676 F.

2d 411

Dr. Charles COE, Petitioner,

v.
UNITED STATES DISTRICT COURT FOR the DISTRICT
OF COLORADO, Respondent,
Michael Vitek, Henry Fieger, M.D., Jack Klapper, M.D.,
Stephen Kozloff, M.D., Robert Lederer, M.D., Nelson Mohler,
D.O., Fredrick Paquette, M.D., Christine Petersen, M.D., Roy
Piper, D.O., Bruce Wilson, M.D., and John Carroll, Attorney,
in their official capacities as members of the Colorado
State Board of Medical Examiners; The Colorado State Board
of Medical Examiners, an agency of the State of Colorado; J.
D. MacFarlane, in his official capacity as the Attorney
General for the State of Colorado, R. Michael Mullens, in
his official capacity as an Assistant Attorney General for
the State of Colorado, and Ann Sayvetz, in her official
capacity as an Assistant Attorney General for the State of
Colorado, Real Parties in Interest.
No. 82-1309.

United States Court of Appeals,

Tenth Circuit.
April 21, 1982.

Rodney R. Patula of Pryor, Carney & Johnson, Englewood, Colo., for

petitioner.
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen.,
Mary J. Mullarkey, Sol. Gen., and William A. Richardson, Asst. Atty.
Gen., State of Colo., Denver, Colo., for real parties in interest.
Before BARRETT, McKAY and LOGAN, Circuit Judges.
BARRETT, Circuit Judge.

Dr. Charles Coe appears here as petitioner under a fictitious name, aggrieved
with threatened professional disciplinary proceedings based upon complaints
lodged against him with the Colorado State Board of Medical Examiners
(Board). Dr. Coe filed a complaint for injunctive and declaratory relief with the
District Court pursuant to 42 U.S.C.A. 1983 to restrain the Board and the
Colorado Attorney General from proceeding with a public hearing upon a
formal disciplinary complaint challenging Coe's right to continue to practice
medicine in Colorado. The complaint against Dr. Coe involves allegations of
professional misconduct, specifically charges of sexual or immoral
improprieties.

The District Court dismissed Dr. Coe's complaint and motion to file an
amended complaint on the ground that Dr. Coe may not proceed in this action
under a fictitious name. Furthermore, had Dr. Coe elected to file an amended
complaint pursuant to his true, proper name, the District Court indicated that it
may not entertain his 1983 action predicated on his alleged deprivation of due
process rights arising under the Fourteenth Amendment to the United States
Constitution, i.e., irreparable harm to himself, his reputation and his property
interests. The District Court, per footnote, in its March 4, 1982, order stated:

3
Until
such time as an amended complaint (with true, proper name of Coe set forth as
party plaintiff) is filed the jurisdictional issue is not ripe for decision. It should be
noted, however, that federal courts are hesitant to become involved in operations of
state boards and agencies. It would seem that if Dr. Coe wishes to challenge the
procedures of a state board the proper place to begin would be in the state court.
4

Following the District Court's order of dismissal of March 4, 1982, refusing to

permit leave to prosecute this 1983 action under a fictitious name and the
March 9, 1982, order denying plaintiff's motion to file amended complaint
(wherein true, proper name would be used) with leave to file amended
complaint and other pleadings under seal, Dr. Coe filed a petition for writ of
mandamus or prohibition here. He alleges that the District Court's orders
constitute a clear abuse of discretion which can only be remedied by this court.

