Doe v. Massachusetts Institute of Technology

46 F.4th 61

• Court: Court of Appeals for the First Circuit
• Decided: August 24, 2022
• Docket: 22-1056
• Status: Published

Opinion

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.

- 3 - 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

- 4 - 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. § 1332.1

The 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.

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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.

- 9 - 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).

- 10 - 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).

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.

- 11 - 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

- 12 - 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

- 13 - 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.").

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

- 14 - 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.

- 15 - 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.

- 16 - 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

- 17 - 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

- 18 - 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

- 19 - "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.

- 20 - • 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

- 21 - 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

- 22 - 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.

- 24 - 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

- 25 - 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").

- 26 - 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

- 27 - 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.

§ 106.71.4

MIT 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.

- 37 -