Doe v. Massachusetts Institute of Technology ( 2022 )

United States Court of Appeals
For the First Circuit
No. 22-1056
JOHN DOE,
Plaintiff, Appellant,
v.
MASSACHUSETTS INSTITUTE OF TECHNOLOGY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Thompson, Selya, and Gelpí,
Circuit Judges.
Philip A. Byler, with whom Nesenoff & Miltenberg, LLP was on
brief, for appellant.
Joshua Adam Engel and Engel & Martin, LLC on brief for
Education Law Attorneys, amici curiae.
Justin Dillon, KaiserDillon PLLC, and Cynthia P. Garrett on
brief for Families Advocating for Campus Equality, amicus curiae.
Benjamin F. North and Binnall Law Group, PLLC on brief for
Stop Abusive and Violent Environments, amicus curiae.
Scott A. Roberts, with whom Mark Macchi and Hirsch Roberts
Weinstein LLP were on brief, for appellee.
Eugene Volokh and First Amendment Clinic, UCLA School of Law
on brief for Prof. Eugene Volokh, amicus curiae.
August 24, 2022
SELYA, Circuit Judge. A writer is free to assume a nom
de plume. That is why Mark Twain and Bob Dylan are better known
than Samuel Clemens and Robert Zimmerman. But, as a rule,
litigants in federal court must publicly reveal their true names.
In this appeal, we tackle a question of first impression in this
circuit: when is it appropriate for a party to a civil suit in
federal court to appear under a pseudonym? This important question
pits the individual's desire for privacy against the public's need
to access judicial proceedings. After determining the appropriate
standard for adjudicating motions for leave to proceed under
pseudonyms, we vacate the district court's denial of the
plaintiff's motion and remand to the district court for application
of the discerned standard.
I
Drawing upon the complaint, we briefly rehearse the
facts (largely undisputed for present purposes) and travel of the
case. In 2013 — during his first year of college at Massachusetts
Institute of Technology (MIT) — plaintiff-appellant John Doe
formed a relationship with a classmate whom we shall call "Jane
Roe." This relationship included episodic sexual intercourse and
lasted until the summer of 2014. But even after the couple broke
up, they occasionally had consensual sex during the fall 2014
semester.
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On the evening of February 26, 2015, Jane went to John's
residence for help repairing her computer and agreed to spend the
night in his bed. The pair fell asleep. At some point in the
early morning hours on February 27, they had sexual intercourse.
John says that he observed Jane "fully conscious, alert, and with
wide open eyes" and that she provided a variety of nonverbal cues
throughout the interaction, thus signaling her effective consent.
Afterward, though, Jane asked John what had happened. John replied
that sexual intercourse had taken place. A few months later, Jane
told John that "the sex they had when she was asleep was not okay."
In January of 2016, Jane filed a formal complaint with
MIT's Title IX office alleging nonconsensual sexual contact and
intercourse occurring on February 27, 2015. That office launched
an investigation, which involved interviewing both John and Jane
(as well as other students) and reviewing documents. On their own
initiative, the MIT investigators added a second charge against
John for sexual harassment arising from conduct during the 2013-
2014 school year (when John and Jane were still in a relationship).
In a written report, the investigators found John responsible for
both charges. Following its receipt of the investigators' report,
MIT designated a panel of three faculty members drawn from its
Committee on Discipline (the Committee) to consider the matter.
On April 25, 2016, the panel held a hearing. John denied
responsibility, but two days later the chair of the Committee
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informed John by letter that MIT had found him responsible for
nonconsensual sexual contact and intercourse on February 27, 2015
and sexual harassment during the earlier period. The Committee's
letter also informed John that he would be expelled.
John appealed the Committee's findings and sanction. He
argued that, given Jane's nonverbal signals throughout the
encounter — which, he said, fit the pattern established in their
history of consensual intimacy — he reasonably believed that Jane
was awake and had effectively consented to sexual intercourse on
February 27, 2015. He also argued that expulsion was unwarranted
because, although he maintained that he reasonably "thought [he]
had effective consent" from Jane, he took "responsibility for
making a terrible judgement call." MIT denied the appeal a few
weeks later and expelled John just prior to his anticipated
graduation.
On December 16, 2021, John — by then married and working
as a software engineer in New Jersey — filed suit against MIT in
the United States District Court for the District of Massachusetts.
His suit invoked diversity jurisdiction under 28 U.S.C. § 1332.1The complaint alleged breach of contract, promissory estoppel, and
denial of basic fairness. Its gist was that MIT's investigation
1 John alleged that he was a citizen of New Jersey and that
(for jurisdictional purposes) MIT was deemed to be a citizen of
Massachusetts. According to the complaint, the amount in
controversy exceeded $75,000.
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was infected by "[r]adical feminist anti-male bias" to the point
of presuming "that the female complainant's story was . . . true"
and that John's story was false. John sought monetary damages,
including damages for reputational harm, "past and future economic
losses, loss of educational opportunities, and loss of future
career prospects."
On the same day that he filed his suit, John filed an ex
parte motion to proceed by pseudonym because "requiring him to
reveal his identity would result in significant harm to [him],
including the exact damages he seeks to remedy in this matter."
Five days later, the district court denied the motion in a minute
order. John moved for reconsideration. On the very next day, the
district court denied the motion but stayed the case to facilitate
John's anticipated appeal of the denial of his motion to proceed
by pseudonym. This timely appeal followed.
