Supreme Court appeal on privacy of in forma pauperis (IFP) affidavits

Petition for certiorari | Brief in opposition | Cert reply

2015-04-07: Cert denied. Sai v. USPS, 135 S. Ct. 1915 (2015)

2016-02-17: Revived in 1st & D.C. Circuits

I am being represented before the Supreme Court, pro bono, by the William & Mary Appellate and Supreme Court Clinic and Tillman J. Breckenridge of Reed Smith [ed. 2015: now Bailey Glasser]. Please email me directly at ifp@s.ai for anything about the case (e.g. press inquiries, amici curiae, etc). This page is my own writing and views.

Press: National Law Journal / Tony Mauro, "Brief of the Week: Indigent Plaintiffs Seek Privacy"; Law360 / Emily Field, "High Court Won't Review Privacy Of Financial Affidavits"; National Law Journal / Tony Mauro, "Justices Take Class Action Over Publication of Personal Information"

Summary (for non-lawyers)

I am appealing a simple question to the U.S. Supreme Court:

If someone asks the court to be excused from paying court fees (and possibly granted a lawyer) because they can't afford to pay, should they be required to disclose their personal finances (and their spouse's) to the public?

If you want to get these benefits (fee waivers and potentially a free lawyer), you have to tell the court (under oath) detailed information about your finances and those of your spouse. This is fair enough.

There are two main Federal laws for this: 18 USC § 3006A (for criminal cases, under the Criminal Justice Act [CJA]), and 28 USC § 1915 (for all other cases, aka proceeding in forma pauperis [IFP]).

Normally, such very private information would be highly protected. If someone wants to get your financial info, they need at least a subpoena, which you could oppose. Otherwise, it's generally redacted from records disclosed under the Freedom of Information Act and from filings in court cases.

However, some courts — including the D.C. Circuit district and appeals courts — have a custom (not explicitly stated in their rules) that you must disclose your financial information to everyone, as well as to the opposing parties in your lawsuit, just to request a waiver of court fees.

When I sued the USPS in the D.C. Circuit Court of Appeals under the Freedom of Information Act, I asked to be allowed to submit my financial affidavit supporting an IFP petition under seal and ex parte (i.e. so that it would be only seen by the court).

The D.C. Circuit Court of Appeals denied my request, citing only general precedent saying that judicial documents should be public. They ordered me to either pay the court's filing fee (which I can't afford) or file my financial information publicly — otherwise they would dismiss my case.

The 1st Circuit Court of Appeals ruled very differently in Boston Herald v. Connolly. John Connolly was the defendant in a highly publicized organized crime (RICO) trial. He successfully applied under the CJA for a government funded defense, and for his financial affidavits to be sealed. The Boston Herald sued to get his financial affidavit released because they thought it was of public interest.

In denying the Boston Herald's request, the 1st Circuit ruled that the affidavit wasn't a judicial document in the first place, because a CJA request could be decided by someone other than a judge — and that even if it were, Connolly's privacy interest far outweighed the public's interest in his personal finances.

The D.C. Circuit, even when I directly argued these issues, didn't address them and summarily denied my request (with reconsideration, denying en banc review).

This is part of a circuit split (where multiple Federal circuits disagree on a legal issue) — and it's a violation of my rights to privacy, equal protection, and access to the courts.

Thanks to my pro bono lawyers, we've submitted a petition for certiorari to the United States Supreme Court on November 20.

Amicus briefs by other groups interested in privacy, public defense, etc. would be very much appreciated. Feel free to point anyone you think would be interested to this page (which will be kept updated), and the lawyers' version below.

Summary (for lawyers)

These are meant only as a concise summaries (in my own words), highlighting only some parts of the briefs. Please read the full briefs for the official version; there is more that I haven't covered here. See below for all references.

Petition for certiorari | Brief in opposition | Cert reply

Why it matters: Reversal will protect the privacy of all IFP and CJA applicants nationwide.

Question Presented: Whether the general right of public access to judicial documents creates a presumption that indigient litigant affidavits that contain historically protected private financial information are not sealable or reviewable ex parte?

