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United States District Court for the District of Massachusetts Sai Plaintiff Civil Action No.:
v. TSA et al Defendants
Motion for IFP status with affidavit under seal & ex parte, and motion to certify under 28 U.S. Code § 1292 without stay of proceedings1 I move that I be granted IFP status, given free copies of transcripts, granted waiver of PACER fees related to researching this case, and appointed pro bono counsel, on the basis of my attached affidavit. In the alternative , I move that this Court defer ruling on this motion, and permit me to file — ex parte and under seal — a more detailed affidavit of my finances in support of this motion. In the final alternative , I move that this Court immediately certify the following question, with stay of proceedings, per 28 U.S. Code § 1292: Does the general presumption of public access to j udicial documents require that in forma pauperis (IFP) affidavits, which contain historically and widely protected private financial information, are not sealable or reviewable ex parte ? Respectfully submitted, Sai, plaintiff pro se
[email protected] +1 510 394 4724 phone / +1 206 203 2827 fax 4023 Kennett Pike #54514, Wilmington, DE 19807 A nearly identical motion is pending in Sai v DHS et al., No. 1:14-cv-01876-RDM (D. D.C.), ECF Nos. 65 (June 10, 2015) & 66 (June 13, 2015 [corrected]). 1
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United States District Court for the District of Massachusetts Sai Plaintiff v.
Civil Action No.:
TSA et al Defendants
Memorandum in support of IFP motion Table of Contents Table of Authorities
3
I. This Court is not precluded by any binding precedent from granting this motion.
7
II. IFP status grants substantial rights that would immediately affect this litigation and materially advance its termination.
7
III. IFP affidavit information is historically, widely, and strongly protected.
8
IV. IFP affidavits are ministerial documents, not judicial, and therefore are accorded no presumption of public access under common law or the First Amendment.
10
V. Defendants have no standing to oppose this motion, except to the extent it may result in an overall delay of litigation, which it would not.
15
VI. To the extent that any presumption of access may apply to an IFP affidavit, that presumption is far outweighed by the affiant's (and their spouse's) privacy interests.
15
VII. Publishing an IFP affidavit (or the details therein) on the public record necessarily causes irreparable harm to the affiant, contradicts the rationale of the IFP statute, and chills the exercise of fundamental Constitutional rights. This harm is presumptive, and requires no particularized showing by the affiant.
15
VIII. The question presented above is a controlling question of law as to which there is substantial ground for difference of opinion.
17
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Table of Authorities2 Cases
a
☆ 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. ✪
✪
☆ ⇎ a ✪ ✘ a ⇎ a
☆ ☆
⇎ a
✪
⇎ ✘ ✘
☆ ☆ ✪
✘
☆ ✪ ✪
2
16 10, 15
Cir. 2013) Barry v. City of New York , 712 F.2d 1554, 1558-59 (2d Cir. 1983) 9 California Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 15 511 (1972) Coppedge v. United States , 369 U.S. 438, 446-47 (1962) 16 Cox Broadcasting Corp. v. Cohn , 420 U.S. 469, 491-92 , 499 (1975) 15 Denius v. Dunlap , 209 F.3d 944, 958 (7th Cir. 2000) 9 Denton v. Hernandez , 504 U.S. 25, 31 (1992) 16 Floyd v. United States Postal Service , 105 F.3d 274, 277 (6th Cir. 1997) 9 Gardner v. Newsday, Inc. , 895 F.2d 74, 79-80 (2d Cir. 1990) 9 Greaser v. State of Missouri, Department