II
As a threshold matter, we first address our appellate
jurisdiction. Ordinarily — insofar as court cases are concerned
— our jurisdiction is limited to "appeals from all final decisions
of the district courts of the United States" in this circuit. 28
U.S.C. § 1291. Giving the phrase "final decisions" a "practical
rather than a technical construction," the Supreme Court has
permitted immediate appellate review of a "small class" of orders
"which finally determine claims of right separable from, and
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collateral to, rights asserted in the action." Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). Such collateral
orders are "too important to be denied review and too independent
of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated." Id.The collateral order doctrine applies when three
conditions are satisfied: the order must "conclusively determine
the disputed question"; it must "resolve an important issue
completely separate from the merits of the action"; and it must
"be effectively unreviewable on appeal from a final judgment."
Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).
Two salient principles gloss these requirements. For one thing,
an issue is "important" in the relevant sense if it is "weightier
than the societal interests advanced by the ordinary operation of
final judgment principles." Gill v. Gulfstream Park Racing Assoc.,
Inc., 399 F.3d 391, 399 (1st Cir. 2005) (quoting Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994)). For
another thing — with respect to the third condition — "the decisive
consideration is whether delaying review until the entry of final
judgment 'would imperil a substantial public interest' or 'some
particular value of a high order.'" Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009) (quoting Will, 546 U.S. at
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352-53). The focus of the inquiry is not on the facts of the case
but, rather, on "the class of claims, taken as a whole." Id.Every one of the nine courts of appeals to consider the
question has held that an order denying a motion to proceed by
pseudonym is immediately appealable under the collateral order
doctrine. See Doe v. Coll. of N.J., 997 F.3d 489, 494 (3d Cir.
2021); United States v. Pilcher, 950 F.3d 39, 41 (2d Cir. 2020)
(per curiam); In re Sealed Case, 931 F.3d 92, 95-96 (D.C. Cir.
2019); Doe v. Vill. of Deerfield, 819 F.3d 372, 375-76 (7th Cir.
2016); Plaintiff B v. Francis, 631 F.3d 1310, 1314-15 (11th Cir.
2011); Raiser v. Brigham Young Univ., 127 F. App'x 409, 410 (10th
Cir. 2005); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d
1058, 1066-67 (9th Cir. 2000); James v. Jacobson, 6 F.3d 233, 236-
38 (4th Cir. 1993); Doe v. Stegall, 653 F.2d 180, 183 (5th Cir.
1981). Although we have not yet passed upon the question, we have
held, in an analogous context, that "[u]nsealing orders usually
warrant immediate review under the collateral order doctrine."
Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9 (1st Cir. 1998) (citing
FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 407 (1st Cir.
1987)).
Today, we join the consensus of our sister circuits and
hold that orders denying motions to proceed by pseudonym are
immediately appealable under the collateral order doctrine. Such
orders conclusively determine the pseudonym question, and that
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question is quite separate from the merits. Additionally, such an
order typically resolves an issue of considerable importance
because litigants wishing to file under fictitious names often
allege that disclosure of their identities would inflict grievous
harm upon them. And this concern is hardly a private matter: the
public has a substantial interest in ensuring that those who would
seek justice in its courts are not scared off by the specter of
destructive exposure. Cf. Doe v. Megless, 654 F.3d 404, 410 (3d
Cir. 2011) (listing, as factor favoring use of pseudonym, whether
"other similarly situated litigants [will] be deterred from
litigating claims that the public would like to have litigated");
Advanced Textile, 214 F.3d at 1073 ("[P]ermitting plaintiffs to
use pseudonyms will serve the public's interest in this lawsuit by
enabling it to go forward.").
That public interest, moreover, would be imperiled by
deferring appellate review of a pseudonym denial until after the
entry of final judgment, with the litigant compelled to proceed
unmasked. Once the litigant's true name is revealed on the public
docket, the toothpaste is out of the tube and the media or other
interested onlookers may take notice in a way that cannot be undone
by an appellate decision down the road. See Standard Fin. Mgmt.,
830 F.2d at 407. A party whose pseudonym motion is denied will
find cold comfort in the prospect of reversal on appeal months or
years after being forced into the glare of the legal spotlight.
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Such belated redress will not dispel the "discernible chill,"
Mohawk, 558 U.S. at 110, felt by those who fear litigating under
their own names. A district court's denial of a pseudonym motion,
therefore, would be effectively unreviewable without the help of
the collateral order doctrine.
That ends this aspect of the matter. We hold that an
order denying a litigant's motion to proceed by pseudonym is
immediately appealable under the collateral order doctrine. It
follows, then, that we have jurisdiction to hear and determine
this appeal.
III
We review a district court's denial of a motion to
proceed by pseudonym for abuse of discretion. See Does 1-3 v.
Mills, 39 F.4th 20, 24 (1st Cir. 2022). Abuse of discretion
"occurs when a material factor deserving significant weight is
ignored, when an improper factor is relied upon, or when all proper
and no improper factors are assessed, but the court makes a serious
mistake in weighing them." Indep. Oil & Chem. Workers of Quincy,
Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.
1988). And "it is never within a trial court's discretion to make
a determination that is premised on an incorrect legal standard."
United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997); see
Fox v. Vice, 563 U.S. 826, 839 (2011).
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A
We recently held that there is a "strong presumption
against the use of pseudonyms in civil litigation." Does 1-3, 39
F.4th at 25. We acknowledged, though, that other courts of appeals
"have found that the use of pseudonyms may be warranted in
'exceptional cases.'" Id. (quoting Megless, 654 F.3d at 408).