Statutes: in forma pauperis, 28 USC § 1915(a)(1), and the parallel Criminal Justice Act, 18 USC § 3006A. (Most cases cited relate to the CJA, as there's not as much on point for IFP, and the two are closely analogous.)

Facts below: I made the first ever non-USPS request under 39 USC § 3642(a). USPS filings indicated that they had information relevant to the PRC proceedings, so I filed a FOIA request for related documents with request for public interest fee waiver. USPS, on admin appeal, denied the waiver (despite 39 USC § 505 uniquely having a statutory protection of the public interest in the proceeding).

When appealing for review to the US Ct. App. DC., I requested to file an IFP motion with the affidavit under seal and ex parte. The DC Circuit denied my request, ordering me to either pay the fee or file the IFP affidavit publicly. Upheld on reconsideration, en banc denied, stay denied. The case was dismissed without prejudice on my alternative motion in reconsideration of stay pending cert, because I could not comply with the DC Circuit's order without waiving my Constitutional rights. Cert appeals the denial of IFP affidavit privacy.

Argument

1. 4+ circuit split on whether presumption of access applies to IFP/CJA affidavits.
   • Against: D.C., Sai v USPS: cursory panel per curiam rested only on unexamined "presumption" of access to "judicial documents" (failing to determine that affidavit was judicial or weigh privacy vs presumption), and denied seal. 9th, Seattle Times: public right of access is only "qualified", and defendant's CJA affidavits are "unremarkable", but denied seal because it didn't violate defendant's right to fair trial.
   • Mixed: 3rd, Hart v Tannery: IFP affidavits "contain sensitive information", sealed public access on PACER but permitting public access in person (despite ordering records to be "locked" by the clerk).
   • Pro: 1st, Boston Herald v Connolly: CJA affidavits ministerial (not judicial); no presumption of public access; even if presumption applied, information is "universally assumed to be private" and far outweighed public interest despite defendant's status as ex-FBI RICO defendant (convicted around same time as trial)
   • Supportive: Supreme Court, Press-Enterprise II: courts must use "experience" and "logic" tests for determining public rights of access. 2nd, Amodeo II: P-E II test requires courts to first weigh level of presumption; public access does not apply at all to acts / documents outside Article III; even if presumption applies, courts must explicitly balance individual privacy vs public interest. 10th, Gonzales: CJA vouchers etc. are not judicial and have no right of public access.
2. IFP & CJA affidavits are ministerial documents — not judicial — so no presumption of access applies. E.g. 1st Cir. Boston Herald; Sup. Ct. Nixon v. Warner. All courts that addressed this question agreed.
3. Financial information in affidavits is very private and highly protected. E.g. 9th Cir. Valley Broadcasting; Fed. Cir. Apple v. Samsung, commercial litigation; D.C. Cir. FOIA (b)(6) exemptions: Wash. Post. v DHHS, re. individuals' finances & Hill v. Dep't of Agric., re. home loan financial info.
4. Third parties' information (also required to be disclosed in IFP/CJA affidavits) is highly protected. E.g. 2d Cir. Gardner v. Newsday.
5. D.C. Circuit failed to apply Press-Enterprise II "experience" and "logic" tests; assess the level of public access presumption (see Amodeo II); assess whether the documents were ministerial; or balance privacy vs presumed public interest.

Miscellaneous

• Primary counsel (pro bono): Tillman J. Breckenridge, Reed Smith / William & Mary Law School Appellate and Supreme Court Clinic
• Current status: Case # 14-646. Submitted Nov. 20; docketed Dec 2; distributed for conference Feb. 20; call for response Jan 26 (extended to March 27); BIO posted March 27; reply filed April 2; conference April 24; cert denied April 27.
• On SCOTUS paid docket, not IFP docket (courtesy of counsel)
• Case originated in D.C. Circuit (FRAP 15 review of USPS final order, after admin review, denying FOIA public interest fee waiver)
• D.C. Circuit was directly asked to address 1st's Connolly issues (ministerial status, privacy balance); didn't address them, issuing only cursory per curiam based on presumption; en banc motion pointing out circuit split w/ 1st was denied
• Pure legal question, no factual issues below; affidavit has not been filed due to court's denial of seal
• Dismissed w/out prejudice on my motion, specifically to preserve standing for cert; my case was actually chilled because of D.C. Circuit's order to file IFP affidavit on public record
• No backing statute or court rule that affidavits should be public, just court custom
• Opposing party (USPS) is in name only; hasn't and likely won't oppose on merits