Standard of Our Review

5

In United States v. Winner, 641 F.2d 825 (10th Cir. 1981), we stated:

"Mandamus is an extraordinary writ, and the requirements for its issuance are
strict." State Farm Mut. Auto. Ins. v. Scholes, 601 F.2d 1151, 1154 (10th Cir.
1979). While "a simple showing of error may suffice to obtain a reversal on
direct appeal, to issue a writ of mandamus under such circumstances 'would

undermine the settled limitations upon the power of an appellate court to

review interlocutory orders.' " Allied Chemical Corp. v. Daiflon, Inc., 449 U.S.
33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam), quoting, Will v. United
States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275 n. 6, 19 L.Ed.2d 305 (1967).
7

The "traditional use of the writ in aid of appellate jurisdiction ... has been to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so." Roche v.
Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed.
1185 (1943). We have traditionally exercised extreme caution in granting writs
of mandamus-the petitioning party bearing "the burden of showing that its right
to issuance of the writ is 'clear and undisputable.' " Bankers Life and Casualty
Company v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106
(1953), quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286 (287),
43 L.Ed. 559 (1899). As the Court recently emphasized in Allied Chemical
Corp., supra, "(o)nly exceptional circumstances, amounting to a judicial
usurpation of power, will justify the invocation of this extraordinary remedy."
See Will v. Calvert Fire Insurance Company, 437 U.S. 655, 98 S.Ct. 2552, 57
L.Ed.2d 504 (1978).

8641 F.2d at pp. 830, 831.

Background
9

The issue presented here is whether the District Court abused its discretion in
refusing petitioner, Dr. Coe, leave to prosecute his claims of constitutional
deprivations without first having to disclose his true identity. Dr. Coe avers that
disclosure of his true identity would cause irreparable and immediate
destruction of his property and liberty interests which he seeks to protect. Stated
another way, Dr. Coe contends that the District Court has effectively foreclosed
his right to a fair or meaningful opportunity to present his federal constitutional
claims in federal court.

10

The District Court, in the March 4, 1982, order, denying Dr. Coe's mandatory
injunction against the Board and the Colorado Attorney General
found/concluded, in part, as follows:

11Dr. Coe has been the subject of an investigation for alleged violations of the
...
Colorado Medical Practice Act, C.R.S. 1973 12-36-101, et seq. The Attorney
General has prepared a formal complaint to submit to the Board which will conduct
a hearing on the matter. Under the Board's procedures, when the complaint is filed,
the allegations will be made public.

12

Plaintiff (Dr. Coe) asserts that the Board has agreed to withhold publicizing the
complaint on the condition that he stop practicing medicine until after the
Board has heard and decided the case, a process estimated to require ninety
days. Plaintiff contends that if he complies with that condition, many long-time
patients will be denied his care and his practice will be irreparably damaged.
He argues that imposing such a condition as the price of maintaining
confidentiality of these proceedings amounts to an arbitrary, capricious and
unreasonable interference with his right freely to pursue his profession, a
"property interest" he says is protected against such infringement by the due
process clause of the Fourteenth Amendment.

13

Plaintiff asks that the Board be restrained from releasing the complaint to the
public and that the state hearing be conducted confidentially. Defendants have
moved to dismiss this action, claiming that the plaintiff has presented no federal
question and, therefore, this Court lacks jurisdiction.

14

Before proceeding to the merits, I must decide the plaintiff's preliminary

motion to file this action under the fictitious name, Dr. Charles Coe. Rule 10(a)
of the Federal Rules of Civil Procedure lays down the general rule that a
complaint "shall include the names of all the parties ..." Permission to proceed
under a fictitious name should be granted only in exceptional circumstances
where the interest of justice requires anonymity. Doe v. Deschamps, 64 F.R.D.
652 (D.Mont.1974). Judge Kane of this Court recently denied a plaintiff's
request for confidentiality, emphasizing the importance of maintaining public
access to proceedings. Doe v. United States, 93 F.R.D. 483, No. 82-K-64
(D.Colo. Feb. 2, 1981); See also, Lorenz v. NRC, 516 F.Supp. 1151
(D.Colo.1981).

15

Members of the public, including the plaintiff's present and potential patients,
have a significant interest in free access to the facts and this Court proceeding.
While I understand and am sympathetic to the plaintiff's desire for anonymity in
view of the allegations against him, I find that this interest in privacy is
outweighed by the public interest. Therefore, the plaintiff will not be permitted
to proceed with this action under a fictitious name. If he wishes to proceed with
this case, he shall amend his complaint within five days after the date of this
Order to state the names of all parties in interest ....

