ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ANSWER BRIEF OF WILLIAM P. EGHERMAN, M.D.

Appeal No. 00-10231-DD

In The UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

JANE ROE, II
Appellant,

vs.

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., PATRICIA B. WINDLE, and
WILLIAM P. EGHERMAN, M. D.
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
NUMBER 99-00850-ORL-19A

ANSWER BRIEF OF WILLIAM P. EGHERMAN, M.D.

RICHARD E. RAMSEY
MICHAEL R. D'LUGO
WICKER, SMITH, TUTAN, O'HARA, McCOY, GRAHAM, & FORD, P.A.
Attorneys for William P. Egherman, M.D.
Post Office Box 2753
Orlando, FL 32802-2753
Phone: (407) 843-3939

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Aware Woman Center for Choice, Inc.

Michael R. D'Lugo, Esquire

William Philip Egherman, M.D.

William Philip Egherman, M.D., Inc.

Honorable Patricia C. Fawsett

Richards H. Ford, Esquire

Andrew W. Menyhart, Esquire

Professional Group, Inc.

ProNational Insurance Company

Richard E. Ramsey, Esquire

Jane Roe, II

Christopher F. Sapp, Esquire

Sheldon D. Stevens, Esquire

Stevens & Menyhart, P.A.

Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A.

Edward W. Windle, Jr.

Patricia B. Windle

STATEMENT REGARDING ORAL ARGUMENT

Dr. Egherman does not request oral argument in the instant appeal, as the issues for this Court to resolve are straightforward and are adequately addressed in the briefs of the parties, as is evidenced by the District Court's ability to reach its conclusion in this matter without the benefit of oral argument.

TABLE OF CONTENTS
(Omitted from Internet version)

TABLE OF AUTHORITIES

CASES PAGE
Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) 5
Bastian v. Petren Resources Corp., 892 F.2d 680 (7th Cir. 1990) 14
Bonner v. City of Prichard, Alabama, et al., 661 F.2d 1206 (11th Cir. 1981) 5
Cheffer v. Reno, 55 F.3d 1517, 1519 n.2 (11th Cir. 1995) 12
Czeremcha v. Int'l Assoc. of Machinists & Aerospace Workers, 724 F.2d 1552 (11th Cir. 1984) 16
Doe v. Colautti, 592 F.2d 704 (3rd Cir. 1979) 19
Doe v. Commonwealth's Attorney for Richmond, 403 F.Supp. 1199 (E.D. Va. 1975), affirmed, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976) 19
Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) 17, 18, 19
Doe v. McConn, 489 F.Supp. 76 (S.D. Tex. 1980) 19
Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) 17
Dugan v. Brooks, 818 F.2d 513 (6th Cir. 1987) 9
Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445 (2nd Cir. 1978) 14
Fails River Realty, Inc. v. City of Niagara Falls, New York, 754 F.2d 49 (2nd Cir. 1985) 9
Festa v. Local 3 Int'l Brotherhood of Elec. Workers, 905 F.2d 35 (2nd Cir. 1990) 16
Gersten v. Rundle, 833 F.Supp. 906, 910 (S.D. Fla. 1993) 5
Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir. 1994) 16
Lindsey v. Dayton-Hudson Corp., 492 F.2d 1118, 1125 (10th Cir.), cert. denied 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979) 17
Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994) 16
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 2829 & n. 17, 65 L.Ed.2d 973 (1980) 17
Schuurman v. Motor Vessel "BettyKV", 798 F.2d 442 (11th Cir. 1986) 15, 16
Southern Methodist Univ. Assoc. of Women Law Students v. Wynn & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979) 19
U.S. v. Dinwiddie, 76 F.3d 913 (5th Cir. 1995) 12
U.S. v. Wilson, 2 F.Supp.2d 1170, 1171 (E.D. Wis. 1998) 10, 11
Van Poyck v. Singletary, 11 F.3d 146 (11th Cir. 1994) 16
Wells v. Walker, 852 F.2d 368 (8th Cir. 1988) 9
OTHER AUTHORITIES
28 U.S.C. § 1331 1
28 U.S.C. § 1343(a)(4) 1
28 U.S.C., § 1291 1
Fed. R. App. P., Rule 28(a)(4)(C) and (D) 2
Fed. R. Civ. P., Rule 10(a) 17
Federal Freedom of Access to Clinic Entrances Act. 18 U.S.C. § 248 1, 3, 9
Fla. Stat., § 455.667(6) 22
P.L. 103-259, § 2, 108 Stat. 694 10

STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES

Dr. Egherman hereby adopts and incorporates herein by reference the Answer Brief filed on behalf of Aware Woman Center for Choice, Inc., Edward W. Windle, Jr., and Patricia B. Windle.

