Plaintiff X: Orders Denying Leave to Litigate Anonymously Are Immediately Appealable

by John M. Fitzgerald

There seems to be an increase in judicial decisions addressing a litigant’s right, if any, to use the court system without disclosing his or her name.  Perhaps this trend is inspired by people’s experience on the Internet, where one may interact with others, express opinions, and engage in all manner of transactions without unmasking oneself.  If I can interact with thousands of people on Twitter or Instagram without disclosing my real name, one may wonder, why do I have to disclose my name in order to sue someone?

Thus, the U.S. Court of Appeals for the Seventh Circuit recently addressed a matter of first impression in this circuit: “whether an order denying leave to proceed anonymously is immediately appealable.”  See Doe v. Village of Deerfield, No. 15-2069 (slip op., decided April 12, 2016).  This novel issue, in turn, required an examination of the collateral order doctrine.

 “John Doe” (the Seventh Circuit panel made the seemingly unnecessary observation that this was not the plaintiff’s real name) sued the Village of Deerfield, Illinois, under 42 U.S.C. §  1983 and also asserted a claim under Illinois state law for malicious prosecution.  The gist of Doe’s complaint was that he had been wrongfully arrested and prosecuted in retaliation for filing a lawsuit against a village police officer.  In the district court, Doe argued that revealing his true name “would thwart the purpose of the expungement of his criminal records and would embarrass him.”  The district court denied Doe’s motion for leave to proceed anonymously and also dismissed his complaint without prejudice pursuant to Federal Rule of Civil Procedure 10(a) for failure to disclose his real name.  An order dismissing a complaint without prejudice is not immediately appealable.  Thus, the Seventh Circuit was presented with the question of whether the order denying Doe leave to proceed anonymously was immediately appealable. 

The collateral order doctrine, the Seventh Circuit panel explained, covers only a “‘small class’ of non-final orders that are deemed final and immediately appealable.’”  To be immediately appealable under the collateral order doctrine, the order must be of a type that meets three criteria.  It must “(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be ‘effectively unreviewable’ on an appeal from the final judgment of the underlying action.”  Rather than “scrutiniz[ing] the individual denial of Doe’s motion,” the appellate panel was required to determine generally whether “denials of motions to proceed anonymously fall under the collateral order doctrine as a whole.” 

The answer was ‘yes.’  Joining other circuits that have reached the same conclusion, the Seventh Circuit panel explained that orders denying leave to proceed anonymously “are conclusive on the issue presented,” present an issue that is “separate from the merits of the underlying action,” and are effectively unreviewable in an appeal from a final judgment.  After all, if “parties were required to litigate the case through to a final judgment on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot.”  Thus, such orders are immediately appealable collateral orders.

Doe “won the jurisdictional battle” but “lost the war.”  Such orders are reviewed for an abuse of discretion, and the Seventh Circuit panel found no abuse of discretion in the district court’s refusal to allow Doe to litigate anonymously.  “[A]nonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes.”  Thus, leave to litigate anonymously is allowed only in “exceptional circumstances,” such as where anonymity is necessary to protect the rights of “children, rape victims, and other particularly vulnerable parties,” or to protect parties from retaliation.  Doe did not claim to be such a vulnerable person, nor did he claim to legitimately fear retaliation.  He just wanted to avoid embarrassment, and that was insufficient to justify anonymity. 

A famous New Yorker cartoon depicted a canine who enthused that “on the Internet, nobody knows you’re a dog.”  In all but the rarest of circumstances, the federal court system operates quite differently.