Because the pseudonym issue in Does 1-3 arose in the context of an
emergency application for a stay, we declined to "formulate[] a
test for assessing when parties may proceed under pseudonyms."
Id. The case at hand squarely presents the question that we
avoided in Does 1-3, and we take up the mantle not only with the
assistance of briefing and oral argument from the parties but also
with the insight of several amici (for whose help we are grateful).
1
We begin by clarifying the source of the presumption
against the use of pseudonyms in federal civil litigation.2 The
courts of appeals have endorsed this presumption without fully
explicating its legal foundation. We think it important to fill
this gap.
To begin, the presumption has no footing in the United
States Code. No federal statute prohibits litigants from filing
2This opinion addresses only the use of pseudonyms in federal
civil litigation. It does not purport to address the possible use
of pseudonyms in criminal cases, which may present a different mix
of considerations.
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civil actions under fictitious names. By the same token, such a
presumption is not perfectly traceable to any federal
constitutional provision or rule.
Withal, the Civil Rules do offer some comfort for this
presumption. They provide that "[t]he title of the complaint must
name all the parties," Fed. R. Civ. P. 10(a), and that "[a]n action
must be prosecuted in the name of the real party in interest," id.
17(a)(1). These provisions afford a toehold for the presumption
against the use of pseudonyms (as we observed in Does 1-3, 39 F.4th
at 25). But it is less than obvious that a party's "name" in this
context means his true name, to the exclusion of a pseudonym. Cf.
Roe v. Borup, 500 F. Supp. 127, 129 (E.D. Wis. 1980) (rejecting
"highly mechanical interpretation of the Federal Rules of Civil
Procedure" that would preclude using pseudonym). And if the Civil
Rules should be read to mandate that a complaint state the parties'
true names, it would be odd that courts have converted this command
into a rebuttable presumption. Cf. United States v. Tsarnaev, 142
S. Ct. 1024, 1036 (2022) (explaining that "supervisory rules" made
by federal courts cannot "conflict with or circumvent a Federal
Rule" (citing Carlisle v. United States, 517 U.S. 416, 426
(1996))).
More to the point is the right of public access to
judicial proceedings and documents. The courts of appeals have
recognized a qualified First Amendment right of public access to
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certain documents filed in civil litigation. See Courthouse News
Serv. v. Quinlan, 32 F.4th 15, 20 n.8 (1st Cir. 2022) (collecting
cases). So, too, the Supreme Court has recognized "a common-law
right of access to judicial records," with the caveat that such a
right "is not absolute." Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 597-98 (1978); see Nat'l Org. for Marriage v. McKee, 649 F.3d
34, 70 (1st Cir. 2011); In re Providence J. Co., 293 F.3d 1, 9-10
(1st Cir. 2002). But we have never held that the right of public
access (whether derived from the First Amendment or from the common
law) forbids the use of a pseudonym in civil litigation.
It is true, of course, that in Does 1-3 we noted the
"tension" between that common law right and the use of pseudonyms.
39 F.4th at 25. However, that opinion cannot fairly be read as
formally grounding the presumption against pseudonymous litigation
in the common law right of public access to judicial documents.
Instead, the right of public access to judicial documents is of a
piece with, but does not directly produce, the judicial stance
against litigants' use of pseudonyms. See Doe v. Kamehameha
Schs./Bernice Pauahi Bishop Est. (Kamehameha Schs. I), 596 F.3d
1036, 1042 (9th Cir. 2010) (describing presumption against
pseudonymity as "loosely related to the public's right to open
courts").
In our view, federal courts enforce the presumption
against party pseudonyms in civil litigation under their inherent
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power to "formulate procedural rules not specifically required by
the Constitution or the Congress." Carlisle, 517 U.S. at 426(quoting United States v. Hasting, 461 U.S. 499, 505 (1983)). This
inherent power applies foursquare to the presumption against
pseudonymity, which is a "polic[y] intrinsic to the litigation
process." Thomas v. Arn, 474 U.S. 140, 147 n.5 (1985) (citation
omitted). Courts have distilled such a presumption from a brew of
custom and principle, including the values underlying the right of
public access to judicial proceedings and documents under the
common law and First Amendment. See Stegall, 653 F.2d at 185(describing presumption against pseudonyms as "a procedural custom
fraught with constitutional overtones"); In re Sealed Case, 971
F.3d 324, 326 (D.C. Cir. 2020) (discussing "deeply rooted
tradition" against party pseudonymity); see also Amy Coney
Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 823 n.23 (2008)
("[J]udges fashion much federal common law, including procedural
common law, by drawing from norms generally accepted by the legal
community.").
2
Judicial hostility to a party's use of a pseudonym
springs from our Nation's tradition of doing justice out in the
open, neither "in a corner nor in any covert manner." Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 567 (1980) (plurality
opinion) (quoting 1677 Concessions and Agreements of West New
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Jersey, reprinted in Sources of Our Liberties 188 (Richard L. Perry
ed. 1959)). In defending that tradition, we have explained that
"[p]ublic access to judicial records and documents allows the
citizenry to 'monitor the functioning of our courts, thereby
insuring quality, honesty and respect for our legal system.'"
Standard Fin. Mgmt., 830 F.2d at 410 (quoting In re Cont'l Ill.
Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984)). "Identifying
the parties to the proceeding is an important dimension of
publicness." Doe v. Blue Cross & Blue Shield United of Wis., 112
F.3d 869, 872 (7th Cir. 1997). That is because — to a certain
degree — letting a party hide behind a pseudonym dims the public's
perception of the matter and frustrates its oversight of judicial
performance.