JURISDICTIONAL STATEMENT

This action is an appeal from an Order entered by the United States District Court for the Middle District of Florida, Orlando Division, which had the effect of granting the Appellees'[1] motions to dismiss (Appendix, Tabs 8 and 12). The District Court's subject matter jurisdiction over this action is based upon its federal question jurisdiction, 28 U.S.C. § 1331. The federal question which the District Court considered was whether the allegations of the underlying lawsuit constituted a violation of the Federal Freedom of Access to Clinic Entrances Act. 18 U.S.C. § 248 ("FACE").

The basis for this Court's jurisdiction over this appeal is found at 28 U.S.C., § 1291, as the Order of the District Court, which had the effect of granting the Defendants' Motion to Dismiss, became a final order upon the filing of Ms. Roe's Notice of Appeal (Appendix, Tab 29).

The Notice of Appeal was timely filed, as the District Court's Order granting the Defendants' Motion to Dismiss was entered on January 3, 2000, while the Notice of Appeal was filed on January 12, 2000.

Dr. Egherman disagrees with Ms. Roe's characterization of the underlying lawsuit as a civil rights action brought pursuant to 28 U.S.C. § 1343(a)(4), as there are no allegations in Ms. Roe's Complaint which would support a cause of action pursuant to this federal statute. Dr. Egherman further objects to the characterization in the jurisdictional statement in Ms. Roe's Initial Brief that this Court's jurisdiction is based upon the "CollateraI Appeal Doctrine". However, this error is harmless as this Court does have jurisdiction pursuant to 28 U.S.C. § 1291. Ms. Roe's jurisdictional statement is further defective for failure to comply with Fed. R.

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App. P., Rule 28(a)(4)(C) and (D), as Ms. Roe failed to identify the filing dates establishing the timeliness of her appeal, and she failed to assert that the appeal is from a final order which disposes of all claims. Because Ms. Roe has chosen to file a Notice of Appeal of the District Court's Order, rather than filing an amended complaint, she has turned the trial court's Order into a final order which is reviewable by this Court.

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STATEMENT OF THE ISSUES

Contrary to the assertion in Ms. Roe's Initial Brief regarding the issues to be reviewed by this Court, there are, in fact, three issues which will be presented, in the following order:

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STATEMENT OF THE CASE

The underlying cause is an action for civil damages brought pursuant to the FACE. Although Ms. Roe's Complaint asserts that she is also bringing a civil rights action pursuant to 28 U.S.C. § 1343(a)(4), there is no factual allegation in the Complaint to support relief under this statutory provision (Appendix, Tab 1). The Appellees each filed motions to dismiss Ms. Roe's Complaint, alleging that the Complaint failed to state a cause of action for which relief can be granted under FACE (Appendix, Tabs 8 and 12). In addition, Ms. Roe filed a motion with the District Court requesting an order allowing her to proceed anonymously throughout the prosecution of this case (Appendix, Tab 24). After reviewing the submissions of all parties, the District Court for the Middle District of Florida, Orlando Division, the Honorable Patricia Fawcett presiding, determined that Ms. Roe had indeed failed to state a cause of action under FACE, and granted the Defendants' Motion to Dismiss (Appendix, Tab 29). This Order was without prejudice to Ms. Roe to file an amended complaint. However, rather than taking this opportunity to submit an amended complaint which would contain, in theory, each of the elements of a claim for relief under FACE, Ms. Roe elected to file a Notice of Appeal of the District Court's Order, in effect stating that,.at she intends to stand on the allegations of the initial Complaint. In addition, the District Court's Order had the effect of denying Ms. Roe's Motion to Proceed Anonymously. It is from this Order that Ms. Roe timely filed her Notice of Appeal.