16

Thereafter, plaintiff filed a motion for an order (1) allowing him to file an
amended complaint identifying him by proper name, but under seal of the court
so as to preclude disclosure of his true identity to anyone not a defendant or
counsel for a defendant until further order of the court and (2) allowing
plaintiff, and compelling all other parties, to file all subsequent pleadings in the

case under seal of the court. This motion was denied by minute order of the
District Court.
Right to Prosecute Action Under Fictitious Name
17
18

A license to practice medicine is, of course, a valuable property right entitled to

due process and other constitutional protections. 54 A.L.R. 393; 44 A.L.R.3d 1.
The state has the right and power to impose conditions on the right to practice
medicine, and a license may be revoked for good cause. 93 A.L.R.2d 1398.
Colorado State Bd. of Medical Exmrs. v. Jorgensen, 198 Colo. 275, 599 P.2d
869 (1979); Glenn v. Colorado State Bd. of Medical Exmrs., 131 Colo. 586,
284 P.2d 230 (1955).

19

In Sapero v. State Bd. of Medical Exmrs., 90 Colo. 568, 11 P.2d 555 (1932) it
was recognized that the most common ground for statutory revocation or
suspension of a license to practice medicine was immoral, unprofessional or
dishonorable conduct.

20

The Colorado State Board of Medical Examiners consists of nine (9) physician
members and two members from the public at large. C.R.S. 1973, 12-36-103.
In Doran v. State Bd. of Medical Exmrs., 78 Colo. 153, 240 P. 335 (1925) the
court observed that the state board of medical examiners is presumed to know
better than laymen the ethics of their profession and that which renders one
unfit to engage or continue in the practice of medicine.

21

In the instant case, it is important to note that prior to the initiation of Dr. Coe's
1983 action in the district court, the inquiry panel of the Board had, after
detailed investigative procedures mandated pursuant to C.R.S. 1973, 12-36-118,
(following complaints charging conduct unbecoming a person licensed to
practice medicine or detrimental to the best interests of the public) made a
reasonable cause determination that the investigation disclosed facts warranting
further proceedings by formal complaint. Accordingly, the complaints were
referred to the Colorado Attorney General for filing of a formal complaint.
C.R.S. 1973, 12-36-118(4)(c)(IV). Thereafter, detailed discussions followed
between attorneys for the Board and attorneys for Dr. Coe. The Board's hearing
panel rejected Dr. Coe's request that the hearing on the formal complaint be
conducted in a non-public setting, apparently permissible pursuant to the power
granted to Board by the Colorado legislature to conduct such hearings "...
exempt from the provisions of any law requiring that proceedings of the board
be conducted publicly or that ... records of the board with respect to action ...
taken ... be open to public inspection." C.R.S. 1973, 12-36-118(10), as
amended. Even though the Board denied Dr. Coe's request, it did agree to allow

the proceedings on the formal complaint to be conducted in a non-public setting

if Dr. Coe would agree to surrender his license to practice medicine in the State
of Colorado pending the outcome of the proceedings. Dr. Coe rejected the
offer. The Board represents that this proposal was advanced in order to protect
the public's interest during the pendency of the hearing-proceeding and to grant
Dr. Coe's request for anonymity.
22

Dr. Coe rejected the Board's proposal and instituted the instant 1983 suit. He
contends here that the Board's proposal seeks to coerce him into a suspension
of his right to practice medicine by conditioning his anonymity during the
hearing upon his "voluntary" suspension of his practice. He argues that should
he "voluntarily" agree to suspend his practice "... and does so abruptly and
immediately, his practice and ability to practice medicine in Colorado in the
future will again be permanently destroyed because of the unique
circumstances and nature of that practice." Petition for Writ of Mandamus or
Prohibition, pp. 6, 7.