Lacking knowledge of the parties' names, the public
could learn virtually nothing about a case outside the facts and
arguments in the record. The record, though, is not the alpha and
omega of public concern. To take one example of important extra-
record data, the real-world aftermath of a suit will sometimes
bear upon the assessment of whether justice was done. Another
example is the kind of institutional rot that is scrubbed from the
record: judicial conflicts of interest, ex parte contacts, and
the like. Anonymizing the parties lowers the odds that
journalists, activists, or other interested members of the public
would catch wind of such mischief. See Globe Newspaper Co. v.
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Pokaski, 868 F.2d 497, 503-04 (1st Cir. 1989) (acknowledging "the
contribution to governance of investigative reporting" regarding
such matters).
An even thornier issue involves protecting the
appearance of fairness in judicial proceedings. "Litigating
behind a curtain creates a shroud of mystery, giving the impression
that something secret is going on." In re Boeing 737 MAX Pilots
Litig., No. 19-5008, 2020 WL 247404, at *2 (N.D. Ill. Jan. 16,
2020). Secrecy breeds suspicion. Some may believe that a party's
name was masked as a means of suppressing inconvenient facts and
that the court was either asleep at the wheel or complicit in the
cover up. It is no answer to dismiss such beliefs as conspiracy
theories because "justice must satisfy the appearance of justice."
Offutt v. United States, 348 U.S. 11, 14 (1954). Distrust is toxic
to the judiciary's authority, which "depends in large measure on
the public's willingness to respect and follow its decisions."
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445-46 (2015). A
judicial system replete with Does and Roes invites cynicism and
undermines public confidence in the courts' work.
The short of it is that the strong presumption against
the use of pseudonyms in civil litigation rests on a sturdy
foundation. With this assurance in hand, we proceed to address
the standard for determining when a party may litigate under a
pseudonym.
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IV
In deciding when the use of a pseudonym in civil
litigation may be warranted, several of our sister circuits have
devised elaborate multi-factor tests. These various tests pit the
movant's quest for anonymity against an array of countervailing
interests. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d
185, 189 (2d Cir. 2008) (collecting cases). The Second Circuit,
for example, has held that "the plaintiff's interest in anonymity
must be balanced against both the public interest in disclosure
and any prejudice to the defendant." Id.Many of these suggested tests involve non-exhaustive
lists of up to ten factors. See In re Sealed Case, 931 F.3d at 97
(citing cases). "Some factors are 'specific aspects of a
plaintiff's potential privacy interests' or the weight to be given
those interests, but others 'go more to the weight of the
countervailing interest in open judicial proceedings.'" Id.
(quoting Doe v. Del Rio, 241 F.R.D. 154, 158 (S.D.N.Y. 2006)).
Regrettably, these multi-factor tests do not establish
a clear standard. See, e.g., Doe v. Kamehameha Schs./Bernice
Pauahi Bishop Est. (Kamehameha Schs. II), 625 F.3d 1182, 1191 (9th
Cir. 2010) (Reinhardt, J., dissenting from the denial of rehearing
en banc) (observing that "[f]ive part or seven part or other multi-
part tests are often subject to subjective and inconsistent
application" and, in some instances, make "appellate review
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extremely difficult, and precedent of little value"); Doe v. Pa.
Dep't of Corr., No. 19-1584, 2019 WL 5683437, at *2 & n.10 (M.D.
Pa. Nov. 1, 2019) (noting judicial opinions involving this subject
matter "frequently read as a rote recitation of factors with a
conclusion tacked on the end"). That amorphous quality hampers
their utility. One distinguished academic — who appears as an
amicus here — has commented that "the factors are often so vague
or ambiguous that, by themselves, they provide relatively little
guidance." Eugene Volokh, The Law of Pseudonymous Litigation, 73
Hastings L.J. 1353, 1426 (2022). Professor Volokh's amicus brief
invites us to eschew a multi-factor balancing test in favor of
identifying "narrow categorical limitations or exceptions
. . ., tailored to unusual categories of cases that sufficiently
distinguish themselves from the norm." In support, he notes (among
other things) that the Civil Rules already provide a categorical
exception with respect to minors. See Fed. R. Civ. P. 5.2(a)
("Unless the court orders otherwise, in an electronic or paper
filing with the court that contains . . . the name of an individual
known to be a minor, . . . a party or nonparty making the filing
may include only . . . the minor's initials.").
We decline to accept this invitation to try our hand at
crafting sharp, categorical exceptions to the strong presumption
against pseudonymity in civil litigation. Because the problem is
complex and the cases are not all cut from the same cloth, some
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effort to balance a gallimaufry of relevant factors is inevitable.
But assembling a compendium of relevant factors is a tricky
enterprise and — in our judgment — the appropriate test must center
on the totality of the circumstances. See In re Chiquita Brands
Int'l Inc., 965 F.3d 1238, 1247 n.5 (11th Cir. 2020); see also In
re Sealed Case, 931 F.3d at 97 (explaining that precise list of
factors matters less than whether court took proper account of
"the factors relevant to the case before it" that "inform the
ultimate balancing of the public and private interests at stake").
Because we see little upside in endorsing one multi-factor test or
another, and still less in inventing a new one, we think it
unnecessary to festoon the easily understood "totality of the
circumstances" standard with any multi-factor trappings. In the
last analysis, district courts enjoy broad discretion to identify
the relevant circumstances in each case and to strike the
appropriate balance between the public and private interests.
Even so, our skepticism about the wisdom of hard-and-
fast rules in this domain does not blind us to the need for greater
clarity and predictability with respect to pseudonym decisions.