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STATEMENT OF FACTS

This appeal constitutes an effort by Ms. Roe to have this Court review the decision of the trial court which granted the Defendants' Motion to Dismiss without prejudice, and further denied Ms. Roe's motion to proceed in this case anonymously. Because the District Court granted the Defendants' Motion to Dismiss, all of the facts contained in Ms. Roe's Complaint must be accepted as true for the purpose of this Court's review. However, conclusory allegations and unwarranted factual deductions are not accepted as true. Gersten v. Rundle, 833 F.Supp. 906, 910 (S.D. Fla. 1993), citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974).[2] This is significant in the instant action, as Ms. Roe's Complaint is littered with conclusory allegations and unwarranted factual deductions.

Ms. Roe entered the Aware Woman Center for Choice ("Aware Woman") located in Melbourne, Florida, on March 29, 1997, for the purpose of obtaining reproductive health services (Appendix, p. 3). The nature of the reproductive health services which Ms. Roe was seeking on this date was an abortion, a procedure which she had undergone previously on two occasions at Aware Woman. While at the clinic, she received counsel from Aware Woman employees (Id.). After spending time in a waiting area, Ms. Roe proceeded to the operating room, where the abortion procedure was to be performed by William P. Egherman, M.D. (Id.).

During the course of the procedure, Ms. Roe felt pain in her abdomen (Id.). As a result, according to the Complaint, Ms. Roe requested that the procedure be stopped, and that she be taken by ambulance to another facility (Appendix, pp. 3-4). Rather than calling an ambulance, it is alleged employees of Aware Woman forcibly restrained Ms. Roe, bruising her arms in the

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process (Appendix, p. 4). Dr. Egherman completed the abortion procedure, during the course of which suffered a perforated uterus and a colon laceration (Id.). On the basis of these facts, Ms. Roe filed a lawsuit against the Appellees, alleging a violation of FACE.

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SUMMARY OF THE ARGUMENT

The underlying lawsuit is a claim for civil damages brought pursuant to FACE. Although this statute was only recently enacted, several federal courts have had the opportunity to interpret the application of this act in a civil as well as in a criminal context. The act has survived numerous constitutional challenges. In addition, several courts have established certain elements which must be alleged in order to state a cause of action under the act.

Those courts which have passed on the issue have determined that there are three elements to stating a cause of action for civil damages under FACE. The first element is that the defendant must have engaged in physical obstruction of a reproductive health facility. The second element requires that the act of physically obstructing the reproductive health facility was done with the intent to interfere with, or in an attempt to interfere with, persons attempting to gain entrance to or egress from a reproductive health facility. The final element of a cause of action under FACE requires that the plaintiff demonstrate that the defendant's motive for interfering with persons attempting to gain entrance to or egress from a reproductive health facility was for the express purpose of preventing such persons from obtaining or providing reproductive health services. A review of Ms. Roe's Comptaint demonstrates even if ail of the allegations of her Complaint were accepted as tree, that while the first two elements of a FACE cause of action may arguably have been satisfied, there is simply no allegation to support a finding that the third element, motive, has been adequately pled in the Complaint. As such, the District Court was correct in dismissing Ms. Roe's Complaint without prejudice.

In spite of the fact that the District Court granted the Defendants' Motion to Dismiss without prejudice, Ms. Roe has made the tactical decision to seek appellate review of this Order, rather than taking the opportunity to file an amended complaint. This decision constitutes a

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statement by Ms. Roe that she does not wish to take advantage of the opportunity provided to her by the District Court. Rather, Ms. Roe has turned the District Court's Order into a final order. Therefore, if this Court affirms the decision of the District Court, the decision will be final, and Ms. Roe will have no further recourse in the District Court for any cause of action arising out of FACE.

In the event that this Court determines that the District Court erred in dismissing Ms. Roe's Complaint, then there is an additional, collateral issue which must be addressed. Specifically, the District Court's Order, in addition to granting the Motion to Dismiss, had the effect of denying Ms. Roe's Motion to Proceed Anonymously with her prosecution of this claim. Although the factual allegations which form the basis of Ms. Roe's Complaint implicate very private issues regarding reproductive health, Ms. Roe's interests in maintaining her anonymity are outweighed by society's interest in maintaining a public and open judicial system. Ms. Roe is under no threat of physical harm or abuse if her actual name is revealed. As such, Ms. Roe must be compelled to comply with the Federal Rules of Civil Procedure by correctly identifying herself in her Complaint.

