                                           WHISTLEBLOWER 14106–10W, PETITIONER v. COMMISSIONER
                                                    OF INTERNAL REVENUE, RESPONDENT

                                                        Docket No. 14106–10W.                 Filed December 8, 2011.

                                                   P, a former senior executive of X, filed a claim for a whistle-
                                                blower award under sec. 7623(b), I.R.C., alleging that X had
                                                underpaid its taxes. R investigated P’s claim but did not open
                                                an administrative or judicial proceeding against X and did not
                                                collect any additional tax from X on the basis of P’s informa-
                                                tion. R denied P’s claim on the basis that an award deter-
                                                mination could not be made under sec. 7623(b), I.R.C. P’s
                                                identity thus far has been kept confidential. Asserting that
                                                disclosing P’s identity in this judicial proceeding would result

                                                                                                                                       183




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                                                in retaliation and professional ostracism, P filed a motion for
                                                a protective order, requesting that the record be sealed or
                                                alternatively that P be granted anonymity. While P’s motion
                                                for a protective order was pending, R filed a motion for sum-
                                                mary judgment. P opposes R’s motion on the grounds that it
                                                is premature because P’s motion for a protective order is
                                                pending and discovery has not commenced. Held: Summary
                                                judgment may properly be rendered even though a motion for
                                                a protective order is pending and discovery has not com-
                                                menced. Held, further, because P failed to meet the threshold
                                                requirements for a whistleblower award, R’s motion for sum-
                                                mary judgment will be granted. Held, further, because the
                                                potential harm from disclosing P’s identity as a confidential
                                                informant outweighs the public interest in knowing P’s
                                                identity in this case decided on summary judgment, P’s
                                                request for anonymity will be granted. Held, further, the par-
                                                ties will be ordered to redact from the record both P’s and X’s
                                                names and any identifying information about P and X. Held,
                                                further, because granting P’s request for anonymity and
                                                redacting identifying information adequately protect P’s legiti-
                                                mate privacy interests as a confidential informant, P’s request
                                                to seal the record will be denied.

                                           lll, 1 for petitioner.
                                           David A. Ingold and Ruth Mary Spadaro, for respondent.
                                                                                  OPINION

                                         THORNTON, Judge: This is an action pursuant to section
                                      7623(b)(4) to review respondent’s denial of petitioner’s claim
                                      for a whistleblower award. 2 This matter is before the Court
                                      on respondent’s motion for summary judgment and peti-
                                      tioner’s motion to seal the record and proceed anonymously.

                                                                                Background
                                      Petitioner’s Whistleblower Claim
                                        On March 3, 2008, petitioner submitted to the Internal
                                      Revenue Service Whistleblower Office (Whistleblower Office)
                                      Form 211, Application for Award for Original Information.
                                      This submission indicated that while employed as a senior
                                      executive in a particular company (X), petitioner had become
                                      aware of a tax code violation that resulted in X’s under-
                                        1 The name of petitioner’s counsel has been omitted in furtherance of protecting petitioner’s

                                      identity.
                                        2 Unless otherwise noted, all section references are to the Internal Revenue Code, as amended,

                                      and all Rule references are to the Tax Court Rules of Practice and Procedure.




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                                      paying its Federal income tax by a substantial amount. By
                                      letter dated March 11, 2008, respondent acknowledged
                                      receipt of petitioner’s claim.
                                         After various written communications between the parties,
                                      by letter to petitioner dated March 13, 2010, the Whistle-
                                      blower Office advised that petitioner did not qualify for an
                                      award because the submitted information did not identify a
                                      Federal tax issue upon which the Internal Revenue Service
                                      (IRS) would take action and therefore did not lead to the
                                      detection of an underpayment of tax for which an award
                                      could be made under section 7623(b). Petitioner timely peti-
                                      tioned this Court pursuant to section 7623(b)(4).
                                      Petitioner’s Motion for a Protective Order
                                         Petitioner also filed, along with the petition, a motion to
                                      seal identity, case, and accompanying documents (sometimes
                                      referred to hereinafter as petitioner’s motion for a protective
                                      order). The Court temporarily sealed the record and, after
                                      receiving respondent’s response and petitioner’s supplements
                                      to the motion, held a hearing on petitioner’s motion. At the
                                      hearing petitioner’s counsel clarified that petitioner sought to
                                      have the record sealed or, alternatively, sought permission to
                                      proceed anonymously. Petitioner submitted an affidavit
                                      alleging the basis in support of the motion to seal or proceed
                                      anonymously. 3
                                         According to the affidavit, while employed at X, petitioner
                                      became aware of the alleged tax underpayment referenced in
                                      petitioner’s application for a whistleblower award. Petitioner
                                      submitted the whistleblower claim to the IRS. Petitioner’s
                                      identity as a whistleblower has been kept confidential
                                      throughout the administrative proceedings and thus far in
                                      this judicial action.
                                         At some point after filing the whistleblower claim, peti-
                                      tioner obtained new employment in a company other than X.
                                      According to the affidavit petitioner fears ‘‘economic and
                                      professional ostracism, harm, and job-related harassment if
                                      my identity is revealed because my new employer and other
                                      potential employers will not want to hire or employ a known
                                      tax whistleblower.’’ Petitioner also asserts that X may suffer
                                      financially if the details of petitioner’s claim are made public.
                                           3 Without   objection, petitioner’s affidavit was received into evidence as petitioner’s testimony.




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                                      Respondent’s Motion for Summary Judgment
                                         On June 6, 2011, while petitioner’s motion for a protective
                                      order was still pending, respondent filed a motion for sum-
                                      mary judgment. On July 6, 2011, petitioner filed an opposi-
                                      tion to the granting of respondent’s motion for summary
                                      judgment. Neither party has requested a hearing on respond-
                                      ent’s motion for summary judgment, and we conclude that
                                      none is necessary.

                                                                                 Discussion
                                      I. Background: Judicial Review of Tax Whistleblower Claims
                                        Since 1867 the Secretary has had legal authority to make
                                      discretionary payments for information that aids in detecting
                                      tax underpayments and fraud. See History of the Whistle-
                                      blower/Informant Program, http://www.irs.gov/compliance/
                                      article/0,,id=181294,00.html. In 2006 Congress substantially
                                      amended the whistleblower program by enacting section
                                      7623(b). 4 Under this provision, ‘‘If the Secretary proceeds
                                      with any administrative or judicial action’’ on the basis of
                                      information provided by a whistleblower, then, subject to var-
                                      ious conditions, the whistleblower shall be entitled to an
                                      award of 15 to 30 percent of the collected proceeds. 5 Sec.
                                      7623(b); see also Cooper v. Commissioner, 135 T.C. 70, 73
                                      (2010).
                                        Before 2006 there was no express statutory provision for
                                      judicial review of tax whistleblower claims. See Colman v.
                                      United States, 96 Fed. Cl. 633, 638 (2011) (stating that the
                                      pre-2006 tax whistleblower law ‘‘cannot serve as the sub-
                                      stantive law on which to predicate’’ jurisdiction of the Court
                                      of Federal Claims). 6 This situation changed with the enact-
                                      ment of section 7623(b)(4), which provides that the Tax Court
                                        4 The pre-2006 version of the tax whistleblower law, former sec. 7623, survives with minor

                                      changes as sec. 7623(a).
                                        5 To qualify for an award under sec. 7623(b), the tax, penalties, interest, additions to tax, and

                                      additional amounts in dispute must exceed $2 million. Sec. 7623(b)(5)(B). Additionally, if the
                                      subject of the whistleblower claim is an individual, the subject’s gross income must exceed
                                      $200,000 for the year at issue. Sec. 7623(b)(5)(A).
                                        6 Judicial review of claims arising under the pre-2006 version of sec. 7623 has been confined

                                      to contractual claims brought under the Tucker Act, 28 U.S.C. sec. 1491(a)(1) (2000 & Supp.
                                      2005), in limited circumstances where the informant and the IRS had entered into a binding
                                      agreement by negotiating and fixing a specific amount for a whistleblower award. See, e.g.,
                                      Merrick v. United States, 846 F.2d 725, 726 (Fed. Cir. 1988); Colman v. United States, 96 Fed.
                                      Cl. 633, 637–638 (2011).