Thus, we appreciate that some general guidelines may be helpful to
the district courts.
For a start, we are committed to the proposition that
courts — in balancing the relevant interests — must not lose sight
of the big picture. Litigation by pseudonym should occur only in
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"exceptional cases." Megless, 654 F.3d at 408; see Doe v. Frank,
951 F.2d 320, 324 (11th Cir. 1992) (per curiam); Stegall, 653 F.2d
at 185. Lawsuits in federal courts frequently invade customary
notions of privacy and — in the bargain — threaten parties'
reputations. The allegations are often serious (at least to the
parties) and motivated adversaries do not lack for procedural
weapons. Facing the court of public opinion under these conditions
is sometimes stressful — but that is the nature of adversarial
litigation. If commonplace lawsuit-induced distress were enough
to justify the use of a pseudonym, anonymity would be the order of
the day: Does and Roes would predominate. We think it follows
that a well-calibrated inquiry needs some workable methodology for
sorting out the (relatively few) "exceptional cases" in which
pseudonymity should be allowed.
In another area of procedural common law — the doctrines
of abstention — the Supreme Court has given form to a broad
"exceptional circumstances" standard by delineating a few "general
categories" of cases that fill the bill. Colo. River Water
Conserv. Dist. v. United States, 424 U.S. 800, 813-18 (1976); see
Barrett, Procedural Common Law, supra, at 824-26 (describing
abstention doctrines as "procedural common law"). Taking our cue
from this model, we think it useful to sketch four general
categories of exceptional cases in which party anonymity
ordinarily will be warranted.
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• The first paradigm involves a would-be Doe who
reasonably fears that coming out of the shadows
will cause him unusually severe harm (either
physical or psychological). See, e.g., Doe v.
Ayers, 789 F.3d 944, 945 (9th Cir. 2015) (allowing
use of pseudonym premised upon evidence that
disclosure of plaintiff-inmate's history of being
sexually abused "would create a significant risk of
severe harm at the hands of other inmates");
Advanced Textile, 214 F.3d at 1071 (allowing use of
pseudonym for plaintiffs who "fear[ed]
extraordinary retaliation, such as deportation,
arrest, and imprisonment"); Lauren B. v. Baxter
Int'l Inc. & Subsidiaries Welfare Benefit Plan for
Active Emps., 298 F.R.D. 571, 573 (N.D. Ill. 2014)
(allowing anonymity when public disclosure would
threaten plaintiff's recovery from longstanding
eating disorder); see generally Sealed Plaintiff,
537 F.3d at 190 (listing, as factor favoring
anonymity, "whether identification poses a risk of
retaliatory physical or mental harm" (quoting
James, 6 F.3d at 238)).
• The second paradigm involves cases in which
identifying the would-be Doe would harm "innocent
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non-parties." Id. (quoting James, 6 F.3d at 238);
see Doe v. Trs. of Dartmouth Coll., No. 18-040,
2018 WL 2048385, at *6 (D.N.H. May 2, 2018)
(explaining that nonparty "has a stronger case for
anonymity" than party); see also Doe v. Eason, No.
98-2454, 1999 WL 33942103, at *3 (N.D. Tex. Aug. 4,
1999) (granting pseudonym status to parents in
litigation involving their minor child).
• The third paradigm involves cases in which
anonymity is necessary to forestall a chilling
effect on future litigants who may be similarly
situated. See Megless, 654 F.3d at 410(emphasizing need to ascertain whether "other
similarly situated litigants [will] be deterred
from litigating claims that the public would like
to have litigated"). Because "courts provide the
mechanism for the peaceful resolution of disputes
that might otherwise give rise to attempts at self-
help," they must be wary of "deter[ring] the
legitimate exercise of the right to seek a peaceful
redress of grievances through judicial means."
Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1070-
71 (1985) (Stevens, J., concurring); see BE&K
Constr. Co. v. NLRB, 536 U.S. 516, 532 (2002). A
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deterrence concern typically arises in cases
involving "intimate issues such as sexual
activities, reproductive rights, bodily autonomy,
medical concerns, or the identity of abused
minors." In re Sealed Case, 971 F.3d at 327. Also
typical are cases in which a potential party may be
implicated in "illegal conduct, thereby risking
criminal prosecution," Stegall, 653 F.2d at 185,
and those in which "the injury litigated against
would be incurred as a result of the disclosure of
the [party's] identity," Frank, 951 F.2d at 324.
• The fourth paradigm involves suits that are bound
up with a prior proceeding made confidential by
law. This concern manifests itself when denying
anonymity in the new suit would significantly
undermine the interests served by that
confidentiality. See, e.g., R.F.M. v. Nielsen, 365
F. Supp. 3d 350, 371 (S.D.N.Y. 2019) (granting
pseudonymity to non-minor plaintiffs challenging
immigration authorities' denial of "special
immigrant juvenile" status due to family court
adjudications, in part because "related records
from the New York Family Courts are protected by
law"); Doe v. Bates, 18-1250, 2018 WL 4539034, at
- 23 -
*1 (S.D. Ill. Sept. 21, 2018) (granting pseudonym
status to plaintiff bringing excessive force claim
arising from juvenile detention because "revealing
his identity would, in effect, unravel the
protections afforded to his juvenile record").