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ARGUMENT

I. THE DISTRICT COURT CORRECTLY GRANTED THE APPELLEES' MOTION TO DISMISS, AS MS. ROE FAILED TO ALLEGE EACH OF THE ELEMENTS REQUIRED TO STATE A CAUSE OF ACTION UNDER FACE.

Ms. Roe is seeking to have this Court reviews the decision of the District Court which had the effect of granting the Appellees' Motion to Dismiss for failure to state a cause of action under FACE. As such, this Court reviews the District Court's decision de novo, to determine whether the District Court made the correct decision as a matter of law. Wells v. Walker, 852 F.2d 368 (5th Cir. 1988); Dugan v. Brooks, 818 F.2d 513 (6th Cir. 1987).

This Court is required to review the record in a light most favorable to Ms. Roe. Falls River Realty, Inc. v. City of Niagara Falls, New York, 754 F.2d 49 (2nd Cir. 1985). However, even under this standard of review, this Court must find that the District Court was correct in granting the Appellees' Motion to Dismiss.

Ms. Roe's Complaint alleges that the Appellees violated FACE. 18 U.S.C. § 248. The specific provision of FACE which Ms. Roe alleges the Appellees violated provides as follows:

There are a number of definitions which are found in subsection (e) of the act which have a direct impact on the outcome of the instant litigation. The term "facility" is defined to include: "a hospital, clinic, physician's office, or other facility that provides reproductive health services,

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and includes the building or structure in which the facility is located." The term "interfere with" is defined to mean: "to restrict a person's freedom of movement." The term "intimidate" is defined to mean: "to place a person in reasonable apprehension of bodily harm to him-or herself or to another." The term "physical obstruction" is defined to mean: "rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous." Finally, the term "reproductive health services" is defined to mean: "reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counseling or referral services related to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy."

The purpose of the enactment of FACE was enunciated by Congress at the time the law was enacted, on May 26, 1994. The congressional statement is as follows:

It is against this backdrop that Ms. Roe filed her Complaint against the Appellees. A review of Ms. Roe's Complaint reveals that she has failed to state a cause of action for which relief can be granted under FACE. Federal courts have recognized that there are three elements which a plaintiff must allege in order to successfully state a cause of action under FACE. The first element which a plaintiff must demonstrate is that the defendant engaged in physical obstruction of a reproductive health facility. U.S. v. Wilson, 2 F.Supp.2d 1170, 1171 (E.D. Wis. 1998). Based upon the definitions quoted above, Aware Woman qualifies as a facility under the

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act. Further, the allegations of Ms. Roe's Complaint, construed in a manner which is most favorable to Ms. Roe, allege that Ms. Roe was physically obstructed from egress from the facility. As such, Ms. Roe's Complaint has arguably alleged the first element of a claim under FACE.

The second element which a plaintiff must demonstrate in order to state a cause of action for a violation of FACE is that a defendant intended to interfere with or attempted to interfere with persons attempting to gain entrance to or egress from a reproductive health facility. Id. Once again, construing the allegations of Ms. Roe's Complaint in a manner which is most favorable to her, she has arguably alleged sufficient facts in order to satisfy this second element of a FACE cause of action. There is at least a reasonable inference to be drawn from the allegations of Ms. Roe's Complaint that employees of Aware Woman intended to interfere with Ms. Roe's efforts to leave the facility.

However, it is the third element of a FACE cause of action which Ms. Roe failed to allege in her Complaint, the-absence of which mandates that this Court affirm the decision of the District Court. The final element is often called the "motive element," and requires that a plaintiff demonstrate that the intentional interference with persons entering or exiting a facility "was done for the express purpose of preventing such persons from obtaining or providing reproductive health services." Id. Simply stated, there is no allegation in Ms. Roe's Complaint which suggests that the Defendants' motive in restricting Ms. Roe's egress from the facility was for the express purpose of preventing her from obtaining reproductive health services. To the contrary, the Complaint itself suggests that the abortion itself was actually performed on Ms. Roe. Therefore, it is apparent from the allegations of the Complaint that Ms. Roe has not alleged, nor could she possibly under any set of circumstances, that the express purpose of the

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intentional interference with her egress from the facility was to prevent her from obtaining reproductive health services. In the absence of such an allegation, Ms. Roe's Complaint fails as a matter of law, and the District Court was correct in dismissing her claim.

