Davis v. Tennessee Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    NAACP LEGAL DEFENSE FUND
NOV n 7 1090no. LIBRARY

99 HUDSON STREET
NEW YORK, N. Y. 10013IN THE *

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1990

ROSETTA N. DAVIS, ALMA C. OLIVER 
AND HAZEL PERRY,

Petitioners,
v .

STATE OF TENNESSEE, DEPARTMENT OF 
EMPLOYMENT SECURITY, ROBERT J. BIBLE, 

Commissioner of the State of Tennessee, 
Dept, of Employment Security; STATE OF 
TENNESSEE, DEPARTMENT OF PERSONNEL, 

WILLIAM C. KOCH, JR., Commissioner of 
the State of Tennessee Dept, of Personnel,

Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RICHARD H. DINKINS 
RUSSELL T. PERKINS 
WILLIAMS & DINKINS 
203 Second Avenue, 

North

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR.* 
99 Hudson Street 
16th Floor

Nashville, Tennessee New York, New York 10013 
37201 (212) 219-1900

(615) 244-3988
Attorneys for Petitioners

*Counsel of Record

July 25, 1990



QUESTIONS PRESENTED
I. Whether the court of appeals 

below erred in holding that the use of the 
term "plaintiffs in the above action" in 
the notice of appeal failed to meet the 
specificity requirement of Rule 3(c) of the 
Federal Rules of Appellate Procedure?

II. Whether the court of appeals 
erred in denying petitioners’ motion to 
amend the notice of appeal, pursuant to 28 
U.S.C. § 1653?

l  -



TABLE OF CONTENTS

QUESTIONS PRESENTED ..............
TABLE OF AUTHORITIES .............
OPINIONS BELOW ...................
JURISDICTION OF THE COURT ........
STATUTES ..........................
RULES .............................
STATEMENT OF THE CASE ............
REASONS WHY THE WRIT SHOULD

BE GRANTED ......................
I. THE COURT OF APPEALS DECIDED 

AN IMPORTANT QUESTION OF 
FEDERAL APPELLATE LAW WHICH 
HAS NOT BEEN, BUT SHOULD BE, 
SETTLED BY THIS COURT ......

II. IN HOLDING THAT PARTIES MUST 
BE INDIVIDUALLY NAMED IN A 
NOTICE OF APPEAL AND THAT 
"ET AL." CANNOT BE USED TO 
ASSIST IN IDENTIFYING PARTIES 
TAKING AN APPEAL, THE DECISION

1
iii

1
2 
3 
3 
3

13

13

Page

OF THE COURT
FLICT WITH TH
COURT'S DECIS _____ • • • 19



Page
III. THE COURT OF APPEALS SO FAR 

DEPARTED FROM THE ACCEPTED 
AND USUAL COURSE JUDICIAL 
INTERPRETATION OF RULES AS 
TO REQUIRE THIS COURT'S 
SUPERVISION.................  24

IV. THE COURT OF APPEALS DECIDED 
AN IMPORTANT QUESTION OF 
FEDERAL LAW IN HOLDING THAT 
THE DEFECT IN THE NOTICE OF 
APPEAL COULD NOT BE CURED 
UNDER 28 U.S.C. §1653 OR A 
SUSPENSION OF RULE 3(C)
UNDER RULE 2, FED.R.APP.P. .. 27

CONCLUSION ........................ 3 0

iii



TABLE OF AUTHORITIES
Page

Cases
Foman v. Davis, 371 U.S. 178 (1962)
Houston v. Lack, U.S. 108

S.Ct. __, 101 L.Ed.2d 245 (1988)
National Center for Immigrants' 

Rights, Inc. v. INS, 892 F.2d 
814 (9th Cir. 1989) ............

23

24

18
27

18

Roschen v. Ward, 279 U.S. 722 ....
Santos-Martinez v. Soto Santiago,

863 F.2s 174 (1st Cir. 1988) ...
Torres v. Oakland Scavenger Co.,

U.S. ___, 108 S.Ct. 2405,
101 L.Ed. 2d 285 (1988) ......... 6,7,11,13,14,15,16,17,18,20,

21,22,23,24,26,28

Statutes
28 U.S.C. §1653 8,28,29

Rules
Rule 2, Fed.R.App.P...............  29
Rule 3, Fed.R.App.P.............. 9,15,16,22,23,24,27

Rule 15(c), Fed.R.App.P........... 29
iv



OPINIONS BELOW
The order of the district court, filed 

March 11, 1988 dismissing with prejudice 
petitioners' claims under 42 U.S.C. §§ 
1981, 1983, and 1985, and under the 
Thirteenth and Fourteenth Amendments, and 
dismissing petitioners' pendent state 
claims without prejudice. See, Appendix p. 
9a.

The September 3, 1988 order of the 
district court dismissing petitioners' 
claims under Title VII of the Civil Rights 
Statute, 42 U.S.C. § 2000e et seg. See, 
Appendix p. 7a.

The October 7, 1988 order of the Court 
of Appeals for the Sixth Circuit dismissing 
the appeal of petitioners. See Appendix p. 
4a.

The February 28, 1989 order of the 
court of appeals denying petitioners'

1



motion to amend and to suspend the rules. 
See, Appendix p. la.

The April 26, 1990 opinion of the 
court of appeals, on petition for rehearing 
en banc, affirming the judgment of the 
district court concerning the corporate 
plaintiff Minority Employees, and 
dismissing the appeal of the individual 
appellants- plaintiffs Davis, Oliver, and 
Perry for want of jurisdiction over the 
appeal. See Appendix p. 13a.

JURISDICTION OF THE COURT
The judgment of the court of appeals 

sought to be reviewed was entered on April 
26, 1990. This Court has jurisdiction of
the petition for a writ of certiorari 
pursuant to the terms of 28 U.S.C. § 1291. 
Jurisdiction existed in the district court 
under 28 U.S.C. § 1331.

2



STATUTES
28 U.S.C. § 1653: Defective

allegations of jurisdiction may be amended 
upon terms, in the trial or appellate 
courts.

RULES
Rule 3(c), Fed. R. App. P.
The notice of appeal shall specify the 

party or parties taking the appeal.... An 
appeal shall not be dismissed for 
informality of form or title of the notice 
of appeal.

STATEMENT OF THE CASE
On March 6, 1981, individual

petitioners Rosetta N. Davis, Alma C. 
Oliver, and Hazel Perry, and plaintiff 
corporation Minority Employees of the 
Tennessee Department of Employment 
Security, Inc., commenced this employment 
discrimination action under Title VII of 
the Civil Rights Act of 1964, as amended,

3



42 U.S.C. § 2000e, and 42 U.S.C. §§ 1981, 
1983, 1985, and 1988, against respondents 
State of Tennessee Department of Employment 
Security, et al.

Petitioners Davis, Oliver, and Perry 
alleged in the complaint that petitioners 
failed to receive job promotions in the 
respondent Tennessee Department of 
Employment Security as a result of 
respondents' unlawful, racially 
discriminatory promotional policies and 
procedures.

Plaintiff Minority Employees of the 
Tennessee Department of Employment 
Security, Inc. was formed to assist 
minorities in being hired and promoted in 
the Tennessee Department of Employment 
Security.

Petitioners brought this action to 
prevent respondents from implementing 
employment practices that unlawfully

4



discriminate against plaintiffs and other 
African-Americans.

On April 28, 1982, the district court 
denied class certification. On September 
3, 1986, it dismissed plaintiffs1 claims
under Title VII, 42 U.S.C. § 2000e et seq. 
On March 9, 1988, the District Court
dismissed, with prejudice, plaintiffs' 
constitutional and other federal claims 
and dismissed, without prejudice, 
plaintiffs' pendent state claims.

On April 11, 1988, petitioners filed
a notice of appeal from the three orders of
the District Court. The caption of the
notice of appeal read as follows:

MINORITY EMPLOYEES OF THE 
TENNESSEE DEPARTMENT OF
EMPLOYMENT SECURITY, et al., 

Plaintiffs 
VS.
TENNESSEE DEPARTMENT OF
EMPLOYMENT SECURITY, et al., 

Defendants.

5



The body of the notice contained the 
following recital:

Now come plaintiffs in the
above case and appeal to the
United States Court of Appeals 
for the Sixth Circuit from the 
orders of the Court entered on 28 
April 1982 denying the 
plaintiffs' motion for class 
certification, 3 September 1986, 
dismissing plaintiffs' claims 
under Title VII of the Civil 
Rights Act of 1964, and 11 March 
1988, dismissing plaintiffs' 
claims under 42 U.S.C. Sections
1981, 1983, and 1985 and the
Thirteenth and Fourteenth 
Amendments to the Constitution of 
the United States. The Order of 
11 March finalized the Orders of 
28 April 1982 and 3 September 
1986. See. Appendix p. 58a-59a.
While the appeal was pending, this

Court, on June 24, 1988, decided Torres v.
Oakland Scavenger Co. . ___ U.S. ___, 108 S.
Ct. 2405, 101 L.Ed.2d 285 (1988).
Thereafter, defendant-appellees moved to
dismiss the individual petitioners Davis,
Oliver, and Perry from the appeal on the
ground that none of the individual

6



petitioners was designated by name in the 
notice of appeal as required by the holding 
in Torres v. Oakland Scavenger Co,, supra.

On October 7, 1988, the Court of
Appeals dismissed the individual 
petitioners from the appeal in an order 
which recited that:

Rule 3(c), Fed. R. App. P. 
provides that the notice of 
appeal shall specify the party 
or parties taking the appeal.
The use of the phrase "et al." 
utterly fails to provide the 
requisite notice. Failure to 
individually name a party in 
a notice of appeal constitutes 
failure of that party to 
appeal . . . (citations 
omitted). The notice of 
appeal filed in the present 
case states that "plaintiffs 
in the above case ... appeal 
..." and lists only as 
plaintiffs "Minority Employees 
of the Tennessee Department of 
Employment Security, et al." 
Because plaintiffs Davis, 
Oliver, and Perry are not 
designated in the notice of 
appeal as required by Torres,

It is Ordered that the 
motion to dismiss is granted.
See. Appendix p.4a.

7



On October 21, 1988, petitioners
moved, pursuant to Rule 2, Fed. R. Civ. P., 
and 28 U.S.C. §§ 1653, and 2071, for leave 
to amend the notice of appeal by typing the 
names of the individual petitioners, 
Rosetta Davis, Alma Oliver, and Hazel 
Perry, on the notice of appeal, and to 
suspend the requirements of Rule 3(c), Fed. 
R. App. P., as well as filed an amended 
notice of appeal.

The Clerk's office, responded by 
letter stating that:

This letter is to advise you that 
the order October 7, 1988 is not a
final order that disposes of this 
appeal.

The intent of the order was to grant 
the appellees' motion to dismiss 
certain parties, only.

