Case Information
*1 18-3444-cr United States v. Pilcher
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. ‐ ‐ cr
U NITED S TATES OF A MERICA ,
Appellee ,
J OHN P ILCHER ,
Defendant Appellant .
On Appeal United States District Vermont
S UBMITTED : J ANUARY D ECIDED : F EBRUARY
Before: L EVAL C ABRANES AND S ACK , Circuit Judges
Defendant Appellant John (“Pilcher”) appeals August 6, judgment of District Court (Geoffrey W. Crawford, Chief Judge ) affirming May decision of (John M. Conroy, Magistrate Judge ) denying motion file habeas petition through use pseudonym. For reasons set forth below, we AFFIRM District Court’s judgment.
Lauren Almquist Lively, Assistant U.S. Attorney, for Christina E. Nolan, United States Attorney, for District Vermont, Burlington, VT, for Appellee John W. Pilcher, pro se Essex, VT.
P ER C URIAM :
This appeal calls for us answer jurisdictional question first impression: whether denial file habeas petition under immediately appealable collateral order doctrine. We join several our Sister Circuits concluding such denials are appealable collateral doctrine. Having determined we jurisdiction this appeal, AFFIRM August decision United States District Vermont (Geoffrey W. Crawford, Chief Judge ) affirming denying file habeas petition through use pseudonym.
I. Background Appellant John Pilcher, pro se , filed a § motion seal challenging conditions imposed on him as a registered sex offender and certain special conditions supervised release following his guilty plea to one count possession child pornography. He attached a letter motion requesting anonymously. light his pro se status, judge construed Pilcher’s letter formal motion and denied it. The noted was “not plaintiff but person who ha[d] plead[ed] guilty in open court and been sentenced commission crime.” The considered request pursuant law governing public access court proceedings records First Amendment and federal common law, Fed. R. Civ. P. 10(a) test governing exception presumption disclosure set forth in Sealed Plaintiff Sealed Defendant 2008). After weighing applicable factors identified in Sealed Plaintiff denied reasoning that: (1) his conviction “already public domain identity had been confidential”; (2) his claim he subject retaliation children would subject physical psychological danger if he were publicly identified proceeding on pending “unsubstantiated speculation”; (3) claim his marriage might fail but his filing under pseudonym “purely personal” “insufficient overcome public’s right access under First Amendment common law”; (4) comparison effort advance post release rights individuals convicted child pornography offenses plaintiff Roe v. Wade “utterly meritless.” [3] appealed, affirmed. This appeal followed.
II. Discussion Our appellate jurisdiction is generally limited “final decisions district courts.” [4] However, district order other than final under § 1291 appealable if order falls within “collateral order doctrine.” [5] Under collateral order doctrine, order sought appealed must “(1) conclusively determine disputed question, (2) resolve an important issue completely separate from merits action, (3) effectively unreviewable appeal final judgment.”
Although have decided, precedential opinion, whether order deciding under pseudonym immediately appealable collateral doctrine, other Circuits held denials anonymity, using fictitious names, proceeding *5 fall under collateral order doctrine. [7] district court’s decision here conclusively determined issue of
whether could pseudonym; issue completely separate from merits § 2255 motion; it will effectively unreviewable on appeal final judgment on § 2255 motion. We therefore hold denial an appealable collateral order. Accordingly, jurisdiction consider this appeal.
A. Standard Review
We review “a district court’s grant or deny an application litigate . . abuse discretion.” [8] A district court abuses its discretion when it “base[s] its ruling erroneous view law or on clearly erroneous assessment evidence” or when its decision—though necessarily product legal error clearly erroneous factual finding— “cannot located within range permissible decisions.” [9] Additionally, district may reconsider pretrial matter adjudicated “where it has been shown judge’s clearly erroneous contrary law.” [10]
B. Applicable Law
Rule 10(a) of the Federal Rules of Civil Procedure provides “‘[t]he title of [a] complaint must name all the parties,’” which “serves the vital purpose of facilitating public scrutiny of judicial proceedings[.]” Identifying parties in proceeding “is important dimension of publicness,” as “people right know who is using their courts.”
Sealed Plaintiff set forth balancing test which courts should weigh “the plaintiff’s interest anonymity” against “both the public interest in disclosure prejudice defendant” noted with approval the following ten “non ‐ exhaustive” factors courts could consider when assessing party’s request pseudonym:
(1) whether litigation involves matters are highly sensitive personal nature; (2) whether identification poses risk of retaliatory physical or mental harm party seeking even more critically, innocent non parties; (3) whether identification presents other harms likely severity those harms, including whether injury litigated against incurred result disclosure plaintiff’s identity; (4) whether plaintiff is particularly vulnerable possible harms disclosure particularly light age; (5) whether suit challenging actions government private parties; (6) whether defendant prejudiced allowing plaintiff press claims anonymously, whether nature prejudice (if *7 any) differs at any particular stage the litigation, and whether any prejudice can mitigated by the district 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 disclose his identity; (9) whether, because the purely legal nature issues presented otherwise, there is an atypically weak public interest in knowing litigants’ identities; (10) whether there are alternative mechanisms protecting confidentiality plaintiff.