As noted above, Congress' own statement regarding the purpose of FACE is that it is directed toward conduct which is intended to "injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services." This Court has recognized that the purpose of FACE is to restrain the conduct of those who attempt to interfere with the right to obtain or provide reproductive health services. See, e.g.: Cheffer v. Reno, 55 F.3d 1517, 1519 n.2 (11th Cir. 1995). The various cases which have construed the statute have involved factual scenarios in which individuals were found to have violated FACE because they were participating in demonstrations outside clinics which were designed intimidate those individuals who were seeking to obtain an abortion. See, e.g.: U.S. v. Dinwiddie, 76 F.3d 913 (8th Cir. 1995); Cheffer, supra. That is certainly not the case in the instant action, as Dr. Egherman was actually performing an abortion on Ms. Roe. The factual allegations of Ms. Roe's Complaint simply do not fall within the parameters of those activities which were intended by Congress to be proscribed, and therefore, her claim must fail as a matter of law.

A review of Ms. Roe's Initial Brief suggests absolutely no argument with any merit in support of the proposition that the District Court erred in dismissing her Complaint. It is apparent from a review of Ms. Roe's argument on this issue that she has confused element number two and element number three of the FACE cause of action. Interpretive case law is clear that the "intent" element requires intent to prevent entrance or exit from a facility, while the separate "motive" element requires that the act of preventing ingress or egress must be motivated by a desire to prevent an individual from obtaining reproductive health services. Ms. Roe has

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mixed these two elements in her argument, alleging that her Complaint properly alleges that the Defendants had the requisite intent in order to survive a Motion to Dismiss. However, Ms. Roe does not allege in her Complaint, nor does she argue in her Initial Brief, that the Defendants were motivated by a desire to prevent Ms. Roe from obtaining reproductive health services. Based on the factual allegations of her Complaint, Ms. Roe could not (and did not) contend that Aware Woman had a motive to prevent her from obtaining reproductive health services. Obviously, under the unique circumstances of this Complaint, Ms. Roe could not logically allege this element. This is fatal to her cause of action, and requires this Court to affirm the decision of the trial court.

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II. MS. ROE'S DECISION TO FILE A NOTICE OF APPEAL SEEKING REVIEW OF THE DISTRICT COURT'S JANUARY 3, 2000, ORDER, TURNED THAT ORDER INTO A REVIEWABLE FINAL ORDER.

The District Court granted the Appellees' motions to dismiss in an Order dated January 3, 2000. After extensive analysis, the District Court ordered that the Appellees' motions to dismiss would be granted. However, the District Court also ruled that the dismissal would be without prejudice, and that Ms. Roe would have ten days from the date of the Order in which to file an amended complaint. Rather than following the course indicated by the language of the District Court's Order, Ms. Roe elected to file a Notice of Appeal in order to seek immediate review of the District Court's Order in this Court.

Ordinarily, an order issued by a district court which has the effect of dismissing a complaint without prejudice, and allowing a plaintiff leave to file an amended complaint, is not a final order which is subject to immediate review. See, e.g.: Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445 (2nd Cir. 1978); Bastian v. Petten Resources Corp., 892 F.2d 680 (7th Cir. 1990).

However, in the instant action, although the District Court allowed Ms. Roe the opportunity to file an amended complaint, she chose not to do so. The District Court's Order was entered on January 3, 2000. This allowed Ms. Roe until January 13, 2000, in which to file an amended complaint. Rather than doing so, on January 12, 2000, Ms. Roe filed her Notice of Appeal. The effect of filing the Notice of Appeal was to render the January 3, 2000, Order a final order, which was appealable. In effect, the filing of the Notice of Appeal amounted to a statement by Ms. Roe that she would stand on the language of her initial Complaint in this lawsuit, and that any action taken by this Court in reviewing the District Court's ruling would amount to a final determination of this cause. In short, if this Court affirms the District Court's ruling, Ms. Roe is forever barred from bringing a FACE cause of action against the Appellees.