of Corrections , 145 F.3d 979, 16 985 (8th Cir. 1998) Greidinger v. Davis , 988 F.2d 1344, 1354 (4th Cir. 1993) 9 Hart v. Tannery , No. 11-2008, 2011 WL 10967635 at *2 (3d Cir. June 28, 10, 16, 18 2011) Hill v. Department of Agriculture , 77 F. Supp. 2d 6, 9 (DDC 1999), aff'd , 9 No. 99-5365, 2000 U.S. App. LEXIS 6966 (D.C. Cir. Mar. 7, 2000) Hines v. Chandra , No. 1:06-cv-00233-KMO (N.D. Ohio, E. Div. Nov. 18, 10 2009) In re Boston Herald, Inc. v John J. Connolly, Jr. , 321 F.3d 174, 175-76 , passim 179-81 , 184-91 (1st Cir. 2003) In re Crawford , 194 F.3d 954, 958 (9th Cir. 1999) 9 In re. Mesaba Aviation, Inc. , 386 Fed. Appx. 580 (8th Cir. 2010) 18 In re Schum , No. 13-1041 (D.C. Cir. May 31, 2013) 7 Johnson v. Greater Southeast Community Hospital Corp. , 951 F.2d 1268, 7, 11, 12 1277, No. 91-7002 (D.C. Cir. 1991), cert. denied , 521 U.S. 1121 (1997) Kay v. Ehrler , 499 US 432 (1991) 8 Lyons v. Eastern Airlines, Inc. , No. 86-3395, 1986 WL 4333 (E.D. Pa. 18 Apr. 9, 1986) M.W. v. Clarke County School District , No. 3:06-cv-49, 2007 WL 17 2765572, *2 (M.D. Ga. Sept.20,2007) Neitzke v. Williams , 490 U.S. 319, 324 (1989) 16 Nixon v. Warner Communications, Inc. , 435 U.S. 589, 598 (1978) passim
☆ major/minor
Notes: ⇎ circuit split; a /✘ support/oppose IFP affidavit seal; ✪/
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a
☆ Olsen v United States , No. 1:07-cv-0034-JAW (D.C. Maine June 11,
a
✪
⇎ ✘ ✪ ⇎ ✘ ✪ ⇎ ✘
☆
✘ a
✪
a
✪
☆ a* ☆
10 2007) Press-Enterprise Company v. Superior Court of California, County of 7, 13, 15 Riverside , 478 U.S. 1, 8 (1986) [" Press-Enterprise II "] Seattle Times Company v. U.S. District Court for Western District of 12, 17 Washington , 845 F.2d 1513, 1517 , 1519 (9th Cir. 1988) Sai v. United States Postal Service , No. 14-1005 (D.C. Cir. 2014), cert. 7, 12, 17 denied , No. 14-646, __ US __ (May 13, 2014) Schmidt v. Dragisic , No. 13-cv-00348, 2013 WL 1912214 (E.D. Wis. May 18 8, 2013) Sturdza v. United Arab Emirates , No. 07-7034 (D.C. Cir. Oct. 23, 2007) 7 United States v. Amodeo , 71 F.3d 1044, 1049 (2d Cir. 1995) [" Amodeo 11, 14 II "] United States v. Durant , 545 F.2d 823, 827 (2d Cir. 1976) 10 United States v. Gonzales , 150 F.3d 1246, 1255 (10th Cir. 1998) 10, 13 United States v. Hubbard , 650 F.2d 293, 316-17 (D.C. Cir. 1980) 7, 11, 12 United States v. Pineda–Moreno , 617 F.3d 1120, 1123 (9th Cir. 2010) 10 (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) 10 Valley Broadcasting Company v. United States District Court , 798 F.2d 9 1289, 1294 (9th Cir. 1986) Washington Post Company v. Department of Health and Human 9 Services , 690 F.2d 252, 266-67 (D.C. Cir. 1982) Whalen v. Roe , 429 U.S. 589, 605 (1977) 17 Wolfe v. Graham , No. 95-7137 (D.C. Cir. Dec. 22, 1995) 7 Statutes 5 U.S.C. § 552(b)(6) (Freedom of Information Act ["FOIA"]: privacy exemption for personnel & medical files) 5 U.S.C. § 552a(g) (Privacy Act ["PA"]: civil liability of government agencies) 12 U.S.C. § 3403 (Right to Financial Privacy Act ["RFPA"]: confidentiality of financial records) 15 U.S.C. § 1681b (Fair Credit Reporting Act ["FCRA"]: permissible purposes) 15 U.S.C. § 1681n(FCRA: civil liability for willful noncompliance) 15 U.S.C. § 1681o (FCRA: civil liability for negligent noncompliance) 15 U.S.C. § 1681p (FCRA: court jurisdiction) 15 U.S.C. § 1692b (FCRA: acquisition of location information)
8, 9 " 9 9 " " " "