Id marks, brackets, ellipses, citations omitted).
C. Merits Based Argument his brief appeal, Pilcher does not directly challenge rationale magistrate judge’s in denying his motion under a pseudonym, its affirmance district court. The closest Pilcher comes challenging court’s rationale arguing magistrate judge erred in: (a) viewing as “criminal motion”, when habeas civil matter; (b) commenting he not plaintiff but someone who had pleaded guilty sentenced. According Pilcher, those comments betrayed judge’s view as criminal motion, an error underlay entire ruling prevented considering balancing test courts apply when determining whether plaintiff allowed maintain action pseudonym. arguments are merit. referred having pleaded to, having been convicted of, criminal charge only background, not as rationale underpinning analysis. Indeed, noted Federal Rules Criminal Procedure did provision proceeding pseudonym. He then expressly turned to the Federal Rules Civil Procedure and the Sealed Plaintiff balancing test to adjudicate Pilcher’s motion. The magistrate judge then explicitly and properly applied several the Sealed Plaintiff factors in denying Pilcher’s request pseudonym. Recognizing that there was “undoubtedly some social stigma and embarrassment surrounding” the nature Pilcher’s child pornography conviction (implicating the first factor), the magistrate also reasoned that, during the criminal proceeding, Pilcher’s identity had not been kept confidential (implicating the seventh factor). The rejected as “unsubstantiated speculation” claim that he would retaliated against, that family (particularly children) harmed if he were denied right (implicating second, third fourth factors). He similarly rejected claim that marriage might otherwise fail “purely personal” (implicating first fifth factors).
Accordingly, it clear that considered proper legal principles governing motion, including presumption in favor public access proceedings records, exceptions presumption set forth Sealed Plaintiff . reviewing magistrate’s clear error or determine if ruling contrary law, pursuant 636(b)(1)(A), District Court properly held judge’s did not rest “on an error law . . clearly erroneous factual finding”; conclusion “located within range permissible decisions”; circumstances identified were insufficient support exception; it found “no error—clear otherwise—in judge’s decision.” did abuse its discretion affirming denial motion. [14] D. Procedural Arguments also raises several procedural arguments that reflect a
misunderstanding legal process, and judge’s role that process. He argues that made three “unfair unilateral decisions” that violated his rights: (1) it interpreted his letter seeking pseudonym as motion; (2) it assumed letter complete; and (3) it “outsourced” review consent. He claims could have acknowledged his letter required him file complete motion; had he known request be met with “resistance” “require legal argument,” he would “provided [a] detailed rationale for request supporting documentation.” [15]
It well established courts “liberally construe pleadings briefs submitted pro se litigants, reading such submissions raise strongest arguments they suggest.” Accordingly, because letter requested he allowed discussed sufficient detail reasons for request, properly construed letter considered arguments. *10 Pilcher’s argument that Court “outsourced” request for a to an “administrative court” consent also without merit. Consent parties not required for magistrate’s adjudication anonymity motion. Under Rule 10 Rules Governing Section 2255 Cases, “[a] judge may perform duties district court these rules, authorized under 28 U.S.C. § 636.” 28 U.S.C. 636(b)(1)(A) states that, exception certain motions listed statute, “a judge may designate judge to hear determine any pretrial matter pending before court.” [17] Courts interpreting that provision concluded “dispositive motions” are excluded grant that authority. [18] “The Supreme has construed this statutory grant authority to mean ‘nondispositive’ pretrial matters are governed by § 636(b)(1)(A) ‘dispositive’ matters are covered by § 636(b)(1)(B).” [19] To extent pro se complaint can be construed to argue to *11 dispositive motion not properly delegated § 636(b)(1)(A), we reject that contention. The non exhaustive list of dispositive motions excluded § 636(b)(1)(A) is often considered in conjunction Federal Rule of Civil Procedure 72(a), which requires a district consider a party ʹ s timely objections magistrate ʹ s order deciding a “pretrial matter not dispositive of party ʹ s claim or defense” “modify or set aside part of that is clearly erroneous or is contrary law.” [20] Federal Rule of Civil Procedure 72(a) defines nondispositive matter one that is “not dispositive of party’s claim defense.” [21] Pilcher’s underlying claim is modifications of conditions of his supervised release; concerns only manner in which will his underlying claim. is dispositive of his claim. [22]
Whereas Federal Magistrates Act, § 636(c)(1), states that may conduct “any all proceedings . . in civil matter” “upon consent parities,” [23] § 636(b)(1)(A) has no such consent requirement. *12 Because Pilcher’s to nondispositive pretrial motion, the Court within its authority to designate the to adjudicate that without seeking consent.