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                                      shall have jurisdiction with respect to any determination
                                      regarding an award under section 7623(b)(1), (2), or (3). See
                                      DaCosta v. United States, 82 Fed. Cl. 549, 553–555 (2008)
                                      (holding that claims under section 7623(b) are within the
                                      exclusive jurisdiction of the Tax Court). This Court has held
                                      that pursuant to section 7623(b)(4) a letter from the Whistle-
                                      blower Office denying a claim on the grounds that no award
                                      determination could be made under section 7623(b) con-
                                      stitutes a determination conferring jurisdiction on this Court.
                                      Cooper v. Commissioner, supra at 73.
                                      II. Respondent’s Motion for Summary Judgment
                                         We may grant summary judgment if there is no genuine
                                      issue as to any material fact and a decision may be rendered
                                      as a matter of law. Rule 121(b); see Sundstrand Corp. v.
                                      Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
                                      Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988).
                                      The moving party bears the burden of proving that there is
                                      no genuine issue of material fact, and factual inferences will
                                      be read in a manner most favorable to the party opposing
                                      summary judgment. Dahlstrom v. Commissioner, 85 T.C.
                                      812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344
                                      (1982). When a motion for summary judgment is made and
                                      properly supported, the adverse party may not rest upon
                                      mere allegations or denials of the pleadings but must set
                                      forth specific facts showing that there is a genuine issue for
                                      trial. Rule 121(d). If the adverse party does not so respond,
                                      then a decision may be entered against such party. Id.
                                         Respondent asserts that he is entitled to summary judg-
                                      ment because petitioner does not meet the threshold require-
                                      ments for an award under section 7623(b). Along with his
                                      motion for summary judgment respondent filed the affidavit
                                      of Chief Counsel Attorney David A. Ingold, declaring, on the
                                      basis of his review of respondent’s administrative and legal
                                      files and on the basis of conversations with relevant IRS per-
                                      sonnel, that the information petitioner provided resulted in
                                      respondent’s taking no administrative or judicial action
                                      against X or collecting from X any amounts of tax, interest,
                                      or penalty.
                                         Petitioner’s opposition does not address the substantive
                                      merits of respondent’s motion for summary judgment but




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                                      suggests that respondent’s motion is premature because peti-
                                      tioner’s motion for a protective order is still pending and
                                      because formal discovery has not yet commenced. We dis-
                                      agree that respondent’s motion for summary judgment is pre-
                                      mature. Pursuant to Rule 121(a) a party may move for sum-
                                      mary judgment ‘‘at any time commencing 30 days after the
                                      pleadings are closed but within such time as not to delay the
                                      trial.’’ And pursuant to Rule 121(b), the Court may grant
                                      summary judgment if the pleadings, answers to interrog-
                                      atories, depositions, admissions, and other acceptable mate-
                                      rials, together with the affidavits, if any, show that there is
                                      no genuine issue as to any material fact and that a decision
                                      may be rendered as a matter of law. The pendency of peti-
                                      tioner’s motion for a protective order is immaterial to
                                      respondent’s filing or the Court’s ruling upon the motion for
                                      summary judgment.
                                         Contrary to Rule 121(d), petitioner’s opposition does not set
                                      forth, by affidavits or otherwise, any specific facts showing
                                      that there is a genuine issue for trial. Nor, pursuant to Rule
                                      121(e), has petitioner otherwise made any showing that the
                                      facts set forth in Mr. Ingold’s affidavit are genuinely dis-
                                      puted. 7
                                         Rule 121(e) is modeled in large part after former rule 56(f)
                                      of the Federal Rules of Civil Procedure (redesignated rule
                                      56(d) in 2009 with nonsubstantive changes). In Keebler Co.
                                      v. Murray Bakery Prods., 866 F.2d 1386 (Fed. Cir. 1989),
                                      applying former rule 56(f), the court held that the plaintiff
                                      could not avoid summary judgment by requesting discovery.
                                      The court characterized the plaintiff ’s opposition as saying,
                                      in effect: ‘‘we have no factual basis for opposing summary
                                      judgment, but, if you stay proceedings, we might find some-
                                      thing.’’ Id. at 1389. The court observed: ‘‘If all one had to do
                                      to obtain a grant of a Rule 56(f) motion were to allege posses-
                                      sion by movant of ‘certain information’ and ‘other evidence’,
                                           7 Rule   121(e) provides:
                                      When Affidavits Are Unavailable: If it appears from the affidavits of a party opposing the mo-
                                      tion [for summary judgment] that such party cannot for reasons stated present by affidavit facts
                                      essential to justify such party’s opposition, then the Court may deny the motion or may order
                                      a continuance to permit affidavits to be obtained or other steps to be taken or may make such
                                      other order as is just. If it appears from the affidavits of a party opposing the motion that such
                                      party’s only legally available method of contravening the facts set forth in the supporting affida-
                                      vits of the moving party is through cross-examination of such affiants or the testimony of third
                                      parties from whom affidavits cannot be secured, then such a showing may be deemed sufficient
                                      to establish that the facts set forth in such supporting affidavits are genuinely disputed.




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                                      every summary judgment decision would have to be delayed
                                      while the non-movant goes fishing in the movant’s files.’’ Id.
                                      For similar reasons, summary judgment for respondent is not
                                      inappropriate simply because petitioner has not commenced
                                      discovery.
                                         On the substantive merits of respondent’s motion for sum-
                                      mary judgment, Cooper v. Commissioner, 136 T.C. 597
                                      (2011), is controlling. In that case, decided after respondent
                                      moved for summary judgment in the case before us, this
                                      Court held in closely analogous circumstances that the
                                      Commissioner was entitled to summary judgment. As this
                                      Court stated, under section 7623(b)(1) ‘‘a whistleblower
                                      award is dependent upon both the initiation of an adminis-
                                      trative or judicial action and collection of tax proceeds.’’ Id.
                                      at 600. ‘‘If the Secretary does not proceed, there can be no
                                      whistleblower award.’’ Id. at 601. According to the affidavit
                                      filed in support of respondent’s motion for summary judg-
                                      ment, these preconditions for an award have not been met.
                                      Consequently, we shall grant respondent’s motion for sum-
                                      mary judgment.
                                      III. Petitioner’s Motion for a Protective Order
                                         Although we have held that respondent is entitled to sum-
                                      mary judgment, we still need to rule on petitioner’s motion
                                      for a protective order, since our ruling will affect any further
                                      proceedings in this case and will govern future public access
                                      to information in the record. Petitioner’s request to seal the
                                      record or alternatively to proceed anonymously presents
                                      novel issues of balancing the public’s interests in open court
                                      proceedings against petitioner’s privacy interests as a con-
                                      fidential informant.
                                           A. Openness of Court Proceedings
                                        This country has a long tradition of open trials and public
                                      access to court records. This tradition is embedded in the
                                      common law, the statutory law, and the U.S. Constitution.
                                      See Nixon v. Warner Commcns., Inc., 435 U.S. 589, 597
                                      (1978); Washington Legal Found. v. U.S. Sentencing Commn.,
                                      89 F.3d 897, 902 (D.C. Cir. 1996); Willie Nelson Music Co. v.




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                                      Commissioner, 85 T.C. 914, 917 (1985). 8 Open trials and
                                      public access to court records promote fairness and the
                                      search for truth, help enlighten public opinion, and assure
                                      confidence in the judicial process. See Richmond Newspapers,
                                      Inc. v. Virginia, 448 U.S. 555, 569–575 (1980); Gannett Co.,
                                      Inc. v. DePasquale, 443 U.S. 368, 383 (1979). But the right
                                      to access judicial records ‘‘has never been considered
                                      absolute. To the contrary, courts always have asserted the
                                      power to seal their records when deemed necessary.’’ United
                                      States v. Mitchell, 551 F.2d 1252, 1260 (D.C. Cir. 1976), revd.
                                      on other grounds sub nom. Nixon v. Warner Commcns., Inc.,
                                      supra.
                                        Consistent with these principles, section 7458 provides
                                      that hearings before the Tax Court shall be open to the
                                      public. And section 7461(a) provides generally that all
                                      reports of the Tax Court and all evidence received by the Tax
                                      Court shall be public records open to the inspection of the
                                      public. But the Tax Court is authorized to ‘‘make any provi-
                                      sion which is necessary to prevent the disclosure of trade
                                      secrets or other confidential information, including a provi-
                                      sion that any document or information be placed under seal
                                      to be opened only as directed by the Court.’’ Sec. 7461(b)(1).
                                      Under Rule 103(a), upon motion by a party or any other
                                      affected person and for good cause shown, the Court may
                                      make any order which justice requires to protect a party or
                                      other person from annoyance, embarrassment, oppression, or
                                      undue burden or expense, including but not limited to an
                                      order that a trade secret or other information not be dis-
                                      closed or be disclosed only in a designated way. Hence, this
                                      Court, like other courts, has broad discretionary authority to
                                      control and seal, if necessary, records and files in its posses-
                                      sion. See Anonymous v. Commissioner, 127 T.C. 89, 91
                                      (2006); Willie Nelson Music Co. v. Commissioner, supra at
                                      920. In addition, where appropriate, this Court may permit
                                         8 The Supreme Court has held that there is a guaranteed right of the public under the First

                                      Amendment to attend criminal trials, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
                                      (1980), but has not expressly ruled on whether there is a First Amendment right of access to
                                      civil proceedings and documents. The Courts of Appeals that have addressed the issue agree
                                      that there is such a constitutional right. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435
                                      F.3d 110, 124–127 (2d Cir. 2006); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253
                                      (4th Cir. 1988); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067–1070 (3d Cir. 1984); In
                                      re Contl. Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Brown & Williamson Tobacco Corp.
                                      v. FTC, 710 F.2d 1165, 1178–1179 (6th Cir. 1983).




