Appeals Court Affirms Whistleblower’s Right to Anonymity
Washington, D.C., July 29, 2019. In a precedent-setting decision, the U.S. Court of Appeals for the District of Columbia Circuit, affirmed the right of a whistleblower to remain anonymous when his or her filing a court case. In its July 26, 2019, unanimous ruling, the Court of Appeals reversed a decision of the Tax Court which had refused to let a whistleblower file his appeal anonymously.
The appeals court ruling will have a precedential impact on a wide variety of whistleblower and qui tam cases, including appeals in Dodd-Frank Act cases alleging securities fraud and violations of the Foreign Corrupt Practices Act.
“The court got it right,” said Stephen M. Kohn, a partner in the qui tam law firm of Kohn, Kohn and Colapinto. Kohn, who also serves as Chairman of the Board of Directors of the National Whistleblower Center, added “the ability to proceed anonymously is critical in protecting whistleblowers. If your employer does not know who the whistleblower is, they cannot retaliate.”
The U.S. Court of Appeals for the District of Columbia Circuit held that “the appropriate way to determine whether a litigant may proceed anonymously is to balance the litigant’s legitimate interest in anonymity against countervailing interests in full disclosure.” The Court identified a five-part test to evaluate whistleblower requests for anonymity:
• “whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature;”
• “whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;”
• “the ages of the persons whose privacy interests are sought to be protected;”
• “whether the action is against a governmental or private party; and, relatedly,”
• “The risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.”
“This is a major victory for whistleblowers. It is a precedent that should permit numerous whistleblower to protect their identity.” Kohn said.