We are sorry for any confusion this 
may have caused...
Thereafter, petitioners, on October 

21, 1988, renewed the above motion and, on

8



October 26, 1988, requested rehearing en 
banc.

By order dated February 28, 1989, the 
Court of Appeals denied the motion to 
suspend the requirements of Rule 3(c) and 
to amend the notice of appeal.

Oral argument on the remainder of the 
appeal by plaintiff Minority Employees of 
the Tennessee Department of Employment 
Security, Inc., was held in the Court of 
Appeals on May 23, 1989.

The individual petitioners filed in 
this Court a petition for a writ of 
certiorari to the Court of Appeals. 
Thereafter, the Court of Appeals voted to 
rehear the appeal en banc. Petitioners 
duly notified this Court of the rehearing 
whereupon this Court issued an order 
denying the pending petition for a writ of 
certiorari.

9



By a vote of eight to six, the Court 
of Appeals, on April 26, 1990, affirmed the 
judgment of the district court.

Circuit judge Guy, in a concurring
opinion, wrote that:

"Although I believe the 
dissent sets forth a more 
reasonable approach to the 
interpretation of Fed. R. App.
P. 3(c), I nonetheless join 
the conclusion reached by the 
majority in this case for two 
reasons.* First, the majority 
opinion provides clearer, 
albeit more rigid guidance for 
the bench and bar in the 
future. The dissent allows- 
even invites- the same type 

of ad hoc determinations which 
caused us to hold this en banc 
hearing in the first place. 
Appendix p. 63a.

♦There is really a third and 
perhaps even more compelling 
reason. Were I to join the 
dissent, it would result in an 
equally divided court and no 
opinion would issue from the 
en banc court. The district 
court would be affirmed on the 
substantive issue, and our 
earlier panel decision would 
be affirmed on the procedural 
issue.

10



Judge Nelson delivered an opinion 
concurring in part and dissenting in part 
in which judges Merritt, C.J., Jones, 
Norris, and Keith joined. Judge Martin 
dissented in an opinion joined by judge 
Jones.

The majority opinion purported to base 
its decision upon Torres. supra. It 
construed the opinion in Torres. supra. as 
follows:

The Supreme Court in Torres 
held that a notice of appeal 
using the phrase 'et al.1 
failed to designate an 
appealing party and, 
therefore, did not confer 
jurisdiction over the party 
whose name was not expressly 
included in the notice. 108
S. Ct. at 2407___

It is evident to us that 
Torres spoke to factual 
circumstances concerning the 
adequacy of a notice of appeal 
which were broader than those 
immediately before it. It has 
to be concluded that faced 
with a hard choice, the 
Supreme Court decided that the 
need at this stage of the 
proceedings for precision and

11



for fidelity to the language 
of the court rule overrode 
traditional notions of equity.
A failure to fulfill the plain 
command of the rule by failing 
to name the party, therefore, 
was fatal to the appellants' 
rights to seek further relief. 
Appendix pp. 18a.

The majority opinion stated that 
"(a)lthough the 'some designation' or 
'otherwise designated' language in Torres 
appears to contemplate something less than 
naming, 108 S.Ct. at 2409," Appendix, p. 
33a, the court said it was "in accord with 
the interpretation of Torres as requiring 
naming," Appendix, p. 45a, except (1) where 
the name of the purported appellant 
otherwise appeared on "the face of the 
document" such as in the caption, Appendix, 
p. 49a, or (2) where, in class actions, the 
"naming of the class representative (is) 
sufficient to indicate that entire class 
appealed." Appendix, p. 51a.

12



Finally, the majority opinion rejected 
the possibility of an amendment to the 
notice of appeal on the ground that Fed. R. 
App. P. 26(b) prohibits a court from 
enlarging the time for filing a notice of 
appeal. Appendix, p. 54a.

REASONS FOR GRANTING THE WRIT
I.

THE COURT OF APPEALS BELOW DECIDED AN 
IMPORTANT QUESTION OF FEDERAL APPELLATE LAW 
WHICH HAS NOT BEEN, BUT WHICH SHOULD BE, 

SETTLED BY THIS COURT.
The April 26, 1990 opinion of the

Court of Appeals below decided a question 
of law which will result in wide-spread 
forfeiture of the right to appeal by 
plaintiffs who have expressed, in their 
notice of appeal, an unequivocal intent to 
appeal and who have complied with the 
stated requirements of this Court's 
decision in Torres. supra. The opinion and

13



decision below threaten the validity of 
countless pending and future appeals on an 
important issue of law which has not been, 
but which should be, settled by this Court.

The Court of Appeals held that its 
ruling was required by the holding of this 
Court in Torres, supra. It construed the 
decision in that case as imposing a strict 
rule, to be applied with possibly only two 
exceptions, that a party's failure to be 
named individually in a notice of appeal 
constitutes failure of that party to 
appeal.

Since the individual petitioners' 
names were not individually listed either 
in the notice of appeal or in the caption 
of the notice of appeal, the majority of 
the en banc Court of Appeals concluded that 
Torres v. Oakland Scavenger Co. . supra, 
required dismissal of their appeal.

14



Whether the failure to list purported 
appellants by names in a notice of appeal 
constitutes a failure by those parties to 
appeal, however, is an issue which this 
Court neither addressed nor decided in 
Torres v. Oakland Scavenger Co., supra.

This Court granted certiorari in 
Torres v. Oakland Scavenger Co.. supra. to 
determine "whether a federal appellate 
court has jurisdiction over a party who was 
not specified in the notice of appeal...." 
Id. 101 L.Ed.2d at 289. This terminology, 
"party who was not specified in the notice 
of appeal," was similar to the phrase 
"(t)he notice of appeal shall specify the 
party or parties taking the appeal," used 
in Rule 3(c).

The court of appeals, however, 
believed that this Court's use of the term 
"party who was not specified in the notice 
of appeal" represented a stricter

15



interpretation of Rule 3(c) which required 
the listing in the notice of appeal of the 
individual name of any party purporting to 
appeal.

It ignored suggestions to the contrary 
in the opinion in Torres. supra, such as 
the Court's explicit statement in Torres, 
supra, that the plaintiff therein could not 
be deemed to be specified in the notice of 
appeal, as required by Rule 3(c), because 
he "was never named or otherwise 
designated, however, inartfully, in the 
notice of appeal." Id. 101 L.Ed.2d at 
292.

Clearly, this Court's use of the 
phrase "otherwise designated," meant that 
an appellant could be designated in a 
notice of appeal without being specifically 
listed by name. This Court was not 
attempting in Torres. supra. to spell out, 
in precise terms, the myriad ways in which

16



the identity of a party might be designated 
in a notice of appeal other than by being 
specifically named in the notice of appeal.

The court below closed the door to 
this possibility by holding that a party's 
failure to be listed by name in the notice 
of appeal was fatal for the appeal except 
for members of a class in a class action 
and for parties whose names were 
individually listed in the caption. 
Nothing in the opinion in Torres. supra. 
however, limits the designations in the 
manner indicated by the court of appeals.

In Torres v Oakland Scavenger Co. . 
supra, this Court only held that a notice 
of appeal which included the names of 15 
plaintiff-intervenors as appellants could 
not sensibly also be construed as a notice 
of appeal on behalf of a plaintiff- 
intervenor, i.e. , Torres, whose name did 
not appear at all in the notice of appeal.

17



The court of appeals has construed 
Torres. supra. to have a more far-reaching 
effect than ever contemplated by this 
Court. For all intents and purposes, it 
has interpreted Torres. supra. to require 
the names of all appellants to be listed in 
a notice of appeal, thus effectively 
rewriting Rule 3(c) and undermining the 
decision in Torres. supra.

The ruling below is thus a decision on 
an important issue never before decided by 
this Court. Because some courts of appeals 
are reaching similar results, see. Samos- 
Martinez v. Soto-Santiaqo. 863 F.2d 174 
(1st Cir. 1988), and cases cited in the en 
banc opinion below in Appendix pp. 2la- 
223, 45a, while other courts are reaching 
conflicting results, see. National Center 
for Immigrants1 Rights, Inc, v. INS, 892 
F.2d 814 (9th Cir. 1989), this Court should 
grant the writ of certiorari.

18



The importance of the questions 
presented and the need for a decision by 
this Court are furthered evidenced by the 
almost even split on the issues in the 
court of appeals below.

II.
IN HOLDING THAT PARTIES MUST BE 
INDIVIDUALLY NAMED IN A NOTICE OF 
APPEAL AND THAT "ET AL." CAN NOT 
BE USED TO ASSIST IN IDENTIFYING 
PARTIES TAKING AN APPEAL, THE 
DECISION OF THE COURT BELOW IS IN 
CONFLICT WITH THIS COURT'S 
DECISION IN TORRES.
This Court's decision in Torres. 

supra. conflicts in important ways with the 
decision below.

First, this Court held in Torres. 
supra. that a party could satisfy Rule 
3(c)'s requirement by "fil(ing) the 
functional equivalent of a notice of 
appeal". Id., 101 L.Ed.2d at 292. Second, 
the Court held that a party filed "the

19



functional equivalent of a notice of 
appeal” if the party was "named or 
otherwise designated, however, inartfully, 
in the notice of appeal." Id.

Third, the Court held that the 
specificity requirements of Rule 3(c) were 
met if the notice of appeal contained "some 
designation that gives fair notice of the 
specific individual or entity seeking to 
appeal". Id. The decision of the court of 
appeals below was m  conflict with each of 
the Court's three holdings in Torres, 
supra.

The court of appeals rejected this 
Court's test of functionality altogether. 
No inquiry was undertaken by the court of 
appeals to ascertain whether the 
petitioners here had, in fact, filed the 
functional equivalent of a notice of 
appeal, and, in fact, the court of appeals 
rejected such an inquiry.

20



The court of appeals further gave 
short shrift to this Court's ruling that 
the notice of appeal should be examined to 
see if the party attempting to appeal was 
"named or otherwise designated, however 
inartfully, in the notice of appeal filed." 
The court made no such examination other 
than to determine if the individual 
petitioners were named in either the body 
or the caption of the notice of appeal.

Instead of making the searching 
inquiry required by this Court's decision 
in Torres, supra. the court of appeals 
adopted a harsh, inflexible rule to decide 
the issue. It held that the individual 
petitioners had to be individually named in 
the notice of appeal for the appeal with 
respect to them to be good.

Since they were not so named, or, in 
what the court of appeals took to be the 
same thing, were not individually listed by

21



names in the notice of appeal, the court of 
appeals held that the requirements of Rule 
3(c) were not met.

Furthermore, the court of appeals 
failed to follow, or even mention, the 
holding of this Court in Torres, supra. 
that a party can satisfy the "specificity 
requirements of Rule 3(c)" by providing in 
the notice of appeal a "designation that 
gives fair notice of the specific 
individual or entity seeking to appeal." 
Id. 101 L.Ed.2d at 292.

