Judges: THORNTON,COLVIN,COHEN,VASQUEZ,GOEKE,WHERRY,KROUPA,GUSTAFSON,PARIS,MORRISON,HALPERN,HOLMES,WHERRY
Attorneys: , 1 The name of petitioner's counsel has been omitted in furtherance of protecting petitioner's identity. for petitioner. David A. Ingold and Ruth Mary Spadaro , for respondent.
Filed: Dec. 08, 2011
Latest Update: Nov. 21, 2020
Summary: 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 dete
Summary: 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..
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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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184 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 185
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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186 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 187
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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188 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 189
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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190 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 191
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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192 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 193
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. 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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194 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 195
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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196 137 UNITED STATES TAX COURT REPORTS (183)
(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. 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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 197
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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198 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 199
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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200 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 201
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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202 137 UNITED STATES TAX COURT REPORTS (183)
‘‘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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 203
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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204 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 205
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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206 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 207
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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208 137 UNITED STATES TAX COURT REPORTS (183)
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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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 209
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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