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                                      a petitioner to proceed anonymously. Anonymous v. Commis-
                                      sioner, supra at 91.
                                         Section 7623 does not expressly address privacy interests
                                      of tax whistleblowers or other affected persons. 9 When it
                                      promulgated Title XXXIII of its Rules of Practice and Proce-
                                      dure, relating to tax whistleblower actions, this Court
                                      observed that in appropriate cases it might permit a peti-
                                      tioner to proceed anonymously and might seal the record in
                                      that case. Explanatory Note to Rule 340, 130 T.C. 586. The
                                      Court stated that it contemplated that
                                      generally applicable statutory provisions, Rule 103, and related caselaw,
                                      while they do not require the Court’s records * * * to be sealed or require
                                      the Court to permit all petitioners in those cases to proceed anonymously,
                                      do provide authority for the Court to allow a petitioner to proceed anony-
                                      mously and to seal the record when appropriate in whistleblower actions.
                                      [Id.]

                                           B. Considering the Less Drastic Option First
                                        Petitioner has requested in the first instance that we seal
                                      the record and, alternatively, that we permit petitioner to
                                      proceed anonymously. Before granting a request to seal the
                                      record, however, it is appropriate to consider the less drastic
                                      option of permitting the requesting party to proceed anony-
                                      mously. 10 Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d
                                      178, 181 (4th Cir. 1988); see Johnson v. Greater Se. Cmty.
                                      Hosp. Corp., 951 F.2d 1268, 1278 (D.C. Cir. 1991) (stating
                                      that if the trial court determines that some type of sealing
                                      order is warranted, it should be ‘‘no broader than is nec-
                                        9 In 2007 the Senate passed a bill with this provision that would have authorized the Tax

                                      Court in new sec. 7623(b)(4)(B) to seal portions of the record in tax whistleblower cases:
                                      PUBLICITY OF APPEALS—Notwithstanding sections 7458 and 7461, the Tax Court may, in order
                                      to preserve the anonymity, privacy, or confidentiality of any person under this subsection, pro-
                                      vide by rules adopted under section 7453 that portions of filings, hearings, testimony, evidence,
                                      and reports in connection with proceedings under this subsection may be closed to the public
                                      or inspection by the public. [U.S. Troop Readiness, Veterans’ Health, and Iraq Accountability
                                      Act, 2007, H.R. 1591, 110th Cong., sec. 543(c) (as passed by Senate, Mar. 29, 2007).]
                                      This provision, which ultimately was not enacted, is substantially identical to sec. 6110(f)(6). See
                                      infra note 11.
                                        10 The Judicial Conference of the United States has recently adopted a national policy that

                                      encourages Federal courts to seal entire civil case files only when sealing is ‘‘required by statute
                                      or rule or justified by a showing of extraordinary circumstances and the absence of narrower
                                      feasible and effective alternatives such as sealing discrete documents or redacting information,
                                      so that sealing an entire case file is a last resort.’’ News Release, Administrative Office
                                      of the U.S. Courts, Conference Approves Standards & Procedures for Sealing Civil
                                      Cases (Sept. 13, 2011), available at http://www.uscourts.gov/News/NewsView/11–09–13/Con-
                                      ferencelApproveslStandardslProcedureslForlSealinglCivill Cases.aspx.




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                                      essary to protect those specific interests identified as in need
                                      of protection’’); In re N.Y. Times Co., 585 F. Supp. 2d 83, 91
                                      (D.D.C. 2008) (concluding that protecting an informant’s
                                      identity did not require sealing of documents but could be
                                      accomplished through the redaction of the informant’s name).
                                      Permitting a litigant to proceed anonymously, unlike sealing
                                      the record, preserves in large measure the public’s ability to
                                      scrutinize judicial functioning since ‘‘Party anonymity does
                                      not obstruct the public’s view of the issues joined or the
                                      court’s performance in resolving them.’’ Doe v. Stegall, 653
                                      F.2d 180, 185 (5th Cir. 1981).
                                           C. Petitioner’s Request for Anonymity
                                           1. General Considerations
                                         ‘‘A party may generally proceed anonymously when the
                                      trial court reasonably determines that the need for
                                      anonymity outweighs the prejudice to the opposing party and
                                      the general presumption that the parties’ identities are
                                      public information.’’ Anonymous v. Commissioner, supra at
                                      94. The decision whether to allow a party to proceed anony-
                                      mously rests within the sound discretion of the trial court.
                                      Id.; see James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993);
                                      see also sec. 7461(b)(1).
                                         In rare instances this Court has permitted taxpayers in
                                      deficiency cases to proceed anonymously upon finding that
                                      the need for anonymity outweighed prejudice to the opposing
                                      party and the general presumption that the parties’ identi-
                                      ties are public information. 11 See Anonymous v. Commis-
                                      sioner, supra at 94; Anonymous v. Commissioner, T.C. Memo.
                                      2010–87. In these deficiency cases the taxpayers dem-
                                      onstrated risks of severe physical harm if their identities
                                      were revealed. No court has previously considered the cir-
                                      cumstances under which tax whistleblower suits under sec-
                                      tion 7623(b) may be prosecuted anonymously. Consequently,
                                      we shall consider in some detail the various factors that
                                      courts have applied in determining whether litigation should
                                      proceed anonymously or pseudonymously.
                                        11 Under Rule 227, promulgated pursuant to sec. 6110(f)(3), petitioners and intervenors may

                                      also proceed anonymously, if appropriate, in disclosure actions in the Tax Court. See, e.g., Anon-
                                      ymous v. Commissioner, 134 T.C. 13 (2010). The records in disclosure actions are generally
                                      sealed pursuant to Rule 228, promulgated pursuant to sec. 6110(f)(6).




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                                        Seven Courts of Appeals have adopted or endorsed multi-
                                      factor tests to govern the trial court’s exercise of discretion
                                      in determining whether litigation should be permitted to pro-
                                      ceed anonymously or pseudonymously. See Lozano v. City of
                                      Hazleton, 620 F.3d 170, 195 (3d Cir. 2010), vacated and
                                      remanded on other grounds 563 U.S. ll, 131 S. Ct. 2958
                                      (2011); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
                                      190–191 (2d Cir. 2008); Doe v. Porter, 370 F.3d 558, 560 (6th
                                      Cir. 2004); Does I Thru XXIII v. Advanced Textile Corp., 214
                                      F.3d 1058, 1068 (9th Cir. 2000); M.M. v. Zavaras, 139 F.3d
                                      798, 803 (10th Cir. 1998); James v. Jacobson, supra at 238;
                                      Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992); Doe v.
                                      Stegall, supra at 184–186; see also Anonymous v. Commis-
                                      sioner, 127 T.C. at 94. 12
                                        Relatively recently, the Court of Appeals for the Second
                                      Circuit canvassed the caselaw to compile what that court
                                      described as a ‘‘non-exhaustive’’ list of 10 factors that a trial
                                      court should consider in balancing a litigant’s interest in
                                      anonymity against the public interest in disclosure and any
                                      prejudice to the opposing party:
                                      (1) whether the litigation involves matters that are ‘‘highly sensitive and
                                      [of a] personal nature’’; (2) ‘‘whether identification poses a risk of retalia-
                                      tory physical or mental harm to the . . . party [seeking to proceed anony-
                                      mously] or even more critically, to innocent non-parties’’; (3) whether
                                      identification presents other harms and the likely severity of those harms,
                                      including whether ‘‘the injury litigated against would be incurred as a
                                      result of the disclosure of the plaintiff ’s identity’’; (4) whether the plaintiff
                                      is particularly vulnerable to the possible harms of disclosure, particularly
                                      in light of his age; (5) whether the suit is challenging the actions of the
                                      government or that of private parties; (6) whether the defendant is preju-
                                      diced by allowing the plaintiff to press his claims anonymously, whether
                                      the nature of that prejudice (if any) differs at any particular stage of the
                                      litigation, and whether any prejudice can be mitigated by the district

                                        12 Any appeal of this case would likely lie with the Court of Appeals for the D.C. Circuit. See

                                      sec. 7482(b)(1) (flush language). That court, like the Supreme Court, has not expressly addressed
                                      the propriety of pseudonymous or anonymous litigation, although on occasion these courts have
                                      permitted, without comment, pseudonymous litigation to proceed. See, e.g., Roe v. Wade, 410
                                      U.S. 113 (1973); Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991); Doe v. Weinberger, 820 F.2d
                                      1275 (D.C. Cir. 1987).
                                        In Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005), writing for the District Court, Judge
                                      Lamberth observed that neither the Court of Appeals for the D.C. Circuit nor the U.S. District
                                      Court for the District of Columbia had ‘‘tackled the propriety of pseudonymous litigation head
                                      on’’. He indicated that the District Court had developed an ‘‘ad-hoc process’’, whereby the chief
                                      judge may grant leave to file a complaint under a pseudonym if the requesting litigant ‘‘makes
                                      a colorable argument in support of the request’’ and that this process serves to ‘‘get the case
                                      moving quickly, leaving the issue open to full, adverse litigation at a later date.’’ Id.