The court of appeals rejected any such 
inquiry of this sort.

Rather, the court adopted the rule 
that it had no jurisdiction over a notice 
of appeal on behalf of a party who was not 
individually named in the notice of appeal. 
As a result, this Court's statement in 
Torres, supra. that the "specificity 
requirement of Rule 3(c) can be met by a

22



"designation that gives fair notice of the 
specific individual or entity seeking to 
appeal," was rendered meaningless.

Overall, the court of appeals' ruling 
amounts to a repudiation of this Court's 
admonition that courts of appeals, in 
resolving issues of compliance under Rule 
3(c), should determine whether "in light of 
all the circumstances, the rule had been 
complied with". Torres. supra. 101 L.Ed.2d 
at 291, citing Foman v. Davis, 371 U.S.
178, 181 (1962). See. Houston v. Lack. ___
U.S. ___ , 108 S. Ct. ___ , 101 L.Ed. 2d 245
(1988) .

Thus, the court of appeals' ruling was 
a refusal to determine if the individual 
petitioners herein had, in fact, filed the 
functional equivalent of a notice of 
appeal, a refusal to determine if the 
individual petitioners had been "otherwise 
designated" in the notice of appeal through

23



use of the term "plaintiffs in the above 
case", and a refusal to determine if the 
designation "plaintiffs in the above case" 
gave fair notice of the specific 
individuals or entities seeking to appeal.

III.
THE COURT OF APPEALS SO FAR 
DEPARTED FROM THE ACCEPTED AND 
USUAL COURSE OF JUDICIAL INTER­
PRETATION OR RULES AS TO REQUIRE 
THIS COURT'S SUPERVISION
Despite the statement in the notice of

appeal that plainly says "Now come
plaintiffs in the above case and appeal,"
the court of appeals held that only one
plaintiff, namely, the Minority Employees
of the Tennessee Department of Employment
Security, Inc., had effectively appealed.
It reached this odd conclusion despite the
fact that the term "plaintiffs" occurring
in the body of the notice of appeal was
plural, and did not specifically mention

24



the Minority Employees of the Tennessee 
Department of Employment Security, Inc.

It was sufficient, the court of 
appeals held, that the name of the Minority 
Employees appellant was listed in the 
caption of the notice of appeal. The Court 
of Appeals believed that this Court's 
opinion in Torres. supra, required it to 
disregard the use of "et al." in the 
caption, thereby leaving the Minority 
Employees appellant as the sole party 
individually named in the notice of appeal 
even though it was not mentioned in the 
body of the notice of appeal, and the term 
which was used, i.e., "plaintiffs in the 
above case" was plural.

This tortuous interpretation of the 
notice of appeal was thought to be required 
by Torres. supra.

Such a construction of the notice of 
appeal is so far a departure from the

25



accepted and usual way of interpreting 
legal documents that this Court should 
exercise its power of supervision by 
granting the writ of certiorari.

In interpreting the notice of appeal, 
the Court of Appeals should have heeded the 
admonition of Justice Holmes in Roschen v. 
Ward. 279 U.S. 722 (1929), concerning the 
strict construction rule. Justice Holmes 
said: "We agree to all the generalities 
about not supplying criminal laws with what 
they omit, but there is no canon against 
using common sense in construing laws as 
saying what they obviously mean." Id. at 
728.

26



IV
THE COURT OF APPEALS DECIDED AN 
IMPORTANT QUESTION OF FEDERAL LAW 
IN HOLDING THAT THE DEFECT IN THE 
NOTICE OF APPEAL COULD NOT BE 
CURED PURSUANT TO AN AMENDMENT 
UNDER 28 U.S.C.§ 1653 OR A
SUSPENSION OF RULE 3(C) UNDER 
RULE 2, FED. R. APP. P.
The court of appeals held that because

the time requirement of Rule 3(c) was
jurisdictional, it lacked authority to
amend a notice of appeal. Petitioners
submit that such authority exists under 28
U.S.C. §1653, to cure defective allegations
of the designations of purported appellants
after the time for taking an appeal has
expired.

Whether a notice of appeal can be 
amended in this way, is an important issue 
of federal law which has not been, but 
should be, settled by this Court.

In its decision in Torres, supra, this 
Court did not address the applicability of

27



28 U.S.C. § 1653. But 28 U.S.C. § 1653 is 
a Congressional statute which specifically 
provides that "Defective allegations of 
jurisdiction may be amended, upon terms, in 
the trial or appellate courts."

A defective allegation in a notice of 
appeal, such as a failure to name 
individually all plaintiffs appealing or to 
refer only to "plaintiffs in the above 
case", can be cured under 28 U.S.C. § 1653 
by simply amending the notice of appeal to 
supply the missing allegation.

Such an amendment should be effective 
for all purported appellants, at least 
where the amendment satisfies a reguirement 
analogous to the requirement under Rule 
15(c), Fed. R. Civ. P., for relating back 
to the time of the original filing, i.e., 
the respondent in the appeal has received 
such notice of an appeal that he or she 
will not be prejudiced in defending on the

28



merits, and knew, or should have known, 
that, but for a mistake concerning the 
identify of the proper party, the appeal 
would have included the purported 
appellant.

This important issue should be settled 
by this Court. This Court can additionally 
consider whether Rule 2 can appropriately 
be used in conjunction with 28 U.S.C. § 
1653 to effectuate proper amendments to 
notices of appeal under Rule 3(c).

29



CONCLUSION
For the foregoing reasons, this court 

should grant a writ of certiorari to review 
the judgments below.

Respectfully submitted,

RICHARD H. DINKINS 
RUSSELL T. PERKINS 
WILLIAMS & DINKINS 
203 Second Ave. N. 
Nashville, TN 
37201
(615) 244-3988

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B.WILLIAMS,JR* 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900
♦Counsel of Record

Attorneys for Petitioners

July 25, 1990

30



APPENDIX



la

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 88-5429

Minority Employees of the Tennessee 
Department of Employment Security, 
Incorporated; c/o Leon Wilson,
President,

Plaintiffs-Appellants,
Rosetta N. Davis;
Alma C. Oliver;

Hazel Perry, M.S.
Plaintiffs,

v.
State of Tennessee, Department of 
Employment Security; Robert J. Bible, 
Commissioner of the State of Tennessee, 
Department of Employment Security; State of 
Tennessee, Department of Personnel; William 
C. Koch, Jr., Commissioner of the State of 
Tennessee Department of Personnel,

Defendants-Appellees.
FILED
FEB 28 1989 
LEONARD GREEN, Clerk



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ORDER
Before: MARTIN and RYAN, Circuit Judges; 
and POTTER, District Judge.*

Appeal is taken from dismissal of this
civil rights action. By order of October
7, 1988, this court dismissed as appellants
the individual plaintiffs Davis, Oliver and
Perry. Plaintiff now moves 1) to suspend
the requirements of Rule 3(c), Fed. R. App.
P. , and 2) to amend the notice of appeal.
Defendants oppose both motions.

The requirement of Rule 3(c), Fed. R.
App. P. , that a notice of appeal shall
specify the party or parties taking the
appeal is jurisdictional in nature. Torres
v. Oakland Scavenger Co. . 108 S.Ct. 2405
(1988). Jurisdictional requirements may
not be waived. Id. at 2409; see also

The Honorable John W. Potter, 
U.S. District Judge for the Northern 
District of Ohio, sitting by designation.



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Hinsdale v. Farmers Nat'l Bank & Trust Co..
823 F.2d 993 (6th Cir. 1987).

Further, we have no authority to amend
a notice of appeal to add additional
parties after the time for taking the
appeal has expired. Rule 26(b), Fed. R.
Civ. P.; see also Trinidad Coro, v. Marv.
781 F.2d 136 (9th Cir. 1986) (per curiam);
Cook and Sons Equipment. Inc, v. Killen.
277 F.2d 607 (9th Cir. 1960).

It is ORDERED that plaintiff's motion
to suspend the requirements of Rule 3(c),
Fed. R. Civ. P. , and motion to amend the
notice of appeal are denied.

ENTERED BY ORDER OF THE COURT
/s/ Leonard Green____________

Clerk



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UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 88-5429

Minority Employees of the Tennessee 
Department of Employment Security, 
Incorporated; et al.,

Plaintiff-Appellants,
Hazel Perry, MS.

Plaintiff,
vs.

State of Tennessee, Department of 
Employment Security; et al.

Defendants-Appellees.
FILED
OCT 7 1988
LEONARD GREEN, Clerk

ORDER
Before: KENNEDY and KRUPANSKY, Circuit
Judges; and EDWARDS, Senior Circuit Judge.

This appeal is taken from the
dismissal of this civil rights action. The
defendants now move to dismiss plaintiffs



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Davis, Oliver and Perry from this appeal 
pursuant to Torres v. Oakland Scavenger
Co., __  U.S. __ , 108 S.Ct. 2405 (June 24,
1988), on grounds that those plaintiffs 
were not designated in the notice of 
appeal. The plaintiffs oppose the motion 
to dismiss.

Rule 3(c), Fed. R. App. P. , provides 
that the notice of appeal shall specify the 
party or parties taking the appeal. The 
use of the phrase "et al" utterly fails to 
provide the requisite notice. Failure to 
individually name a party in a notice of 
appeal constitutes failure of that party to 
appeal. Torres v. Oakland Scavenger Co..
__ U.S. ___ , 108 S.Ct. at 2 4 09; see also
Van Hoose v. Eidson. 450 U.S. 746 (6th Cir. 
1971) (per curiam order) . The notice of 
appeal filed in the present case states 
that "plaintiffs in the above case . . . 
appeal...." and lists only as plaintiffs



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"Minority Employees of the Tennessee 
Department of Employment Security, et al." 
Because plaintiffs Davis, Oliver and Perry 
are not designated in the notice of appeal 
as required by Torres.

It is ORDERED that the motion to 
dismiss is granted.

ENTERED BY ORDER OF THE COURT
/s/ Leonard Green____________

Clerk



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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

No. 81-3114 
Judge Higgins

MINORITY EMPLOYEES OF THE TENNESSEE 
DEPARTMENT OF EMPLOYMENT SECURITY,

INC., et al.
v.

STATE OF TENNESSEE DEPARTMENT OF 
EMPLOYMENT SECURITY, et al.

ORDER
In accordance with the memorandum 

contemporaneously filed, the objections 
(filed February 14, 1986) of the plaintiffs 
to the Magistrate's Report and 
Recommendation (filed January 31, 1986) are 
overruled. The objections (filed March 6, 
1986) of the defendants to the Magistrate's 
finding of disparate treatment as to the 
plaintiff Davis and disparate impact as to 
the plaintiffs Davis and Oliver are



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sustained. The plaintiffs' claims under
Title VII are hereby dismissed.

