F I L E D
United States Court of Appeals
Tenth Circuit
JUL 10 2001
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
W.N.J. and J.A.S.,
Plaintiffs,
and
J.O.H.N. and D.M.W.,
No. 00-4124
Plaintiffs-Appellants,
v.
DAVID YOCOM, Salt Lake County
Attorney,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 91-CV-645)
Brian M. Barnard (James L. Harris, Jr., with him on the briefs), Utah Legal
Clinic, Cooperating Attorneys for Utah Civil Rights & Liberties Foundation, Inc.,
Salt Lake City, Utah, for Plaintiffs/Appellants.
Thomas D. Roberts, Assistant Attorney General (Jan Graham, Utah Attorney
General and Mark E. Burns, Assistant Attorney General, with him on the brief),
Salt Lake City, Utah, for David Yocom, Salt Lake County Attorney,
Defendant/Appellee.
Before SEYMOUR, BRISCOE and GIBSON, * Circuit Judges.
SEYMOUR, Circuit Judge.
*
The Honorable John R. Gibson, United States Circuit Judge for the Eighth
Circuit, sitting by designation.
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Plaintiffs, several unmarried residents of the State of Utah, brought this
action to challenge the state’s laws against fornication and sodomy as engaged in
by unmarried heterosexual adults. The district court dismissed the case on
summary judgment, determining that plaintiffs lacked standing and their claims
were unripe. We dismiss this appeal on other grounds. Because plaintiffs used
pseudonyms without first obtaining permission from the district court, the case
was improperly filed and must be dismissed for lack of appellate jurisdiction.
“Proceeding under a pseudonym in federal courts is, by all accounts, ‘an
unusual procedure.’” Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000)
(quoting MM v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998)). Rule 10(a) of the
Federal Rules of Civil Procedure requires that every pleading contain a caption
setting forth, inter alia, “the title of the action,” and this title must include “the
names of all the parties.” Similarly, Rule 17(a) mandates that “every action shall
be prosecuted in the name of the real party in interest.” See also Femedeer, 227
F.3d at 1246. The Rules provide no exception that allows parties to proceed
anonymously or under fictitious names such as initials. Nat’l Commodity &
Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (per curiam).
Nevertheless, in “certain limited circumstances,” courts do allow a party to
proceed under a pseudonym. Id. “Significant privacy interests,” such as
plaintiffs’ interest in keeping their sexual habits from public scrutiny, sometimes
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suffice. Id.; see also Femedeer, 227 F.3d at 1246 (case must “involv[e] matters
of a highly sensitive and personal nature”); Coe v. U.S. Dist. Ct. for Dist. of
Colo., 676 F.2d 411, 416 (10th Cir. 1982) (listing cases allowing pseudonyms for
challenges to laws involving birth control, abortion, and homosexuality, among
others).
When a party wishes to file a case anonymously or under a pseudonym, it
must first petition the district court for permission to do so. Nat’l Commodity &
Barter Ass’n, 886 F.2d at 1245. If a court grants permission, it is often with the
requirement that the real names of the plaintiffs be disclosed to the defense and
the court but kept under seal thereafter. Id. Where no permission is granted, “the
federal courts lack jurisdiction over the unnamed parties, as a case has not been
commenced with respect to them.” Id.
In this case, plaintiffs failed to request permission from the district court
before proceeding anonymously. At our request, two plaintiffs filed sealed
affidavits giving their true names to this court. They also secured an order by the
original magistrate judge granting leave to proceed using pseudonyms, filed after
the start of this appeal but dated nunc pro tunc to the filing of the action. Those
acts cannot cure the failure to secure permission at filing. We raised this issue
sua sponte because the defect affects our fundamental jurisdiction to hear the
appeal. See id. at 1245 n.3.
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A lack of jurisdiction cannot be corrected by an order nunc pro tunc.
Central Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642,
644 (7th Cir. 1999). As noted in that case, “the only proper office of a nunc pro
tunc order is to correct a mistake in the records; it cannot be used to rewrite
history.” Id. The lack of original jurisdiction in the district court likewise cannot
be cured after an appeal has been filed since, as a general matter, a district court
loses jurisdiction over a case once a notice of appeal has been filed. Int’l Paper
Co., v. Whitson, 595 F.2d 559, 561 (10th Cir. 1979). A district court may still
retain jurisdiction over the case to deal with collateral matters such as attorneys’
fees, Lancaster v. Independent School Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir.
1998), or to correct clerical errors under Fed.R.Civ.P. 60(a). However, it is well-
settled that a district court cannot grant a substantive motion, such as those filed
pursuant to Fed.R.Civ.P. 60(b), without first notifying the court of appeals of its
intention to do so upon proper remand. Aldrich Enterprises, Inc. v. United States,
939 F.2d 1134, 1143 (10th Cir. 1991). 1
In sum, the district court was without jurisdiction while this appeal was
pending to grant nunc pro tunc plaintiffs’ motion to use pseudonyms. Because
the district court never had jurisdiction over the plaintiffs when it granted
1
A district court may, however, consider a Rule 60(b) motion and deny it on
its merits without remand by the Court of Appeals. Aldrich, 938 F.2d at 1143.
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defendants’ motion for summary judgment, we have no authority to consider an
appeal of that decision. Accordingly, plaintiffs’ appeal is DISMISSED.
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