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1st Cir. Ruling Is Promising for Pseudonymity in Title IX Cases Alleging Biased Sex Assault Investigations


From yesterday's decision of the First Circuit in Doe v. MIT, by Judge Bruce Selya, joined by Judges Rogeriee Thompson and Gustavo Gelpi (note that I submitted an amicus brief in the case, in support of neither side):

[I.] The court reaffirms that there is a "strong presumption against the use of pseudonyms in civil litigation," but declines to follow many other courts in saying that this stems directly from the Federal Rules of Civil Procedure, or to the right of access to court records involved in sealing decisions. Rather, the court reasons,

[F]ederal courts enforce the presumption against party pseudonyms in civil litigation under their inherent power to "formulate procedural rules not specifically required by the Constitution or the Congress." This inherent power applies foursquare to the presumption against pseudonymity, which is a "polic[y] intrinsic to the litigation process." 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….

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." 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.'" "Identifying the parties to the proceeding is an important dimension of publicness." 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. Pokaski (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." 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." Distrust is toxic to the judiciary's authority, which "depends in large measure on the public's willingness to respect and follow its decisions." A judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts' work.

[II.] The court goes on to elaborate the following approach to when the presumption can be rebutted, which is quite different from the multi-factor balancing tests that many courts follow:

[D]istrict 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, … some general guidelines may be helpful to the district courts.

[A.] 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 "exceptional cases." 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.

{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.} …

[B.] [W]e think it useful to sketch four general categories of exceptional cases in which party anonymity ordinarily will be warranted.

[1.] 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 (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 (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. (allowing anonymity when public disclosure would threaten plaintiff's recovery from longstanding eating disorder).

[2.] The second paradigm involves cases in which identifying the would-be Doe would harm "innocent non-parties."

[3.] The third paradigm involves cases in which anonymity is necessary to forestall a chilling effect on future litigants who may be similarly situated. 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." A 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." Also typical are cases in which a potential party may be implicated in "illegal conduct, thereby risking criminal prosecution," and those in which "the injury litigated against would be incurred as a result of the disclosure of the [party's] identity."

[4.] 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 (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 (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. 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….

[5.] {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 (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").}

[C.] 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 [above] paradigms…. Because these paradigms are framed in generalities, a court enjoys broad discretion to quantify the need for anonymity in the case before it….

[D.] 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." Consequently, an order granting pseudonymity should be periodically reevaluated if and when circumstances change.

[III.] The court then applied this framework to this case, which involved a challenge to an allegedly biased Title IX sexually assault investigation:

[1.] [T]he [district] court denied [John Doe]'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 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….

[2.] 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.

[3.] 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."

[4.] We [also think] that the confidentiality of a Title IX disciplinary proceeding may sometimes—but not always—furnish grounds for finding an exceptional case warranting pseudonymity…. Confidentiality is an important aspect of [the Title IX scheme]. By enacting the Family Educational Rights and Privacy Act of 1974 (FERPA), Congress sought to prevent educational institutions from unilaterally disclosing "sensitive information about students," subject to certain enumerated exceptions. Under FERPA, a university receiving federal funds generally may not disclose a student's "education records." Student disciplinary records typically fall under this protective carapace. [Further regulatory and statutory details omitted. -EV] …

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 (D.C. Cir. 2017). 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, "[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." …

[5.] {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. 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….}

[IV.] And the court closed with these instructions about what the District Court should do on remand:

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. 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….