These paradigms are rough cuts, and it is possible that a party
whose case for pseudonymity appears weak when each paradigm is
analyzed separately may nonetheless make a persuasive showing when
multiple paradigms are implicated. Cf. Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 11 n.9 (1987) ("The various types of abstention
are not rigid pigeonholes into which federal courts must try to
fit cases."). There may also be rare cases in which — although
they fall within one or more of these paradigms — either the need
for openness or the prospect of serious prejudice to other parties
from a grant of pseudonymity overwhelms the movant's privacy
concerns.
We add a coda. Civil actions come in a wide variety of
shapes and sizes, and we are not so sanguine as to believe that
these four paradigms capture the entire universe of cases in which
pseudonymity may be appropriate. We are confident, however, that
the paradigms capture the vast majority of affected cases and, as
such, we deem them useful tools for inquiring courts.
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V
We take stock. A district court adjudicating a motion
to proceed under a pseudonym should balance the interests asserted
by the movant in favor of privacy against the public interest in
transparency, taking all relevant circumstances into account. In
most cases, the inquiry should focus upon the extent to which the
facts align with one or more of the following paradigms: whether
the case is one in which the movant reasonably fears that coming
out of the shadows will cause him unusually severe physical or
mental harm; whether the case is one in which compelled disclosure
of the movant's name will likely lead to disclosure of a nonparty's
identity, causing the latter substantial harm; whether the case is
one in which compelled disclosure would likely deter, to an
unacceptable degree, similarly situated individuals from
litigating; or whether the federal suit is bound up with a prior
proceeding subject by law to confidentiality protections and
forcing disclosure of the party's identity would significantly
impinge upon the interests served by keeping the prior proceeding
confidential. Because these paradigms are framed in generalities,
a court enjoys broad discretion to quantify the need for anonymity
in the case before it. This broad discretion extends to the
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court's ultimate determination as to whether that need outweighs
the public's transparency interest.3
The party seeking pseudonymity bears the burden of
rebutting the strong presumption against it. In most cases, the
district court should require a declaration or affidavit either by
the moving party or by someone with special knowledge who can speak
to the need for anonymity in that case. See, e.g., Ayers, 789
F.3d at 945 (relying on opinion of person familiar with prison
system); Doe v. Trs. of Indiana Univ., No. 12-1593, 2013 WL
3353944, at *3 (S.D. Ind. July 3, 2013) (relying on affidavit from
plaintiff's psychiatrist).
District courts must be mindful 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." Advanced Textile, 214 F.3d at 1069. Consequently,
an order granting pseudonymity should be periodically reevaluated
if and when circumstances change. See, e.g., Lawson v. Rubin, No.
17-6404, 2019 WL 5291205, at *2-3 (E.D.N.Y. Oct. 18, 2019)
(explaining why pseudonymity was appropriate in pretrial stages of
3 For the sake of completeness, we note that pseudonymity will
never be justified when the public disclosure that the party seeks
to forestall is already a fact. See, e.g., Kansky v. Coca-Cola
Bottling Co. of New England, 492 F.3d 54, 56 n.1 (1st Cir. 2007)
(denying motion to proceed by pseudonym when "district court
opinion has already been made publicly available (apparently
without objection), and all filings with this court have used the
appellant's real name").
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sexual assault litigation but not during trial); cf. Advanced
Textile, 214 F.3d at 1068 (referring to arguments that "use of
pseudonyms would prejudice the jury" and impair opposing party's
ability to impeach witnesses (citing James, 6 F.3d at 240-41)).
VI
Having established the proper framework for evaluating
a party's motion to proceed by pseudonym, we turn to the decision
below.
A
In the absence of controlling precedent from this court,
the district court borrowed a test under which "a plaintiff must
show both (1) a fear of severe harm, and (2) that the fear of
severe harm is reasonable." Kamehameha Schs. I, 596 F.3d at 1043(emphasis in original); see Megless, 654 F.3d at 408. Using that
yardstick, the court denied John's request because it found his
alleged harm to be "speculative conjecture." Even allowing John
to proceed pseudonymously for now, the court added, would not
"cure" his fears of "future reputational harm" because "the full
facts of the case will emerge if the litigation proceeds to trial."
Assuming for argument's sake that the district court's
appraisal of John's claim of severe harm as "speculative
conjecture" is supportable — a matter on which we take no view —
that appraisal alone cannot carry the weight of the district
court's denial of pseudonym status. The district court apparently
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thought that a party can never proceed by pseudonym without
establishing a reasonable fear that he will suffer severe harm.
But as our earlier discussion makes clear, that showing is
necessary only under the first paradigm; the other paradigms
involve somewhat different considerations.
Nor is this a mere exercise in pedagogy. John argued in
the district court that disclosing his name could incidentally
expose Jane's identity, and he asked that her identity also be
protected. Because Jane is not a party to this case, this argument
tracks the second paradigm of exceptional cases that we have
identified.
John also made arguments sounding in the third paradigm
of exceptional cases — a paradigm under which anonymity is
necessary to avoid deterring similarly situated litigants. Among
other things, he stressed "the highly sensitive nature and privacy
issues that could be involved with being identified as a
perpetrator of sexual assault" and predicted that "any ultimate
success in this matter would be negated by the disclosure of his
name."
The district court applied a standard different than
that which we enunciate today by treating the perceived lack of
severe harm to John himself as the final word. A reasonable fear
of severe harm is not "a sine qua non for allowing plaintiffs to
- 28 -
seek Doe status." Kamehameha Schs. II, 625 F.3d at 1192(Reinhardt, J., dissenting from the denial of rehearing en banc).
The district court's additional reason for denying the
motion — that John's identity would perforce be revealed if the
case goes to trial — was also misplaced. First, there is no per
se rule barring the use of pseudonyms at trial. See Doe v.