Amicus brief of the Maryland Volunteer Lawyers Service (MVLS)

This amicus brief was prepared by the MVLS, represented by Steven M. Klepper and Louis P. Malick of Kramon & Graham, P.A.. Below is my own summary.

1. Wealthy litigants can pay the courts' filing fees to protect their privacy; others can't, and are irreversibly harmed if their financial information is publicly disclosed. Those who can't pay are forced to forfeit either their right to privacy, or their right to access to the courts.
2. Financial information of this kind is highly protected, e.g. by the Right to Financial Privacy Act (for financial institution records); Privacy Act (for government disclosure of private information); Computer Fraud & Abuse Act (for third parties' access to private information); Fair Credit Reporting Act (for credit reports); Fair Debt Collection Practices Act (for debt collectors); and Telephone Consumer Protection Act (for telemarketers).
3. Forced public disclosure of private information for access to the court is "in stark contrast" to many other cases, in a wide variety of contexts, that say that disclosure of such information is a threat to individual privacy, potentially embarrassing or harmful, and therefore prohibited under most circumstances. (Boston Herald v Connolly, Denius v Dunlap, Crawford, Greidinger v Davis, Barry v NYC, Denton v Hernandez, Adkins v DuPont, US v Pineda-Moreno, Whalen v Roe)
4. "[P]oor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it… [T]he Coinstitution doesn't prefer the rich over the poor[.]" (9th Cir. Chief Judge Kozinsky, dissent in Pineda-Moreno)
5. Disclosure of this information is only relevant to the court's decision whether to grant IFP status — not to the public or the underlying litigation.
6. Certiorari would benefit IFP applicants nationwide by clarifying whether their financial privacy is the price of access to federal court (including in the 4th Circuit, home of the MVLS, which hasn't ruled on this issue).

Amici brief of the Western Center on Law and Poverty and the Legal Aid Association of California (WCLP and LAAC)

This amici brief was jointly prepared by the WCLP and LAAC, represented by Michael J. Bentley and Simon T. Bailey of Bradley Arant Boult Cummings LLP. I'll add a summary soon; the brief's references are included below.

