22-795 Publicola v. Lomenzo
United States Court of Appeals For the Second Circuit
August Term 2022
Argued: November 14, 2022 Decided: November 29, 2022
No. 22-795
PUBLIUS PUBLICOLA,
Plaintiff-Appellant,
v.
JOHN LOMENZO, TOWN OF PENFIELD, JOSEPH VALENTINO, DOUGLAS RANDALL, DESTINI BOWMAN, KAREN BAILEY TURNER, CRAIG DORAN, WILLIAM HOOKS, CARA BROUSSEAU, NEW YORK STATE LAW REPORTING BUREAU, SHAWN KERBY, NANCY BARRY,
Defendants-Appellees. *
Appeal from the United States District Court for the Northern District of New York No. 21-cv-1303, David N. Hurd, Judge.
Before: SACK, SULLIVAN, and LEE, Circuit Judges.
Appellant, proceeding pro se and under the pseudonym “Publius Publicola,” appeals from the district court’s judgment (1) denying his motion to
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. 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,” Fed. R. App. P. 32(d), Advisory Comm. note to 2002 amend. (emphasis added), 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.
As a result, we DISMISS the appeal.
APPEAL DISMISSED.
Publius Publicola, pro se, Jersey City, NJ, for Plaintiff-Appellant.
JAMES A. RESILA, Schwab & Gasparini, PLLC, Albany, NY, for Defendants-Appellees Lomenzo and Town of Penfield.
2 Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, Alexandria Twinem, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, Albany, NY, for Defendants-Appellees Valentino, Randall, Bowman, Turner, Doran, Hooks, Brousseau, Kerby, Barry, and New York State Law Reporting Bureau.
PER CURIAM:
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.
3 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,” Fed. R. App. P. 32(d), Advisory Comm. note to 2002 amend. (emphasis
added), 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.
I. BACKGROUND
A. Facts
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
4 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.” Suppl. App’x at 21. 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. Id. at 41. Town Justice Lomenzo promptly
denied this motion, whereupon Appellant appealed to the Monroe County Court.
5 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.” Id. at 68. Likewise, in response to an anonymous request
that Appellant made pursuant to New York’s Freedom of Information Law, N.Y.
Pub. Off. Law § 87 et seq., the NYSLRB released copies of the February 13, 2018
order containing his full name, email address, and mailing address.
B. Proceedings Below
In December 2021, Appellant commenced this action under 42 U.S.C. § 1983
against the Town of Penfield, the NYSLRB, current and former judges of the
Penfield Town Court and Monroe County Court, law clerks of the Monroe County
Court, and officers and employees of the NYSLRB (collectively, the “Defendants”).
Specifically, Appellant alleged 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. Shortly after filing his complaint, Appellant also moved to
proceed under a pseudonym. In April 2022, the district court issued an order
(1) denying his motion to proceed under a pseudonym; and (2) dismissing all of
6 Appellant’s claims both for failure to state a claim and as barred by the Rooker-
Feldman doctrine, various immunity doctrines, and/or the applicable statutes of
limitations.
Appellant timely appealed.
C. Prior Proceedings in this Court
In this Court, Appellant has filed his briefs, appendix, and other
submissions under the pseudonym “Publius Publicola.” On November 2, 2022,
the Court issued an order directing Appellant to “refile his briefs under his real
name,” as required under Rule 32(d) of the Federal Rules of Appellate Procedure.
Doc. No. 104 at 1. That order also provided that “[u]pon refiling, Appellant may
seek permission from the Court to file compliant copies of his briefs under seal in
order to preserve his anonymity.” Id. On November 9, 2022, Appellant filed a
letter stating that he “will not comply with [the Court’s] order.” Doc. No. 109 at 3.
II. STANDARD OF REVIEW
We “liberally construe pleadings and briefs submitted by pro se litigants,
reading such submissions to raise the strongest arguments they suggest.” McLeod
v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation
marks omitted). But “while pro se litigants may in general deserve more lenient
treatment than those represented by counsel, all litigants, including [those
7 proceeding] pro se[], have an obligation to comply with [this] [C]ourt[’s] orders.”
McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
III. DISCUSSION
We must decide whether a pro se appellant’s refusal to disclose his identity
to the Court, as required under Rule 32(d) of the Federal Rules of Appellate
Procedure, warrants dismissal of his appeal. We hold that it does.
Appellant has proceeded under the pseudonym “Publius Publicola” in this
appeal, and has signed his briefs and other submissions to the Court using this
pseudonym, without either obtaining the Court’s authorization to do so or clearly
disclosing his identity to the Court. In so doing, Appellant has violated the
well-established requirement that court 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”).