It is so ORDERED.
/s/ Thomas A. Higgins______

Thomas A. Higgins
United States District Judge
9-3-86



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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

No. 81-3114 
Judge Higgins

MINORITY EMPLOYEES OF THE TENNESSEE 
DEPARTMENT OF EMPLOYMENT SECURITY, 

et al.
v.

TENNESSEE DEPARTMENT OF EMPLOYMENT SECU­
RITY, et al.

ORDER
Before the Court are the objections of 

the plaintiffs1 to the Magistrate's Report 

and Recommendation filed January 20, 1988.

1 The objecting plaintiffs are 
Rosetta Davis, Alma Oliver, Hazel Perry and 
Minority Employees of the Tennessee 
Department of Employment Security, Inc. 
The objections were filed timely on 
February 22, 1988, pursuant to an extension 
of time granted by order entered February 
11, 1988.



1 0 a

The Magistrate recommended that the 
defendants'2 joint motion for summary 

judgment (filed December 24, 1986) be
granted.

In their first objection, the 
plaintiffs do not assail the Magistrate's 
application of the doctrines of res 
judicata and collateral estoppel to the 
facts at issue. Rather, the plaintiffs 
challenge the correctness of the underlying 
judgments. The Court finds this objection 
to be without merit, since it attempts to 
attack matters previously considered and 
decided.

Secondly, the plaintiff, Hazel Perry, 
objects to the Magistrate's recommendation

The defendants are the Tennessee 
Department of Employment Security; its 
former Commissioner, Robert J. Bible, in 
his official and individual capacities; the 
Tennessee Department of Personnel; and its 
former Commissioner, William C. Koch, in 
his official and individual capacities.



11a
as to the disposition of her claims on the 
ground that she has been deprived of "an 
opportunity to be heard in this Court on 
her claims." The Court finds this 
objection to be without merit, since the 
plaintiff Perry failed to present any 
evidentiary material in response to the 
defendants' properly supported motion for 
summary judgment on the issue of an alleged 
discriminatory delay in rehiring her.

After considering the Report and 
Recommendation, the objections and related 
pleadings, the Court finds that the 
findings and conclusions of the Magistrate 
are correct. The Report and Recommendation 
is adopted and approved.

The defendants' joint motion for 
summary judgment is granted. The 
plaintiffs' claims under 42 U.S.C. §§ 1981, 
1983 and 1985, and the Thirteenth and 
Fourteen Amendments are dismissed with



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prejudice. The plaintiffs' pendent state 
law claims are dismissed without prejudice.

Accordingly, this action is dismissed 
in its entirety, and the Clerk is directed 
to enter judgment accordingly.

It is so ORDERED.
/s/ Thomas A. Higgins 

Thomas A. Higgins 
United States District Judge 
3-9-88



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No. 88-5429
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

MINORITY EMPLOYEES OF THE 
TENNESSEE DEPARTMENT OF 
EMPLOYMENT SECURITY, 
INCORPORATED,

Plaintiff-Appellant,
ROSETTA N. DAVIS, ALMA C. 
OLIVER, HAZEL PERRY,

Plaintiffs,
v. ) ON PETITION 

) for Rehear-
STATE OF TENNESSEE, DEPARTMENT )ing En Banc 
OF EMPLOYMENT SECURITY; ROBERT )
J. BIBLE, COMMISSIONER OF THE ) 
STATE OF TENNESSEE, DEPARTMENT ) 
OF EMPLOYMENT SECURITY; STATE ) 
OF TENNESSEE, DEPARTMENT ) 
OF PERSONNEL; WILLIAM C. KOCH, ) 
JR., COMMISSIONER OF THE STATE )
OF TENNESSEE DEPARTMENT OF 
PERSONNEL,

) 
) 
)

Defendants-Appellees. )
Decided and Filed April 26, 1990

Before: MERRITT, Chief Judge; KEITH, 
KENNEDY, MARTIN, JONES, KRUPANSKY, 
WELLFORD, MILBURN, GUY, NELSON, RYAN, 
BOGGS, NORRIS, Circuit Judges; and ENGEL, 
Senior Circuit Judge.



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ENGEL, S.J., delivered the opinion of 
the court in which KENNEDY, KRUPANSKY, 
WELLFORD, MILBURN, RYAN and BOGGS, JJ. , 
joined. GUY, J. , (pp. 25-26) delivered a 
separate concurring opinion. NELSON, J., 
(pp. 27-43) delivered a separate opinion 
concurring in part and dissenting in part, 
in which MERRITT, C.J., KEITH, JONES and 
NORRIS, JJ., joined. MARTIN, J., (pp. 44- 
50) delivered a separate dissenting opinion 
in which JONES, J., joined.

ENGEL, Senior Circuit Judge. Our 
court voted for rehearing en banc in this 
appeal in an effort to resolve the 
uncertainties which have arisen within our 
circuit in the interpretation of Fed. R. 
App. P. 3(c) following the decision of the 
United States Supreme Court in Torres v. 
Oakland Scavenger Co. . 487 U.S. ___ , 108
S.Ct. 2405 (1988). As with most decisions



1 5 a

interpreting procedural rules, our most 
important task, after fidelity to any 
Supreme Court decisions bearing upon the 
question, is to provide an understandable 
and practical guide to the application of 
the federal rules so that litigants do not 
innocently frustrate their access to our 
courts. In certain areas of the law, it is 
altogether evident that the Supreme Court 
has demanded clarity and strict adherence 
to promulgated rules, even though notions 
of equity in a given case may argue to the 
contrary. See. e.q., Schiavone v. Fortune. 
477 U.S. 21, 29-31 (1985) (strictly 
construing Fed. R. Civ. P. 15(c) to bar a 
suit by a plaintiff who served the 
defendant with a correctly captioned 
complaint only after the statute of 
limitations had run); Griggs v. Provident 
Consumer Discount Co.. 459 U.S. 56, 60-61 
(1982) (per curiam) (strictly construing



1 6 a

Fed. R. App. P. 4(A)(4) to bar a premature 
notice of appeal, even where there is no 
prejudice to the responding party); Browder 
v. Director. 111. Dept, of Corrections, 434 
U.S. 257, 264 (1978) (unanimous opinion
holding that even though the defendant's 
untimely motion for rehearing and 
reconsideration was considered by the 
district court, the motion did not toll the 
"mandatory and jurisdictional" time limit 
for filing a notice of appeal under Fed. R. 
App. P. 4(a)). Rather plainly, certain 
rules are deemed sufficiently critical in 
avoiding inconsistency, vagueness and an 
unnecessary multiplication of litigation to 
warrant strict obedience even though 
application of the rules may have harsh 
results in certain circumstances. Under 
Torres. Rule 3(c) is such a rule.

The Supreme Court in Torres held that 
a notice of appeal using the phrase "et



1 7 a

al." failed to designate an appealing party 
and, therefore, did not confer jurisdiction 
over the party whose name was not expressly 
included in the notice. 108 S.Ct. at 2407. 
The jurisdictional principle adopted by 
Torres should have come as no legal 
surprise in our circuit. Faced with a 
conflict within the circuits in Torres. the 
Supreme Court chose the construction of 
Rule 3(c) adopted by the Sixth Circuit in 
Life Time Doors. Inc, v. Walled Lake Door 
Co. . 505 F. 2d 1165 (6th Cir. 1974), which 
held that the failure to name was a 
jurisdictional bar. Torres. 108 S.Ct. at 
2407 n.l (citing Life Time Doors) . 
Remarkably, even before Life Time Doors, a 
panel of our court had been faced with a 
notice containing the phrase "et al." and 
concluded, as in Torres, that the phrase 
failed to inform other parties or any court 
as to which parties intended to appeal.



1 8 a

Van Hoose v. Edison. 450 F.2d 746 (6th Cir. 
1971).

It is evident to us that Torres spoke 
to factual circumstances concerning the 
adequacy of a notice of appeal which were 
broader than those immediately before it. 
It has to be concluded that faced with a 
hard choice, the Supreme Court decided that 
the need at this stage of the proceedings 
for precision and for fidelity to the 
language of the court rule overrode 
traditional notions of equity. A failure 
to fulfill the plain command of the rule by 
failing to name the party, therefore, was 
fatal to the appellants' rights to seek 
further relief. The conclusion that no 
appeal was intended by the parties whose 
name was so omitted could not be cured by 
subsequent allegations of subjective 
intent. That the failure to name the party 
indisputably was the result of clerical



1 9 a

error in Torres did not deter the Supreme 
Court from concluding that the rule was not 

satisfied.
Notwithstanding the foregoing, our 

circuit, not unlike others faced with 
similar hard choices, appears to have 
sought to soften the blow of such an 
arbitrary rule as it developed in the 
context of specific appeals. Despite the 
broader language in Torres. in Ford v. 
Nicks. 866 F. 2d 865 (6th Cir. 1989), a 
panel of our court endeavored to draw a 
rather fine line and accepted jurisdiction 
over unnamed parties based upon the 
etymology of the phrase 11 et al." and the 
use of the word "the" in the body of the 
notice of appeal. Accordingly, faced with 
a number of decisions in our court which 
turn upon a resolution of the conflict that 
seems to exist between Ford v. Nicks and



2 0 a

Torres. we voted to grant a rehearing en 

banc.
I.

Our immediate appeal involves a notice 
of appeal using the term "et al." to 
designate appealing parties. A motions 
panel of this court, in an unpublished 
order, concluded that the notice of appeal 
designated as an "appellant" only the named 
corporate plaintiff, Minority Employees of 
the Tennessee Department of Employment 
Security, Inc. (Minority Employees) .
(Order of October 7, 1988). The panel
determined that jurisdiction was lacking 
over the purported appeals of the 
individual plaintiffs because that notice 
failed to name them. A second motions 
panel, in an unpublished order, denied 
plaintiffs' motion to amend the notice of 
appeal and to suspend the requirements of 
Rule 3(c). (Order of February 3, 1989).



2 1 a

A third panel of this court upheld the 
dismissal of the individual plaintiffs and 
affirmed the district court's dismissal of 
Minority Employees, the only appellant. 
Minority Employees v. State of Tennessee. 
No. 88-5429 (Decided July 10, 1989) 
(unpublished per curiam).

We noted that the panel decisions 
dismissing the individual plaintiffs and 
our opinion in Van Hoose v. Eidson. 450 
F.2d 746 (6th Cir. 1971), appeared to 
conflict with our opinion in Ford v. Nicks. 
866 F.2d 865 (6th Cir. 1989). In light of 
the holding and spirit of the Supreme 
Court's opinion in Torres v. Oakland
Scavenger Co. . 487 U.S. __ , 108 S.Ct. 2405
(1988), we affirm the decisions of the 

panels in all respects. In affirming the 
dismissal of the individual plaintiffs, we 
rule that Van Hoose v. Eidson. supra,
remains good law in this circuit and that



2 2 a

Ford v. Nicks, supra. on this particular 
question, is expressly rejected as the law 
of this circuit. We hold that the term "et 
al•11 is insufficient to designate appealing 
parties in a notice of appeal and that 
appellants must include in the notice of 
appeal the name of each and every party 
taking the appeal. The dismissal of 
Minority Employees' appeal on the merits is 
unanimously affirmed.

