How Courts Evaluate Whether to Allow Anonymous Whistleblower Proceedings
How Courts Evaluate Whether to Allow Anonymous Whistleblower Proceedings
Although no federal rule permits or disallows anonymous proceedings, courts have a strong presumption of transparency in judicial proceedings seen most clearly by Federal Rules of Procedure (FRCP) 10(a) and 17(a). A court’s discretion will determine whether or not a whistleblower may proceed anonymously, with each district carving out their own guidelines for anonymity. The majority of districts utilize some form of balancing test to determine whether to allow a plaintiff to proceed anonymously. The public’s interest in open and transparent proceedings is measured against the party seeking anonymity’s interest in maintaining privacy.
Below is relevant case law for each circuit.
First Circuit:
First Circuit courts use the 9-factor and 10-factor balancing tests from the Second and Third Circuits. See below.
Second Circuit:
Sealed Plaintiff v. Sealed Defendant et al., 537 F.3d 185 (2d Cir. 2008)
Anonymity Factors (non-exhaustive):
1. Case involves highly sensitive/personal matters
2. Identification of plaintiff poses risk of physical or mental retaliation
3. Presence of other harms and their severity
4. Plaintiff vulnerability to the harms of disclosure
5. Suit involving private parties
6. Defendant will not be prejudiced by allowing the plaintiff to proceed anonymously or if so, adequate mitigation measures can be taken by the court
7. Plaintiff has remained thus far, anonymous
8. “Atypically weak public interest” in knowing the parties involved
9. Lack of alternative mechanisms for protecting confidentiality of plaintiff
FCA-Specific Cases
U.S. v. UCB Inc., 2017 WL 838198 (S.D.N.Y. Mar. 3, 2017)
Held: Relator prevented from proceeding anonymously because risk of harm to relator was too speculative to overcome presumption of open proceedings.
Key Facts: Relator was no longer employed by the defendant and the defendant was the only entity that would have an incentive to take retaliatory action against him.
Third Circuit
Doe v. Megless, 654 F.3d 404 (3d Cir. 2011)
Rule: Embarrassment and economic harm alone are insufficient to support anonymous proceedings
Anonymity Factors (non-exhaustive):
1. Extent of anonymity the litigant already has enjoyed
2. Reasons for which disclosure is feared and the substantiality of these reasons
3. Public interest in knowing litigant’s identity
4. Whether there’s “atypically weak” public interest in case
5. “undesirability of an outcome adverse to pseudonymous party and attributable to his refusal to purse case at price of being publicly identified”
6. Pseudonymous party’s potential “illegitimate ulterior motives”
7. Universal level of public interest in knowing the identities of parties involved (Including any special considerations like the public figure status of the parties)
8. Whether opposition to pseudonym is “illegitimately motivated”
FCA-Specific Cases:
U.S. v. Janssen Therapeutics, 795 Fed. Appx. 142 (3d Cir. 2019)
Held: granting defendant’s request to unseal original complaint of a voluntarily dismissed qui tam
Party seeking to seal:
1. must show material type of info that courts will protect and disclosure will “work clearly defined and serious injury to the party seeking closure.”
2. must show specific harm, not broad allegations.
Court must then:
1. show compelling countervailing interests to be protected
2. make findings on record about the effects of disclosure
3. allow opportunity for interested third party to be heard
U.S. ex rel. Luciano v. Pollack Health & Wellness, Inc., 2015 WL 2168655 (D.N.J April 30, 2015)
Held: Denying relator’s request to proceed anonymously.