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15 U.S.C. § 1692c (Fair Debt Collection Practices Act ["FDCPA"]: permitted communications) 15 U.S.C. § 1692k (FDCPA: civil liability) 15 U.S.C. § 6801 (Gramm-Leach-Bliley Act ["GLBA"]: Protection of nonpublic personal information) 16 C.F.R. §§ 313.3(n, o) (GLBA regulations, defining "nonpublic personal information" and "personally identifiable financial information") 16 C.F.R. §§ 314.2-314.4 (GLBA regulations, defining standards for safeguarding customer information) 18 U.S.C. § 1030(g) (Computer Fraud and Abuse Act ["CFAA"]: civil liability) 18 U.S.C. § 3006A (Criminal Justice Act ["CJA"]) ✪ 28 U.S.C. § 1915(a)(1) ( In forma pauperis ["IFP"] statute) 47 U.S.C. § 227(b)(3) (Telephone Consumer Protection Act ["TCPA"]: civil liability) ✪ Fed. R. Civ. P. 5.2 (privacy protection for filings made with the court) Fed. R. Cr. P. 49.1 (privacy protection for filings made with the court) ✪ U.S. District Court D.C., L. Cv. R. 83.11(b)(3) (appointment of pro bono counsel for IFP litigants)
☆
9 " 17 " " 9 passim passim 9 9 9 8
Other authorities 25 Years Later, PACER, Electronic Filing Continue to Change Courts , The Third Branch News (Dec. 9, 2013) Alessandro Acquisti and Ralph Gross, Predicting Social Security numbers from public data , DOI 10.1073/pnas.0904891106, PNAS July 7, 2009 vol. 106 no. 27 10975-10980 and supplement 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) EPIC: Social Security Numbers (Nov. 13, 2014) John G. Roberts, Jr., C.J., 2013 Year-End Report on the Federal Judiciary (Dec. 31, 2013) John G. Roberts, Jr., C.J., 2014 Year-End Report on the Federal Judiciary Judicial Business of the United States Courts 2013, Annual Report of
16 9
16, 17 16
16
9 17 16 17
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the Director , Administrative Office of the United States Courts, Table C-13 Kristen M. Blankley, 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) Latanya Sweeney, SSNwatch , Harvard Data Privacy Lab; see also demo 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) Susan Lyons, Free PACER: Balancing Access & Privacy , AALL Spectrum, July 2009, at 30-31
16
9 17
16
16 17
16
8 17 16
Other H.R. Rep. No. 1079, 52d Cong., 1st Sess. 2 (1892) Third Circuit standing order, January 22, 1987 U.S. District Courts IFP affidavit , form AO 239 U.S. District Courts CJA affidavit
16 13 passim passim
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I.
This Court is not precluded by any binding precedent from granting this motion.
I brought a very similar motion, pro se , before the D.C. Circuit in Sai v. USPS . In an unpublished per curiam panel decision, that court denied the motion, and upheld its denial upon reconsideration. Reconsideration en banc was denied. Subsequent cert petition was also denied. However, the D.C. Circuit's decision rested entirely on Johnson and Schum , which only state a presumption of access to j udicial documents. It did not determine whether an IFP affidavit is a judicial document, address the Press-Enterprise II "experience" and "logic" tests, or address the balance between my privacy and any erstwhile presumption of public access to my affidavit. In short, it did not address, or hold against, any of the arguments upon which my motion is based — nor did its cited cases, nor t hose cases' citations ( Hubbard , Nixon , Wolfe , and Sturdza ).3 As the Government agreed in their requested brief in opposition to certiorari, "[t]he D.C. Circuit’s unpublished decision does not establish any binding precedent" (p. 11) and "[Sai] therefore remains free to file an action … in the district court. If [Sai] files such an action, he may seek in forma pauperis status, and he may move to file his in forma pauperis application under seal. The district court would be free to grant that motion if [Sai] demonstrates that his privacy interests would be harmed by disclosure." (p. 20) II.