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                                      court; (7) whether the plaintiff ’s identity has thus far been kept confiden-
                                      tial; (8) whether the public’s interest in the litigation is furthered by
                                      requiring the plaintiff to disclose his identity; (9) ‘‘whether, because of the
                                      purely legal nature of the issues presented or otherwise, there is an atypi-
                                      cally weak public interest in knowing the litigants’ identities’’; and (10)
                                      whether there are any alternative mechanisms for protecting the confiden-
                                      tiality of the plaintiff. [Sealed Plaintiff v. Sealed Defendant, supra at 190;
                                      citations omitted. 13]

                                      As another court has aptly noted, the multiplicity of factors
                                      to be considered ‘‘suggests the breadth of the discretion to be
                                      exercised.’’ Doe v. Del Rio, 241 F.R.D. 154, 157 n.4 (S.D.N.Y.
                                      2006).
                                         To a significant degree, these various factors are inter-
                                      mingled and overlapping. For instance, the first three factors
                                      listed above address collectively the single most important
                                      consideration—‘‘the bases upon which disclosure is feared or
                                      sought to be avoided, and the substantiality of these bases’’.
                                      Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 506 (M.D.
                                      Pa. 2007) (and cases cited thereat), affd. in part and vacated
                                      in part on other grounds 620 F.3d 170 (3d Cir. 2010), vacated
                                      and remanded 563 U.S. ll, 131 S. Ct. 2958 (2011). That
                                      consideration is influenced, in turn, by whether the party
                                      seeking protection is particularly vulnerable (factor 4) and
                                      whether the party’s confidentiality has thus far been main-
                                      tained (factor 7). And the sufficiency of the basis asserted for
                                      anonymity also implicates societal interests (factors 8 and 9)
                                      inasmuch as it depends on whether there is a ‘‘ ‘strong social
                                      interest in concealing the identity of the plaintiff ’ ’’. Wolfchild
                                      v. United States, 62 Fed. Cl. 521, 553 (2004) (quoting Doe v.
                                      Rostker, 89 F.R.D. 158, 162 (N.D. Cal. 1981)), revd. and
                                      remanded on other grounds 559 F.3d 1228 (Fed. Cir. 2009). 14
                                         13 An additional factor sometimes mentioned by courts but not expressly included in this 10-

                                      factor list (although it might be thought to inhere in some of the listed factors) is whether either
                                      the party seeking anonymity or the opposing party is motivated by illegitimate motives. See,
                                      e.g., Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 513 (M.D. Pa. 2007) (suggesting that plain-
                                      tiffs’ request to proceed anonymously might be considered to be improperly motivated if they
                                      sought anonymity to engage in a ‘‘shell game’’ and substitute different anonymous plaintiffs; but
                                      also suggesting that seeking to intimidate plaintiffs in a manner that would discourage them
                                      from exercising their rights would be an illegitimate motive for opposing anonymity), vacated
                                      in part on other grounds 620 F.3d 170 (3d Cir. 2010), vacated and remanded 563 U.S. ll,
                                      131 S. Ct. 2958 (2011); Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 469 (E.D.
                                      Pa. 1997) (stating that improper reasons for seeking anonymity include gaining a tactical advan-
                                      tage, impairing the opposing party’s ability to defend itself, delaying litigation, and increasing
                                      costs to the opposing party).
                                         14 Further illustrating the interrelatedness of factors, one court has observed that the consid-

                                      eration of whether the suit is challenging the actions of the government or private individuals




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                                         Considering the multiplicity and interrelatedness of factors
                                      to be considered and the breadth of the trial court’s discre-
                                      tion in considering them, it is unsurprising that litigants
                                      have been permitted to proceed anonymously in a wide
                                      variety of cases.
                                           a. Highly Sensitive, Personal Information
                                        Plaintiffs are often permitted to proceed anonymously in
                                      cases involving highly personal or sensitive matters such as
                                      reproductive rights, sexual orientation or victimization, and
                                      health conditions, including mental illness, the disclosure of
                                      which might lead to stigmatization or ostracism; in such
                                      cases, no particularized showing of other specific harm is
                                      necessarily required. See, e.g., Sealed Plaintiff v. Sealed
                                      Defendant, 537 F.3d 185 (2d Cir. 2008) (physical and sexual
                                      assault); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
                                      678, 685 (11th Cir. 2001) (abortion); Doe v. U.S. Air Force,
                                      812 F.2d 738, 739 n.1 (D.C. Cir. 1987) (‘‘The district court
                                      granted plaintiff permission to file his complaint under a
                                      pseudonym because of the Air Force’s belief that he is homo-
                                      sexual.’’); Doe v. Penzato, No. 3:10–CV–05154–MEJ (N.D. Cal.,
                                      May 13, 2011) (granting motion for protective order) (sexual
                                      battery, human trafficking, and forced labor); Doe v. Hartford
                                      Life & Accident Ins. Co., 237 F.R.D. 545, 550 (D.N.J. 2006)
                                      (bipolar disorder; the court noted a ‘‘theoretical possibility’’
                                      that awareness of the illness would result in damage to the
                                      plaintiff ’s professional reputation); EW v. N.Y. Blood Ctr.,
                                      213 F.R.D. 108, 112 (E.D.N.Y. 2003) (hepatitis B from blood
                                      transfusion; ‘‘Although plaintiff has made no particularized
                                      showing of any specific harm or stigma to her caused by
                                      prosecuting the case under her own name * * * plaintiff ’s
                                      privacy concerns appear to be substantial ones’’).
                                           b. Physical Harm
                                        Another category of cases in which plaintiffs are often
                                      allowed to proceed anonymously involves situations in which
                                      disclosure of identity is deemed to pose a credible risk of
                                      physical harm. See, e.g., Doe v. Stegall, 653 F.2d at 186
                                      (factor 5 listed above) addresses primarily the potential prejudice and unfairness to private indi-
                                      viduals in being sued by anonymous individuals (see factor 6). Doe v. Frank, 951 F.2d 320, 323–
                                      324 (11th Cir. 1992).




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                                      (plaintiffs faced possible physical harm because of their
                                      espousal of unpopular religious views); United States v. Doe,
                                      655 F.2d 920, 922 (9th Cir. 1980) (disclosure of prison
                                      inmate’s identity posed a risk of ‘‘serious bodily harm’’);
                                      Anonymous v. Commissioner, 127 T.C. at 94 (in tax defi-
                                      ciency case, risk of ‘‘severe physical harm’’ to the taxpayer
                                      and family outweighed the general public interest in knowing
                                      the taxpayer’s identity); Doe v. U.S. Witness Prot. Program,
                                      221 Ct. Cl. 940, 941–942 (1979) (denying motion to dismiss)
                                      (disclosure of identities of individuals in witness protection
                                      program posed risk of ‘‘danger’’ and ‘‘risk of serious harm’’).
                                           c. Other Significant Harm
                                         There are also diverse cases in which courts have allowed
                                      litigants to proceed anonymously or pseudonymously to pro-
                                      tect them against ‘‘other harms’’ that are deemed to be suffi-
                                      ciently severe. Sealed Plaintiff v. Sealed Defendant, supra at
                                      190. In these cases the courts have ‘‘protected social, psycho-
                                      logical, and economic interests; they have not always
                                      demanded proof of threats to the plaintiff ’s physical security
                                      nor have they always required threats to privacy rights.’’
                                      Steinman, ‘‘Public Trial, Pseudonymous Parties: When
                                      Should Litigants Be Permitted To Keep Their Identities Con-
                                      fidential?’’, 37 Hastings L.J. 1, 75 (1985) (fn. ref. omitted).
                                           i. Social or Professional Stigma
                                         Some cases grant anonymity in large part because of the
                                      threat of social or professional stigma to such diverse liti-
                                      gants as attorneys and doctors suing to enjoin disciplinary
                                      proceedings, 15 a job applicant suing to protect her reputa-
                                      tion, 16 public aid recipients, 17 and a corporate defendant
                                      sued by insiders. 18 Sometimes the risk of stigma is height-
                                         15 See, e.g., Doe v. State Bar of Cal., 415 F. Supp. 308, 309 n.1 (N.D. Cal. 1976) (noting that