II.
On March 6, 1981, corporate plaintiff 

Minority Employees and individual 
plaintiffs Rosetta Davis, Alma Oliver and 
Hazel Perry filed this action for alleged 
violations of Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. §§ 2000e 
et seq., and 42 U.S.C. §§ 1981, 1983, 1985, 
and 1988. Plaintiffs named as defendants 
the State of Tennessee Department of 
Employment Security (TDES) and Department



2 3 a

of Personnel. Plaintiffs also named the 
commissioners of these respective 
departments, Robert J. Bible and William C. 
Koch, Jr., in their individual and official 
capacities. On March 11, 1988, the United 
States District Court for the Middle 
District of Tennessee, Nashville Division, 
granted the defendants' joint motion for 
summary judgment and dismissed plaintiffs' 
action in its entirety.

On April 11, 1988, a notice of appeal 
was filed in this case.1 The relevant 

portion of the notice is entitled:

The notice of appeal has been 
appended to this opinion as "Attachment 1."



2 4 a

MINORITY EMPLOYEES OF THE TENNESSEE 
DEPARTMENT OF EMPLOYMENT SECURITY, 
et al.

Plaintiffs
VS.

TENNESSEE DEPARTMENT OF EMPLOYMENT 
SECURITY, et al.

Defendants
The body of the notice provides:

NOTICE OF APPEAL
Now come plaintiffs in the above 

case and appeal to the United States 
Court of Appeals for the Sixth Circuit 
from the orders of the Court entered 
on 28 April 1982 denying the 
plaintiffs' motion for class 
certification, 3 September 1986, 
dismissing plaintiffs' claims under 
Title VII of the Civil Rights Act of 
1964, and 11 March 1988, dismissing 
plaintiffs' claims under 42 U.S.C. 
Sections 1981, 1983 and 1985 and the
Thirteenth and Fourteenth Amendments 
to the Constitution of the United 
States. The Order of 11 March 1988 
finalized the Orders of 28 April 1982 
and 3 September 1986.

[Signature]
In their initial brief in this court, 
plaintiffs purported to raise three issues



2 5 a

on appeal: (1) whether the district court 
erred in refusing to extend the time in 
which to apply for class certification; (2) 
whether the district court erred in 
dismissing plaintiffs' Title VII claims; 
and (3) whether the district court erred in 
granting defendants' motion for summary 

judgment.
On defendants' motion, a panel of this 

court, on October 7, 1988, dismissed the 
individual plaintiffs from the appeal. The 

panel stated:
Rule 3(c), Fed. R. App. P., 
provides that the notice of 
appeal shall specify the party or 
parties taking the appeal. The 
use of the phrase 11 et al" [sic] 
utterly fails to provide the 
requisite notice. Failure to 
individually name a party in a 
notice of appeal constitutes 
failure of that party to appeal. 
Torres v. Oakland Scavenger Co..
__ U.S. ___ , 108 S.Ct. at 2409;
see also Van Hoose v. Eidson. 450 
F. 2d 746 (6th Cir. 1971) (per 
curiam order). The notice of 
appeal filed in the present case 
states that "plaintiffs in the



2 6 a

above case ... appeal . . . . " and 
lists only as plaintiffs 
"Minority Employees of the 
Tennessee Department of 
Employment Security, et al."

The panel, therefore, dismissed the
individual plaintiffs Davis, Oliver and
Perry because they were not designated in
the notice of appeal as required by Torres.

Plaintiffs subsequently moved to
suspend the requirements of Fed. R. App. P.
3(c) and to amend the notice of appeal. On
February 28, 1989, a second panel of this
court denied plaintiffs7 motion. Citing
Torres. the panel held that the court could
not "suspend" the requirement of Rule 3(c)
since the requirement was jurisdictional
and could not be waived. The panel, citing
Fed. R. App. P. 26(b), also concluded that
"we have no authority to amend a notice of
appeal to add additional parties after the
time for taking the appeal has expired."

On July 10, 1989, a third panel of



2 7 a

this court upheld the dismissal of the 
individual plaintiffs and affirmed the 
district court's dismissal of Minority 
Employees, the sole appellant. Rehearing 
en banc was granted on September 13, 1989.

In their supplemental brief on 
rehearing, plaintiffs raise three ultimate 
issues: (1) whether the decision to dismiss 
the individual plaintiffs was error; (2) 
whether the decision to refuse to allow the 
amendment to the notice of appeal was 
error; and (3) whether the district court's 
disposition of the merits of the claims of 
the individual and corporate plaintiffs was 
error. The prior panels did not err in 
their disposition of the first two issues. 
We therefore do not address the merits of 
the claims of the individual plaintiffs 
because jurisdiction over them is lacking.



2 8 a

III.
Without further clarification by the

Supreme Court beyond its language in
Torres, we are left quite specifically with
the question of what a party must do to
"specify the party or parties taking the
appeal." Federal Rule of Appellate

Procedure 3(c) provides:
(c) Content of the Notice of Appeal.
The notice of appeal shall 
specify the party or parties 
taking the appeal; shall 
designate the judgment, order or 
part thereof appealed from; and 
shall name the court to which the 
appeal is taken. Form 1 in the 
Appendix of Forms is a suggested 
form of a notice of appeal. An 
appeal shall not be dismissed for 
informality of form or title of 
the notice of appeal.

As with interpretations of every technical 
rule, interpreting this rule to provide 
sufficient certainty inevitably leads to 
harsh results in some cases. As Justice 
Scalia stated in his concurrence in Torres,



29a
"[b]y definition all rules of procedure are 
technicalities; sanction for failure to 
comply with them always prevents the court 
from deciding where justice lies in the 
particular case, on the theory that 
securing a fair and orderly process enables 
more justice to be done in the totality of 
cases." 108 S.Ct. at 2410 (Scalia, J. , 
concurring). In the interest of creating 
certainty in this area, educating potential 
appellants as to the requirement and 
fostering consistency within our circuit, 
this circuit must state as clearly as 
possible what constitutes a notice that 
complies with the rule.

The Supreme Court recently held in 
Torres that a failure to comply with Rule 
3(c)'s requirement of specifying the party 
or parties taking the appeal is a 
jurisdictional bar, stating that "[t]he 
failure to name a party in a notice of



30a
appeal is more than excusable 
'informality;' it constitutes a failure of 
that party to appeal." 108 S.Ct. at 2407. 
Justice Marshall recognized that the 
"purpose of the specificity requirement of 
Rule 3(c) is to provide notice both to the 
opposition and to the court of the identity 
of the appellant or appellants." Torres, 
108 S.Ct. at 2409. Torres unequivocally 
held that the term "et al." fails to 
fulfill this purpose and is not sufficient 
to comply with the specificity requirement 
of Rule 3(c). 108 S.Ct. at 2409.

In Torres, Jose Torres was one of 
sixteen plaintiffs who intervened in an 
employment discrimination suit against 
Oakland Scavenger Company. Although the 
district court dismissed the complaint for 
failure to state a claim warranting relief, 
the Ninth Circuit Court of Appeals 
reversed. On remand, Oakland moved for



31a
partial summary judgment against Torres, 
arguing that the prior district court's 
judgment must stand since Torres failed to 
effectuate an appeal. 108 S.Ct. at 2407.

The notice of appeal at issue in 
Torres was captioned, in relevant part, 
"JOAQUIN MORELES BONILLA, et al., 
Plaintiffs in Intervention,..." The body 
of the notice, however, listed fifteen of 
the sixteen intervening plaintiffs, 
omitting Torres' name.2 The Supreme Court 

noted that it was "undisputed that the 
omission in the notice of appeal was due to 
a clerical error on the part of a secretary 
employed by petitioner's attorney." 108 
S.Ct. at 2407. The Court, however, rejected 
Torres argument that the use of the phrase 
"et al." was sufficient to designate:

The notice of appeal in Torres 
has been appended to this opinion as 
"Attachment 2."



32a
The purpose of the specificity 
requirement of Rule 3 (c) is to 
provide notice both to the 
opposition and to the court of 
the identity of the appellant or 
appellants. The use of the 
phrase "et al.," which literally 
means "and others," utterly fails 
to provide such notice to either 
intended recipient. Permitting 
such vague designation would 
leave the appellee and the court 
unable to determine with 
certitude whether a losing party 
not named in the notice of appeal 
should be bound by an adverse 
judgment or held liable for costs 
or sanctions. The specificity 
requirement of Rule 3(c) is met 
only by some designation that 
gives fair notice of the specific 
individual or entity seeking to 
appeal. r Torres. 108 S.Ct. at 
2409] .

The use of the phrase "et al." in the 
present notice of appeal, which was 
specifically rejected in Torres. is 
contrary to the language and spirit of 
Torres and precludes a conferment of 
jurisdiction over the appeal of the 
individual plaintiffs. Further, the use of 
the term "plaintiffs" in the body of the



33a
notice failed to designate the individual 
plaintiffs in light of the failure 

specifically to name them.
Plaintiffs' counsel essentially argues 

that the notice should be given a common- 
sense reading, arguing that respondents 
were not misled or prejudiced by the notice 
of appeal. Although the "some designation" 
or "otherwise designated" language in 
Torres appears to contemplate something 
less than naming, 108 S.Ct. at 2409, we do 
not read Torres to permit the type of 
inquiry suggested. See 108 S.Ct. at 2409 
n.3. Such an approach was rejected by 
Torres. fails to provide fair notice to the 
intended recipients, and has the potential 
for promoting indefensible semantic 

distinctions.
In Ford v. Nicks, supra, for example, 

a panel of this court distinguished Torres 
and accepted a notice containing "et al."



34a
The court was persuaded that the use of the
definite article in "the defendants" in the
body of the notice of appeal sufficiently
designated the appealing parties, even
though the notice of appeal was captioned,
in relevant part, "Chancellor Roy S. Nicks,
et al. Defendants." 866 F.2d at 869. The
court reasoned that the lack of articles in
the Latin language indicates that "et al."
may mean either "and others" or "and the
others," depending upon the context. The
court concluded that the definite article
in the body clarified ambiguities inherent
in the caption and that the notice gave
fair notice that all eighteen defendants
appealed. In doing so, the Ford court
distinguished Torres:

The Torres Court translated the 
phrase "et al." as meaning "and 
others," rather than "and the 
others." In the context of the 
particular notice that was before 
the Court in Torres. this 
translation was impeccable. The



35a
best translation of the caption 
in the case at bar, however, 
would be "Chancellor Roy S. Nicks 
and the others, Defendants," 
because the context shows that 
"et al.11 was intended to refer to 
all the others.

