Opinion
6983-19W
02-01-2024
ARTHUR M. BIALER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Now before the Court is a motion (Doc. 151) for leave to file out of time a "Motion to Change or Correct Caption" (Doc. 152). We will deny the motion for leave and will not file the untimely motion.
Background
Previous filings
Petitioner filed his petition (Doc. 1) in May 2019. The petition bore his name, and he did not file with the petition a motion to proceed anonymously. Counsel entered his appearance in July 2019 (see Doc. 13), and he did not file a motion to proceed anonymously.
In May 2021--two years after the petition had been filed--petitioner filed through counsel a status report that included at 14-15 a section entitled "Motion to Proceed Anonymously". As petitioner then explained, "What concerns such whistleblowers is their ability, if any, to obtain over the next decade new positions with new employers." The status report was Doc. 71 on the docket record of this case, meaning that 70 documents had previously been filed on which petitioner's name was stated in the caption and elsewhere. In June 2021 we issued an order (Doc. 84) that noted the filing's non-compliance with Rules 50(a) and 54(b) and that stated:
The status report was filed two years after the petition, not with the petition as provided in Rule 345(a), sent. 2: "Unless otherwise permitted by the Court, a petitioner seeking to proceed anonymously pursuant to this Rule shall file with the petition a motion, with or without supporting affidavits or declarations, setting forth a sufficient, fact-specific basis for anonymity." (Emphasis added.) The status report was not submitted with a motion for leave seeking permission to make the request two years after the petition. The status report does not proffer an excuse for the two-year delay. The status report does not provide any substantiation for, nor even allege with "fact-specific" particularity, any harm to petitioner or anyone else that would arise from this case's continuing under its present caption.... Petitioner has not shown that he should be permitted to advance a request, untimely under Rule 345(a), to proceed anonymously.
We denied the request. Since then, two and a half years have gone by, and another sixty-some documents (each bearing petitioner's name in the caption) have been added to the docket record. Some of those entries are the parties' filings concerning, and the Court's orders concerning, the confidentiality of certain information in the record and the redaction or sealing of certain documents; but in none of his filings did petitioner renew his request to proceed anonymously.
The newly filed motions
On January 27, 2024, petitioner through counsel filed a motion (Doc. 151) for leave to file and lodged a "Motion to Change or Correct Caption" (Doc. 152), in which he requests "to proceed anonymously".
As grounds for excusing this request's being filed more than four years late, the motion for leave alleges "three new facts": a new job prospect (by a potential employer who might be negatively impressed by disclosure of petitioner's whistleblowing); the disclosure of petitioner's connection to Claim S in our order of April 14, 2022 (Doc. 110); and the October 2023 issuance of an order in another case (No. 8391-18W), which (if we understand the point) states facts that allegedly will facilitate the identifying of petitioner as the whistleblower in this case.
These facts post-date the commencement of this case and our previous order denying petitioner's previous request to proceed anonymously, so petitioner argues that these "new facts" excuse the late date of his current filings. In addition, counsel claims that he has only just learned that Tax Court orders are publicly accessible on the Court's website; and he claims that he thought a prior order (Doc. 85) sealing certain documents had sealed the entire case.
Counsel evidently intends that such "proceed[ing] anonymously" be accomplished simply by changing the caption in this case, i.e., by substituting his name with a pseudonym. The motion does not propose any means by which petitioner's name would be redacted from the 152 documents already filed.
Discussion
For purposes of this motion we assume arguendo that the grounds that petitioner advances--i.e., the reputational harm arising from disclosure of his whistleblowing activity that might affect his ability to be hired for employment--would have warranted his being allowed to proceed anonymously if he had requested it at the commencement of the case. Even so, we deny his motion for leave to file this motion 4-1/2 years and 152 docket entries later, for three reasons:
I. Delay
A motion to proceed anonymously is required to be filed with the petition. Rule 345(a). Petitioner filed no such motion with his petition and thereby waived any privacy protection to which he might have been entitled. (See Rule 27(g).) Petitioner's motion for leave asks to be permitted to make this request four and a half years late, but the motion states no sufficient grounds for our granting such leave. The potential harm that petitioner plausibly asserts (prospective employers regarding him as problematic if they learn he has blown the whistle on a previous employer) is a standing risk that was apparent at the time he filed his petition, even if he did not yet have any job applications pending. He explained this potential harm 2-1/2 years ago in his first request to proceed anonymously. After we denied that request in our order of June 2021 (Doc. 84), petitioner continued to make unsealed filings in this case that disclosed his whistleblowing.