Neverson, 820 F. App'x 984, 987 (11th Cir. 2020) (per curiam)
(holding that district court abused its discretion by denying
anonymity on assumption that disclosure at trial was
"inevitable"). Second, the case may never go to trial. And even
if the case does go to trial and John is compelled to self-identify
then, that fact alone does not explain why he should not remain
anonymous at earlier stages of the litigation. See id. at 987 &
n.1.
B
One other matter demands our attention. John has argued
that pseudonymity is appropriate because the underlying
disciplinary proceeding, brought under Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-1688, was conducted
confidentially, and he has since kept his participation in it on
the downlow. This argument implicates the fourth paradigm of
exceptional cases.
We agree that the confidentiality of a Title IX
disciplinary proceeding may sometimes — but not always — furnish
- 29 -
grounds for finding an exceptional case warranting pseudonymity.
Title IX proceedings are extensively regulated by federal law.
The United States Department of Education (the Department) has
crafted detailed regulations. See 34 C.F.R. pt. 106. In addition,
Congress has imposed procedural requirements on specified
university disciplinary proceedings relating to sexual assault and
domestic violence, mandating that universities receiving federal
funds adopt policies guaranteeing "a prompt, fair, and impartial
investigation and resolution" and giving certain procedural rights
to both "the accuser and the accused." 20 U.S.C.
§ 1092(f)(8)(B)(iv); see 34 C.F.R. § 668.46(k). In a nutshell,
both Congress and the Executive Branch have given careful thought
to the proper conduct of Title IX proceedings.
Confidentiality is an important aspect of that vision.
By enacting the Family Educational Rights and Privacy Act of 1974
(FERPA), 88 Stat. 571, 20 U.S.C. § 1232g, Congress sought to
prevent educational institutions from unilaterally disclosing
"sensitive information about students," Owasso Indep. Sch. Dist.
No. I-011 v. Falvo, 534 U.S. 426, 428 (2002), subject to certain
enumerated exceptions. Under FERPA, a university receiving
federal funds generally may not disclose a student's "education
records." 20 U.S.C. § 1232g(a)(4)(A), (b)(1). Student
disciplinary records typically fall under this protective
carapace. See United States v. Mia. Univ., 294 F.3d 797, 812 (6th
- 30 -
Cir. 2002). So, too, the Department's regulations implementing
Title IX require universities to "keep confidential the identity
of any individual who has made a report or complaint of sex
discrimination, including . . . any individual who has been
reported to be the perpetrator of sex discrimination," subject to
a few exceptions (such as the FERPA exceptions). 34 C.F.R.
§ 106.71.4MIT rejoins that the bubble of confidentiality
surrounding Title IX disciplinary proceedings is not airtight. It
pointed out at oral argument that both Title IX and FERPA constrain
only the educational institutions themselves; nothing in those
statutes (or the regulations thereunder) constrains participants
in the proceedings from speaking freely about their personal
knowledge of either the investigation or the underlying events.
See 20 U.S.C. § 1232g(b)(1); 34 C.F.R. § 106.71. This argument
misses the mark.
To be sure, neither FERPA nor Title IX imposes a gag
order on individual participants. The schools, not the students
or witnesses, are regulated. That narrow regulatory focus may
reflect either a desire to preserve the autonomy (and, perhaps,
4 The Department recently proposed moving this provision to
34 C.F.R. § 106.44(j), without substantially altering it. See
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, 132 Fed. Reg.
41390, 41453 (July 12, 2022).
- 31 -
First Amendment rights) of the persons involved in the proceedings
or a belief that a student's privacy is most profoundly violated
when the disclosure originates from the school rather than from a
third party. Either way, it would be a mistake to conclude that
the confidentiality attending Title IX proceedings is unimportant
simply because it is not absolute. It is evident, we think, that
federal law aims to keep such proceedings largely under wraps.
Both at oral argument and in a post-argument letter, see
Fed. R. App. P. 28(j), MIT contended that plaintiffs such as John
automatically forfeit the confidentiality protections of both
FERPA and Title IX by bringing suit. Under the FERPA regulations,
when a student "initiates legal action against" a school, the
school "may disclose to the court, without a court order or
subpoena, the student's education records that are relevant for
the [school] to defend itself." 34 C.F.R. § 99.31(a)(9)(iii)(B);
see id. § 106.71 (providing exception to Title IX confidentiality
requirement "as may be permitted by the FERPA statute . . . or
FERPA regulations"). Invoking this exception, MIT asserts that
FERPA's protections "fall by the wayside as soon as the student
sues the institution."
It takes rose-colored glasses to read this regulation so
expansively, and we reject such a reading. The provision at issue
is addressed to the plight of a school trying "to defend itself"
against a student lawsuit with its hands tied by FERPA. The
- 32 -
regulation thus allows the school to submit "relevant" documents
"to the court." 34 C.F.R. § 99.31(a)(9)(iii)(B). That exception
does not defenestrate the student's privacy interests simply
because he has sued the school. Rather, the exception — which is
absent from the FERPA statute itself — is grounded in "a theory of
implied consent." Family Education Rights and Privacy, 65 Fed.