IFP status grants substantial rights that would immediately affect this litigation and materially advance its termination.
Granting me IFP status is a prerequisite to this Court also granting me the pro bono counsel for which I 3
To the extent they do address the issues, those cases support my motion.
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have moved. See 28 USC 1915(e)(1), D. D.C. LCvR 83.11(b)(3) (no equivalent in D. MA. LCvR). The standard for review of the " potential merit" of my claims for appointment of counsel is necessarily much lower than on a motion to dismiss. Appointment is normally decided without adversarial presentation, on a complaint alone, written by a typical pro se plaintiff. The "complexity" of this case is, at least for a pro se litigant, quite significant. Issues will include Iqbal / Twombly standards, Bivens / 1983 jurisdiction, FTCA "investigative officers" standing and equitable tolling, Rehabilitation Act and APA standing, felony obstruction of (and false testimony in) a federal investigation, NIED & IIED damages, entanglement of FOIA and civil discovery privileges, and many others. These are hardly issues that a pro se litigant with minimal financial resources — particularly one having to simultaneously manage serious disabilities — can be expected to pursue with adequate diligence. Researching and writing my briefing on this issue alone took at least two weeks of work, even with the help of being able to use my cert petition as guidance. This is work for which I am not and cannot be compensated (per Kay ), I am not supported by any research staff, I have no experience or training, I have no access to tools such as Lexis, Westlaw, or Shepard's, etc. This Court, the interests of justice, and even the Defendants would surely benefit from the assistance of appointed counsel who would present a better case, more speedily, and in a more streamlined manner than I am capable of doing myself. III.
IFP affidavit information is historically, widely, and strongly protected.
The right to privacy is an inherent, personal right that, unless waived, can only be overcome by an overriding public interest. See Warren & Brandeis . The private, sensitive financial information in an IFP
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affidavit ( Floyd at 277) is protected in virtually all legal contexts. It is prohibited from being made public. In litigation, an opposing party must demonstrate a compelling need to obtain a subpoena for such records. Where it does not "promot[e] the public’s understanding of the judicial process and of significant public events", it must be sealed. Valley Broad. Co. at 1294. It must be redacted in filings. FRCvP, FRCrP. A third party's disclosure of the information in an IFP affidavit is also widely actionable. Personnel, medical, and "similar files", including individuals' financial information, are exempt from FOIA / Privacy Act disclosure. See 5 U.S.C. § 552(b)(6), Washington Post at 266-67, Hill at 9 (aff'd on appeal). Under the RFPA, Privacy Act, CAD/CFAA, FCRA, FDCPA, and TCPA, disclosure of such information without consent is unlawful. Third parties' information disclosed on an IFP affidavit, as with affiant's spouse, creditors, and debtors, also implicate independent privacy rights. See Gardner at 79-80. An IFP affiant publicly disclosing creditor or debtor information may violate the FDCPA, §§ 1692b, 1692c, & 1692k. This information is also a "consumer credit report", for which public disclosure would likely be actionable. See 15 U.S.C. §§ 1681b, 1681n, & 1681o. Personal identifiers, such as social security numbers, are also protected. See Boston Herald at 190, Denius at 958, Crawford at 958, Greidinger at 1354, and Barry at 1558-89. The last four SSN digits are the only portion that are meaningfully private; the rest can be reliably predicted based on place and date of birth, which are easily available. See Acquisti, Sweeney, and EPIC . Even corporate litigants have financial information sealed, where it could "harm a litigant’s competitive
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standing". Nixon at 598. See also Apple at 1226, concluding that "the particular financial information at issue … is not necessary to the public’s understanding of the case, and that the public therefore has minimal interest in this information." "[P]oor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. . . . [T]he Constitution doesn't prefer the rich over the poor[.]", Kozinski, C.J., dissent in Pineda-Moreno at 1123. An IFP affidavit is a collection of "[p]ersonal financial information, such as one’s income or bank account balance, [that] is universally presumed to be private, not public". Boston Herald4 at 190. See also Olsen (granting IFP affidavit seal), Hart ("[IFP] motions and supporting affidavits contain sensitive information"), Gonzales at 1255, and Hines (granting IFP affidavit seal). I do not contest that t he Court has a legitimate interest in granting IFP status only on a showing of financial eligibility; indeed, I have sworn that I am willing and able to do so. The question here is only whether the Defendants or the public have a right to my financial information that outweighs my privacy rights. They do not. This is not a bankruptcy proceeding or the like; my financial information has no relevance to this litigation (nor to most federal actions). IV.
