
House Committee on Resources, Beneath the American Flag: Labor &
Human Rights Abuses in the CNMI 10-11 (Mar. 26, 1998).
4 The defendants are Advanced Textile Corporation; American Invest-
ment Corporation; American Pacific Textile, Inc., a corporation; Concorde
Garment Manufacturers Corporation; Diorva (Saipan), Ltd.; Global Manu-
facturing, Inc.; Grace International, Inc.; Hansae (Saipan), Inc.; Joo Ang
Apparel, Inc.; L&T International Corporation, Inc.; Mariana Fashions,
Inc.; Marianas Garment Manufacturing, Inc.; Michigan, Inc.; Micronesian
Garment Manufacturing, Inc.; Neo Fashion, Inc.; N.E.T. Corporation; Pan
Jin Sang Sa Corporation; Sako Corporation; Top Fashion Corporation;
Trans Asia Garment Forte Corporation; United International Corporation;
and US CNMI Development Corporation.
5 After the complaint was filed in this case, additional garment workers
joined the suit but also concealed their identities by filing consents to sue
under seal. At oral argument, counsel for plaintiff informed the court that
the number of consents to sue filed with the district court had reached 320.
6 Initially, the district court stayed its July 19, 1999 order for forty-five
days. It subsequently extended the stay, first until September 8, 1999, and
then until November 24, 1999. On September 8, 1999, the district court
denied plaintiffs' motion to continue filing consents to sue under seal
pending appeal. On November 10, 1999, we granted plaintiffs' motion to
stay the district court's July 19, 1999 order and to allow them to continue
filing consents to sue under seal while the appeal is pending.
7 Much of this evidence is contained in declarations by garment workers
that were filed under seal and only made available to defendants' counsel.
As a result, we do not recount the specific details of the declarations.
8 Section 1291 provides that "[t]he courts of appeals . . . shall have juris-
diction of appeals from all final decisions of . . . the District Court of
Guam." Under the Covenant to Establish a Commonwealth of the North-
ern Mariana Islands, codified at 48 U.S.C. S 1801, "[t]hose portions of
Title 28 of the United States Code which apply to . . . the District Court
of Guam will be applicable to . . . the District Court of the Northern Mari-
ana Islands." Art. IV S 403(b).
9 The Supreme Court has implicitly endorsed the use of pseudonyms to
protect plaintiffs' privacy. See Roe v. Wade, 410 U.S. 113 (1973) (abor-
tion); Doe v. Bolton, 410 U.S. 179 (1973) (abortion); Poe v. Ullman, 367
U.S. 497 (1961) (birth control).
10 In our published opinion in Doe II, we substituted pseudonyms for the
real names of the defendant and three other individuals. See 655 F.2d at
922 n.1. As a result, we did not decide when a party may conceal his iden-
tity during district court proceedings.
11 We are perplexed by the district court's statement that "any protection
afforded by anonymous proceedings would . . . be nugatory" because "the
names of many plaintiffs, as attested to in their declarations, are already
known to defendants through various sources including the filing of
Department of Labor and Immigration ["DOLI "] complaints." First, our
review of the record reveals that defendants may have identified, at most,
ten plaintiffs. Thus, continued concealment of identities will provide pro-
tection to the remaining thirteen plaintiffs. Second, the fact that some
employees chose to file DOLI complaints under their true names does not
refute plaintiffs' evidence that they hold a reasonable fear of retaliation.
Past acts of bravery in the face of danger is poor rationale for denying the
courageous individual protection against future harm. Finally, whatever
knowledge defendants have of plaintiffs' identities only lessens their
claims to be prejudiced by the use of pseudonyms.
Defendant N.E.T. focuses on the fact that Jane Doe XIX, the only
named plaintiff who it employs, did not submit a declaration attesting to
threats of retaliation. Thus, N.E.T. argues that there is no basis for allow-
ing Jane Doe XIX to conceal her identity. N.E.T. neither joined the motion
to dismiss nor opposed plaintiffs' cross-motion to proceed anonymously,
and as a result, N.E.T. may not raise its argument for the first time on
appeal. See Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996)
(stating that as a general rule this court will not consider arguments raised
for the first time on appeal). In any event, N.E.T.'s argument lacks merit.
Plaintiffs need not prove that each and every garment worker who joins
the suit faces an individualized risk of retaliation. Rather, the evidence in
the record demonstrates that all nonresident garment workers reasonably
fear sufficiently severe retaliation by the recruiting agencies, the Chinese
government, and their employers to warrant their anonymity.
12 The standing aspect of jurisdiction exists to ensure that a court has the
power to redress the alleged injury. The injuries alleged by plaintiffs, and
on which the district court's jurisdiction is premised, are defendants'
FLSA violations, not the threatened harm by third parties if plaintiffs'
identities are revealed. Thus, plaintiffs have standing to sue because the
district court can redress the FLSA violation by ordering defendants to pay
damages. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100
(1979) (holding that a plaintiff has standing if she has personally suffered
some actual or threatened injury as a result of the defendant's conduct).
13 The district court made only this general statement about the plain-
tiffs' evidence but, presumably because the declarations were filed under
seal, did not discuss any evidence specifically.
14 At oral argument, the Secretary of Labor, participating as amicus,
stated that the Secretary's position is that S 215(a)(3) is not effective in
protecting employees from retaliation.
15 For instance, the question whether there is a constitutional right to
abortion is of immense public interest, but the public did not suffer by not
knowing the plaintiff's true name in Roe v. Wade.