Reg. 41852, 41858 (July 6, 2000). When a student (or former
student) files suit against a school and moves for pseudonymity,
any implied consent is necessarily limited — especially when it is
uncertain whether the student would continue prosecuting the
action if pseudonymity were denied. And it is significant that
the regulation permits disclosure solely "to the court," not to
the world at large. The privacy concerns animating FERPA continue
to have force notwithstanding the litigation, but they become
subject to the needs of the judicial process.5
In its Rule 28(j) letter, MIT submits that "the exception
5
in 34 C.F.R. § 99.31(a)(9)(iii)(B) . . . permits the institution
to disclose that student's relevant education records publicly to
the court, as opposed to being required to file the same under
seal." Because it is unnecessary for us to reach the issue, we
take no view on whether this regulatory exception absolves a school
from seeking to file FERPA-protected information under seal. Cf.
MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661,
673-74 (D.C. Cir. 2017) (explaining, with respect to other statutes
and regulations, that agency violated applicable confidentiality
provisions by "unilaterally filing the information on the public
record"). The relevant question for purposes of the pseudonymity
motion is how the court, not MIT, should handle the otherwise-
protected information on its docket.
- 33 -
Of course, FERPA and Title IX govern the conduct of
schools — not judicial decisions concerning the extent of public
access to information on the court's docket. But courts cannot
ignore the background confidentiality regime in assessing the
circumstances relevant to a request for pseudonymity. We find
persuasive the D.C. Circuit's reasoning in the analogous context
of a motion to unseal documents that a federal agency would
otherwise be prohibited from disclosing by statute. That court
explained that "[a]lthough [the statute] does not categorically
protect the sealed information, it does represent a congressional
judgment about the importance of maintaining the confidentiality
of nonpublic information submitted to [the agency]," and therefore
the statutory "confidentiality provision should weigh heavily in"
the district court's balancing. MetLife, Inc. v. Fin. Stability
Oversight Council, 865 F.3d 661, 675 (D.C. Cir. 2017); see Doe Co.
No. 1 v. CFPB, 195 F. Supp. 3d 9, 19-23 (D.D.C. 2016) (applying
similar reasoning to pseudonym decision in different statutory
context). The same is true of information made confidential by
FERPA and Title IX.
In federal suits that amount to collateral attacks on
Title IX proceedings, a full appreciation of the public's interest
in transparency must factor in the choice by Congress and the
Department to inhibit a school's disclosure of private
information, such as the name of an accused student. After all,
- 34 -
"[i]t makes little sense to lift the veil of pseudonymity that —
for good reason — would otherwise cover these proceedings simply
because the university erred and left the accused with no redress
other than a resort to federal litigation." Doe v. Rector &
Visitors of George Mason Univ., 179 F. Supp. 3d 583, 593 (E.D. Va.
2016) (emphasis in original). And destroying that confidentiality
may throw a wrench into other Title IX proceedings. See id.(observing that compelling disclosure of accused student-
plaintiff's identity "may discourage victims from reporting sexual
misconduct in the first instance"); see also Nondiscrimination on
the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 132 Fed. Reg. 41390, 41453 (July 12,
2022) (setting forth Department's "tentative view" that any
unauthorized disclosure of Title IX proceedings "may chill
reporting of sex discrimination or participation in the
[college's] efforts to address sex discrimination"). The public
has an abiding interest in ensuring that the values underpinning
the confidentiality protections imposed by FERPA and Title IX are
not subverted by collateral attacks in federal court.
C
The bottom line is that the district court's order cannot
endure. For the reasons indicated above, we must vacate the
district court's order and remand for application of the standard
that we announce today. See In re Grand Jury Subpoena, 138 F.3d
- 35 -
442, 445-46 (1st Cir. 1998) (explaining that remand is ordinarily
appropriate when district court had to "guess at the rule of
decision" and "applied the wrong legal standard"). Exercising its
informed discretion, paying due heed to the strong presumption
against pseudonymity, considering any evidence adduced, and
weighing the parties' arguments, the court should evaluate whether
this case is exceptional in light of the four paradigms we have
identified. With respect to the fourth paradigm, the district
court should consider any additional arguments by the parties as
to whether the confidentiality requirements of FERPA and Title IX
have weight with respect to John's particular situation.6 If the
court determines that FERPA or Title IX continue to protect John's
identity as a respondent in the underlying disciplinary
proceedings, it should then balance all the relevant circumstances
to determine whether compelling John to reveal his name in this
case would undermine the federal confidentiality protections to
the point of outweighing the public's interest in transparency.
VII
There is one loose end. As far as we can tell, John
Doe's true identity is unknown to both this court and the district
6 We note that the Title IX confidentiality provision in 34
C.F.R. § 106.71 came into effect only after the events giving rise
to this case. We take no view as to whether this regulation
restricts disclosures about the disciplinary proceeding at issue
here.
- 36 -
court. This state of affairs is problematic because it renders a
meaningful recusal check impossible. See Coe v. Cnty. of Cook,
162 F.3d 491, 498 (7th Cir. 1998); see also 28 U.S.C. § 455(setting forth bases for judicial recusal, some of them
unwaivable). What is more, if the adjudicating courts never learn
the party's identity, giving the judgment preclusive effect in
future litigation would be dicey. It follows that courts tasked
with resolving pseudonymity motions must be afforded the anonymous
party's true name under seal.
Courts in this circuit should insist upon these best
practices when confronted with a motion to proceed by pseudonym.
They may do so either formally (by adoption of a local rule or a
publicly available operating procedure) or informally (by
apprising counsel, on an ad hoc basis, of the need to submit the
anonymous party's name, under seal, to the court).
VIII
We need go no further. The order of the district court
is vacated and the case is remanded for further proceedings
consistent with this opinion. Costs shall be taxed in favor of
the plaintiff.
Vacated and Remanded.
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