IFP affidavits are ministerial documents, not judicial, and therefore are accorded no presumption of public access under common law or the First Amendment.
Boston Herald was a CJA case, not an IFP case. However, the "purpose of the [CJA], confirmed by its legislative history, is clearly to redress the imbalance in the criminal process when the resources of the United States Government are pitted against an indigent defendant." Durant at 827. CJA affidavits contain essentially the same information, and implicate at minimum the same privacy and public interest rights, as an IFP affidavit. Sarsoun at 1363. 4
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In Nixon at 598, the Supreme Court stated, of ministerial documents, that "[t]he right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." . There is no public right of access to documents that are not a "judicial record". El-Sayeigh at 159. A court should "determin[e] whether and to what extent a party’s interest in privacy or confidentiality of its processes outweighs this strong presumption in favor of public access to judicial proceedings", Johnson at 1277 and Hubbard at 314, by considering "(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced." Johnson at 1277 n. 14. Further, a court must first weigh the level of presumption of access. Amodeo II at 1048-1050. "Where testimony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason." Id. at 1050. "Once the weight of the presumption is determined, a court must balance competing considerations against it… [including] the privacy interests of those resisting disclosure." Id. "In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public. Financial records …, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public." Id. at 1051.
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The Government agrees that Johnson "concerned the common-law presumption of public access to judicial proceedings, which can be overcome by demonstrating that the factors discussed in those decisions … weigh against disclosure" ( Sai v USPS, cert. opp. at 8), and (p. 11-12) that "If anything, the presumption of access recognized by the D.C. Circuit may be more easily overcome when the document in question is a financial affidavit submitted in support of an in forma pauperis motion. The D.C. Circuit has explained that while a “court’s decrees, its judgments, its orders, are the quintessential business of the public’s institutions,” “[o]ther portions of the record—such as documents filed with the court or introduced into evidence—often have a private character, diluting their role as public business.” EEOC v. National Children’s Ctr., Inc ., 98 F.3d 1406, 1409 (1996). The court has thus indicated that a party can more easily overcome the presumption of access when the documents in question are submitted by a party, rather than issued by the court, and when they are not central to the court’s adjudication of the suit. See Hubbard , 650 F.2d at 319-321." The Government also states (p. 11) that while the Ninth Circuit denied CJA affidavit seal on the basis that it would not prejudice the defendant's right to a fair trial in Seattle Times , the decision "does not establish any precedential rule concerning access to financial affidavits. There, the court “assume[d]” that a criminal defendant’s financial affidavits submitted in support of an application for appointed counsel were subject to a qualified First Amendment presumption of public access. Id . at 1516 n.1. The court held that the presumption had not been overcome by "speculative" concerns that the affidavits might contain incriminating information. Id . at 1519. … [T]he court did not hold that there is a blanket "“public right of access to … financial eligibility forms." The court did not definitively determine the existence or scope of any right of public access to financial affidavits." In Boston Herald , the First Circuit was the first circuit to determine "whether there is a right of access", p. 176, to "the details of [the defendant's and his] family’s assets, liabilities, and financial obligations", p. 187, submitted "to show financial eligibility for CJA funds", p. 176. The Boston Herald had brought a challenge to unseal John Connolly's financial affidavit, in a "high-profile" (p. 175) RICO case. The public interest in judicial records is particularly strong in such contexts. Richmond Newspapers at 564-74. Using the Supreme Court's standard in Press-Enterprise II , the First Circuit (p. 184-191) held that
