183

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 whistleblower 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 information. R denied P’s claim on the basis that an award determination 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 

184 137 UNITED STATES TAX COURT REPORTS (183) 

1The 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. 

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 summary 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 commenced. Held, further, because P failed to meet the threshold 

requirements for a whistleblower award, R’s motion for summary 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 parties 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 legitimate 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 petitioner’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 underVerDate 0ct 09 2002 10:39 Jun 05, 2013 Jkt 372897 PO 20009 Frm 00002 Fmt 2847 Sfmt 2847 V:\FILES\WHISTLE.137 SHEILA
(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 185

3Without objection, petitioner’s affidavit was received into evidence as petitioner’s testimony. 

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 Whistleblower 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 petitioned 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, petitioner 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. 

186 137 UNITED STATES TAX COURT REPORTS (183) 

4The pre-2006 version of the tax whistleblower law, former sec. 7623, survives with minor 

changes as sec. 7623(a). 

5To 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). 

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 summary judgment. On July 6, 2011, petitioner filed an opposition to the granting of respondent’s motion for summary 

judgment. Neither party has requested a hearing on respondent’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 Whistleblower/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 various 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 substantive law on which to predicate’’ jurisdiction of the Court 

of Federal Claims). 6 This situation changed with the enactment of section 7623(b)(4), which provides that the Tax Court 

(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 Whistleblower Office denying a claim on the grounds that no award 

determination could be made under section 7623(b) constitutes 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 judgment because petitioner does not meet the threshold requirements 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 personnel, 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 

188 137 UNITED STATES TAX COURT REPORTS (183) 

7 Rule 121(e) provides: 

When Affidavits Are Unavailable: If it appears from the affidavits of a party opposing the motion [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 affidavits 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. 

suggests that respondent’s motion is premature because petitioner’s motion for a protective order is still pending and 

because formal discovery has not yet commenced. We disagree that respondent’s motion for summary judgment is premature. Pursuant to Rule 121(a) a party may move for summary 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 interrogatories, depositions, admissions, and other acceptable materials, 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 petitioner’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 disputed. 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 something.’’ 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 possession by movant of ‘certain information’ and ‘other evidence’, 

(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 summary 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 administrative 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 judgment, these preconditions for an award have not been met. 

Consequently, we shall grant respondent’s motion for summary judgment. 

III. Petitioner’s Motion for a Protective Order

Although we have held that respondent is entitled to summary 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 confidential 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. 

190 137 UNITED STATES TAX COURT REPORTS (183) 

8The 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). 

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 provision which is necessary to prevent the disclosure of trade 

secrets or other confidential information, including a provision 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 disclosed 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 possession. 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 

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 191

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, provide 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. 

10The 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/ConferencelApproveslStandardslProcedureslForlSealinglCivillCases.aspx. 

a petitioner to proceed anonymously. Anonymous v. Commissioner, 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 Procedure, relating to tax whistleblower actions, this Court 

observed that in appropriate cases it might permit a petitioner 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 anonymously 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 anonymously. 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 necVerDate 0ct 09 2002 10:39 Jun 05, 2013 Jkt 372897 PO 20009 Frm 00009 Fmt 2847 Sfmt 2847 V:\FILES\WHISTLE.137 SHEILA
192 137 UNITED STATES TAX COURT REPORTS (183) 

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., Anonymous 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). 

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 anonymously 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’ identities are public information. 11 See Anonymous v. Commissioner, supra at 94; Anonymous v. Commissioner, T.C. Memo. 

2010–87. In these deficiency cases the taxpayers demonstrated risks of severe physical harm if their identities 

were revealed. No court has previously considered the circumstances under which tax whistleblower suits under section 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. 

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 193

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.

Seven Courts of Appeals have adopted or endorsed multifactor tests to govern the trial court’s exercise of discretion 

in determining whether litigation should be permitted to proceed 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. Commissioner, 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 retaliatory physical or mental harm to the . . . party [seeking to proceed anonymously] 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 prejudiced 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 

194 137 UNITED STATES TAX COURT REPORTS (183) 

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 plaintiffs’ 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 advantage, impairing the opposing party’s ability to defend itself, delaying litigation, and increasing 

costs to the opposing party). 

14Further illustrating the interrelatedness of factors, one court has observed that the consideration of whether the suit is challenging the actions of the government or private individuals 

court; (7) whether the plaintiff ’s identity has thus far been kept confidential; (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 atypically weak public interest in knowing the litigants’ identities’’; and (10) 

whether there are any alternative mechanisms for protecting the confidentiality 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 intermingled 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 maintained (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

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 195

(factor 5 listed above) addresses primarily the potential prejudice and unfairness to private individuals in being sued by anonymous individuals (see factor 6). Doe v. Frank, 951 F.2d 320, 323–

324 (11th Cir. 1992). 

Considering the multiplicity and interrelatedness of factors 

to be considered and the breadth of the trial court’s discretion 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 homosexual.’’); 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 

196 137 UNITED STATES TAX COURT REPORTS (183) 

15See, 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 adverse impact on his reputation), affd. 582 F.2d 25 (9th Cir. 1978). 16See, 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 allegations in her file). 17See, 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 sensitive personal information and to shield her from feared abuse and harassment from her neighbors, the media, and the public’’). 18See 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’’). 