23

Every pleading must contain the names of the parties thereto, if these are
known. 1 In the federal courts it is held that the "real party in interest" is the one
who, under applicable substantive law, has the legal right to bring the suit.
Boeing Airplane Co. v. Perry, 322 F.2d 589 (10th Cir. 1963), cert. denied, 375
U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). There is no provision in the
Federal Rules of Civil Procedure for suit against persons under fictitious names,
and there are likewise no provisions for anonymous plaintiffs. In Lindsey v.
Dayton-Hudson Corp., 592 F.2d 1118 (10th Cir. 1979) this court observed,
inter alia :

24

This use of pseudonyms concealing plaintiffs' real names has no explicit

sanction in the federal rules. Indeed it seems contrary to Fed.R.Civ.P. 10(a)
which requires the names of all parties to appear in the complaint. Such use
obviously may cause problems to defendants engaging in discovery and
establishing their defenses, and in fixing res judicata effects of judgments. Yet
the Supreme Court has given the practice implicit recognition in the abortion
cases, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and
Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), with
minimal discussion. Most of the cases permitting the practice have involved
abortion, birth control, and welfare prosecutions involving abandoned or
illegitimate children. We have found only a few cases where the propriety of
the technique was discussed.

25

Doe v. Deschamps, 64 F.R.D. 652 (D.Mont.1974) cites most of the cases. It

25
holds that the public generally has a right to know, refuses to permit it except in
unusual cases, and rules that it will not be permitted in an action involving
plaintiff's future professional and economic life. Roe v. State of New York, 49
F.R.D. 279 (S.D.N.Y.1970), concluded that where only fictitious names were
used for plaintiffs the filing of the complaint would be ineffective to commence
an action. It recognized that if an action were commenced properly, the court
could issue protective orders in appropriate cases to shield the identity of the
plaintiffs. Roe v. Ingraham, 364 F.Supp. 536, 541 n.7 (S.D.N.Y.1973),
recognized the procedure as proper where "if plaintiffs are required to reveal
their identity prior to the adjudication of the merits of their privacy claim, they
will already have sustained the injury which by this litigation they seek to
avoid." Doe v. Boyle, 60 F.R.D. 507 (E.D.Va.1973), refused to permit a suit
under the tax laws to be carried on in a fictitious name because it involved
personal privileges under the Fifth Amendment. Additionally the court was
concerned that after judgment numerous persons might claim to be John Doe.
26

While the issue is not free from doubt we think all cases we reviewed
implicitly, at least, recognize that identifying a plaintiff only by a pseudonym is
an unusual procedure, to be allowed only where there is an important privacy
interest to be recognized. It is subject to a decision by the judge as to the need
for the cloak of anonymity....

592 F.2d at p. 1125.

27
28

In Southern Methodist University Ass'n v. Wynne & Jaffe, 599 F.2d 707 (5th
Cir. 1979), the court held that neither the Federal Rules of Civil Procedure nor
Title VII make provision for plaintiffs to proceed anonymously. The court
discussed the special circumstances whereby courts have allowed plaintiffs to
use fictitious names, in part as follows:

29

... "(W)here the issues involved are matters of a sensitive and highly personal
nature," such as birth control, (Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6
L.Ed.2d 989 (1961) ) abortion, (E.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,
35 L.Ed.2d 147 (1973); Doe v. Mundy, 7 Cir., 1975, 514 F.2d 1179; Doe v.
General Hospital of District of Columbia, 1970, 140 U.S.App.D.C. 153, 434
F.2d 427) homosexuality (E.g., Doe v. Department of Transportation Federal
Aviation Administration, 8 Cir., 1969, 412 F.2d 674 (challenge to denial of
airman medical certificate on grounds of homosexual activity and prior sodomy
conviction); Doe v. Commonwealth's Attorney for City of Richmond, E.D.Va.,
1975, 403 F.Supp. 1199 (constitutional challenge to state sodomy statute as
applied to consenting homosexual activity); Doe v. Chafee, N.D.Cal., 1973, 355
F.Supp. 112 (challenge to dishonorable discharge from Navy on ground of

