18-3444-cr
United States v. Pilcher


                                              In the
                           United States Court of Appeals
                                     for the Second Circuit


                                         AUGUST TERM 2019

                                           No. 18‐3444‐cr

                                    UNITED STATES OF AMERICA,
                                             Appellee,

                                                 v.

                                          JOHN PILCHER,
                                        Defendant‐Appellant.



                           On Appeal from the United States District Court
                                    for the District of Vermont



                                    SUBMITTED: JANUARY 28, 2020
                                     DECIDED: FEBRUARY 6, 2020



Before: LEVAL, CABRANES, AND SACK, Circuit Judges.




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      Defendant‐Appellant John Pilcher (“Pilcher”) appeals from an August 6,
2018 judgment of the District Court (Geoffrey W. Crawford, Chief Judge) affirming
the May 22, 2018 decision of the magistrate judge (John M. Conroy, Magistrate
Judge) denying Pilcher’s motion to file a habeas petition through the use of a
pseudonym. For the reasons set forth below, we AFFIRM the District Court’s
judgment.




                         Lauren Almquist Lively, Assistant U.S. Attorney, for
                         Christina E. Nolan, United States Attorney, for the
                         District of Vermont, Burlington, VT, for Appellee.

                         John W. Pilcher, pro se, Essex, VT.




PER CURIAM:

      This appeal calls for us to answer a jurisdictional question of first
impression: whether the denial of a motion to file a habeas petition under a
pseudonym is immediately appealable under the collateral order doctrine. We
join several of our Sister Circuits in concluding that such denials are appealable
under the collateral order doctrine. Having determined that we have jurisdiction
in this appeal, we AFFIRM the August 6, 2018 decision of the United States
District Court for the District of Vermont (Geoffrey W. Crawford, Chief Judge)
affirming the decision of the magistrate judge denying Pilcher’s motion to file a
habeas petition through the use of a pseudonym.

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                                          I.      Background

         Appellant John Pilcher, pro se, filed a 28 U.S.C. § 2255 motion under seal
challenging conditions imposed on him as a registered sex offender and certain
special conditions of supervised release following his guilty plea to one count of
possession of child pornography. He attached a letter to the motion requesting to
proceed anonymously. In light of his pro se status, the magistrate judge construed
Pilcher’s letter as a formal motion and denied it. The magistrate judge noted that
Pilcher was “not a plaintiff but a person who ha[d] plead[ed] guilty in open court
and been sentenced for the commission of a crime.”1 The magistrate judge
considered Pilcher’s request pursuant to the law governing public access to court
proceedings and records under the First Amendment and federal common law,
Fed. R. Civ. P. 10(a)2, and the test governing the exception to the presumption of
disclosure set forth in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir.
2008). After weighing applicable factors identified in Sealed Plaintiff, the
magistrate judge denied Pilcher’s motion reasoning that: (1) his conviction was
“already in the public domain and his identity had not been confidential”; (2) his
claim that he would be subject to retaliation and his children would be subject to
physical and psychological danger if he were publicly identified in the
proceeding on his pending § 2255 motion was “unsubstantiated speculation”; (3)


1   Supplemental Appendix (“SA”) at 74.

2 Fed. R. Civ. P. 10 states that “[e]very pleading must have a caption with the courtʹs name, a
title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the
parties; the title of other pleadings, after naming the first party on each side, may refer generally
to other parties.”


                                                 3
his claim that his marriage might fail but for his filing under a pseudonym was
“purely personal” and “insufficient to overcome the public’s right of access
under the First Amendment and common law”; and (4) his comparison of his
effort to advance the post‐release rights of individuals convicted of child
pornography offenses to that of the plaintiff in Roe v. Wade was “utterly
meritless.”3 Pilcher appealed, and the District Court affirmed. This appeal
followed.


                                               II.        Discussion

          Our appellate jurisdiction is generally limited to “final decisions of the
district courts.”4 However, a district court order other than a final decision under
§ 1291 is appealable if the order falls within the “collateral order doctrine.”5
Under the collateral order doctrine, the order sought to be appealed must “(1)
conclusively determine the disputed question, (2) resolve an important issue
completely separate from the merits of the action, and (3) be effectively
unreviewable on appeal from a final judgment.”6

          Although we have not decided, in a precedential opinion, whether an
order deciding a motion to proceed under a pseudonym is immediately
appealable under the collateral order doctrine, other Circuits have held that
denials of anonymity, using fictitious names, or proceeding under a pseudonym



3   SA at 75–76.

4   28 U.S.C. § 1291; In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 35 (2d Cir. 2014).

