Standards of Appellate Review, Pseudonymous Litigation, and the Need for the Supreme Court to Step in

As I mentioned earlier this week, I thought I’d pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ., which deals with when parties can litigate as John or Jane Does. This closing Part explains why the Supreme Court’s review is especially important in light of how appellate courts review district court decisions in this area.

[III.] If this Court does not act, inconsistent pseudonymity determinations will continue

The inconsistency among district court decisions is unlikely to be solved by the circuit courts, particularly because the circuits review the trial court’s conclusion only for abuse of discretion. See, e.g., MIT, 46 F.4th at 66 (1st Cir); Pilcher, 950 F.3d at 41-42 (2d Cir.); Megless, 654 F.3d at 407 (3d Cir.); Doe v. Sidar, 93 F.4th 241, 247-48 (4th Cir. 2024); Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016); Pet. 8a, 10a (7th Cir.); Cajune v. Indep. Sch. Dist. 194, 105 F.4th 1070, 1078 (8th Cir. 2024); Doe v. Kamehameha Sch., 596 F.3d 1036, 1046 (9th Cir. 2010); M.M. v. Zavaras, 139 F.3d 798, 804 (10th Cir. 1998); Frank, 951 F.2d at 323 (11th Cir.); In re Sealed Case, 931 F.3d at 96 (D.C. Cir.).

Because of the lack of de novo review in such cases, there is little opportunity for the “evolutionary process of common-law adjudication” that “give[s] meaning” to legal rules, Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502 (1984). Instead of marking out two zones—where pseudonymity should be granted and when it should be denied—an abuse of discretion standard leads the Courts of Appeals to mark out three areas: (1) pseudonymity requests that any reasonable judge would grant; (2) pseudonymity requests that any reasonable judge would deny; and (3) pseudonymity requests on which reasonable judges could disagree.

Many pseudonymity determinations fall within that third category. See, e.g., Megless, 654 F.3d at 407 (“We will not interfere … unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.”) (cleaned up); MIT, 46 F.4th at 70 (same); Cajune, 105 F.4th at 1078 (same). Under abuse of discretion review, circuit courts allow “‘a zone of choice within which’ the district court ‘may go either way.’” In re Chiquita Brands Int’l, Inc., 965 F.3d 1238, 1246 (11th Cir. 2020). Yet future courts and litigants derive little value from a precedent saying, in effect, that a court may go either way. And that is especially so when that disagreement concerns the output of vaguely delineated standards that “are not the crown jewels of multifactor tests.” Doe v. Pa. Dep’t of Corr., No. 19-cv-01584, 2019 WL 5683437, *2 (M.D. Pa. Nov. 1, 2019).

This is thus not an area like, for instance, First Amendment or Fourth Amendment law, where the doctrine is likely to be clarified by appellate decisions that apply independent appellate review. See Bose, 466 U.S. at 499, 505 (concluding that independent appellate review in First Amendment cases lets courts set precedents that “confine the perimeters of any unprotected category within acceptably narrow limits”); Ornelas v. United States, 517 U.S. 690, 697-98 (1996) (concluding that “independent appellate review” of Fourth Amendment probable cause determinations means that “even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject”). Only a precedent from this Court providing some guidelines for decisions about whether to permit pseudonymity can potentially yield the clarity and consistency that this field requires.

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