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This Court has addressed this issue on several occasions, and has consistently ruled that under the circumstances of this case, what would otherwise be a non-appealable, non-final order, became final, and therefore appealable, upon the filing of the Notice of Appeal. In Schuurman v. Motor Vessel "Betty KV", 798 F.2d 442 (11th Cir. 1986), this Court considered an admiralty action in which the District Court had granted the defendant's motion to dismiss, on the basis of the failure of the plaintiff to allege sufficient facts to show that the District Court had jurisdiction to consider the case. Upon the granting of the defendant's motion to dismiss, the district court allowed the plaintiff twenty days from the date of the order to amend the complaint. The plaintiff failed to amend the complaint within the twenty days allowed by the district court, and instead filed a notice of appeal to this Court.

The issue in Schuurman was whether or not this Court had jurisdiction to review the decision of the district court in the absence of the entry of a formal judgment, based solely on the district court's order granting the defendant's motion to dismiss without prejudice. This Court concluded that it did have jurisdiction, even in the absence of the entry of a judgment. This Court reasoned that in a situation where a district court allows a plaintiff a specific period of time in which to amend a complaint, if the plaintiff does not amend the complaint within the time allowed, no amendment may be made subsequently in the absence of leave granted by the court. Therefore, the dismissal order becomes final at the end of the time period stated in the order. On these facts this Court ruled: "For appeal purposes, we hold that the order of dismissal in this situation becomes final upon the expiration of the time allowed for amendment." Schuurman at 445.

In the instant action, Ms. Roe filed her Notice of Appeal within the ten day time period that the District Court had allowed for her to amend her Complaint. The fact that she filed the

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Notice of Appeal within the time period allowed does not render her Notice of Appeal defective, simply because the Order of the District Court did not become final until the expiration of the time period allowed. The Schuurman court also addressed this eventuality, ruling: "In this situation, the plaintiff need not wait until the expiration of the stated time in order to treat the dismissal as final, but may appeal prior to the expiration of the stated time period." Id. Thus, Ms. Roe's Notice of Appeal is proper, and amounts to a statement that she will stand on the language of the Complaint as filed with the District Court in this action. Id. ("Once the plaintiff chooses to appeal before the expiration of time allowed for amendment, however, the plaintiff waives the right to later amend the complaint, even if the time to amend has not yet expired.")

This Court has consistently held that in a situation such as the instant action, the act of filing a notice of appeal renders an otherwise non-final order final, and allows this Court to review the decision of the District Court as if the original Order had been made with prejudice. Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir. 1994); Van Poyck v. Singletary, 11 F.3d 146 (11th Cir. 1994); Czeremcha v. Int'l Assoc. of Machinists & Aerospace Workers, 724 F.2d 1552 (11th Cir. 1984). Other courts addressing this same issue have reached the same conclusion. See, e.g.: Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994); Festa v. Local 3 Int'l Brotherhood of Elec. Workers, 905 F.2d 35 (2nd Cir. 1990). Thus, in light of the position which this Court has repeatedly taken, and which is consistent with modem practice and the rulings of other circuits, Ms. Roe's act of filing a Notice of Appeal, seeking appellate review of the January 3, 2000, Order, turned that Order from a non-final, non-appealable order into a final, appealable one. As such, Ms. Roe must stand on the language of her original Complaint, and is forever barred from bringing a FACE cause of action against the Appellees in the event this Court affirms the decision of the District Court.

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III. THE TRIAL COURT DID NOT ERR IN DENYING MS. ROE'S MOTION TO PROCEED ANONYMOUSLY.

The District Court's January 3, 2000, Order, in addition to dismissing Ms. Roe's Complaint without prejudice, also had the effect of denying Ms. Roe's Motion to Proceed Anonymously.[3] Ms. Roe has requested that this Court review the trial court's decision on this issue as well. As a preliminary matter, it should be noted that the Initial Brief filed on behalf of Ms. Roe, among various deficiencies, fails to identify what the standard of review is for this particular issue, as is required by the Federal Rules of Appellate Procedure. This omission is not altogether surprising, as the standard of review over the District Court's Order denying Ms. Roe's Motion to Proceed Anonymously is "abuse of discretion." Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992), citing Lindsey v. Dayton-Hudson Corp., 492 F.2d 1118, 1125 (10th Cir.), cert. denied 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979).