Ford, however, is inconsistent with Torres. 
A court may not look to the intent of the 
parties to cure the ambiguities inherent in 
the use of the phrase "et al.11 The inquiry 
would not serve Rule 3(c) 's purpose of 
effectuating notice to the intended 
recipients, the court and the responding 
parties. Further, Torres indicates that a 
court may not undertake an inquiry as to 
whether the responding party was misled or 
prejudiced by the omission to cure a 
failure to "clear a jurisdictional hurdle." 
See 108 S.Ct. at 2409 n.3.

Not only does the Ford inquiry 
conflict with Torres. but it is at variance 
with our opinion in Van Hoose v. Eidson. 
supra. In Van Hoose. the court considered



3 6a
a notice of appeal partially captioned 
"Floyd Van Hoose, et al. [sic] Plaintiffs- 
Appellants." The court held that Van Hoose 
was the only appellant, stating: "The only 
party specified in the notice of appeal 
filed in this case was Floyd Van Hoose. 
The term 'et al' does not inform any other 
party or any court as to which of the 
plaintiffs desire to appeal in this case." 
450 F.2d at 747. Although one could argue 
that the Ford opinion is consistent with 
Van Hoose. since the notice of appeal in 
the latter case did not contain the 
definite article, the attempt to 
distinguish would be disingenuous and ill- 
advised. Even if we thought that this 
approach was consistent with Torres. we 
cannot permit our jurisdiction to turn on 
the presence or absence of the definite 
article.

Our reading of Torres is informed by



37a
a scrutiny of the conflict in the circuits
identified by the Supreme Court. The
Supreme Court in Torres began its analysis
by indicating that the Court

granted certiorari to resolve a 
conflict in the Circuits over 
whether a failure to file a 
notice of appeal in accordance 
with the specificity requirement 
of Federal Rule of Appellate 
Procedure 3(c) presents a 
jurisdictional bar to the 
appeal.1

Torres. 108 S.Ct. at 2407 & n.l. A review 
of the cases cited by the Supreme Court 
reveals that the conflict between the *

Compare Farley Transportation Co. 
v. Santa Fe Trail Transportation Co.. 778 
F. 2d 1365, 1368-1370 (CA9 1985) (failure to 
specify party to appeal is jurisdictional 
bar); Covington v. Allsbrook. 636 F.2d 63, 
64 (CA4 1980) (same); Life Time Doors. Inc, 
v. Walled Lake Door Co.. 505 F.2d 1165, 
1168 (CA6 1974) (same); with Ayres v. 
Sears. Roebuck & Co..789 F.2d 1173, 1177 
(CA5 1986) (appeal by party not named in 
notice of appeal is permitted in limited 
instances); Harrison v. United States. 715 
F.2d 1311, 1312-1313 (CA8 1983) (same); 
Williams v. Frev. 551 F.2d 932, 934, n.l 
(CA3 1977) (same).



38a
circuits at that time was whether or not 
something less than naming would be 
acceptable. The courts that held that the 
requirement was jurisdictional required 
naming, whereas those courts that did not 
were willing to permit something less than 

naming.
Our opinion in Life Time Doors, 505 

F. 2d at 1168, cited by the Supreme Court, 
specifically required that parties be named 
to confer jurisdiction. As we stated in 
Life Time Doors, since the party "was not 
named in the notice of appeal, he simply 
did not appeal and we have no jurisdiction 
over him." 505 F.2d at 1168. The other 
two cases cited by the Supreme Court also 
support this conclusion. The Ninth Circuit 
in Farley. 788 F.2d at 1369, partially 
relying upon our opinion in Van Hoose, 
supra, also held that the parties must be 
named to confer jurisdiction. As the



39a
Farley court noted, a "literal 
interpretation of rule 3(c) creates a 
bright-line distinction and avoids the need 
to determine which parties are actually 
before the court long after the notice of 
appeal has been filed." 778 F.2d at 1369. 
Similarly, the Fourth Circuit in Covington, 
supra. extended our decision in Van Hoose, 
supra, to require "actual signing by pro se 
parties desiring to join in an appeal" as 
the only "practical way" of specifying the 
party or parties taking the appeal. 
Covington, 636 F.2d at 64. This latter 
case perhaps partially explains the "some 
designation" language in Torres.

The three contrary cases cited by the 
Supreme Court, however, permitted appeals 
where the parties were not named. In all 
three cases the courts determined that the 
responding parties were not prejudiced or 
misled. See Ayres, 789 F.2d at 1177 ("et



40a
al.11 in notice sufficient to designate 
appealing parties where the "record 
reflects that throughout the course of the 
litigation, all parties utilized this oft- 
used legal abbreviation when referring to
the plaintiffs") ; Harrison, 715 F. 2d at

1312-13 (notice of appeal amended to

include mistakenly omitted name where

responding party did not rely on omission);
Williams, 551 F.2d at 934 n.l (notice of
appeal effective as to two unnamed
individuals where responding parties

suffered no prejudice).
The Fifth Circuit's opinion in Ayres,

supra, highlights the divergence between
the circuits prior to Torres:

Three of our sister circuits 
require strict compliance with 
[Rule 3(c)], rejecting an 
embracive designation such as "et 
al." [cites to Farley. Life Time 
Doors. and Covington omitted]. .
. . We have joined other
circuits in a less strict
application of the rule,



41a
permitting, in limited instances, 
appeals by parties not named in 
the notice of appeal. [cites to 
Harrison. Williams, and others 
omitted]. . . .  Those circuits 
giving a broader application to 
Rule 3(c) have done so when 
satisfied that there was no 
surprise, detrimental reliance, 
or prejudice to appellees because 
one or more parties had not been 
listed by name in the notice of 
appeal. Typically, the cases 
involved an identity of issues in 
the appeals of the named and 
unnamed appellants.

Ayres, 789 F.2d at 1177. The Supreme 
Court's rejection of the Ayres approach in 
favor of requiring the naming of parties is 
emphasized by the disposition of the 
difficult case before the Court. In 
Torres. there was no dispute that it was a 
clerical error. Further, Torres 
specifically rejected a "harmless error" 
analysis, 108 S.Ct. at 2409 n.3, which is 
essentially what plaintiffs ask us to 

adopt.



42a
If the Supreme Court wished to accept 

an inquiry into intent or prejudice, it is 
unclear what the real conflict between the 
circuits would have been following Torres. 
Justice Brennan, in dissent, also did not 
believe that the majority permitted such an 
approach. Justice Brennan characterizes 
the majority opinion as requiring naming, 
stating that the Court "[e]schew[s] any 
inquiry into whether this omission was 
excusable or whether respondent suffered 
any prejudice . . . .  the Court simply 
announces by fiat that the omission of a 
party's name from a notice of appeal can 
never serve the function of notice, thereby 
converting what is in essence a factual 
question into an inflexible rule of 
convenience." 108 S.Ct. at 2410, 2413
(Brennan, J., dissenting).

We need not rely upon a dissenter's 
reading of the majority opinion, however,



43a
since the explicit language of Torres 
supports a reading that naming is required: 
"The failure to name a party in a notice of 
appeal is more than excusable 
'informality;7 it constitutes a failure of 
that party to appeal." 108 S.Ct. at 2407. 
Further, in so holding, the Supreme Court 
affirmed the Ninth Circuit's holding that 
[ujnless a party is named in the notice of 
appeal, the appellate court does not have 
jurisdiction over him." (Order reported at 
807 F.2d 178 (1986), cited by Torres, 108 
S.Ct. at 2407.)

Plaintiffs rely upon language in Rule 
3(c) to support their argument. Rule 3(c) 
states, in part, that "[a]n appeal shall 
not be dismissed for informality of form or 
title of the notice of appeal." Torres 
indicate that this language, added to Rule 
3(c) by a 1979 amendment, does not apply to 
cure a failure to specify the party. See



44a
108 S.Ct. at 2407. The Court specifically 
relies upon the Advisory Committee Note 
following Rule 3 in concluding that the 
"informality of form or title" language 
would excuse informalities such as a letter 
from a prisoner to a judge, thereby 
effectuating an appeal. 108 S.Ct. at 2408 
n .2, citing Riffle v. United States, 299 
F.2d 802 (5th Cir. 1962). Torres and this 
opinion do not detract from the important 
principle that "the requirements of the 
rules of procedure should be liberally 
construed and that 'mere technicalities' 

should not stand in the way of 
consideration of a case on its merits." 
Torres. 108 S.Ct. at 2408, citing Forman v. 
Davis. 371 U.S. 178 (1962). The failure to 
specify here, however, does not amount to 
an "informal" departure from the suggested 
"Form 1" found in the Appendix of Forms to



4 5 a

the Federal Rules of Appellate Procedure.3

Other courts are in accord with the 
interpretation of Torres as requiring 
naming. See. e.g.. Rosario-Torres v. 
Hernandez-Colon. 889 F.2d 314, 317 (1st 
Cir. 1989) (en banc) f"et al." is 
insufficient to designate; unnamed 
plaintiffs failed to appeal); Shatah v. 
Shearson/American Exp. . Inc. , 873 F.2d 550, 
552 (2nd Cir. 1989) (per curiam) ("et al." 
is insufficient to designate; notice of 
appeal sufficient only with respect to two 
parties specifically named); Marin-Piazza 
v. Aponte-Rogue. 873 F.2d 432, 433 (1st 
Cir. 1989) (only the party named in the 
notice of appeal effectuated an appeal) ; 
Akins v, Bd. of Governors of State Colleges 
& Univ.. 867 F.2d 972, 973 (7th Cir. 1988)
(appeal dismissed with respect to all

"Form 1" is appended to this 
opinion as "Attachment 3."



46a
individuals except the plaintiff actually
named in the notice); Gonzalez-Vega__
Hernandez-CoIon, 866 F. 2d 519 (1st Cir.
1989) (per curiam) (dismissal of 143 
purported appellants not named); Santos- 
Martinez v. Soto-Santiago, 863 F.2d 174,
175-76 (1st Cir. 1988) (purported 
appellants dismissed where they were not 
specifically designated); Cotton v. U.S. 
Pipe & Foundry Co. , 856 F.2d 158, 161-62
(11th Cir. 1988) (appeal effective only as 
to named parties); Meehan v. County of Los 
Anaeles. 856 F.2d 102, 105 (9th Cir. 1988) 
("et al. " insufficient to designate parties 
to the appeal; only named plaintiff invoked
jurisdiction); Appeal of District__ of
Columbia Nurses' Ass'n, 854 F.2d 1448, 
1450-51 (D.C. Cir. 1988) (per curiam) ("et 
al.11 insufficient to designate unnamed
parties), cert, denied sub nom., District



47a
of Columbia Nurses' Ass'n v. District of 
Columbia. 109 S.Ct. 3189 (1989).