homosexual activity) ) or the welfare rights of illegitimate children or

abandoned families, (E.g., Doe v. Carleson, N.D.Cal., 1973, 356 F.Supp. 753;
Doe v. Gillman, N.D.Iowa, 1972, 347 F.Supp. 482 (challenges to right of state
welfare departments to require cooperation of AFDC recipients in obtaining
convictions of spouses for nonsupport); Doe v. Shapiro, D.Conn., 1969, 302
F.Supp. 761 (challenge to state welfare department regulation providing for
termination of welfare payments to illegitimate children if mother refuses to
disclose name of child's father) ) the normal practice of disclosing the parties'
identities yields "to a policy of protecting privacy in a very private matter." Id.
However, the cases affording plaintiffs anonymity all share several
characteristics missing here. The plaintiffs in those actions, at the least,
divulged personal information of the utmost intimacy; many also had to admit
that they either had violated state laws or government regulations or wished to
engage in prohibited conduct. (See, e.g., Roe v. Wade, supra; Doe v.
Commonwealth's Attorney for City of Richmond, supra; Doe v. Shapiro,
supra.) Here, by contrast, to prove their case A-D need not reveal facts of a
highly personal nature or express a desire to participate in proscribed activities.
Furthermore, all of the plaintiffs previously allowed in other cases to proceed
anonymously were challenging the constitutional, statutory or regulatory
validity of government activity. While such suits involve no injury to the
Government's "reputation," the mere filing of a civil action against other private
parties may cause damage to their good names and reputation and may also
result in economic harm. Defendant law firms stand publicly accused of serious
violations of federal law. Basic fairness dictates that those among the
defendants' accusers who wish to participate in this suit as individual party
plaintiffs must do so under their real names.
30

Plaintiffs argue that disclosure of A-D's identities will leave them vulnerable to
retaliation from their current employers, prospective future employers and an
organized bar that does "not like lawyers who sue lawyers." In our view, A-D
face no greater threat of retaliation than the typical plaintiff alleging Title VII
violations, including the other women who, under their real names and not
anonymously, have filed sex discrimination suits against large law firms. See,
e.g., Kohn v. Royall, Koegel & Wells, S.D.N.Y.1973, 59 F.R.D. 515, appeal
dismissed, 2 Cir., 1974, 496 F.2d 1094.

31

Because we find neither an express congressional grant of the right to proceed

anonymously nor a compelling need to "protect( ) privacy in a very private
matter," Doe v. Deschamps, supra, 64 F.R.D. at 653, we hold that these Title
VII plaintiffs may not sue under fictitious names and therefore affirm the
district court's order requiring disclosure of A-D's identities by proper
pleadings.

599 F.2d at pp. 712-713.

32
33

The legislative declaration creating the Board, C.R.S.1973, 12-36-102, states:

34

The general assembly declares it to be in the interest of public health, safety,

and welfare to enact laws regulating and controlling the practice of the healing
arts to the end that the people shall be properly protected against unauthorized,
unqualified, and improper practice of the healing arts in this state, and this
article shall be construed in conformity with this declaration of purpose.

35

It is said that "No other ground for revocation is invoked as frequently,

perhaps, as 'unprofessional,' 'dishonorable,' or 'immoral' conduct in connection
with the practice of medicine ... in which the licensee in question is engaged."
61 Am.Jur.2d, 82, p. 224, Physicians, Surgeons, Etc. The specific acts or
conduct must show that the licensee is intellectually or morally incompetent to
practice the profession or that the acts committed are of a nature likely to
jeopardize the interest of the public, in contrast to trivial reasons or a mere
breach of generally accepted ethics of the profession. 93 A.L.R.2d 1398;
Chenoweth v. State Board of Medical Examiners, 57 Colo. 74, 141 P. 132
(1913). There are a number of cases which have held that specific facts
established such immoral or improper conduct on the part of a physician or
dentist toward a female patient as to justify board revocation of a license to
practice. 15 A.L.R.3d 1179.

