Judge Stearns To First Circuit: Screw Pseudonymity

Despite the efforts “amicus” Eugene Volokh to use the Doe v. MIT Title IX case to push his war against pseudonymous litigation, the First Circuit held that there were four “paradigms” that compelled the district courts to allow a plaintiff to sue as a John Doe.

Volokh pursued the generic right of the public to know who was using the courts to sue to try to force an innocent male accused, whose identity had been protected under FERPA during the campus sex tribunal, to expose his name and the false accusations against him for which he was wrongfully found responsible because of the denial of due process and the institutional bias against males.

The Catch-22 was that by seeking to fight against the wrongful finding, the accused would be compelled to suffer the very damage the suit sought to overcome. Without pseudonymity, the plaintiff lost either way and would be forever tainted as a “rapist” even though he was denied the opportunity to defend and found responsible not because he was guilty, but because he was male.

The First Circuit “declined to accept [Volokh’s] invitation, and instead established four factors for determining the propriety of pseudonymity. These factors were designed to clearly encompass the wrongfully accused male students in Title IX sex cases.

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).
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.
4. The fourth paradigm involves suits that are bound up with a prior proceeding made confidential by law.

On remand to District of Massachusetts Judge Richard Stearns, the plaintiff, represented by Andrew Miltenberg, set forth the arguments based upon these four factors, which were frankly so obvious and inherent in Title IX suits against colleges as to need little explanation. In response, Judge Stearns provisionally granted the motion, but in the process, essentially told the First Circuit to screw itself.

Doe argues that all four prongs apply to his case. See Pl.’s Mem. of Law (Dkt # 22) at 7-12. The court does not agree, except for the second prong of the First Circuit’s test.¹

Rather than explain this bizarre rejection of the First Circuit’s holding directly, Judge Stearns  decides that it was only worthy of a footnote, albeit a fairly long one.

¹ While the First Circuit directed the district court to “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” under the fourth prong, Doe has not addressed that issue with any particularity. Doe v. MIT, 46 F.4th at 77 (emphasis added).

The court also notes that the third-prong exception threatens to swallow the rule contrary to the First Circuit’s principle that “[l]itigation by pseudonym should occur only in ‘exceptional cases.’” Id. at 70. As the First Circuit recognized, the nature of adversarial litigation “frequently invade[s] customary notions of privacy and – in the bargain – threatens parties’ reputations.” Id. Because parties seek anonymity precisely to avoid such harm, the third paradigm as written could apply to virtually any case in which parties wish to use a pseudonym. The harm Doe identifies here —  “reputational damages and consequences that flow therein as a result of the false allegations,” Pl.’s Mem. of Law at 11 — would also apply in a host of other areas, such as defamation, medical torts, and employment discrimination, where the record may reveal unflattering, embarrassing, or intimate facets of a party’s past. Cf. Doe v. MIT, 46 F.4th at 70; see also id. at 69-70 (cautioning against a litigation world in which “Does and Roes would predominate,” and warning that “[a] judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts’ work.”).

This dismissal of the First Circuit’s holding in this case is an astounding smack in the face by a district judge who decides that he, an inferior court judge, is not bound to apply the law as directed by his superior court judges. The First Circuit made clear in fashioning the four prongs for pseudonymity that these Title IX case were precisely the sort of case the compelled pseudonymity so that the plaintiff, the accused male students, wasn’t forced to destroy his life in pursuit of a suit to prevent the destruction of his life. That was the point, and it couldn’t have been clearer. Judge Stearns, apparently, didn’t care and didn’t feel any need to apply the law as the circuit held.

While the judge granted the motion for pseudonymity “provisionally,” the judge made it threateningly clear that unless Doe could come up with other non-litigants whose lives would be harmed by disclosure, the motion would be denied.

Doe will file under seal within ten (10) days of the date of this Order a disclosure of the identity of any other party or entity (other than his family and Jane Roe) who may have a direct interest in the outcome of the litigation. Doe is warned that absent a conclusive showing of ultimate harm it is unlikely that the court will allow the case to proceed to trial before a jury without prospective jurors being informed of Doe’s actual identity.

While it’s certainly possible for the plaintiff to appeal this stunningly hostile decision, provided the very harm sought to be avoided isn’t done in the interim by the judge or MIT revealing the name of the innocent male student wrongfully found responsible for sexual misconduct, it’s not quite that simple.

The cost of yet another circuit appeal has to be paid by someone, whether the plaintiff or Miltenberg if done without charge, and there will be not insignificant delay to the proceeding. On top of that, Judge Stearns’ apparently refusal to respect the holding of his superior court and his flagrant hostility to the case suggests that any proceedings in the future will be met with similar intransigence by the court, and the plaintiff will ironically suffer the bias evinced by Judge Stearns on top of the bias he suffered at the hand of MIT.