F I L E D

United States Court of Appeals

Tenth Circuit

JUL 10 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

W.N.J. and J.A.S.,

Plaintiffs,

and

J.O.H.N. and D.M.W.,

Plaintiffs-Appellants,

v.

DAVID YOCOM, Salt Lake County

Attorney,

Defendant-Appellee.

No. 00-4124

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.
*

 The Honorable John R. Gibson, United States Circuit Judge for the Eighth

Circuit, sitting by designation.

-2-

Before SEYMOUR, BRISCOE and GIBSON,

*

 Circuit Judges.

SEYMOUR, Circuit Judge.
-3-

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
-4-

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. 
1A 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.

-5-

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 wellsettled 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
-6-

defendants’ motion for summary judgment, we have no authority to consider an

appeal of that decision. Accordingly, plaintiffs’ appeal is DISMISSED.