References

Cases

⇎ Circuit split; ✔/✘ support/oppose; ✪/☆ major/minor

			Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)
	✔	☆	Apple Inc. v. Samsung Electronics Company, 727 F.3d 1214, 1226 (Fed. Cir. 2013)
			Barry v. City of New York, 712 F.2d 1554, 1558-59 (2d Cir. 1983)
			Brock v. City of Richmond, 983 F.2d 1055 (4th Cir. 1993)
			California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511 (1972)
			Coppedge v. United States, 369 U.S. 438, 446-47 (1962)
			Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92, 499 (1975)
			Denius v. Dunlap, 209 F.3d 944, 958 (7th Cir. 2000)
			Denton v. Hernandez, 504 U.S. 25, 31 (1992) [quoting Adkins]
			Erickson v. Pardus, 551 U.S. 89 (2007)
			Floyd v. United States Postal Service, 105 F.3d 274, 277 (6th Cir. 1997)
			Gardner v. Newsday, Inc., 895 F.2d 74, 79-80 (2d Cir. 1990)
			Greaser v. State of Missouri, Department of Corrections, 145 F.3d 979, 985 (8th Cir. 1998)
			Greidinger v. Davis, 988 F.2d 1344, 1354 (4th Cir. 1993)
⇎	✔✘	✪	Hart v. Tannery, No. 11-2008, 2011 WL 10967635 at *2 (3d Cir. June 28, 2011) Held: IFP affidavits "contain sensitive information" and would therefore be kept "locked" by the clerk, and not accessible to the public on PACER, but accessible to the public if they "come into the courthouse". Note: 3rd Circuit has a 1987 standing order permitting clerks to grant IFP motions.
	✔	☆	Hill v. Department of Agriculture, 77 F. Supp. 2d 6, 9 (DDC 1999) aff'd, No. 99-5365, 2000 U.S. App. LEXIS 6966 (D.C. Cir. Mar. 7, 2000)
⇎	✔	✪	In re Boston Herald, Inc. v John J. Connolly, Jr., 321 F.3d 174, 175-76, 179-81, 184-91 (1st Cir. 2003) ["Boston Herald" or "Boston Herald v Connolly"] Held: CJA affidavits are ministerial, not judicial (so no presumption of access applies); even if presumption applied, Connolly's financial information is "universally presumed to be private", far outweighing public interest. Note: Connolly was an ex-FBI RICO defendant, convicted in 2002.
			In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999)
	✘	☆	In re Schum, No. 13-1041 (D.C. Cir. May 31, 2013) [citing Johnson, Wolfe, and Sturdza] Motion to file IFP under seal Opinion granting IFP but denying seal
			Johnson v. Greater Southeast Community Hospital Corp., 951 F.2d 1268, 1277, No. 91-7002 (D.C. Cir. 1991) [citing Hubbard and Nixon]
			Ketchum v. City of West Memphis, Arkansas, 974 F.2d 81 (8th Cir. 1992)
			Millbrook v. United States, 133 S. Ct. 1441 (2013)
			M.W. v. Clarke County Sch. Dist., No. 3:06-cv-49, 2007 WL 2765572, *2 (M.D. Ga. Sept.20,2007)
			Neitzke v. Williams, 490 U.S. 319, 324 (1989) [citing Catz & Guyer at fn 4]
			Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)
	✔	☆	Olsen v US, No. 1:07-cv-0034-JAW (D.C. Maine June 11, 2007)
	✔	✪	Press-Enterprise Company v. Superior Court of California, County of Riverside, 478 U.S. 1, 8 (1986) ["Press-Enterprise II"] Held: Courts must use "experience" and "logic" tests for determining public rights of access.
⇎	✘	✪	Seattle Times Company v. U.S. District Court for Western District of Washington, 845 F.2d 1513, 1517, 1519 (9th Cir. 1988) Held: Public right of access is only "qualified", but that defendant's right to fair trial did not outweigh public right of access to defendant's "unremarkable" financial affidavits.
	✘		Sturdza v. United Arab Emirates, No. 07-7034 (D.C. Cir. Oct. 23, 2007) [citing Johnson and Wolfe]
			Thomas v. Texas Department of Family and Protective Services, 427 Fed. Appx. 309 (5th Cir. 2011)
	✔	✪	United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ["Amodeo II"; based on Press-Enterprise II] Held: Courts must first weigh level of presumption; that presumption of public access does not apply at all to acts / documents outside Article III; and that if presumption applies, courts must explicitly balance individual privacy vs public interest.
			United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976)
	✔	✪	United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) Held: CJA vouchers etc. are not judicial documents, so have no right of public access.
			United States v. Hubbard, 650 F.2d 293, 316-17 (D.C. Cir. 1980) [citing Nixon]
	✔*	☆	United States v. Pineda–Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) [C.J. Kozinski dissenting from denial of rehearing en banc], vacated GVR, 132 S. Ct. 1533 (2012) in light of US v Jones, 565 U.S. __, 132 S. Ct. 945 (2012)
			United States v. Sarsoun, 834 F.2d 1358, 1363 (7th Cir. 1987)
			Valley Broadcasting Company v. United States District Court, 798 F.2d 1289, 1294 (9th Cir. 1986)
			Walker v. Frank, 19 F.3d 20 (6th Cir. 1994)
			Washington Post Company v. Department of Health and Human Services, 690 F.2d 252, 266-67 (D.C. Cir. 1982)
			Whalen v. Roe, 429 U.S. 589, 605 (1977)
			Wolfe v. Graham, No. 95-7137 (D.C. Cir. Dec. 22, 1995) Docket text