Key Facts: relator’s identity had already been publicly known for months and the relator failed to give any reason for grounds for anonymous proceedings
Purcell v. Gilead Sciences, Inc., 415 F.Supp.3d 569 (E.D. Penn. 2019)
Held: Denied relator request to proceed anonymously
Key Facts: Relator no longer worked for the defendant, relator’s motion only made general claims of potential retaliation and vague allusions to potential social stigma as a whistleblower
Fourth Circuit
James v. Jacobson, 6 F.3d 233 (4th Cir. 1993)
Anonymity Factors:
1. Whether request to proceed anonymously is just for a party to “avoid annoyance and criticism” that comes with litigation vs preserve privacy of a “sensitive and highly personal” matter
2. Whether identification creates risk of “retaliatory physical or mental harm…or to innocent non-parties,”
3. Whether action against a private or public entity
4. Risk of unfairness to opposing party
FCA-Specific Cases
Under Seal v. United Seal, 27 F.3d 564 (4th Cir. 1994):
Held: upholding lower court’s decision not to place a permanent seal on the proceedings to protect the identity of the relator
Key Facts: relator had role as in-house counsel to defendant only reputational harms cited as concern
Fifth Circuit
Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981)
Anonymity factors:
1. Case concerns sensitive and highly personal information (e.g. abortion, sexuality, welfare rights)
2. Revealing plaintiff identity may subject plaintiff to criminal prosecution
3. Whether plaintiff is challenging government activity
FCA-Specific Cases
U.S. v. Planned Parenthood Federation of America, 2022 WL 21757117 (N.D. Tex. May 20, 2022)
Held: denying defendant’s motion to unseal the relator’s identity and revoke protection order filed by the court
Key Facts: relator revealing practices in abortion clinics, faced specific threats of violence, relator themselves was currently being prosecuted by the state
U.S. ex rel. Doe v. Lincare Holdings, Inc., 2017 WL 752288 (S.D. Miss. Feb. 27, 2017)
Held: mandating disclosure of relator’s identity after unsealing of qui tam
Key Facts: government filed a statement of interest against the relator’s continued anonymity, relator failed to cite facts to support anonymity like threats of harm or otherwise
Sixth Circuit
Doe v. Porter, 370 F.3d 558 (6th Cir 2004) (adopts Stegall from the 5th Cir.)
May proceed under a pseudonym where:
1. Plaintiff seeking anonymity suing to challenge government activity
2. Whether suit involves disclosure of matters “of the utmost intimacy”
3. Revealing plaintiff identity may subject plaintiff to criminal prosecution
Seventh Circuit
Doe v. Trustees of Indiana University, 2022 WL 36485 (S.D. Ind. 2022)
Anonymity Factors (non-exhaustive):
1. Plaintiff seeking anonymity suing to challenge government activity
2. Whether suit involves disclosure of matters “of the utmost intimacy”
3. Revealing plaintiff identity may subject plaintiff to criminal prosecution
4. Risk of physical or mental harm
5. Prejudice to the defendant
6. Public interest in open access
Eighth Circuit
In re Ashley Madison Customer Data Security Breach Litigation, 2016 WL 1366616 (E.D. Mo. 2016)
Anonymity Factors (non-exhaustive):
1. Plaintiff challenging government activity
2. Plaintiff forced to disclose information of “utmost intimacy”
3. Revealing plaintiff identity may subject plaintiff to criminal prosecution
Ninth Circuit
Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000)
Anonymity Factors (non-exhaustive):
1. Severity of threatened harm
2. Reasonableness of fears of threatened harm
3. Party vulnerability to retaliation
4. Prejudice to the defendant
5. Public interest in the proceedings
Tenth Circuit
Raiser v. Brigham Young University, 127 Fed. Appx. 409 (10th Cir. 2005)
Anonymity Factors: (relying on Frank, 951 F.2d 11th Cir.)
1. Case involves “highly sensitive and personal” matters
2. “Real danger of physical harm”
3. Whether injury litigated against “would be incurred as a result of the disclosure of the plaintiff’s identity”
Eleventh Circuit
Doe v. Frank, 951 F.2d 320 (11th Cir. 1992)
Rule: Court will review “all circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns.”
Factors favorable to anonymous proceedings:
1. Matter involves highly sensitive/personal issue
2. “Real danger of physical harm”
3. Whether injury litigated against “would be incurred as a result of the disclosure of the plaintiff’s identity”
D.D.C.
In Re: Sealed Case, 931 F.3d 92 (D.D.C. 2019)
Anonymity Factors:
1. Whether the reason the party asserted for anonymity is “merely to avoid annoyance and criticism” from litigation or whether the it is to preserve the privacy of highly sensitive matters
2. Risk of retaliatory physical or mental harm to requesting party or innocent parties
3. Ages of party seeking anonymity
4. Whether action against government or private party
5. Risk of unfairness to opposing party
