Second Circuit Dismisses Pseudonymously Filed Appeal as Violation of Fed. R. App. P. 32(d)

In Publicola v. Lomenzo,  No. 22-795 (2d Cir. Nov. 29, 2022), the Second Circuit publishes an order dismissing an appeal after the plaintiff-appellant violated an order to file their appeal under their real name.

“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.”

In the district court, the plaintiff – proceeding pro se – moved for leave to proceed under a pseudonym. That motion was denied, and the case was dismissed on the merits for failure to state a claim.

“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 . . . . 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.’”

The Second Circuit dismisses the appeal for failure to comply with the November 2, 2022 order.

“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’).”

The panel rejects each argument launched in support of pseudonymity. “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.” But Rule 12(a) also provides that the appeal “must identify the appellant, adding the appellant’s name if necessary.”

“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’.” But as the Advisory Committee Notes to Rule 32 explains, this subsection 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).”

The plaintiff-appellant also argued that the court of appeals lacked express authority under federal law to require a party to file a motion to proceed under a pseudonym. “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 . . . . 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 [as in the district court]. 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’).”  

“[W]e 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.”

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