A review of the allegations of Ms. Roe's Complaint and the other factual matters which are in the record reveal that the District Court did not abuse its discretion in denying Ms. Roe's Motion to Proceed Anonymously. Any analysis of this issue must begin with the well established, constitutional tenet that all judicial proceedings are to be open to the public, which requires that all participants in the judicial process also be identified to the public. This is reflected in Fed. R. Civ. P., Rule 10(a), which requires that plaintiffs disclose their names in complaints in order to commence a lawsuit. In addition, this Court has held that, "public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings." Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981), citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 2829 & n. 17, 65 L.Ed.2d 973 (1980).

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Notwithstanding this general constitutional tendency towards openness of judicial proceedings, there exist extremely rare occasions in which district courts, within their discretion, may allow a plaintiff to proceed anonymously. This Court and the former Fifth Circuit Court of Appeals have established certain factors which are analyzed in determining whether a plaintiff may properly proceed anonymously. These factors are not considered to be an exhaustive list of criteria, nor is the absence of any single one of the factors fatal to an attempt by a plaintiff to proceed anonymously; however they do shed insight as to what this Court considers to be the rationale for allowing a plaintiff proceed anonymously. See, e.g.: Frank, supra.

The three factors which this circuit's courts consider in determining whether a plaintiff should be allowed to proceed anonymously are as follows:

The former Fifth Circuit analyzed the significance of the first factor in allowing claimants suing the government to proceed anonymously in the following manner:

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Likewise, in the instant action, the Defendants are private individuals whose names and reputations can be damaged merely by the filing of the lawsuit. As such, this Court has recognized that fundamental fairness requires that the Plaintiff proceed under her real name.

The second element which courts in this circuit consider involves whether the prosecution of the suit will require the plaintiff to disclose information of the utmost intimacy. While Dr. Egherman concedes that the decision to terminate a pregnancy is certainly a private issue, this fact taken by itself does not overcome the presumption in American jurisprudence in favor of an open judicial system. Those cases which have allowed plaintiffs to proceed anonymously involved issues which were so intimate or private that trial courts determined that allowing the plaintiff to proceed anonymously was required. Those cases addressed issues such as mental illness, Doe v. Colautti, 592 F.2d 704 (3rd Cir. 1979); homosexuality, Doe v. Commonwealth's Attorney for Richmond, 403 F.Supp. 1199 (E.D. Va. 1975), affirmed, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976); and transsexuality, Doe v. McConn, 489 F.Supp. 76 (S.D. Tex. 1980). The factual allegations of the instant lawsuit simply do not rise to the level required to allow Ms. Roe to continue to proceed anonymously. This is especially true given the high burden of proof which Ms. Roe must sustain in order to have the District Court's decision reversed, namely that the District Court abused its discretion in reaching its conclusion.[4]

Not only does the case law mandate that this Court affirm the decision of the District Court to deny Ms. Roe's Motion to Proceed Anonymously, but a common sense evaluation of

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impact which allowing Ms. Roe to proceed anonymously would have on this litigation also requires that this Court affirm the District Court's decision. Allowing Ms. Roe to proceed anonymously would frustrate Dr. Egherman's ability to conduct discovery and investigation in this case. Taking Ms. Roe's deposition would be limited to the character that Ms. Roe chooses to create, and not the actual identity of the individual. Obtaining documentation relevant to Ms. Roe's true background would be impossible. Pertinent documents such as medical records would be found under Ms. Roe's real name, and therefore would not surface through the ordinary course of discovery. Without this information, Dr. Egherman and all of the Defendants would not be able to adequately formulate a defense. Not only would discovery be severely limited, but Dr. Egherman's rights during the course of trial would be severely impinged, as it would be impossible to question jurors during voir dire, or witnesses providing testimony, regarding any bias they have with regard to Ms. Roe if they are not provided with Ms. Roe's true identity. Thus, if Ms. Roe were allowed to proceed anonymously, Dr. Egherman would not be able to obtain a fair trial.

Ms. Roe curiously relies on the opinion of the United States Supreme Court in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 90 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), in support of her contention that the trial court erred in denying her Motion to Proceed Anonymously. Ms. Roe quotes isolated portions of the Thornburgh decision in support of her allegation that the opinion stands for the proposition that her identity should not be a matter of public record. Thornburgh involved a constitutional review of a Pennsylvania statute which placed certain significant limitations on a woman's ability to obtain an abortion. The United States Supreme Court determined that the Pennsylvania law impermissibly infringed upon a woman's fundamental right to obtain an abortion, and therefore struck down the statute.