We cannot ascribe any weight to petitioner's counsel's assertion that he has only just learned that Tax Court orders are publicly accessible on the Court's website, if this is proposed as a reason that the delay should be excused. Whether he knew the particular means by which our orders can be publicly accessed on the internet, he must have known (and his first request to proceed anonymously shows that in fact he did know) that one way or another the Tax Court is a "court of record" (sec. 7441) and its records are public records (sec. 7461) to which the public has access (see Rule 27(b)(2). At numerous times throughout the pendency of this case, the parties have filed and objected to, and the Court has ruled on, requests to seal specific documents. Petitioner explicitly referred to the use of "Anonymized terms for publicly available documents" (Doc. 55 at 1, emphasis added); and and he objected to the sealing of certain documents (see Docs. 76-77). Those motions, requests, objections, and orders would have been meaningless if Tax Court filings were not public.
Similarly, we ascribe no weight to counsel's claims that he believed our June 2021 order (Doc. 85) sealing certain documents had sealed the entire case. No fair reading of that order--not even a cursory reading--could support such a belief. The order gives a numbered list of 10 documents "to be placed under seal", directs the Clerk of Court to "remove from the Court's publicly accessible records the above-referenced documents", and orders preparation of redacted version of those ten documents. Of course, the very reason for the redactions is that the redacted versions can then be publicly available, bearing, of course, petitioner's name in the captions (which were not proposed to be redacted). All this would have been absurd if the entire record were under seal.
The motion for leave gives no good reason why petitioner's delay should be excused. Moreover, that long delayed has caused substantial complications that make virtually impossible the relief he requests, as we now show.
II. Disclosure
The information that petitioner's motion would have us seal has already been disclosed. Petitioner has filed this motion after he himself has made repeated disclosures, on the unsealed public record in this case, of his whistleblowing activity. Petitioner expresses concern that blog posts on the internet reveal information about this case. That is, he acknowledges that such information is already available on the internet, and our own simple internet search using his name yielded links to copies of orders that we issued in this case (i.e., links on non-Tax Court websites that, of course, we do not control). The toothpaste is out of the tube.
One of the factors considered by the courts in ruling on requests for protection of a litigant's identity is whether the litigant's identity has "thus far been kept confidential". Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008); see also Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004) ("'[O]nce announced to the world, the information lost its secret characteristic'" (quoting In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990) (vacating injunction prohibiting reporters from disclosing information revealed in open courtroom))). Petitioner has not kept confidential his identity and whistleblower status. Petitioner's request in effect asks the Court to protect petitioner more than petitioner has attempted to protect himself. That is, petitioner asks us to protect him from his own disclosures. We decline to do so.
III. Lack of procedure
Petitioner's lodged motion asks us only to correct the caption of this case--i.e., to make petitioner anonymous on the title of our docket record. That act would have little to no effect at this point, since a prospective employer who performs a search of petitioner's name learns of petitioner's Tax Court case and its docket number; and armed with that docket number, the inquirer can immediately access our orders in this case and can request copies of the parties' filings.
Moreover, we cannot simply seal the entire record from the public. Where proceeding anonymously is permitted, Rule 345 requires the public filing of redacted versions of the documents. Petitioner proposes no procedure by which his name might be redacted from all prior documents in the record and replaced with a pseudonym. Theoretically one would submit redacted copies of all 152 filings in this case, on which petitioner's name would be obscured every time it appears, and then the originally filed documents would all be sealed, and the new redacted versions would be filed, so that the Tax Court's public record in this case would no longer disclose petitioner's identity. But petitioner has not submitted (nor proposed a process for submitting) such redacted versions.
Such redaction and refiling would be an enormous task for the parties and the staff of the Clerk of Court--and a task with little value, given (as we have said) that petitioner's information is already public (due to petitioner's actions and inactions). Information already available on the internet would tell any inquirer the identity of the petitioner in this case and the docket number of this case; and then the publicly available versions of the documents, even though redacted, would give to the inquirer information that (he would know) concerns the petitioner. Even if petitioner were ready and able to do his part of this pointless chore (which he has not suggested), we are not willing to subject respondent and the Court to this futile exercise.
It is
ORDERED that misfiled versions (Docs. 149, 150) of the filed motion for leave and the lodged motion to proceed anonymously are hereby stricken as duplicative. It is further
ORDERED that the motion for leave (Doc. 151) is denied and the lodged "Motion to Change or Correct Caption" (Doc. 152) is not filed.