                                      the plaintiff attorney had been permitted to maintain his anonymity because of the possible ad-
                                      verse impact on his reputation), affd. 582 F.2d 25 (9th Cir. 1978).
                                         16 See, e.g., Doe v. U.S. Civil Serv. Commn., 483 F. Supp. 539 (S.D.N.Y. 1980) (unsuccessful

                                      job applicant for White House fellowship suing with respect to derogatory and prejudicial allega-
                                      tions in her file).
                                         17 See, e.g., Campbell v. USDA, 515 F. Supp. 1239, 1245 (D.D.C. 1981) (Social Security income

                                      applicant permitted to sue anonymously to compel promulgation of regulations ‘‘to protect sen-
                                      sitive personal information and to shield her from feared abuse and harassment from her neigh-
                                      bors, the media, and the public’’).
                                         18 See Doe v. A Corp., 709 F.2d 1043, 1044 n.1 (5th Cir. 1983) (noting with apparent approval

                                      that the District Court had granted pseudonymity ‘‘To prevent identification of the company and
                                      the possible disclosure of confidential information concerning its affairs’’).




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                                      ened because the party seeking anonymity belongs to a
                                      particularly vulnerable group, such as juveniles 19 or illegal
                                      immigrants. 20
                                           ii. Economic Retaliatory Harm
                                         Some cases permit litigants to proceed anonymously or
                                      pseudonymously to protect them against possible economic
                                      retaliatory harm. For instance, the Court of Appeals for the
                                      Ninth Circuit concluded that ‘‘extraordinary’’ economic harm
                                      justified allowing Chinese workers, employed in the Mariana
                                      Islands, to proceed pseudonymously in their suit brought
                                      under the Fair Labor Standards Act of 1938 (FLSA), ch. 676,
                                      52 Stat. 1060 (current version at 29 U.S.C. secs. 201–219
                                      (2006)). Does I Thru XXIII v. Advanced Textile Corp., 214
                                      F.3d at 1062. The Court of Appeals contrasted the ‘‘extreme
                                      nature of the retaliation’’ faced by these workers, which
                                      included termination of employment, deportation, and pos-
                                      sible arrest upon their return to China, with the con-
                                      sequences faced by ‘‘typical’’ FLSA plaintiffs, stating: ‘‘While
                                      threats of termination and blacklisting are perhaps typical
                                      methods by which employers retaliate against employees who
                                      assert their legal rights, the consequences of this ordinary
                                      retaliation to plaintiffs are extraordinary.’’ Id. at 1069, 1071;
                                      see also Gomez v. Buckeye Sugars, 60 F.R.D. 106, 106 (N.D.
                                      Ohio 1973) (permitting FLSA plaintiff employees to proceed
                                      anonymously ‘‘in order to safeguard against any possible
                                      reprisals by their employers that might result from the filing
                                      of this lawsuit.’’). But see S. Methodist Univ. Association of
                                      Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713
                                      (5th Cir. 1979) (denying anonymity for women lawyers who
                                      had joined a title VII sex discrimination suit against two law
                                      firms). 21
                                         19 See, e.g., United States v. Doe, 385 F. Supp. 902, 903 (D. Ariz. 1974) (juvenile delinquent’s

                                      identity protected because ‘‘these are juvenile proceedings’’).
                                         20 See, e.g., Lozano v. City of Hazleton, 496 F. Supp. 2d at 514 (‘‘The highly legal nature of

                                      the issues here, combined with the intense public interest and strong level of emotion connected
                                      with the issue mean that the undocumented immigrants who seek to participate in this action
                                      face extraordinary circumstances that require anonymity if they hope to proceed without facing
                                      unsupportable burdens.’’).
                                         21 The holding in S. Methodist Univ. Association of Women Law Students v. Wynne & Jaffe,

                                      599 F.2d 707, 713 (5th Cir. 1979), appears predicated partly on the court’s statement that one
                                      characteristic common to all cases affording plaintiffs anonymity was that the plaintiffs ‘‘di-
                                      vulged personal information of the utmost intimacy’’. Two years later the Court of Appeals clari-
                                      fied that its opinion in S. Methodist Univ. Association of Women Law Students did not purport
                                                                                                      Continued




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                                         In Does I Thru XXIII v. Advanced Textile Corp., supra at
                                      1068, the Court of Appeals held that in evaluating the
                                      severity of potential retaliatory action, the trial court should
                                      take into consideration, among other factors, the severity of
                                      the threatened harm, the reasonableness of the party’s fears,
                                      and the party’s vulnerability to harm. Applying this test, the
                                      Court of Federal Claims permitted Native American plain-
                                      tiffs to proceed anonymously in a Tucker Act proceeding that
                                      pitted their personal interests against the interests of the
                                      communities of which they were members. Wolfchild v.
                                      United States, 62 Fed. Cl. at 521. Citing the plaintiffs’ risk
                                      of economic harm through the loss of per capita payments
                                      and their risk of losing membership in their communities if
                                      their identities were disclosed, the court found that the
                                      threatened harm was sufficiently severe to justify their
                                      request for anonymity. Id. at 553. The court also noted that
                                      letting these plaintiffs proceed anonymously accorded with
                                      the practice of the Bureau of Indian Affairs to provide
                                      anonymity for Native Americans in membership disputes
                                      with their communities. Id. at 554.
                                         In so-called qui tam actions arising under the False Claims
                                      Act, 31 U.S.C. secs. 3729–3733 (2006), plaintiffs sometimes
                                      seek to protect their identities on the basis of feared retalia-
                                      tory harm. 22 The results have been mixed. Compare United
                                      States ex rel. Permison v. Superlative Techs., Inc., 492 F.
                                      Supp. 2d 561, 564 (E.D. Va. 2007) (in a qui tam suit against
                                      the plaintiff ’s former employer, denying a request to seal the
                                      complaint or to grant anonymity because although ‘‘fear of
                                      retaliation is not entirely implausible, it is certainly vague
                                      and hypothetical at best’’), and United States v. Bon Secours
                                      to establish the ‘‘utmost intimacy’’ consideration as a prerequisite to bringing an anonymous
                                      suit. Doe v. Stegall, 653 F.2d 180, 185–186 (5th Cir. 1981) (permitting child plaintiffs to proceed
                                      anonymously in action challenging constitutionality of religious observances in public schools).
                                      The court indicated that there was ‘‘no hard and fast formula for ascertaining whether a party
                                      may sue anonymously’’ but that the decision ‘‘requires a balancing of considerations calling for
                                      maintenance of a party’s privacy against the customary and constitutionally-embedded presump-
                                      tion of openness in judicial proceedings.’’ Id. at 186.
                                         22 ‘‘Qui tam’’ is shorthand for the Latin expression ‘‘qui tam pro domino rege quam pro se ipso

                                      in hac parte sequitur’’, meaning ‘‘who as well for the king as for himself sues in this matter’’.
                                      Black’s Law Dictionary 1368 (9th ed. 2009). Private individuals may bring qui tam actions on
                                      behalf of the United States to recover damages against persons who have submitted false or
                                      fraudulent claims to the Government. Id. Such an action allows the plaintiff to recover a portion
                                      of any money recovered by the Government in the action. 31 U.S.C. sec. 3730(d) (2006). By stat-
                                      ute, a qui tam complaint remains under seal for at least 60 days after it is filed. Id. sec.
                                      3730(b)(2).