5   See e.g., United States v. Culbertson, 598 F.3d 40, 45–46 (2d Cir. 2010).

6   Id. (internal quotation marks omitted).


                                                      4
fall under the collateral order doctrine.7

          The district court’s decision here conclusively determined the issue of
whether Pilcher could proceed under a pseudonym; that issue is completely
separate from the merits of his § 2255 motion; and it will be effectively
unreviewable on appeal from final judgment on his § 2255 motion. We therefore
hold that the denial of Pilcher’s motion to proceed anonymously was an
appealable collateral order. Accordingly, we have jurisdiction to consider this
appeal.


      A. Standard of Review

          We review “a district court’s decision to grant or deny an application to
litigate under a pseudonym . . . for abuse of discretion.”8 A district court abuses
its discretion when it “base[s] its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence” or when its decision—though not
necessarily the product of a legal error or a clearly erroneous factual finding—
“cannot be located within the range of permissible decisions.”9 Additionally, a
district court judge may reconsider any pretrial matter adjudicated by a
magistrate judge “where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.”10


7 See Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1066 (9th Cir. 2000); James v.
Jacobson, 6 F.3d 233, 237–38 (4th Cir. 1993); S. Methodist Univ. Ass’n of Women Law Students v.
Wynne & Jaffe, 599 F.2d 707, 712–13 (5th Cir. 1979).

8   Sealed Plaintiff, 537 F.3d at 190.

9Virginia Properties, LLC v. T‐Mobile Ne. LLC, 865 F.3d 110, 113 (2d Cir. 2017) (internal quotation
marks omitted).

10   28 U.S.C. § 636(b)(1)(A).

                                                 5
      B. Applicable Law

          Rule 10(a) of the Federal Rules of Civil Procedure provides that “‘[t]he title
of [a] complaint must name all the parties,’” which “serves the vital purpose of
facilitating public scrutiny of judicial proceedings[.]”11 Identifying parties in a
proceeding “is an important dimension of publicness,” as “people have a right to
know who is using their courts.”12



          Sealed Plaintiff set forth a balancing test under which courts should weigh
“the plaintiff’s interest in anonymity” against “both the public interest in
disclosure and any prejudice to the defendant” and noted with approval the
following ten “non‐exhaustive” factors that courts could consider when
assessing a party’s request to proceed with a pseudonym:

          (1) whether the litigation involves matters that are highly sensitive
          and of a personal nature; (2) whether identification poses a risk of
          retaliatory physical or mental harm to the party seeking to proceed
          anonymously or even more critically, to innocent non‐parties; (3)
          whether identification presents other harms and the likely severity of
          those harms, including whether the injury litigated against would be
          incurred as a result of the disclosure of the plaintiff’s identity; (4)
          whether the plaintiff is particularly vulnerable to the possible harms
          of disclosure particularly in light of his age; (5) whether the suit is
          challenging the actions of the government or that of private parties;
          (6) whether the defendant is prejudiced by allowing the plaintiff to
          press his claims anonymously, whether the nature of the prejudice (if


11   Sealed Plaintiff, 537 F.3d at 188 (quoting Fed. R. Civ. P. 10(a)).

12   Id. at 189 (internal quotation marks omitted).

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      any) differs at any particular stage of the litigation, and whether any
      prejudice can be 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
      to disclose his identity; (9) whether, because of the purely legal nature
      of the issues presented or otherwise, there is an atypically weak
      public interest in knowing the litigants’ identities; and (10) whether
      there are any alternative mechanisms for protecting the
      confidentiality of the plaintiff.

Id. at 189, 190 (internal quotation marks, brackets, ellipses, and citations omitted).



   C. Merits‐Based Argument

      In his brief on appeal, Pilcher does not directly challenge the rationale of
the magistrate judge’s decision in denying his motion to proceed under a
pseudonym, or its affirmance by the district court. The closest Pilcher comes to
challenging the court’s rationale is in arguing that the magistrate judge erred in:
(a) viewing his motion to proceed under a pseudonym as a “criminal motion”,
when habeas is a civil matter; and (b) in commenting that he was not a plaintiff
but someone who had pleaded guilty and was sentenced. According to Pilcher,
those comments betrayed the magistrate judge’s view of his motion as a criminal
motion, an error that underlay the entire ruling and prevented the magistrate
judge from considering the balancing test that courts apply when determining
whether a plaintiff would be allowed to maintain an action under a pseudonym.