(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 deficiency 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 protect them against ‘‘other harms’’ that are deemed to be sufficiently severe. Sealed Plaintiff v. Sealed Defendant, supra at 

190. In these cases the courts have ‘‘protected social, psychological, 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 Confidential?’’, 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 litigants as attorneys and doctors suing to enjoin disciplinary 

proceedings, 15 a job applicant suing to protect her reputation, 16 public aid recipients, 17 and a corporate defendant 

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(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 197

19See, e.g., United States v. Doe, 385 F. Supp. 902, 903 (D. Ariz. 1974) (juvenile delinquent’s 

identity protected because ‘‘these are juvenile proceedings’’). 20See, 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.’’). 

21The 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 ‘‘divulged personal information of the utmost intimacy’’. Two years later the Court of Appeals clarified that its opinion in S. Methodist Univ. Association of Women Law Students did not purport 

Continued

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 possible arrest upon their return to China, with the consequences 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

198 137 UNITED STATES TAX COURT REPORTS (183) 

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 presumption 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 statute, a qui tam complaint remains under seal for at least 60 days after it is filed. Id. sec. 

3730(b)(2). 

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 plaintiffs 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 retaliatory 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 

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 199

23 Neither sec. 7623 nor this Court’s Rules contain any express provision for notice or intervention 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 petitions 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 action to determine relief from joint and several liability on a joint return).

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 retaliation 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 Scientific 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 whistleblower cases differ in important ways. Unlike the False 

Claims Act, section 7623 includes no provision for temporarily 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 Discussion, 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. 

200 137 UNITED STATES TAX COURT REPORTS (183) 

24The 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). 25The informer privilege is not absolute but is to be balanced against fundamental requirements 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 privilege 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.’’ 

iii. Confidential Informants

Some courts have permitted confidential informants, litigating in that capacity, to proceed anonymously. In particular, 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 litigate anonymously, these cases are indicative of our legal system’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 information 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 communicate their knowledge of the commission of crimes to lawenforcement officials and, by preserving their anonymity, 

encourages them to perform that obligation.’’ 25 Id. As one 

court has explained, the informer privilege 

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 201

Id.

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 likelihood of physical reprisal is not a prerequisite to the invocation of the privilege. 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 confidential informants in such circumstances. See Wohl, ‘‘Confidential 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 private 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 whistleblowers 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 concern. 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 

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, Hathaway 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 percentage 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 coworkers 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 Retaliatory 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). Moreover, 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 confidential 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 person will be advised of the identity of an informant.’’ Sec. 

301.7623–1(e), Proced. & Admin. Regs. In published guidance 

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 203

26This 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. 

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 proceed 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 disclosed. As suggested by the preceding discussion, fears of 

such harm befalling a confidential informant are reasonable 

although necessarily difficult of proof. As a tax whistleblower, 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 employment 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 

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204 137 UNITED STATES TAX COURT REPORTS (183) 

27 It is possible that other judicial remedies, such as claims for tortious interference with contract 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 inapplicable). 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. 

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 recipients, 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 anonymously. 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.

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 205

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 whistleblower’s identity were of greater public interest. 

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 whistleblower has been kept confidential so far. There is no suggestion that petitioner has illegitimate motives in requesting 

anonymity. And because respondent already knows petitioner’s identity, he will not be prejudiced if petitioner proceeds anonymously. He does not assert otherwise. 

Moreover, granting petitioner’s request for anonymity 

accords with the Whistleblower Office’s general administrative practice, as applied to petitioner, of keeping whistleblowers’ 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 anonymously). Respondent suggests that by pursuing judicial 

review, petitioner has chosen to relinquish the confidentiality 

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206 137 UNITED STATES TAX COURT REPORTS (183) 

29We 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. 

30Such 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 identity 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. 

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 confront claimants with a dilemma of either forfeiting confidentiality to seek judicial review or forfeiting judicial review. 

The likely upshot would be a chilling effect on some claimants 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 promoting 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 anonymity strikes a reasonable balance between petitioner’s privacy 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 petitioner’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 anonymously and requiring redaction of identifying information 

(183) WHISTLEBLOWER 14106–10W v. COMMISSIONER 207

31We 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 gender. 

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 adequately 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 conclusion 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, 

208 137 UNITED STATES TAX COURT REPORTS (183) 

2That is because the risk of identification as a whistleblower and, thus, the risk of employment 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’’. 

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 disposed 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 whistleblower coming before us, expressing a genuine fear of 

employment discrimination, and asking for at least temporary anonymity? 

The privacy protections afforded by statute to those participating in, or affected by, whistleblower actions may be inadequate. For instance, the National Taxpayer Advocate recommended 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 Advocate, 2010 Annual Report to Congress 396–399 (2010) (Legislative Recommendation: Protect Taxpayer Privacy in Whistleblower 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 dollars) of the disadvantages associated with the public discloVerDate 0ct 09 2002 10:39 Jun 05, 2013 Jkt 372897 PO 20009 Frm 00026 Fmt 2847 Sfmt 2847 V:\FILES\WHISTLE.137 SHEILA
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3 I do not, however, rule out anonymity upon a sufficient, fact-specific showing. See, e.g., Anonymous v. Commissioner, 127 T.C. 89 (2006). 

sure of information that ordinarily becomes part of the case 

file and the public record in a Tax Court case. Some whistleblowers 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