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                                      Cottage Health Servs., 665 F. Supp. 2d 782 (E.D. Mich. 2008)
                                      (denying a qui tam plaintiff ’s request to maintain the seal in
                                      the case or alternatively to redact identifying information
                                      from the record, concluding that the plaintiff ’s fear of retalia-
                                      tion by her current or future employers was insufficient to
                                      overcome the strong presumption favoring public access to
                                      judicial records), with United States ex rel. Doe v. Boston Sci-
                                      entific Corp., No. 4:07–CV–2467 (S.D. Tex., July 2, 2009)
                                      (granting a qui tam plaintiff ’s request to keep her identity
                                      under seal until the case was resolved because the plaintiff,
                                      who was formerly employed by a medical device company
                                      that was the subject of her qui tam complaint, feared that
                                      revealing her identity would cause her husband, who worked
                                      in the same industry, to be fired and that he would be unable
                                      to obtain new employment).
                                         Despite some similarities, qui tam cases and tax whistle-
                                      blower cases differ in important ways. Unlike the False
                                      Claims Act, section 7623 includes no provision for tempo-
                                      rarily sealing the record. But see sec. 7461(b)(1) (authorizing
                                      the Tax Court to make any provision necessary to prevent
                                      the disclosure of ‘‘confidential information’’). And unlike the
                                      False Claims Act, see 31 U.S.C. sec. 3730(h) (2006), section
                                      7623 contains no antiretaliatory provisions, see infra Discus-
                                      sion, Part III.C.1.c.iii. Whereas the defendant in a qui tam
                                      case will generally be an individual or nongovernmental
                                      entity, the respondent in a tax whistleblower case will
                                      always be the Commissioner of the IRS, who is aware of the
                                      whistleblower’s identity. The subject of a tax whistleblower
                                      claim, unlike the defendant in a qui tam case, is not a party
                                      to the case and may not even be aware of the case. 23 Finally,
                                      a tax whistleblower case under section 7623(b), unlike a qui
                                      tam case, is an appeal from an administrative proceeding in
                                      which the whistleblower’s confidentiality typically will have
                                      been maintained.

                                         23 Neither sec. 7623 nor this Court’s Rules contain any express provision for notice or inter-

                                      vention with respect to the subject of a whistleblower claim in a Tax Court proceeding to review
                                      a whistleblower award determination. Cf. sec. 6015(e)(4) (providing that if an individual peti-
                                      tions the Tax Court to determine relief from joint and several liability on a joint return, the
                                      nonrequesting spouse is to receive adequate notice and an opportunity to become a party to the
                                      proceeding); Rule 325 (regarding notice and intervention by the nonpetitioning spouse in an ac-
                                      tion to determine relief from joint and several liability on a joint return).




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                                           iii. Confidential Informants
                                         Some courts have permitted confidential informants, liti-
                                      gating in that capacity, to proceed anonymously. In par-
                                      ticular, when a tax whistleblower brings an action under the
                                      Tucker Act, the Court of Federal Claims sometimes allows
                                      the claimant to proceed anonymously as a ‘‘confidential
                                      informant’’. See Confidential Informant v. United States, 46
                                      Fed. Cl. 1 (2000); Confidential Informant 92–95–932X v.
                                      United States, 45 Fed. Cl. 556 (2000). 24 Similarly, with little
                                      discussion a District Court recently affirmed a magistrate
                                      judge’s determination that a confidential informant should be
                                      allowed to proceed anonymously in an action stemming from
                                      a city’s disclosing the confidential informant’s identity to a
                                      newspaper. DKT v. City of Kokomo, 1:10–cv–00066–TWP–MJD
                                      (S.D. Ind., Feb. 17, 2011).
                                         Although not determinative of petitioner’s request to liti-
                                      gate anonymously, these cases are indicative of our legal sys-
                                      tem’s general solicitude for confidential informants. For
                                      instance, various provisions of the Internal Revenue Code
                                      generally prohibit the IRS from disclosing the identities of
                                      confidential informants. See, e.g., sec. 6103(d)(1), (h)(4), (i)(6).
                                         In addition, in court proceedings the so-called informer
                                      privilege generally permits the Government to ‘‘withhold
                                      from disclosure the identity of persons who furnish informa-
                                      tion of violations of law to officers charged with enforcement
                                      of that law.’’ Roviaro v. United States, 353 U.S. 53, 59 (1957).
                                      ‘‘The privilege recognizes the obligation of citizens to commu-
                                      nicate their knowledge of the commission of crimes to law-
                                      enforcement officials and, by preserving their anonymity,
                                      encourages them to perform that obligation.’’ 25 Id. As one
                                      court has explained, the informer privilege
                                        24 The Court of Federal Claims originally filed these decisions under seal and later made the

                                      decisions public after making redactions requested by the parties. See Confidential Informant
                                      v. United States, 46 Fed. Cl. 1, 1 (2000); Confidential Informant 92–95–932X v. United States,
                                      45 Fed. Cl. 556, 556 (2000); see also Jarvis v. United States, 43 Fed. Cl. 529 (1999) (employing
                                      a similar procedure). There is also pending in the Court of Federal Claims another such case
                                      captioned Confidential Informant 59–05071 v. United States, No. 11–153C (Fed. Cl., filed Mar.
                                      10, 2011).
                                        25 The informer privilege is not absolute but is to be balanced against fundamental require-

                                      ments of fairness and disclosure in the litigation process. Roviaro v. United States, 353 U.S. 53,
                                      60–61 (1957). Although Roviaro was a criminal case, in civil cases the doctrine of informer privi-
                                      lege may apply when it appears that the informant will be the target of retaliatory actions by
                                      the person who is the subject of the information. See, e.g., Socialist Workers Party v. Attorney
                                      Gen. (In re United States), 565 F.2d 19, 22 (2d Cir. 1977). ‘‘Indeed, there is ample authority for
                                      the proposition that the strength of the privilege is greater in civil litigation than in criminal.’’




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                                      is an ancient doctrine with its roots in the English common law, founded
                                      upon the proposition that an informer may well suffer adverse effects from
                                      the disclosure of his identity. Illustrations of how physical harm may befall
                                      one who informs can be found in the reported cases. However, the likeli-
                                      hood of physical reprisal is not a prerequisite to the invocation of the privi-
                                      lege. Often, retaliation may be expected to take more subtle forms such as
                                      economic duress, blacklisting or social ostracism. The possibility that
                                      reprisals of some sort may occur constitutes nonetheless a strong deterrent
                                      to the wholehearted cooperation of the citizenry which is a requisite of
                                      effective law enforcement.
                                         Courts have long recognized, therefore, that, to insure cooperation, the
                                      fear of reprisal must be removed and that ‘‘ ‘the most effective protection
                                      from retaliation is the anonymity of the informer.’ ’’ * * *
                                         [Socialist Workers Party v. Attorney Gen. (In re United States), 565 F.2d
                                      19, 22 (2d Cir. 1977); citations omitted; quoting Wirtz v. Contl. Fin. &
                                      Loan Co., 326 F.2d 561, 563–564 (5th Cir. 1964).]

                                         Although no privilege similar to the informer privilege
                                      shields the identities of informants who speak to private
                                      plaintiffs or their counsel (as opposed to Government
                                      counsel), courts employ a balancing test to protect confiden-
                                      tial informants in such circumstances. See Wohl, ‘‘Confiden-
                                      tial Informants in Private Litigation: Balancing Interests in
                                      Anonymity and Disclosure’’, 12 Fordham J. Corp. & Fin. L.
                                      551, 575–579 (2007). For instance, in a case brought by pri-
                                      vate individuals against a company under the Racketeer
                                      Influenced and Corrupt Organizations Act, 18 U.S.C. secs.
                                      1961–1968 (2006), the District Court denied a defendant’s
                                      motion to compel production of documents that would reveal
                                      the identities of the plaintiff ’s confidential sources within the
                                      company. Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv.
                                      Co., 151 F.R.D. 478 (D.D.C. 1993). Writing for the court,
                                      Judge Sporkin described the risks of retaliation that whistle-
                                      blowers face:
                                      The case law, academic studies, and newspaper accounts well document
                                      the kind of treatment that is usually visited upon public and private
                                      employees who speak out as a matter of conscience on issues of public con-
                                      cern. For example, a six-year study on whistleblowers by Myron Peretz
                                      Glazer and Penina Migdal Glazer details the full spectrum of management
                                      retaliation against ethical resistors who speak out against company or
                                      government policy and the long-term adverse consequences such employees
                                      can face. See, Myron Peretz Glazer and Penina Migdal Glazer, The
                                      Whistleblowers: Exposing Corruption in Government and Industry 231
                                      (1990) (study of sixty-four whistleblowers showed significant percentage

                                      Id.