Plainly, after Torres. the safest way 
of securing an appeal is for the party or 
parties seeking to appeal to state in the 
body of the notice of appeal the name of 
each and every party taking the appeal. A 
certain element of risk must always attend 
anything less than literal compliance, 
particularly in light of the variety of 
outcomes in this circuit and among the 
circuits. The careful litigant is put on 
notice to take particular care to avoid a 
danger we cannot protect against.4

* Under 28 U.S.C. § 2072, it is the 
special domain of the Supreme Court 
assisted by input from the Judicial 
Conference of the United States, see 28 
U.S.C. § 2073, to promulgate Federal Rules 
of Appellate Procedure for uniform 
application throughout all of the circuits. 
From our own disagreement, sitting en banc. 
and from the opinions which have 
proliferated elsewhere following Torres. it 
is evident that the bench and bar continue 
to be plagued by confusion in the



48a
Subject to that admonition, it would 

appear to us that there may be some 
departures from naming in the body of the 
notice that will not be found to be fatal. 
In the instant appeal, for example, where 
the corporate plaintiff was stated in the 
caption we conclude that the party was 
properly before the court although the body 
only referred to "plaintiffs." We,
therefore, disapprove of the blanket
statement in Allen Archery, Inc.-- v_;_
Precision Shooting Equip.. 857 F.2d 1176,
1177 (7th Cir. 1988) (per curiam), that 
"naming [the appellant] in the caption 

. . . will not do."
As long as the name appears on the 

face of the document, the designation may

interpretation of the language of Fed. R. 
App. P. 3(c). Both the majority and the 
minority in this case believe that a 
revision in the rule might be beneficial, 
and we respectfully urge that consideration 
be given to a change.



49a
fall within the language of Rule 3(c) that 
"[a]n appeal shall not be dismissed for 
informality of form or title of the notice 
of appeal." Even though the use of the 
term 11 et al." failed to designate other 
parties to the appeal, we cannot say that 
Minority Employees "was never named or 
otherwise designated, however inartfully, 
in the notice of appeal." Torres. 108 
S.Ct. at 2409. This approach is consistent 
with our previous holding that we have 
jurisdiction over a named party, even 
though the term "et al.11 was used. Cf. Van 
Hoose. 450 F.2d at 747. Further, at least 
two other circuits have adopted this 
approach. See Rosario-Torres v. Hernandez- 
Colon. 889 F.2d 314, 317 (1st Cir. 1989) 
(en banc) (party named only in the caption 
effectuated an appeal); Mariani-Giron v. 
Acevedo-Ruiz. 877 F.2d 1114, 1116 (1st Cir. 
1989) (same); Cotton v. U.S. Pipe & Foundry



50a
Co. , 856 F. 2d 158, 162 (11th Cir. 1988)
(two parties "named on the face" of the 
notice of appeal complied with Rule 3(c) 
even though they were only named in the 
caption); but see Biqbv v. City of Chicago, 
871 F.2d 54, 57 (7th Cir. 1989) (party must 
be named in the body of the notice) . We 
reluctantly accept this designation, 
however, only where the caption is not

. 5inconsistent with the body of the notice. 

Any ambiguity will defeat the notice. 
Although this opinion should discourage the

Although the Allen Archery 
statement on captions is rejected as a 
blanket rule, we note that there is great 
danger in naming a party in the caption and 
failing to name that party in the body of 
the notice. In Allen Archery, for example, 
two parties purporting to appeal were named 
in the caption, but only one of these 
parties was named in the body of the 
notice. The body of the notice stated that 
"Notice is hereby given that Precision 
Shooting Equipment, Inc., defendant, hereby 
appeals...." Allen Archery. 857 F.2d at 
1176. In such a case, we could not 
disagree with the Allen Archery court that 
the second party failed to appeal.



51a
practice of naming only in the caption, we 
cannot say that this departure is 
necessarily fatal.

Our reading does not ignore the "some 
designation" or "otherwise designated" 
language in Torres. 108 S.Ct. at 2409. We 
consider this language as possibly 
referring to issues such as class 
representation.6 See. e.a .. Al-Jundi v. 

Estate of Rockefeller. 885 F.2d 1060, 1061 
n.2 (2nd Cir. 1989) (naming of class 
representative sufficient to indicate that 
entire class appealed); Rendon v. AT & T 
Technologies, 883 F.2d 388, 398 n.8 (5th 
Cir. 1989) (same) . Further, if only one 
party of record bears the particular 
designation, which is then in the singular 
in the body, we would conclude that the

In Torres. a class had not been 
certified at the time of dismissal. 108 
S.Ct. at 2407.



52a
reference in the body of the notice would 
be within the intent and language of 
Justice Marshall's "otherwise designated" 
or "some designation" language. In these 
cases, there is no arguable ambiguity. A 
different view would be contrary to common 
practice and Torres. We decline to predict 
other contexts where this language may be 
applicable, but we can predict with 
certainty the consequences of the failure 
to satisfy that requirement.

IV.
Plaintiffs' counsel suggested during 

oral argument and in the briefs that Torres 
should not be applied retroactively to 
compel the dismissal of the individual 
plaintiffs because the notice of appeal in 
this case was filed prior to the decision 
in Torres. Quite clearly, the express 
language of Torres precludes such a result. 
As the Supreme Court noted, "a litigant's



53a
failure to clear a jurisdictional hurdle 
can never be 'harmless' or waived by a 
court." Torres. 108 S.Ct. at 2409 n.3; 
Life Time Doors. Inc., v. Walled Lake Door 
Co.. 505 F.2d at 1168) (failure to specify 
party to appeal is a jurisdictional bar). 
The jurisdictional defect divests this 
court of the power to consider retro­
activity. We, therefore, cannot agree with 
McMichael v. United States. 856 F.2d 1024, 
1025 (8th Cir. 1988), that Torres announced 
a "procedural change in the law."7

7 Other courts similarly have 
applied Torres to notices of appeal filed 
before that decision. See. e.q .. Rosario- 
Torres v. Hernandez-Colon. 889 F.2d at 317; 
Johnson v. Trustees of W. Conf. of 
Teamsters P.T., 879 F.2d 651, 653-54 n.3 
(9th Cir. 1989); Santos-Martinez v. Soto- 
Santiaqo. 863 F.2d at 177; United States v. 
Spurgeon. 861 F.2d 181, 183 & n.3 (8th Cir. 
1988) (per curiam) (distinguishing 
McMichael v. United States. 856 F.2d 1024 
(8th Cir. 1988)); Cotton v. U.S. Pipe & 
Foundry. 856 F.2d at 162; Meehan v. County 
of Los Angeles. 856 F.2d at 105; Appeal of 
District of Columbia Nurses' Ass'n. 854 
F.2d at 1449-50; cf. Board of Governors of



5 4 a

Similarly, we reject the argument that
the prior panels should have permitted an
amendment to the notice of appeal. Since
the individual plaintiffs did not file a
notice of appeal or the functional
equivalent, an amendment would effectuate
an extension of the time for filing a
notice of appeal. The Federal Rules of
Appellate Procedure explicitly divest this
court of this power. Fed. R. App. P. 26(b)
provides, in part:

(b) Enlargement of Time. The 
court for good cause shown may 
upon motion enlarge the time 
prescribed by these rules or by 
its order for doing any act, or 
may permit an act to be done 
after the expiration of such 
time; but the court may not 
enlarge the time for filing a 
notice of appeal, a petition for

State Colleges & Univ. v. Akins, ___ U.S.
__, 109 S.Ct. 299 (1988) (mem.) (vacating
judgment concerning a pre-Torres notice of 
appeal and remanding for reconsideration in 
light of Torres). on remand. 867 F.2d 972, 
974 (7th Cir. 1988) (applying Torres 
retroactively).



5 5 a

allowance, or a petition for 
permission to appeal.
[emphasis added.]

Further, Torres prohibits this court from 
granting such an amendment. See 108 S.Ct. 
at 2408. As the Supreme Court stated, 
"[w]e believe that the mandatory nature of 
the time limits contained in Rule 4 would 
be vitiated if courts of appeals were 
permitted to exercise jurisdiction over 
parties not named in the notice of appeal." 
108 S.Ct. at 2408.

V.
Since a vote in favor of en banc 

reconsideration vacates the opinion and 
judgment of the original panel, see 6th 
Cir. R. 14(a), this en banc court is left 
with the responsibility of passing upon the 
merits of the issues raised on appeal by 
Minority Employees, which is properly



56a
before this court.8 This court is of the 

unanimous view that the panel decision to 
affirm the district court's dismissal of 
Minority Employees' claims was correct. 
The reasoning of that panel decision is 
reinstated and reaffirmed as our decision 
on the merits of Minority Employees' 
appeal. Therefore, we conclude that the 
district court's conclusion that Minority 
Employees' evidence of racially stratified 
jobs was insufficient to make a prima facie 
case of disparate impact was not clearly 
erroneous. The Supreme Court's recent 
decision in Wards Cove Packing Co., Inc, v. 
Atonio. 109 S.Ct. 2115, 2121-22 (1989), 
emphasizes the deficiency in the

Rule 14(a) provides, in part: 
"The effect of the granting of a rehearing 
en banc shall be to vacate the previous 
opinion and judgment of this court, to stay 
the mandate and to restore the case on the 
docket as a pending appeal.



57a
statistical evidence proffered by Minority 

Employees.
Accordingly, the judgment of the

district court with respect to the

corporate plaintiff Minority Employees is

AFFIRMED. The appeal insofar as purports 
to include the individual plaintiffs Davis, 
Oliver and Perry is DISMISSED for want of 

jurisdiction.



58a
Attachment 1

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

MINORITY EMPLOYEES OF THE )
TENNESSEE DEPARTMENT OF )
EMPLOYMENT SECURITY, et al. )

)
Plaintiffs )

)vs ) NO. 81-3114
) JUDGE HIGGINS

TENNESSEE DEPARTMENT OF )
EMPLOYMENT SECURITY, et al. )

)
Defendants )

NOTICE OF APPEAL
Now come plaintiffs in the above case 

and appeal to the United States Court of 
Appeals for the Sixth Circuit from the 
orders of the Court entered on 2 8 April 
1982 denying the plaintiffs' motion for 
class certification, 3 September 1986, 
dismissing plaintiffs' claims under Title 
VII of the Civil Rights Act of 1964, and 11 
March 1988, dismissing plaintiffs' claims 
under 42 U.S.C. Sections 1981, 1983 and



59a
1985 and the Thirteenth and Fourteenth
Amendments to the Constitution of the
United States. The Order of 11 March 1988
finalized the Orders of 28 April 1982 and

3 September 1986.
Respectfully submitted, 
WILLIAMS AND DINKINS
/s/ Russell T. Perkins
RICHARD H. DINKINS 
RUSSELL T. PERKINS 
203 Second Avenue, North 
Nashville, Tennessee 37201



60a
Attachment 2

B. V. YTURBIDE 
GUNHEIM & YTURBIDE 
Ivy Court
414 Gough Street, Suite 6
San Francisco, California 94102
Telephone: (415) 626-3450
Attorneys for Intervenors

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

)
)) File
) No. ____
)) CIVIL 
) ACTION 
) C-75- 
) 0060 WAI 
)) NOTICE OF 
) APPEAL 

_)
)

JOAQUIN MORELES BONILLA, et al.,) 
et al. , )

)
Plaintiffs in Intervention, )

)vs. )
)

OAKLAND SCAVENGER COMPANY, )
et al., )

)
)

PERFECTO MARTINEZ, et al., 
Plaintiffs,

vs.
OAKLAND SCAVENGER COMPANY, 

et al.,
Defendants.