Pilcher next asserts that Government’s argument that the need for public transparency outweighs need for is “disingenuous” because, Pilcher argues, “federal court documents are kept hidden behind PACER’s paywall.” This argument is meritless. Pilcher erroneously conflates court charging fees for access to Public Access to Electronic Records (“PACER”) system, and thus ability retrieve records electronically, First Amendment and common law protections right access proceedings and copy public records. Charging fees PACER access authorized by statute, codified at U.S.C. §§ 1913, 1914, 1926, (notes), and has no bearing right gain access proceedings and documents.
Finally, contends that, pseudonyms, speech people (like himself) who make unpopular arguments challenging government unconstitutional statutes will chilled; that such persons should be afforded special protections; that default position should anonymity whenever such person can argue he has reasonable fear harm otherwise cause him not file petition. Sealed Plaintiff held pseudonyms are exception rule, receive protections anonymity, party must make case rebutting presumption. Here, considered, but rejected speculative, *13 arguments harm befall him family if name came public, thus failed rebut presumption disclosure.
III. CONCLUSION We considered all remaining arguments find them merit. Accordingly, AFFIRM August judgment Court.
[1] Supplemental Appendix (“SA”) 74.
[2] Fed. R. Civ. P. states “[e]very pleading must caption ʹ s name, title, file number, Rule 7(a) designation. title complaint must name all parties; title other pleadings, after naming first party each side, may refer generally other parties.”
[3] SA 75–76.
[4] 1291; re Roman Catholic Diocese Albany, N.Y., Inc. , F.3d (2d Cir. 2014).
[5] See e.g. United States Culbertson 45–46 2010).
[6] Id marks omitted).
[7] See Does I thru XXIII v. Advanced Textile Corp. , 214 F.3d 1058, 1066 (9th Cir. 2000); James v. Jacobson , F.3d 233, 237–38 (4th Cir. 1993); S. Methodist Univ. Ass’n Women Law Students v. Wynne & Jaffe , F.2d 712–13 (5th Cir. 1979).
[8] Sealed Plaintiff F.3d 190.
[9] Virginia Properties, LLC T Mobile Ne. LLC 2017) marks omitted).
[10] 636(b)(1)(A).
[11] Sealed Plaintiff at (quoting Fed. R. Civ. P. 10(a)).
[12] Id. marks omitted).
[13] Special Appendix 102–103.
[14] Virginia Properties, LLC , F.3d at 113.
[15] Appellant’s Brief 11–13.
[16] McLeod v. Jewish Guild Blind F.3d (2d Cir. 2017) (per curiam) marks omitted); Triestman Federal Bureau Prisons 2006) (“[T]he submissions pro se litigant must construed liberally[.]”).
[17] 636(b)(1)(A) provides that: [A] may designate judge to hear determine any pretrial matter pending before court, except for injunctive relief, for judgment pleadings, for summary judgment, to dismiss or quash an indictment or information made defendant, suppress evidence criminal case, dismiss permit maintenance class action, dismiss failure state claim upon which relief can granted, involuntarily dismiss action. A may reconsider pretrial matter this subparagraph (A) where it has been shown ʹ s clearly erroneous contrary law.
[18] Kiobel v. Millson 2010) (Cabranes, J ., concurring ); Id. at n.3 (Leval, J concurring ) (noting monikers “dispositive” “nondispositive” are shorthand taken literally).
[19] Id. (Cabranes, J ., concurring ) (citing Gomez United States, U.S. 873–74 (1989)) brackets marks omitted).
[20] Williams v. Beemiller, Inc. 527 F.3d 259, 264 (2d Cir. 2008).
[21] Fed. R. Civ. P.
[22] In considering strongest arguments pro se submissions may suggest, Weixel v. Bd. Educ. City New York F.3d (2d Cir. 2002), note that it least plausible argue by denying motion, has deterred Pilcher—who raises “chilling effect” in brief reluctant press his claim anonymity—from bringing habeas claim. manner, it may argued disposed underlying claim. See Kiobel Millson, 2010) (Leval, J ., concurring ) (“[C]ourts generally concluded other rulings which have same effect disposing party’s claim (or defense) were also intended Congress excluded powers judges.”). We do not, however, find argument persuasive circumstances presented this appeal.
[23] 636(c)(1).
[24] relevant local rules also provide “full time United States authorized exercise all powers perform all duties conferred upon judges U.S.C. exercise powers stated rules governing proceedings §§ 2255.” D. Vt. L.R. 72(a)(1).
[25] Appellant’s Brief 13–15.