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                                      ‘‘remain out of work or underemployed, bitter about their punishment, and
                                      uncertain of ever being able to restore their lives fully’’). See also, Hatha-
                                      way v. Merit Systems Protection Bd., 981 F.2d 1237 (Fed. Cir. 1992)
                                      (upholding determination by Merit Systems Protection Board that
                                      employee was threatened with removal and unsatisfactory performance
                                      because disclosure of questionable employment practices); United States
                                      Merit Systems Protection Board, Office of Systems Review and Studies,
                                      Whistleblowing and the Federal Employee: Blowing the Whistle on Fraud,
                                      Waste, and Mismanagement—Who Does It and What Happens 3 (Oct.
                                      1981) (noting that while retaliation is not universal, a significant percent-
                                      age of federal employees who reported waste or abuse felt they were
                                      adversely affected by speaking out); Matthew L. Wald, Whistleblower at
                                      Nuclear Laboratory Was Disciplined, Labor Dept. Rules, N.Y. Times, Feb.
                                      5, 1992 at A12 (describing episode where after speaking out on television,
                                      employee of government contractor was first isolated from other workers
                                      and supervisors and then transferred to [a] room containing radioactive
                                      waste).
                                         The motive for retaliation by employers is obvious:
                                      ‘‘To their detractors, whistleblowers are viewed as ‘snitchs’, ‘stool pigeons’,
                                      or ‘industrial spys’ [sic] who are willing to publicly embarrass their co-
                                      workers and their companies in order to satisfy their political, ethical,
                                      moral, or personal agendas. Such employees not only wish to hurt their
                                      companies, their detractors argue, but also wish to keep their jobs.’’ * * *
                                         [Id. at 481–482, quoting Westman, Whistleblowing: The Law of Retalia-
                                      tory Discharge vii (1991).]

                                         According to one report, as of 2007 there were 36 Federal
                                      statutes with explicit provisions to protect public and private
                                      employees who report violations of law. Wohl, supra at 557.
                                      For instance, the False Claims Act contains an
                                      antiretaliatory provision. See 31 U.S.C. sec. 3730(h). More-
                                      over, almost all the States have enacted statutes protecting
                                      employees in the public and/or private sectors who report
                                      illegal conduct. Wohl, supra at 557. In stark contrast, section
                                      7623 contains no antiretaliatory provisions.
                                         It is the IRS’ stated policy to treat tax whistleblowers as
                                      confidential informants. The Internal Revenue Manual (IRM)
                                      states: ‘‘To the extent that the IRS Whistleblower Office
                                      determines that an individual is a ‘whistleblower’ under IRC
                                      section 7623, such individual shall be deemed to be a con-
                                      fidential informant whose identity shall be protected in
                                      accordance with IRC section 6103(h)(4).’’ 6 Administration,
                                      IRM (CCH), pt. 25.2.2.11, at 223,217 (June 18, 2010). The
                                      regulations under section 7623 state: ‘‘No unauthorized per-
                                      son will be advised of the identity of an informant.’’ Sec.
                                      301.7623–1(e), Proced. & Admin. Regs. In published guidance




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                                      to the public on how to file tax whistleblower claims, the IRS
                                      states that it ‘‘will protect the identity of the claimant to the
                                      fullest extent permitted by law.’’ Notice 2008–4, sec 3.06,
                                      2008–1 C.B. 253, 255. 26
                                           2. Analysis of Petitioner’s Request for Anonymity
                                        In deciding whether petitioner should be allowed to pro-
                                      ceed anonymously, we take into account not only petitioner’s
                                      legitimate privacy interests as a confidential informant, but
                                      also the nature and severity of the specific harm asserted to
                                      arise from disclosing petitioner’s identity, and we balance
                                      that potential harm against the relevant social interests. See,
                                      e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d at 190–
                                      191; Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d
                                      at 1068; Wolfchild v. United States, 62 Fed. Cl. at 521.
                                           a. Severity of Harm
                                         Petitioner asserts that professional stigma, retaliation, and
                                      economic duress will result if petitioner’s identity is dis-
                                      closed. As suggested by the preceding discussion, fears of
                                      such harm befalling a confidential informant are reasonable
                                      although necessarily difficult of proof. As a tax whistle-
                                      blower, petitioner is especially vulnerable to such harm, we
                                      believe, considering the absence of antiretaliatory provisions
                                      in section 7623.
                                         Petitioner’s counsel represents, and respondent does not
                                      dispute, that petitioner is of an age and station in life that
                                      necessitate continued employment. The record reasonably
                                      supports the conclusion that disclosing petitioner’s identity
                                      could adversely affect not merely petitioner’s current employ-
                                      ment but also petitioner’s future employability. In particular,
                                      the record strongly suggests that petitioner acquired the
                                      information in question not by chance but rather in the
                                      normal course of employment for X and that petitioner was
                                      privy to internal deliberations and communications regarding
                                      the events that allegedly gave rise to X’s underpayment.
                                      Revealing petitioner’s status as a tax whistleblower in these
                                      circumstances would likely cause severe damage to peti-
                                        26 This notice also states that in some circumstances, such as when the claimant is needed

                                      as a witness in a judicial proceeding, it may be necessary to reveal the claimant’s identity but
                                      that the IRS will make ‘‘every effort’’ to inform the claimant before proceeding in such a case.
                                      Notice 2008–4, sec 3.06, 2008–1 C.B. 253, 255.




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                                      tioner’s standing in the professional community that provides
                                      petitioner’s customary source of livelihood and could well
                                      jeopardize petitioner’s employment.
                                         Moreover, the fact that petitioner is no longer employed by
                                      X does not immunize petitioner from the possibility of
                                      retaliation. If petitioner seeks other employment in the
                                      future, any prospective employer could require petitioner to
                                      provide names of previous employers, including X, which
                                      could jeopardize petitioner’s chances by branding petitioner a
                                      former whistleblower. Finally, petitioner may someday find it
                                      desirable or necessary to seek reemployment with X only to
                                      face retaliation as a whistleblower. See Hodgson v. Charles
                                      Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th
                                      Cir. 1972) (finding for similar reasons that an informer’s
                                      privilege was available to the Government with respect to
                                      the defendant’s former employees in a case brought under
                                      the FLSA). 27
                                         In sum, petitioner has demonstrated a risk of harm that
                                      far exceeds in severity mere embarrassment or annoyance.
                                      The retaliation, professional ostracism, and economic duress
                                      which petitioner reasonably fears are, we believe, no less
                                      severe than the harm posed to attorneys and doctors suing
                                      to enjoin disciplinary proceedings, unsuccessful job
                                      applicants suing to protect their reputation, public aid recipi-
                                      ents, or Native Americans joining in a lawsuit pitting their
                                      personal interests against those of their communities—all
                                      cases in which plaintiffs have been allowed to proceed anony-
                                      mously. See cases discussed supra Part III.C.1.c.i. and ii. But
                                      whether petitioner’s harm is sufficiently severe to justify
                                      granting petitioner’s request for anonymity depends upon
                                      additional considerations, including the social interests at
                                      stake.



                                        27 It is possible that other judicial remedies, such as claims for tortious interference with con-

                                      tract of business relations and defamation, might be available to petitioner if X were to attempt
                                      to ‘‘poison the well’’ for petitioner. See United States ex rel. Permison v. Superlative Techs., Inc.,
                                      492 F. Supp. 2d 561, 564 (E.D. Va. 2007) (commenting on possible remedies potentially available
                                      to a qui tam plaintiff for whom the antiretaliatory provisions of the False Claims Act were inap-
                                      plicable). But even these types of possible remedies would be unavailing where a prospective
                                      employer learned of petitioner’s whistleblowing from a source other than X, e.g., from this
                                      Court’s public records.




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                                           b. Social Interests
                                         The social interests at stake are mixed. On the one hand,
                                      for reasons previously discussed, there is strong social
                                      interest in protecting petitioner’s identity as a confidential
                                      informant. On the other hand, the people generally have a
                                      right to know ‘‘who is using their courts’’. Doe v. Blue Cross
                                      & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir.
                                      1997). Because we have held that respondent is entitled to
                                      summary judgment on a threshold legal issue which does not
                                      depend to any appreciable extent on petitioner’s identity, we
                                      believe that the public’s interest in knowing petitioner’s
                                      identity is relatively weak. See, e.g., Sealed Plaintiff v.
                                      Sealed Defendant, 537 F.3d at 190–191; Does I Thru XXIII
                                      v. Advanced Textile Corp., 214 F.3d at 1072–1073; Lozano v.
                                      City of Hazleton, 496 F. Supp. 2d at 512; Doe v. Del Rio, 241
                                      F.R.D. at 158 (‘‘[W]here a lawsuit * * * seeks to raise an
                                      abstract question of law that affects many similarly situated
                                      individuals, the identities of the particular parties bringing
                                      the suit may be largely irrelevant to the public concern with
                                      the nature of the process.’’); Doe v. Hartz, 52 F. Supp. 2d
                                      1027, 1046–1047 (N.D. Iowa 1999). 28
                                           c. Other Considerations
                                         The parties agree that petitioner’s identity as a whistle-
                                      blower has been kept confidential so far. There is no sugges-
                                      tion that petitioner has illegitimate motives in requesting
                                      anonymity. And because respondent already knows peti-
                                      tioner’s identity, he will not be prejudiced if petitioner pro-
                                      ceeds anonymously. He does not assert otherwise.
                                         Moreover, granting petitioner’s request for anonymity
                                      accords with the Whistleblower Office’s general administra-
                                      tive practice, as applied to petitioner, of keeping whistle-
                                      blowers’ identities confidential. See Wolfchild v. United
                                      States, 62 Fed. Cl. at 554 (citing such a consideration as a
                                      favorable factor in permitting plaintiffs to proceed anony-
                                      mously). Respondent suggests that by pursuing judicial
                                      review, petitioner has chosen to relinquish the confidentiality
                                      accorded by the Whistleblower Office. Respondent’s take-it-
                                         28 It is unnecessary for us to decide, and we do not decide, to what extent the balancing test

                                      might become more onerous for a whistleblower seeking anonymity in a case in which the whis-
                                      tleblower’s identity were of greater public interest.