Statutes

• 5 U.S.C. § 552(b)(6) (Freedom of Information Act: privacy exemption for personnel & medical files)
• 5 U.S.C. § 552a(g) (Privacy Act: civil liability of government agencies)
• 12 U.S.C. § 3417(a) (Right to Financial Privacy Act: civil liability of government agencies and financial institutions)
• 15 U.S.C. § 1681b (Fair Credit Reporting Act: permissible purposes)
• 15 U.S.C. § 1681n (Fair Credit Reporting Act: civil liability for willful noncompliance)
• 15 U.S.C. § 1681o (Fair Credit Reporting Act: civil liability for negligent noncompliance)
• 15 U.S.C. § 1681p (Fair Credit Reporting Act: court jurisdiction)
• 15 U.S.C. § 1692b (Fair Debt Collection Practices Act: acquisition of location information)
• 15 U.S.C. § 1692c (Fair Debt Collection Practices Act: permitted communications)
• 15 U.S.C. § 1692k (Fair Debt Collection Practices Act: civil liability)
• 15 U.S.C. § 6801(a)
• 15 U.S.C. § 6801(b)
• 18 U.S.C. § 1030(g) (Computer Fraud and Abuse Act: civil liability)
• 18 U.S.C. § 3006A(a)
• 18 U.S.C. § 3006A(d)(7) (Criminal Justice Act: use in appellate cases)
• 28 U.S.C. § 1254(1) (Supreme Court review on writ of certiorari)
• 28 U.S.C. § 1915(a)(1) (In forma pauperis law)
• 47 U.S.C. § 227(b)(3) (Telephone Consumer Protection Act: civil liability)
• 16 C.F.R. §§ 313.3(n)-(o)
• 16 C.F.R. §§ 314.2-314.4
• Cal. Welf. & Inst. Code § 10850(b)
• Fed. R. App. P. 25(a)(5)

Other authorities

• 25 Years Later, PACER, Electronic Filing Continue to Change Courts, The Third Branch News (Dec. 9, 2013)
• Daniel J. Solove, Access & Aggregation: Public Records, Privacy & the Constitution, 86 Minn. L. Rev. 1137, 1138, 1154, 1185 (2002)
• E. Elizabeth Summers, Proceeding in Forma Pauperis in Federal Court: Can Corporations Be Poor Persons?, 62 Cal. L. Rev. 219, 219 (1974)
• Erika Harrell & Lynn Langston, Victims of Identity Theft, 2012, U.S. Department of Justice Bureau of Justice Statistics Bulletin (Dec. 2013)
• Fed. R. App. P. Appendix of Forms, Form 4
• John G. Roberts, Jr., 2013 Year-End Report on the Federal Judiciary (Dec. 31, 2013)
• John G. Roberts, Jr., 2014 Year-End Report on the Federal Judiciary, at 5-6
• Judicial Business of the United States Courts 2013, Annual Report of the Director, Administrative Office of the United States Courts, Table C-13
• Kristen M. Blankey, Note, Are Public Records Too Public? Why Personally Identifying Information Should be Removed from Both Online and Print Versions of Court Documents, 65 Ohio St. L.J. 413 (2004)
• Letter from Joan Z. Bernstein, Director, Bureau of Consumer Protection, Federal Trade Commission, to Leander D. Barnhill, U.S. Dep’t of Justice, Exec. Office for U.S. Trustees (Sept. 22, 2000)
• Natalie Gomez-Velez, Internet Access to Court Records – Balancing Public Access & Privacy, 51 Loy. L. Rev. 365, 373-77, 413-18 (2005)
• Office of Management & Budget, Financial Privacy in Bankruptcy: A Case Study on Privacy In Public & Judicial Records, ii. (Jan. 2001)
• Providing Equal Access to Justice: A Statistical Study of Non-Prisoner Pro Se Litigation in the United States District Court for the Northern District of California in San Francisco, 48 Hastings L.J. 821, 830-33 (1996-1997)
• Robert S. Catz and Thad M. Guyer, Federal In Forma Pauperis Litigation: In Search of Judicial Standards, 31 Rutgers L. Rev. 655, 656-57 (1978)
• Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)
• Stephan Landsman, The Growing Challenge of Pro Se Litigation, 13 Lewis & Clark L. Rev. 439, 440-47 (2009)
• Steven Osunsami, Shot Websites: Profiting off People in Booking Photos?, ABC News (Mar. 7, 2013)
• Susan Lyons, Free PACER: Balancing Access & Privacy, AALL Spectrum, July 2009, at 30-31