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The specific quotes on which Ms. Roe relies in the instant action were the United States Supreme Court's response to a portion of the Pennsylvania statute which required physicians to issue a report revealing the performing and referring physicians; the woman's residence, age, race, marital status, and number of prior pregnancies; the date of her last menstrual period and the probable gestational age of the fetus; the basis for any judgment that a medical emergency existed; the basis for the determination of non-viability; and the method of payment for the abortion. In addition, the Pennsylvania law required that the report be signed by the attending physician. In response, the Supreme Court issued the privacy statements which Ms. Roe has quoted in her Initial Brief. Obviously, the context in which the Supreme Court's statements were made sheds no light on the analysis of whether Ms. Roe should be allowed to proceed anonymously in the instant lawsuit.

Equally inapplicable is Ms. Roe's attempt to co-opt Florida's sexual battery statute as a means to maintain her anonymity through the course of this proceeding. Any reference to criminal statutes of the State of Florida, including the rape provisions which are referred to in Ms. Roe's brief, are wholly irrelevant to the instant action, as the underlying Complaint does not state a cause of action for rape or sexual battery. In the absence of any such allegation, reliance on the specific provisions of those criminal statutes is inappropriate.

Ms. Roe also argues that her fight to privacy under Florida's Constitution and the physician-patient privilege both require that this Court determine that the District Court abused its discretion in reaching its conclusion that Ms. Roe should not be allowed to proceed anonymously. This constitutional provision and the privilege found in the Florida Rules of Evidence are inapplicable in the instant case, as Ms. Roe has taken the affirmative step of initiating a lawsuit arising out of that very doctor-patient relationship. As such, Ms. Roe has

Page 21

waived any right to privacy which may otherwise have attached to her medical records or to her identity. See, Fla. Stat., § 455.667(6).

Ms. Roe concludes her argument on this issue by stating that she should be allowed to proceed anonymously because: "she has done nothing wrong and should not forfeit her right to confidentiality because of the Defendants' wrongdoing." Whether Ms. Roe has done anything wrong has absolutely no bearing on whether she should be allowed to proceed anonymously in this litigation. The analysis of her ability to maintain her anonymity is based solely upon the application of the previous decisions of this Court and of the former Fifth Circuit Court of Appeal which require a determination of whether the factual circumstances of a given case warrant a departure from the constitutionally mandated openness of judicial proceedings. A review of the applicable cases, and the application of the facts of this case to those precedents, require that this Court determine that the District Court did not abuse its discretion in denying Ms. Roe's Motion to Proceed Anonymously.

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CONCLUSION

Dr. Egherman respectfully requests that this Court affirm the January 3, 2000, Order of the District Court in all respects.

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true copy of the foregoing was mailed this 28th day of March, 2000, to: Christopher F. Sapp, Esquire, Post Office Box 1012, Lehigh Acres, FL 33970; and Andrew W. Menyhart, Esquire, Post Office Box 541760, Merritt Island, FL 32954-1760.

WICKER, SMITH, TUTAN, O'HARA, McCOY, GRAHAM, & FORD, P.A.
Attorneys for William P. Egherman, M.D.
Post Office Box 2753
Orlando, FL 32802-2753
Phone: (407) 843-3939
Fax: (407) 649-8118
By: Richard E. Ramsey (signed)
Florida Bar No. 0715026
Michael R. D'Lugo
Florida Bar No. 0040710

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FOOTNOTES

[1] This brief is being filed on behalf of William P. Egherman, M.D. ("Dr. Egherman"). References to the "Appellees" shall mean all Appellees herein.

[2] All decisions of the former Fifth Circuit Court of Appeal rendered prior to September 30, 1981 are binding precedent upon all courts within the Eleventh Circuit. Bonner v. City of Prichard, Alabama, et al., 661 F.2d 1206 (11th Cir. 1981)

[3] This issue will become moot if this Court affirms the District Court's dismissal of Ms. Roe's Complaint.

[4] The third element addressed by courts in this circuit, whether a plaintiff will be compelled to admit an intent to engage in illegal conduct, thereby risking criminal prosecution, is not applicable to the instant action, and therefore does not warrant a different result.

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