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

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

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.

As a result, we DISMISS the appeal.

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.

. 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.”

. Likewise, in response to an anonymous request

that Appellant made pursuant to New York’s Freedom of Information Law,

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

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.”

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,

(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,

(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,

(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.”

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

, 455, or to “give . . . preclusive effect to . . . state-court

judgment[s]” in suits “between the same parties,” McDonald v. City of West Branch,

, 287 & n.5 (1984) (citing

), without knowing the true

“identity of [the] parties” at the outset of a case, Taylor v. Sturgell,

, 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,

(citation and alteration omitted).

Here, we have afforded Appellant the opportunity to cure his violation of

this “general requirement,”

(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

(“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,

, 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,”

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,”

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.”

(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.”

(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.”

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.”

(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,

(2d Cir.

2020)), it is “illogical that [he] would then need to file another motion in this Court

for the same relief,”

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.”

. 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,

(1901), which

is “part of [our] traditional equipment for the administration of justice,” Scripps-

Howard Radio v. FCC,

, 9–10 (1942); see also

(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,

(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.,

(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.,

(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,

(“[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.,

,

, 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.

16