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"[b]oth the constitutional and the common law rights of access have applied only to judicial documents", p. 180, that CJA forms "are not judicial documents", p. 181, that there is no relevant tradition of public access to indigent litigants’ personal financial data, and public access to such documents would have a negative impact on the functioning of the CJA system. Id . at 189. The court noted that "the invasion of privacy inherent in disclosing this data" was "intensified because the information pertains not only to [the defendant], but also to his wife and children", and that making a CJA affidavit public would deter defendants' use of the CJA. Id. at 188. Therefore, the court held that there is no common law or first amendment public right of access to CJA affidavits, but rather that such affidavits are "are administrative paperwork generated as part of a ministerial process ancillary to the trial". Id. at 189. Indeed, such motions can be routinely granted by a court clerk , who has no Article III judicial authority. See Third Circuit's standing order of 1987. "[T]he court essentially acts in an administrative, not a judicial, capacity when approving voucher requests and related motions for trial assistance … the vouchers and related information are not trial documents in any accepted sense of that term. They do not go to the guilt, innocence or punishment of a defendant. They are not evidence of the crime. They are entirely ancillary to the trial." Gonzales at 1255. "[T]he strong weight to be accorded the public right of access to judicial documents was largely derived from the role those documents played in determining litigants’ substantive rights—conduct at the heart of Article III—and from the need for public monitoring of that conduct." Amodeo II at 1049. V.
Defendants have no standing to oppose this motion.
Neither the public nor the defendants have any stake in knowing my personal financial information, and
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IFP motions are generally non-adversarial. Most are determined before a case is even filed or defendants summoned. If defendants did have standing to challenge an IFP motion, a court would not have the authority to grant it until after defendants appeared and had opportunity to challenge the motion. This is simply not the case. IFP motions are nearly always ruled upon ex parte , and doing so does not infringe on the opponent's rights. Defendants have not yet been served, and need not be served to rule on this motion. If Defendants want to examine my finances, they have a route to do so: subpoena. The right to challenge such a subpoena — which this Court would surely quash — cannot be denied to someone merely for exercising their rights under the IFP act. Defendants' only lawful interest or standing in this motion might be as to delay, such as if it would prejudice the Bivens defendants' right to a speedy outcome. However, a lawyer would prosecute this case more speedily than I am capable of doing, and even if my request for §1292(b) certification is granted, Bivens defendants would not be subjected to litigation pending its outcome. Even if granting me IFP status and appointing me a lawyer did delay this case somewhat, my fundamental, Constitutional right to representation and equal access to the courts ( see Cal. Motor. Trans. at 511) f ar outweighs the Defendants' common-law right to a speedy resolution. VI.
To the extent that any presumption of access may apply to an IFP affidavit, that presumption is far outweighed by the affiant's (and their spouse's) privacy interests.
Even if there were a public right of access to IFP affidavits, the right would only be a qualified one. The
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Supreme Court has held that courts must consider the tests of "experience" — "whether the place and process have historically been open to the press and general public" — and "logic" — "whether public access plays a significant positive role in the functioning of the particular process in question". Press-Enterprise II at 8. Even for judicial records, the public interest must be balanced against individual privacy interests. Nixon at 597-99, 602, Cox at 491-92, 499. I am not a public figure, criminal defendant, nor a publicly-traded company; rather, I am pursuing a civil liberties case. If the public's interest in financial data relevant to a trial between two of the world's largest companies ( Apple at 1226) and the CJA affidavit of a high-profile ex-FBI RICO convict ( Boston Herald ) is too minimal to outweigh their respective privacy rights and risks from release, the same balance must surely weigh in favor of an IFP applicant like me. Furthermore, Defendants are not private parties, but rather the government and its agents. Any disclosure of my financial records to the government necessarily implicates my Fourth and Fifth amendment rights, which I must not be forced to waive merely because I seek IFP status. VII.
