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Free Speech

Publius Publicola Must Make His Identity Public

to continue with his appeal, holds the Second Circuit; because he didn't do so, the appeal was dismissed.


From Publicola v. Lomenzo, decided today by the Second Circuit (Judges Robert Sack, Richard Sullivan, and Eunice Lee):

Appellant, proceeding pro se and under the pseudonym "Publius Publicola," appeals from the district court's judgment (1) denying his motion to proceed under a pseudonym and (2) dismissing his claims under 42 U.S.C. § 1983 against various state and municipal officials and agencies for actions they took in response to his efforts to seal records pertaining to criminal cases from his youth. In this appeal, Appellant has signed his briefs and other submissions to the Court using a pseudonym, without either obtaining the Court's authorization to do so or clearly disclosing his identity to the Court. After the Court ordered him to refile his briefs under his real name, with leave to request filing under seal should circumstances justify the filing of a redacted version on the public docket, Appellant submitted a letter indicating his refusal to comply with the Court's order.

In light of Appellant's letter, we are tasked primarily with deciding (1) whether a litigant may comply with Federal Rule of Appellate Procedure 32(d)—which requires that "[e]very brief, motion, or other paper filed with the [C]ourt [of Appeals] must be signed by the party filing the paper"—by signing his submissions under a pseudonym; and (2) whether a pro se appellant's failure to comply with that requirement warrants dismissal of his appeal. We conclude that, because papers signed under a pseudonym cannot adequately "ensure[] that a readily identifiable attorney or party takes responsibility for every paper," they do not satisfy Rule 32(d). We further conclude that under Rule 3(a)(2) and our precedents emphasizing the obligation of pro se litigants to comply with Court orders, dismissal is warranted here….

Appellant was raised in the Town of Penfield, New York. As a youth, he was named in six cases in Penfield Town Court, involving traffic, criminal, and other unspecified violations. In 2015, Appellant—then an adult—submitted a request in Penfield Town Court for the records of these cases. After receiving the records, he "became … concerned" that "some of the[se] cases were not properly sealed pursuant to [New York Criminal Procedure Law sections] 160.50 and 160.55." In 2017, he filed six motions in Penfield Town Court to seal each of the cases. On February 13, 2018, Penfield Town Justice John Lomenzo issued an order denying all six of Appellant's motions. Town Justice Lomenzo then sent a copy of that order, which included Appellant's full name, to the New York State Law Reporting Bureau (the "NYSLRB"), which accepted it for publication in the New York Miscellaneous Court Reports. The order was subsequently republished on Thomson Reuters Westlaw and other third-party legal databases….

In May 2018, Appellant contacted the NYSLRB to express his displeasure over the order's publication. The NYSLRB responded with a letter explaining that any request to remove the order from the Miscellaneous Reports and third-party legal databases would need to be made directly to the judge who issued it. About a week later, Appellant filed a new motion in Penfield Town Court, seeking to have the February 13, 2018 order "unpublish[ed]" and renewing his request that the underlying records be sealed. Town Justice Lomenzo promptly denied this motion, whereupon Appellant appealed to the Monroe County Court.

Although Appellant states that he never received a copy of the appellate decision issued by the Monroe County Court, he nonetheless asserts that "it is obvious"—from the fact that "[Town Justice] Lomenzo's February 13, 2018 order continues to be published"—that the Monroe County Court's "purported [decision] did not grant the relief sought." Likewise, in response to an anonymous request that Appellant made pursuant to New York's Freedom of Information Law, the NYSLRB released copies of the February 13, 2018 order containing his full name, email address, and mailing address….

Publicola sued in federal court, claiming "that the Defendants had violated (and conspired to deprive him of) his First Amendment rights to free speech and to petition for redress of grievances, and his Fourteenth Amendment rights to due process and equal protection." But the district court rejected the claims, and also held that Publicola couldn't proceed under a pseudonym; and the court of appeals held that Publicola couldn't pursue his appeal pseudonymously:

[C]ourt filings must disclose the identity of the filer. See Fed. R. App. P. 32(d) ("Every brief, motion, or other paper filed with the [C]ourt [of Appeals] must be signed by the party filing the paper or, if the party is represented, by one of the party's attorneys."); Fed. R. Civ. P. 11(a) (requiring same, for "[e]very pleading, written motion, and other paper" filed in district court); see also Fed. R. Civ. P. 10(a) (requiring that "the complaint must name all the parties").