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                                      or-leave-it approach to confidentiality improperly minimizes
                                      the practical value of judicial review, which is an integral
                                      part of the scheme under section 7623(b). Respondent’s
                                      approach, which we cannot say is disinterested, would con-
                                      front claimants with a dilemma of either forfeiting confiden-
                                      tiality to seek judicial review or forfeiting judicial review.
                                      The likely upshot would be a chilling effect on some claim-
                                      ants who have a compelling need to proceed anonymously.
                                      This result would be at odds with the ostensible legislative
                                      purpose of encouraging tax whistleblower claims and pro-
                                      moting public confidence, through judicial oversight, in the
                                      administration of the tax whistleblower award program.
                                           3. Conclusion: Granting Petitioner Anonymity
                                         We conclude that granting petitioner’s request for ano-
                                      nymity strikes a reasonable balance between petitioner’s pri-
                                      vacy interests as a confidential informant and the relevant
                                      social interests, taking into account the nature and severity
                                      of the asserted harm from revealing petitioner’s identity and
                                      the relatively weak public interest in knowing petitioner’s
                                      identity. Consequently, pursuant to section 7461(b)(1) and
                                      Rule 103(a) we shall permit petitioner to proceed, effectively
                                      anonymously, as a ‘‘whistleblower’’. 29
                                         In furtherance of this decision, we shall order the parties
                                      to redact from the existing record and from any future
                                      submissions any information that would tend to reveal peti-
                                      tioner’s identity. Furthermore, because of concerns that
                                      revealing X’s identity could enable petitioner’s identity to be
                                      deduced, we shall also order the parties to redact from the
                                      record X’s name and any identifying information regarding
                                      X. 30
                                           D. Denying Petitioner’s Motion To Seal the Record
                                       We believe that permitting petitioner to proceed anony-
                                      mously and requiring redaction of identifying information
                                         29 We do not mean to suggest that this balancing test would or should necessarily result in

                                      anonymity for all tax whistleblowers in this Court. Ultimately, absent any legislative directive
                                      to the contrary, each request to proceed anonymously must stand upon its own.
                                         30 Such redactions should encompass those mandated by Rule 27 as well as any additional

                                      redactions necessary and appropriate to protect the identity of petitioner and conceal the iden-
                                      tity of X. We do not consider in this case the extent, if any, to which the identity of the subject
                                      of a whistleblower claim should be protected in a case in which disclosing the subject’s identity
                                      would not tend to jeopardize the whistleblower’s legitimate privacy interests.




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                                      under the measures just described will adequately protect
                                      petitioner’s legitimate privacy interests without the need to
                                      seal the record, thereby preserving in large measure the
                                      public’s ability to follow the legal proceedings in this case.
                                      Consequently, we shall deny petitioner’s motion to seal the
                                      record. 31
                                        To reflect the foregoing,
                                                                     An appropriate order will be issued, and
                                                                   order and decision will be entered for
                                                                   respondent.
                                       Reviewed by the Court.
                                       COLVIN, COHEN, VASQUEZ, GOEKE, WHERRY, KROUPA,
                                      GUSTAFSON, PARIS, and MORRISON, JJ., agree with this
                                      majority opinion.



                                        HALPERN, J., concurring: ‘‘Snitches get stitches.’’ No doubt
                                      we can infer Congress’ awareness of that old piece of advice
                                      when it provided a public forum (the Tax Court) in which a
                                      whistleblower might seek review of her claim that the
                                      Commissioner erred in not paying her for fingering a tax
                                      cheat or detecting someone’s underpayment of tax. While the
                                      majority has done an admirable job in assembling the law
                                      regarding confidentiality, I do not believe that it has ade-
                                      quately considered whether, in the face of Congress’ choice of
                                      a public forum for such actions, we should craft what
                                      amounts to a rule of law shielding whistleblowers still in the
                                      workforce from identification.
                                        The evidence the majority relies on to support its conclu-
                                      sion that identifying petitioner could adversely affect her 1
                                      employment prospects is petitioner’s affidavit that her
                                      present employer, and any prospective employer, would not
                                      want to employ someone known to be a snitch. Majority op.
                                      pp. 185, 203–204. That conclusion seems correct, but not
                                      because petitioner has proven that she, particularly, among
                                      whistleblowers remaining in the workforce, would face
                                      employment discrimination were we to reveal her identity,
                                        31 We shall not lift the temporary seal, however, until after the parties have been provided

                                      an opportunity to redact the record pursuant to the Court’s order.
                                        1 I use feminine personal pronouns as a convenience with no intent to identify petitioner’s gen-

                                      der.




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                                      but because her claim rings true, as a matter of common
                                      sense, for all whistleblowers remaining in the workforce
                                      whose identity is revealed. While the majority suggests that
                                      the public’s interest in knowing a whistleblower’s identity
                                      might be stronger in a case, unlike this one, that is not dis-
                                      posed of on respondent’s motion for summary judgment, the
                                      majority has identified a class of whistleblowers (those in the
                                      workforce) whose requests for anonymity would, I assume
                                      (following the majority’s opinion), be granted, at least in the
                                      early stages of a case. 2 Without contradicting this case, what
                                      additional evidence might we demand of the next whistle-
                                      blower coming before us, expressing a genuine fear of
                                      employment discrimination, and asking for at least tem-
                                      porary anonymity?
                                         The privacy protections afforded by statute to those partici-
                                      pating in, or affected by, whistleblower actions may be inad-
                                      equate. For instance, the National Taxpayer Advocate rec-
                                      ommended to Congress in 2010 that it amend the Internal
                                      Revenue Code to require redaction of third-party return
                                      information in administrative and judicial proceedings
                                      relating to whistleblower claims. National Taxpayer Advo-
                                      cate, 2010 Annual Report to Congress 396–399 (2010) (Legis-
                                      lative Recommendation: Protect Taxpayer Privacy in Whistle-
                                      blower Cases). One could argue that Congress intended
                                      whistleblowers to bear the privacy risks inherent in asking
                                      for review of their whistleblower claims in a public forum
                                      (the Tax Court). But if Congress did not intend that, and
                                      because we are writing a rule rather than disposing of a
                                      single case, I think it best we leave the fix to Congress.
                                         I have concurred in the result in this case because I think
                                      that we should give whistleblowers contemplating a section
                                      7623(b)(4) action fair notice that we will not automatically
                                      grant anonymity upon a claim of possible employment
                                      discrimination. Were we to decide this case as I would,
                                      dissatisfied whistleblowers with a fear of employment
                                      discrimination would, before filing a petition with the Court,
                                      weigh the expected dollar return from commencing a section
                                      7623(b)(4) action against the expected cost (measured in dol-
                                      lars) of the disadvantages associated with the public disclo-
                                        2 That is because the risk of identification as a whistleblower and, thus, the risk of employ-

                                      ment discrimination, exists from the beginning of a case, since, as an administrative matter,
                                      to identify whistleblower cases, we add to the docket number of each such case the letter ‘‘W’’.




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                                      sure of information that ordinarily becomes part of the case
                                      file and the public record in a Tax Court case. Some whistle-
                                      blowers may find that the expected costs outweigh the
                                      expected benefits. 3 Until (and unless) Congress acts, I
                                      believe that is the best we can offer.
                                         WHERRY and HOLMES, JJ., agree with this concurring
                                      opinion.

                                                                               f




                                        3 I do not, however, rule out anonymity upon a sufficient, fact-specific showing. See, e.g., Anon-

                                      ymous v. Commissioner, 127 T.C. 89 (2006).




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