36

In light of the statutory power vested in the Board, it is unreasonable to assert

that the Board acted in violation of Dr. Coe's right of due process of law. The
Board's determination not to proceed with the formal proceeding against Dr.
Coe under circumstances closed to the public was not violative of his due
process rights and certainly not an abuse of the Board's discretion. Further, the
Board's offer to close the proceedings to public scrutiny subject to Dr. Coe's
voluntary suspension of the practice of medicine pending the proceeding was
generous and designed to protect the public. No licensee has a "right" to a
secret, closed nonpublic hearing before the Board. This is a matter within the
Board's statutory authority, subject to its sound discretion in the balancing of
public and private interests. See FCC v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459,
14 L.Ed.2d 383 (1965).

37

We are not persuaded, as urged by petitioner, that our opinion in Crystal

Grower's Corp. v. Dobbins, 616 F.2d 458 (10th Cir. 1980) dictates that the
relief requested of the District Court be granted. In Crystal Grower's we held
that documents filed in our court involving the attorney-client privilege or the

work product doctrine could, in our discretion, be placed under seal for a period
of five years. This order was specifically predicated on our discretionary power
to control and seal records and files in our possession if we determine, as we
there did, that the interest of the party-plaintiffs outweighs the public interest.
We pointedly observed:
38

Plaintiffs have a significant interest in preventing public disclosure of the

documents at issue in this case. First, disclosure of the contents of
communications between themselves and their attorneys and of reports
prepared by their attorneys would effectively nullify their claim of privilege
without a hearing on the merits. Second, because of the pending private
antitrust actions in which American Crystal is a party-defendant, plaintiffs in
those actions might obtain information that would be nondiscoverable absent a
determination that the documents were not privileged.

616 F.2d at p. 461.

39
40

In our view, there is no pertinent analogy to be drawn between the facts

presented in Crystal Grower's and those in the instant case. Crystal Grower's
involved non-disclosure, secrecy considerations arising from invocation of the
attorney-client privilege and the work product doctrine, when there were no
competing public interests. In the case at bar, there can be no valid question but
that a legitimate public interest in disclosure exists. The issue is one of
weighing the scales between the public's interest and the rights to privacy
advanced by Dr. Coe.

41

We thus hold that the District Court did not err in finding that Dr. Coe's interest
in privacy is outweighed by the public interest. It is our view that by balancing
the need advanced by Dr. Coe to maintain individual and professional privacy
rights against the right of the public to know all of the facts surrounding the
formal proceedings posited with the Board, the privacy interest does not
outweigh the public's interest.2

42

The petition for writ of mandamus or prohibition is denied.

McKAY, Circuit Judge, concurring:

43

I fully concur in the court's opinion except for footnote 2 which I understand to
be dicta in any event.

1 U.S.C.A. Rules of Civil Procedure, rule 10(a) provides: "Every pleading shall
contain a caption setting forth the name of the court, the title of the action, the
file number, and a designation as in Rule 7(a). In the complaint the title of the
action shall include the names of all the parties, but in other pleadings it is
sufficient to state the name of the first party on each side with an appropriate
indication of other parties."
2

We share the District Court's expressed concern of federal court involvement in

operations of state boards and agencies, and we agree with the Court's
observation that Dr. Coe should have initiated his challenge to Board's
procedures in state court. This is in keeping with the principle of comity and the
fundamental premise of judicial federalism which recognizes that both federal
and state courts have a duty to enforce the Constitution. State courts have
concurrent jurisdiction of actions under 42 U.S.C.A. 1983. Martinez v.
California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). In Eisen v.
Eastman, 421 F.2d 560, 568 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct.
82, 27 L.Ed.2d 75 (1970) the Court observed, inter alia :
"(T)he consequences of compelling federal courts to pass upon all complaints
of unconstitutional acts by state and local officials at the lowest level, without
any requirement of appeal to higher ones, would be so destructive of proper
concepts of federalism and so needlessly burdensome to the federal courts that
it is appropriate to examine whether the decisions (of the Supreme Court of the
United States) have not been given a greater sweep than the Court intended."
(Footnotes omitted).