8 “This requirement, though seemingly pedestrian, serves” several “vital
purpose[s].” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188 (2d Cir. 2008).
For starters, it “facilitat[es] public scrutiny of judicial proceedings” and the
public’s “right to know who is using their courts.” Id. at 188–89 (citation omitted).
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, see 28 U.S.C. §§ 144, 455, or to “give . . . preclusive effect to . . . state-court
judgment[s]” in suits “between the same parties,” McDonald v. City of West Branch,
466 U.S. 284, 287 & n.5 (1984) (citing 28 U.S.C. § 1738), without knowing the true
“identity of [the] parties” at the outset of a case, Taylor v. Sturgell, 553 U.S. 880, 906
n.13 (2008) (citation omitted). “[T]herefore,” the “general requirement of
disclosure of the names of parties” cannot “be set aside lightly.” Sealed Plaintiff,
537 F.3d at 189 (citation and alteration omitted).
Here, we have afforded Appellant the opportunity to cure his violation of
this “general requirement,” id. (citation omitted), by ordering him “to refile his
9 briefs under his real name within ten days of [our November 2, 2022] order,” Doc.
No. 104 at 1. Our order left open the possibility of Appellant making a motion for
his refiled briefs to be maintained under seal, provided that he could overcome
the presumption of open records. See id. (“Upon refiling, Appellant may seek
permission from the Court to file compliant copies of his briefs under seal in order
to preserve his anonymity.”); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 119–20, 124, 126 (2d Cir. 2006) (holding that the common-law and First
Amendment presumptions of open records apply in civil cases; setting forth the
standard under which such presumptions may be overcome). But Appellant has
failed to avail himself of that opportunity, instead indicating in a November 9,
2022 letter that he “will not comply with [the Court’s] order,” which he attempts
to characterize as “unlawful” on various grounds. Doc. No. 109 at 3. These
attempts are unavailing.
First, Appellant argues that under Rule 12 of the Federal Rules of Appellate
Procedure – which provides that “the [C]ircuit [C]lerk must docket the appeal
under the title of the district-court action,” id. at 1 (quoting Fed. R. App. P. 12(a))
(emphasis omitted) – we have “no legal basis to attempt to change the titling of
[his] appeal,” id. This argument overlooks the fact that Rule 12 also provides that
10 the Circuit Clerk “must identify the appellant, adding the appellant’s name if
necessary.” Fed. R. App. P. 12(a). And in any event, nothing in our order required
Appellant to “change the titling of [his] appeal” on the public docket or in the
official case caption. Doc. No. 109 at 1. Instead, we merely ordered Appellant “to
refile his briefs under his real name.” Doc. No. 104 at 1 (emphasis added).
Appellant further contends that Rule 32(d) “is solely concerned with
documents being signed” and that the Court has “absolutely no right to attempt to
dictate how [he] sign[s] [his] name.” Doc. No. 109 at 1 (first emphasis in original;
second emphasis added). That assertion is plainly contradicted by the Advisory
Committee Notes to Rule 32, which explain that “[b]y requiring a signature,
subdivision (d)” is meant to “ensure[] that a readily identifiable attorney or party
takes responsibility for every paper.” Fed. R. App. P. 32(d), Advisory Comm. note
to 2002 amend. (emphasis added). By signing his briefs under the fictitious name
“Publius Publicola,” see Publicola Br. at 72; Reply Br. at 38, Appellant has not made
himself “readily identifiable” to the Court, Fed. R. App. P. 32(d), Advisory Comm.
note to 2002 amend. He has therefore failed to comply with the requirements of
Rule 32(d).
11 Next, Appellant points to our decision in Sealed Plaintiff, where we vacated
a district court’s order “dismissing [the] plaintiff’s complaint sua sponte for failure
to comply” with a prior order directing the plaintiff to “file an Amended
Complaint in which she states her real name and not a pseudonym.” 537 F.3d
at 188, 193 (citation, alterations, and emphasis omitted). Appellant appears to read
this decision as establishing an absolute right to proceed under a pseudonym.
Again, he is mistaken. We emphasized in Sealed Plaintiff 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.” Id. at 189 (emphasis
added; citation and alteration omitted). 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.” Id. at 190–91 (footnote and internal citation omitted).
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
12 “weigh[] [his] need for anonymity against countervailing interests in full
disclosure.” Id. at 189 (citation and alteration omitted). But Appellant has never
made such a request in this Court.