"This requirement, though seemingly pedestrian, serves" several "vital purpose[s]." For starters, it "facilitat[es] public scrutiny of judicial proceedings" and the public's "right to know who is using their courts." It also serves to "ensure[] that a readily identifiable attorney or party takes responsibility for every paper," thus enabling the Court to exercise its "authority to sanction attorneys and parties who file papers that contain misleading or frivolous assertions." Fed. R. App. P. 32(d), Advisory Comm. note to 2002 amend. Moreover, the Court cannot fulfill its statutory obligations to check for conflicts of interest, or to "give … preclusive effect to … state-court judgment[s]" in suits "between the same parties," without knowing the true "identity of [the] parties" at the outset of a case. "[T]herefore," the "general requirement of disclosure of the names of parties" cannot "be set aside lightly." …

We emphasized in Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008) that "the general requirement of disclosure of the names of parties" is subject only to "a limited number of exceptions" and "cannot be set aside lightly." There, we vacated the district court's order only because that court "appear[ed] to have [erroneously] believed itself strictly bound by the requirement of [Federal] Rule [of Civil Procedure] 10(a) that the title of a complaint include the names of 'all the parties' and did not balance [the] plaintiff's interest in proceeding anonymously against the interests of [the] defendants and the public." Here, by contrast, we are fully aware of the "limited … exceptions to the general requirement of disclosure of the names of parties," and recognize that if Appellant had asked us for such an "exception[]" from Rule 32(d), we would then need to "weigh[] [his] need for anonymity against countervailing interests in full disclosure." But Appellant has never made such a request in this Court.

Finally, Appellant points to D.S. v. City of Peekskill (2d Cir. 2014), as an example of a case in which "this Court did not require the Plaintiff-Appellant to disclose his real name and instead, he proceeded using initials." But D.S. is distinguishable from this case in two critical respects. First, while the litigant in D.S. "fil[ed] []his complaint under a pseudonym to preserve his anonymity in publicly available court records[,] … his identity [was] disclosed privately to … the Court and the defendants." Here, by contrast, Appellant has never disclosed his identity to this Court.

Second, the appellate briefs for the pseudonymous litigant in D.S. were signed under his attorney's full name. As such, they satisfied Rule 32(d)'s requirement "that a readily identifiable attorney or party takes responsibility for every paper [filed in this Court]." Here, as discussed above, Appellant has not satisfied that requirement….

For whatever it's worth, here's what the Feb. 13, 2018 decision says about Publicola's original misdeeds and alleged misdeeds:

On July 4, 2005 the defendant was arrested and charged in an Information with Harassment in the Second Degree and Disorderly Conduct, both violation grade offenses. He was also charged in a separate Information with Obstructing Governmental Administration, a class A misdemeanor. The allegations were that during a physical altercation with another individual in the presence of a large crowd during the evening of the Independence Day fireworks display in a local park, the defendant became physically violent with a deputy sheriff who was trying to remove him from the altercation. The defendant pled guilty to disorderly conduct on October 26, 2005 in satisfaction of both violations. He was sentenced to a one-year conditional discharge, eight hours of community service and a surcharge of $100.00. The defendant completed his sentence. On the same date the obstructing charge was dismissed….

On August 7, 2005 the defendant was arrested and charged in an Information with Harassment in the Second Degree, a violation. On October 26, 2005 the matter was adjourned in contemplation of dismissal for a period of one year….

On October 17, 2005 the defendant was charged by way of an Information with violating Alcoholic Beverage Control Law … 65–c, by being in possession of a bottle of beer with intent to consume. No other charges were leveled against him on that date. On November 23, 2005 the defendant pled guilty as charged and was sentenced to a fine of $50.00 which he paid….

Thanks to Alan Kabat for the pointer.