The U.S. Court of Appeals in Philadelphia (3rd Cir.) issued an opinion last week providing trial courts with more specific guidance in deciding when to allow parties to proceed anonymously in federal court.
The adopted nine-factor test appears in the court’s published opinion in Doe v. Megless, a civil rights case brought by an anonymous plaintiff against a Pennsylvania township, school district and local officials. The plaintiff alleged that an email message and flyer distributed by local officials asking the recipients to investigate and contact the police if they saw the plaintiff in or around area schools violated his civil rights. The flyer attached to the email message included a photo of the plaintiff and personal information, including the plaintiff's real name.
A trial court rejected the plaintiff’s request to pursue the lawsuit anonymously and dismissed the case when the plaintiff declined to proceed by name. The plaintiff appealed.
The Third Circuit affirmed the trial court’s refusal to allow the plaintiff to proceed anonymously. Circuit Judge D. Michael Fisher, writing for the three-judge panel, began the court’s substantive analysis by emphasizing that openness is an “essential qualit[y]” of the justice system. Noting that a federal court rule requires litigants to identify themselves in pleadings, Fisher quoted prior caselaw for the proposition that allowing parties to proceed by pseudonym “runs afoul of the public’s common law right of access to judicial proceedings.”
Fisher acknowledged courts sometimes allow parties to proceed with a lawsuit anonymously, but only in “exceptional cases” in which litigants have a “reasonable fear of severe harm” from using their real identities. Other federal appellate courts have adopted various tests to address how to weigh this concern against the public's interest in open courts, Fisher said, but “each court agrees that the purpose of the balancing test is to allow a district court to determine whether a litigant has a reasonable fear of severe harm that outweighs the public’s interest in open litigation.”
Fisher's opinion took the opportunity to endorse a specific test for use by trial courts in the Third Circuit. His opinion approved a “non-exhaustive” nine-factor test already in use by many trial courts in the circuit. Under this approach, courts are to consider factors ranging from the extent that the anonymous party's identity is already known and the "magnitude of the public interest in maintaining the confidentiality of the litigant's identity" to the public’s interest in a particular case or type of case.
Analyzing the plaintiff’s anonymity request against those nine factors, the court declined to overturn the district court’s ruling. Fisher noted that the plaintiff’s identity was already publicly known, as the basis of his claim was that his name and photograph were published in an email distribution list. And to the extent the plaintiff’s claim was that the email message made inaccurate insinuations about him — in particular, that he was a pedophile — publicly litigating the case would allow him to “clear his name,” Fisher said.
The court's opinion acknowledged that the plaintiff’s unwillingness to proceed by name weighed in favor of allowing anonymity, as the resulting dismissal of the suit meant that an alleged abuse of power would go "unchallenged." But Fisher concluded that “a plaintiff’s stubborn refusal to litigate openly by itself cannot outweigh the public’s interest in open trials.” Moreover, the “universal interest in favor of open judicial proceedings,” and the fact that public entities were involved, weighed in favor of not allowing the parties to proceed anonymously.