Other

• H.R. Rep. No. 1079, 52d Cong., 1st Sess. 2 (1892)
• U.S. District Court IFP affidavit
• U.S. District Court CJA affidavit
• Mugshots.com

Case documents

Note: because this arose from my FOIA suit vs the USPS, it's called "Sai v USPS". However, the Supreme Court case title is a formality; the USPS has not opposed me in any way on this issue.

All of the circuit case and Supreme Court application filings were my own work, before I obtained pro bono representation. The Supreme Court certiorari petition was written by my counsel, with some input from me.

• Sai v USPS, No. 14-646, __ US __ (2014) - dockets: cert, 14A70 extension, 14A84 stay
  • 2015-04-27 Petition DENIED.
  • 2015-04-08 DISTRIBUTED for Conference of April 24, 2015.
  • 2015-04-02 Reply of petitioner Sai filed.
  • 2015-03-27 Brief of respondent United States Postal Service in opposition filed.
  • 2015-02-19 Order extending time to file response to petition to and including March 27, 2015.
  • 2015-01-26 Response Requested. (Due February 25, 2015)
  • 2015-01-14 DISTRIBUTED for Conference of February 20, 2015.
  • 2015-01-05 Waiver of right of respondent United States Postal Service to respond filed.
  • 2015-01-05 Amici brief of the Western Center on Law and Poverty and the Legal Aid Association of California (WCLP & LAAC) for Sai on cert
  • 2015-01-05 Amicus brief of the Maryland Volunteer Lawyers Service (MVLS) for Sai on cert
  • 2014-11-20 Petition for certiorari - docketed 2014-12-02, response due 2015-01-05
  • 14A84 2014-07-22 Application for Stay denial letter
  • 14A70 2014-07-20 Supplement to Application to Chief Justice for pre-motion relief
  • 14A70 2014-07-18 Application for Extension grant letter
  • 14A70 2014-07-13 Application to Chief Justice for pre-motion relief
• Sai v USPS, No. 14-1005 (D.C. Cir. 2014) - full docket
  • 2014-09-08 1511095 Court order denying reconsideration of stay and granting alternative motion to dismiss without prejudice
  • 2014-09-08 1511091 Court order denying reconsideration en banc of stay
  • 2014-08-07 1506682 Motion for reconsideration or reconsideration en banc of stay
  • 2014-07-31 1505421 Court Order denying stay
  • 2014-07-25 1504531 SCOTUS Clerk Letter notifying extension to file cert
  • 2014-07-21 1503656 Notice of grant of application by Chief Justice
  • 2014-07-13 1502240 Notice of application to Chief Justice
  • 2014-06-27 1499627 Motion for stay pending review
  • 2014-06-23 1498887 Per curiam order denying en banc reconsideration
  • 2014-06-23 1498885 Per curiam order denying motion for reconsideration etc
  • 2014-06-10 1496898 Clerk's order granting stay of order pending further order
  • 2014-06-10 1496875 Emergency motion for stay pending review
  • 2014-05-15 1493163 Petition for reconsideration or reconsideration en banc
  • 2014-05-13 1492737 Per curiam order denying motion to seal IFP affidavit
  • 2014-03-06 1482664 Supplement to Seal of IFP motion
  • 2014-01-07 1474820 Petitioner's motion for leave to file motion to proceed in forma pauperis and appointment of attorney ex parte under seal