Appellant argues that since the district court’s “denial of [his] motion to
proceed [in that court] under a pseudonym is appealable under the collateral order
doctrine,” Doc. No. 109 at 2 (citing United States v. Pilcher, 950 F.3d 39 (2d Cir.
2020)), it is “illogical that [he] would then need to file another motion in this Court
for the same relief,” id. at 2–3. But the relief that Appellant sought in his district-
court motion was an exception from Federal Rules of Civil Procedure 10(a) and
17(a)(1). See J. App’x at 100 (citing Fed. R. Civ. P. 10(a) (“The title of the complaint
must name all the parties . . . .”) & 17(a)(1) (“An action must be prosecuted in the
name of the real party in interest.”)). Those rules “govern . . . civil actions and
proceedings in the United States district courts.” Fed. R. Civ. P. 1 (emphasis
added). Obviously, that is not “the same relief” as an exception from Federal Rule
of Appellate Procedure 32(d). Doc. No. 109 at 3.
Moreover, we reject Appellant’s suggestion that it “would render this Court
a trial court” in “violat[ion] of 28 U.S.C. § 1291” for us to “require [him] to file [a]
motion” to proceed under a pseudonym “in this Court” during the pendency of
13 his appeal from the district court’s denial of his motion to proceed under a
pseudonym in that court. Id. Section 1291 is an affirmative grant of jurisdiction
over “appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. It is
not a limitation on the “inherent power of the appellate court” to rule on motions
presented to us in the first instance, In re McKenzie, 180 U.S. 536, 551 (1901), which
is “part of [our] traditional equipment for the administration of justice,” Scripps-
Howard Radio v. FCC, 316 U.S. 4, 9–10 (1942); see also 28 U.S.C. § 1651(a) (providing
that “all [federal] courts . . . may issue all writs necessary or appropriate in aid of
their respective jurisdictions” (emphasis added)). Indeed, the Federal Rules of
Appellate Procedure expressly contemplate litigants’ moving the courts of appeals
for relief during the pendency of their appeals from a district court’s denial of
similar relief. See, e.g., Fed R. App. P. 8(a) (requiring that before “[a] motion . . .
may be made to the [C]ourt of [A]ppeals” for a stay or injunction pending appeal,
a “party must ordinarily move first in the district court for [such] relief”).
Finally, Appellant points to D.S. v. City of Peekskill, 581 F. App’x 65 (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,” Doc. No. 109 at 2 (emphasis omitted). But D.S. is distinguishable from
14 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.” Joint Appendix at 10, D.S., 581 F. App’x 65 (No. 14-864), ECF No. 33
(emphasis added). 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. See Brief for Plaintiff-Appellant at 59,
D.S., 581 F. App’x 65 (No. 14-864), ECF No. 34. 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].” Fed. R. App. P. 32(d), Advisory Comm. note to
2002 amend. Here, as discussed above, Appellant has not satisfied that
requirement.
In sum, Appellant has failed to establish any valid basis to contend that it
was “unlawful,” Doc. No. 109 at 3, for the Court to order him “to refile his briefs
under his real name,” Doc. No. 104 at 1. As a result, we conclude that Appellant’s
refusal to comply with Rule 32(d) and the Court’s November 2, 2022 order
warrants the dismissal of his appeal. See Fed. R. App. P. 3(a)(2) (“An appellant’s
failure to take any step [required by the Federal Rules of Appellate Procedure] . . .
15 is ground . . . for the [C]ourt of [A]ppeals to act as it considers appropriate,
including dismissing the appeal.”); McDonald, 850 F.2d at 124 (“[A]ll litigants,
including [those proceeding] pro se[], have an obligation to comply with court
orders. When they flout that obligation[,] they, like all litigants, must suffer the
consequences,” which may include “dismissal of [their] action.”); see also, e.g., In re
Nasdaq Mkt.-Makers Antitrust Litig., 189 F.3d 461, 1999 WL 604444, at *1 (2d Cir.
1999) (table decision) (“Because appellant has refused to [comply with the Federal
Rules of Appellate Procedure and] our . . . order, we exercise our discretion
pursuant to Rule 3(a)(2) to dismiss his appeal.”). Indeed, we find that under these
circumstances – where Appellant’s wholesale refusal to disclose his identity to the
Court leaves us unable to fulfill our statutory obligations to apply preclusion
doctrines and check for conflicts and recusals – anything short of dismissal would
be inappropriate.
IV. CONCLUSION
For the foregoing reasons, we DISMISS the appeal.