      Pilcher’s arguments are without merit. The magistrate judge referred to
Pilcher having pleaded to, and having been convicted of, a criminal charge only
as background, not as the rationale underpinning his analysis. Indeed, the
magistrate judge noted that the Federal Rules of Criminal Procedure did not

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have any provision on proceeding under a pseudonym. He then expressly
turned to the Federal Rules of Civil Procedure and the Sealed Plaintiff balancing
test to adjudicate Pilcher’s motion. The magistrate judge then explicitly and
properly applied several of the Sealed Plaintiff factors in denying Pilcher’s request
to proceed under a pseudonym. Recognizing that there was “undoubtedly some
social stigma and embarrassment surrounding” the nature of Pilcher’s child
pornography conviction (implicating the first factor), the magistrate judge also
reasoned that, during the criminal proceeding, Pilcher’s identity had not been
kept confidential (implicating the seventh factor). The magistrate judge rejected
as “unsubstantiated speculation” Pilcher’s claim that he would be retaliated
against, and that his family (particularly his children) would be harmed if he
were denied the right to proceed anonymously (implicating the second, third
and fourth factors). He similarly rejected Pilcher’s claim that his marriage might
otherwise fail as “purely personal” (implicating the first and fifth factors).

          Accordingly, it is clear that the magistrate judge considered the proper
legal principles governing the motion, including a presumption in favor of public
access to court proceedings and records, and the exceptions to that presumption
set forth in Sealed Plaintiff. In reviewing the magistrate’s decision for clear error
or to determine if the ruling was contrary to law, pursuant to 28 U.S.C. §
636(b)(1)(A), the District Court properly held that the magistrate judge’s order
did not rest “on an error of law . . . or a clearly erroneous factual finding”; that
the conclusion was “located within the range of permissible decisions”; that the
circumstances identified by Pilcher were insufficient to support an exception;
and that it found “no error—clear or otherwise—in the magistrate judge’s
decision.”13 The District Court did not abuse its discretion in affirming the denial


13   Special Appendix at 102–103.


                                            8
of the motion.14


      D. Procedural Arguments

          Pilcher also raises several procedural arguments that reflect a
misunderstanding of the legal process, and the magistrate judge’s role in that
process. He argues that the District Court made three “unfair unilateral
decisions” that violated his rights: (1) it interpreted his letter seeking to proceed
under a pseudonym as a motion; (2) it assumed the letter was complete; and (3) it
“outsourced” the review and decision of the motion to a magistrate judge
without his consent. He claims that the court could have acknowledged his letter
and required him to file a complete motion; had he known that his request
would be met with “resistance” and “require a legal argument,” he would have
“provided [a] detailed rationale for his request with supporting
documentation.”15

          It is well established that courts “liberally construe pleadings and briefs
submitted by pro se litigants, reading such submissions to raise the strongest
arguments they suggest.”16 Accordingly, because Pilcher’s letter requested that
he be allowed to proceed under a pseudonym and discussed in sufficient detail
the reasons for that request, the magistrate judge properly construed the letter as
a motion and considered Pilcher’s arguments.



14   Virginia Properties, LLC, 865 F.3d at 113.

15   Appellant’s Brief at 11–13.

16 McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam) (internal
quotation marks omitted); Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(“[T]he submissions of a pro se litigant must be construed liberally[.]”).


                                                  9
          Pilcher’s argument that the District Court “outsourced” his request for a
pseudonym to an “administrative court” without his consent is also without
merit. Consent of the parties was not required for the magistrate’s adjudication
of Pilcher’s anonymity motion. Under Rule 10 of the Rules Governing Section
2255 Cases, “[a] magistrate judge may perform the duties of a district court
under these rules, as authorized under 28 U.S.C. § 636.” 28 U.S.C. 636(b)(1)(A)
states that, with the exception of certain motions listed in the statute, “a judge
may designate a magistrate judge to hear and determine any pretrial matter
pending before the court.”17 Courts interpreting that provision have concluded
that “dispositive motions” are excluded from the grant of that authority.18 “The
Supreme Court has construed this statutory grant of authority to mean that
‘nondispositive’ pretrial matters are governed by § 636(b)(1)(A) and ‘dispositive’
matters are covered by § 636(b)(1)(B).”19 To the extent Pilcher’s pro se complaint
can be construed to argue that his motion to proceed anonymously was a

17   28 U.S.C. § 636(b)(1)(A) provides that:

          [A] judge may designate a magistrate judge to hear and determine any pretrial
          matter pending before the court, except a motion for injunctive relief, for judgment
          on the pleadings, for summary judgment, to dismiss or quash an indictment or
          information made by the defendant, to suppress evidence in a criminal case, to
          dismiss or to permit maintenance of a class action, to dismiss for failure to state a
          claim upon which relief can be granted, and to involuntarily dismiss an action. A
          judge of the court may reconsider any pretrial matter under this subparagraph (A)
          where it has been shown that the magistrate judgeʹs order is clearly erroneous or
          contrary to law.