Publishing an IFP affidavit (or the details therein) on the public record necessarily causes irreparable harm to the affiant, contradicts the rationale of the IFP statute, and chills the exercise of fundamental Constitutional rights. This harm is presumptive, and requires no particularized showing by the affiant.
The IFP statute seeks "to ensure that indigent litigants have meaningful access to the federal courts." Neitzke at 324. Congress, concerned how "the Government [could] allow its courts to be practically closed to its own citizens, who … have valid and just rights, because they happen to be without the
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money to advance pay to the tribunals of justice", H.R. Rep. No. 1079, intended "'to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because … poverty makes it impossible … to pay or secure the costs' of litigation." Denton at 31, quoting Adkins at 342. See also Coppedge at 446-47, Greaser at 978, and Catz and Guyer at 656-57, accord Neitzke at 330.5 Any publicly filed document is immediately available to the public on PACER (C.J. Roberts' 2014 report at 5-6 and 25 Years Later ), "creat[ing] a substantial risk of identity theft", Blankley at 418. See also Lyons at 30-31, Gomez-Velez at 373-77, 413-18, and Solove at 1138 and 1154. Even if not on PACER, but still available in person because the record is not actually sealed ( Hart at 1), that risk is still significant. See Boston Herald at 189-91. Public disclosure of an IFP/CJA affidavit improperly forces a Hobson's choice on litigants, between privacy and access to the courts, including assistance of counsel. Id. at 188. Identity theft is a serious, growing problem. See Harrell & Langston and DoJ Statistics Bulletin . When courts disclose financial records, such as in bankruptcy proceedings, this risk has been shown to increase. See OMB, Financial Privacy in Bankruptcy . Income and living expenses are key, highly sensitive, information for identity theft. See Bernstein letter. This is worsened in aggregation, as a "mosaic" reveals more than the sum of its parts. Whalen at 605, Solove at 1185. IFP affidavits can also disclose embarrassing and potentially harmful information, such as an affiant's family situation, disabilities, dependents, etc. See M.W. at 2. Such information was therefore protected
corporations are granted such rights ( Summers ), though they are not the "citizens" Congress had in mind. 5
Even
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under the GLBA, which prohibits my bank from disclosing it. Without a presumption of IFP affidavit privacy, Congress' guarantee of access is chilled — and in particular, I will be chilled. I absolutely refuse to waive my privacy rights or subject myself to the risks from public disclosure of my affidavit. Unless this motion is granted, I will be forced to proceed without the benefit of IFP status or appointment of counsel, despite my qualification. Unlike a wealthy litigant, I cannot afford to pay for my privacy — and I should not have to. VIII.
The question presented above is a controlling question of law as to which there is substantial ground for difference of opinion.
The question is a matter of law, governing whether or not I can apply for IFP status with the guarantee that my affidavit will be held ex parte and under seal. This affects tens of thousands of similarly situated litigants. See C.J. Roberts' 2013 report, AOUSC's 2013 report table C-13, Landsman at 440-47, Providing Equal Access to Justice at 830-31, and Sai v. USPS amici ). Though all courts directly holding on issues of ministerial status and balance of privacy have ruled in favor of my position - including the First Circuit, which is binding on this Court - several courts have ruled against it, for various other reasons. In Seattle Times , the Ninth Circuit denied CJA affidavit seal because it would not prejudice the defendant's right to a fair trial . In Hart , the Third Circuit, holding that an IFP affidavits "contain sensitive information", made it unavailable on PACER, and ordered the clerk to keep it "locked" — but for some definition of "locked" that still permits "a member of the public [who] wants to see the document … to come into the courthouse", i.e. not granting actual seal. Mesaba (8th Cir.) , Schmidt
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(E.D. Wa. [9th Cir.]) , and Lyons (E.D. Pa. [3rd Cir.]) denied seal for failure to make a particularized showing of harm. These cases directly contradict the cases I have cited in support (and Hart even contradicts itself ). A widespread circuit split is the epitome of "substantial ground for difference of opinion". Respectfully submitted, Sai, plaintiff pro se
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