18Kiobel v. Millson, 592 F.3d 78, 84 (2d Cir. 2010) (Cabranes, J., concurring); Id. at 92 n.3 (Leval, J.
concurring) (noting that the monikers “dispositive” and “nondispositive” are shorthand not to
be taken literally).

19 Id. at 84 (Cabranes, J., concurring) (citing Gomez v. United States, 490 U.S. 858, 873–74 (1989))
(internal brackets and quotation marks omitted).


                                                   10
dispositive motion not properly delegated under § 636(b)(1)(A), we reject that
contention. The non‐exhaustive list of dispositive motions excluded under
§ 636(b)(1)(A) is often considered in conjunction with Federal Rule of Civil
Procedure 72(a), which requires a district court to consider a partyʹs timely
objections to a magistrate judgeʹs order deciding a “pretrial matter not
dispositive of a partyʹs claim or defense” and to “modify or set aside any part of
the order that is clearly erroneous or is contrary to law.”20 Federal Rule of Civil
Procedure 72(a) defines a nondispositive matter as one that is “not dispositive of
a party’s claim or defense.”21 Pilcher’s underlying claim is for modifications of
the conditions of his supervised release; the motion to proceed anonymously
concerns only the manner in which Pilcher will proceed on his underlying claim.
The motion is not dispositive of his claim.22

          Whereas the Federal Magistrates Act, § 636(c)(1), states that a magistrate
judge may conduct “any or all proceedings . . . in a civil matter” “upon the
consent of the parities,”23 § 636(b)(1)(A) has no such consent requirement.

20   Williams v. Beemiller, Inc., 527 F.3d 259, 264 (2d Cir. 2008).

21   Fed. R. Civ. P. 72

22 In considering the strongest arguments Pilcher’s pro se submissions may suggest, Weixel v. Bd.
of Educ. of City of New York, 287 F.3d 138, 141 (2d Cir. 2002), we note that it is at least plausible to
argue that by denying Pilcher’s motion, the magistrate has deterred Pilcher—who raises the
“chilling effect” in his brief and is reluctant to press his claim without anonymity—from
bringing his habeas claim. In that manner, it may be argued that the magistrate judge disposed
of his underlying claim. See Kiobel v. Millson, 592 F.3d 78, 92 (2d Cir. 2010) (Leval, J., concurring)
(“[C]ourts have generally concluded that other rulings which would have the same effect of
disposing of a party’s claim (or of a defense) were also intended by Congress to be excluded
from the powers of magistrate judges.”). We do not, however, find that argument persuasive in
the circumstances presented in this appeal.

23   28 U.S.C. § 636(c)(1).


                                                      11
Because Pilcher’s motion to proceed anonymously was a nondispositive pretrial
motion, the District Court was within its authority to designate the magistrate
judge to adjudicate that motion without seeking Pilcher’s consent.24

          Pilcher next asserts that the Government’s argument that the need for
public transparency outweighs his need for a pseudonym is “disingenuous”
because, Pilcher argues, “federal court documents are kept hidden behind
PACER’s paywall.”25 This argument is meritless. Pilcher erroneously conflates
the court charging fees for access to the Public Access to Court Electronic
Records (“PACER”) system, and thus the ability to retrieve records
electronically, with First Amendment and common law protections of the right to
access proceedings and copy public records. Charging fees for PACER access is
authorized by statute, codified at 28 U.S.C. §§ 1913, 1914, 1926, 1932 (notes), and
has no bearing on the right to gain access to court proceedings and documents.

          Finally, Pilcher contends that, without pseudonyms, the speech of people
(like himself) who make unpopular arguments challenging the government or
unconstitutional statutes will be chilled; that such persons should be afforded
special protections; and that the default position should be anonymity whenever
such a person can argue that he has a reasonable fear of harm that would
otherwise cause him not to file a petition. In Sealed Plaintiff, we held that
pseudonyms are the exception and not the rule, and in order to receive the
protections of anonymity, a party must make a case rebutting that presumption.
Here, the magistrate judge considered, but rejected as speculative, Pilcher’s

24The relevant local rules also provide that a “full‐time United States magistrate judge is
authorized to exercise all the powers and perform all duties conferred upon magistrate judges
by 28 U.S.C. § 636, and to exercise the powers stated in the rules governing proceedings under
28 U.S.C. §§ 2254 and 2255.” D. Vt. L.R. 72(a)(1).

25   Appellant’s Brief at 8, 13–15.

                                              12
arguments that harm would befall him and his family if his name came to be
public, and thus that Pilcher failed to rebut the presumption of disclosure.



                                  III. CONCLUSION


      We have considered all of Pilcher’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the August 6, 2018 judgment of the
District Court.




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