Defendants



61a

NOTICE IS HEREBY GIVEN that plaintiffs 
in intervention, JOAQUIN MORELES BONILLA, 
ARMAND CARDENAS, ENRIQUE CARDENAS, 
HELIODORO CARDENAS, BENJAMIN CEJA, JOSE 
GUZMAN, JOSE LOPEZ, LUIS MAGALEON, OCTAVIO 
MARQUEZ, RAUL MENDEZ, GILBERTO PALAFOX, 
JOEL PINEDO, FELIX R. SANCHEZ, JESUS 
SANCHEZ, and CURTIS STREDIC, hereby appeal 
to the United States Court of Appeals for 
the Ninth Circuit from the Judgment of 
Dismissal entered in this action on the 
31st day of August, 1981.

Dated: September 29, 1981.
B. V. YTURBIDE 
GUNHEIM & YTURBIDE

/s/ B. V. Yturbide
By: _________________________

B. V. YTURBIDE 
Attorneys for Intervenors



62a
Attachment 3 

APPENDIX OF FORMS
Form 1. Notice of Appeal to a Court of

Appeals From Judgment or Order of

a District Court
United States District Court for the 

_________  District of _________

File Number __________

A. B., Plaintiff )v. ) Notice of Appeal
C. D., Defendant )

Notice is hereby given that C. D., 
defendant above named, hereby appeals to 
the United States Court of Appeals for the
______ Circuit (from the final judgment)
(from the order (describing it)) entered in

this action on the ______ day of ------,

19__.

(S)

(Address)
Attorney for C.D.



63a
GUY, Circuit Judge, concurring. 

Although I believe the dissent sets forth 
a more reasonable approach to the inter­
pretation of Fed. R. App. P. 3(c), I 
nonetheless join the conclusion reached by 
the majority in this case for two reasons.* 1 

First, the majority opinion provides 
clearer, albeit more rigid, guidance for 
the bench and bar in the future. The 
dissent allows —  even invites —  the same 
type of ad hoc determinations which caused 
us to hold this en banc hearing in the 

first place.

1 There is really a third and 
perhaps even more compelling reason. Were
I to join the dissent, it would result in 
an equally divided court and no opinion 
would issue from the en banc court. The 
district court would be affirmed on the 
substantive issue, and our earlier panel 
decision would be affirmed on the 
procedural issue. Thus, the result would 
be the same, but whatever benefit might 
flow from the exposition of these issues in 
these opinions would be lost.



64a
Second, limiting the discussion to

case, I do not find the notice of

appeal as clear as the dissent suggests. 
To the question posed in the dissent, "Who 
else, if not these plaintiffs, could the 
notice possibly have been designed to 
specify?", I would answer the one 
specifically named plaintiff —  Minority 
Employees of the Tennessee Department of 
Employment Security, Inc. Company or 
corporate names are treated grammatically 
the same as collective nouns. R. Gavin and 
E.L. Hutchinson, Reference Manual for 
Stenographers and Typists 114 (2d ed. 
1956). Thus, one might appropriately say 
the "Minority Employees of the Tennessee 
Department of Employment Security, Inc. are 
appealing the district court dismissal" or 
the "Minority Employees of the Tennessee 
Department of Employment Security, Inc. is 
the only appellant in this case." There



65a
are numerous rules governing the 
grammatical intricacies generated by the 
use of collective nouns, and I will not 
burden this concurrence with their 
recitation. See. e.q .. M.S. Freeman, The 
Grammatical Lawyer 305 (ALI-ABA 1979) . 
Suffice it to say, however, the use of the 
plural "plaintiffs" in conjunction with the 
name "Minority Employees of the Tennessee 
Department of Employment Security, Inc." 
would not automatically convey, to me at 
least, that someone else also was 

appealing.

65



66a
DAVID A. NELSON, Circuit Judge, 

concurring in part and dissenting in 
part.Rule 3(c) of the Federal Rules of 
Appellate Procedure requires that a notice 
of appeal specify the party or parties 
taking the appeal. The question is 
whether, under the rule, there is only one 
form of specification that can possibly do 
the job. Must the party or parties taking 
the appeal be specified by name, or can a 
generic specification - e .g ., "plaintiffs 
in the above case," the term used to 
designate the appealing parties here _ pass 
muster if it gives what the Supreme Court 
has called "fair notice" of precisely who 
it is who is appealing? See Torres, 108
S.Ct. at 2409, 101 L.Ed.2d at 292.

Unlike the majority of my colleagues, 
I believe that far from ruling out the 
"fair notice" approach, Torres endorses It.

66



67a
I can readily understand why, as a matter 
of efficient judicial administration, a 
rigid "specification by name only" rule 
might be considered preferable. But we are 
no more at liberty to disregard the actual 
language of the rule we now have than we 
are at liberty to disregard the reasoning 
the Supreme Court has used in applying it.

Fidelity to the text of the existing 
rule, respect for the reasoning of the 
Supreme Court, and appreciation of the 
difficulty busy lawyers have in trying to 
keep up with the minutiae of appellate 
court decisions, in my view, all counsel 
against our departing from the letter of 
the rule as promulgated. And we do depart 
from the letter of that rule, I think, when 
we summarily dismiss the appeals of parties 
who, although not specified as appellants 
by name, have been specified as appellants

67



6 8 a

in a form that simply leaves no room for 
honest doubt as to who the appellants are.

I
To the average practicing lawyer, 

willing to take our procedural rules as the 
readily understandable guide they seem to 
be, the three short sentences of Rule 3(c) 
must see beguilingly straightforward. The 
first sentence tells the reader that a 
notice of appeal shall "specify" the party 
or parties taking the appeal, shall 
"designate" the judgment or order appealed 
from, and shall "name" the court to which 
the appeal is taken. These are the only 
requirements it purports to impose. The 
second sentence refers the reader to a 
"suggested" form. And the next sentence - 
the third and last - makes clear that the 
suggested form is not mandatory; that 
sentence gives the reader to understand

68



69a
that an appellate court may not dismiss an 
appeal for "informality" in the form of the 
notice of appeal.

The notice filed by the plaintiffs in 
the case at bar was completely faithful to 
the plain commands of Rule 3(c) as far as 
I can see. There was nothing unclear, or 
vague, or imprecise about it. There was 
nothing in the notice that would even 
remotely suggest any need for a factual 
inquiry into whether the opposing parties 
had somehow been prejudiced, or what the 
scrivener's subjective intent may have been 
—  questions that would be out of bounds in 
any event, of course.

The body of the plaintiffs' notice of 
appeal, to begin with, specified the 
parties taking the appeal as "plaintiffs" 
in the above case. There can be no 
possible reason to suppose that the plural

69



70a
form of the noun —  "plaintiffs" —  was 
being used here as the functional 
equivalent of the singular. And because of 
the plaintiffs' consistent and faithful 
compliance with another procedural rule, 
Rule 10(a) of the Federal Rules of Civil 
Procedure, no one examining the record 
could have any possible doubt as to who the 
'plaintiffs in the above case' actually 
were.

Under Rule 10(a), every pleading filed 
in a federal district court (which is where 
notices of appeal must be filed) has to 
contain a caption setting forth, among 
other things, the name of the court, the 
title of the action, and the file number. 
"In the complaint," Rule 10(a) continues, 
"the title of the action shall include the
names of all the parties, but in other
pleadings it is sufficient to state the

70



71a
name of the first party on each side with 
an appropriate indication of other 
parties."

There are four plaintiffs in the 
present case. (There always have been four 
plaintiffs, incidentally no party has 
been dropped or added at any stage of the 
proceeding.) In the complaint they filed 
in the district court, the plaintiffs gave 
their action a title that included the 
names and addresses of all four plaintiffs, 
starting with the corporate entity, 
Minority Employees,and including, after the 
fourth name and address, the designation 
"plaintiffs."

The complaint also contained a file 
number —  No. 81-3114. That file number 
was used in all subsequent filings, 
including the notice of appeal. When the 
plaintiffs referred to themselves in their

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72a
notice of appeal as the plaintiffs "in the 
above case," therefore, they can only have 
been referring to the plaintiffs in Case 

No. 81-3114.
The notice of appeal set out the title 

of the action in a form that did not 
reiterate the names of the second, third 
and fourth plaintiffs. Instead, the title 
made reference to those plaintiffs with the 
familiar shorthand expression "et al." The 
use of this form under Rule 10(a), was 
"sufficient." Anyone wanting to know the 
given names of the remaining plaintiffs 
could readily ascertain them by looking at 
the complaint, the one pleading where the 
rules make it mandatory that such names be 

included.
In compliance with the first sentence 

of Rule 3(c), the notice of appeal went on 
to name the court to which the appeal was

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being taken - the United States Court of 
Appeals for the Sixth Circuit. Then, 
giving the exact date of each order being 
appealed from, the notice designated the 
orders in question as an order "denying the 
plaintiffs' motion for class certifica­
tion," an order "dismissing plaintiffs' 
claims under Title VII of the Civil Rights 
Act of 1964," and an order "dismissing 
plaintiffs' claims under 42 U.S.C. Sections 
1981, 1983 and 1985 (Emphasis 
supplied.)

When the "plaintiffs" in a multi­
plaintiff lawsuit file a notice saying that 
they are taking an appeal from adverse 
rulings on their claims - the 
plaintiffs'claims - it is as certain as 
anything can be, I should have thought, 
that the appeal is not being taken by one 
plaintiff only. But this court's decision

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gives the notice of appeal precisely that 
effect. It makes the plural the functional 

equivalent of the singular.
This strange transformation flows from 

the court's application of what looks to me 
like a subtle revision in the test of Rule 
3(c). Section I of the court's opinion 
adds to the first sentence of the rule a 
command as to form which I cannot find 
there —  a command that appellants "include 
in the notice of appeal the name of each 
and every party taking the appeal."

If those who promulgated the rules of 
procedure had intended to say that the 
parties taking an appeal can only be 
specified by including their names in the 
notice of appeal, it would have been simply 
enough to say so, . With regard to the 
complaint, as we have seen, Rule 10(a), 
Fed. R. Civ. P., imposes exactly this kind

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of requirement when it says that "the names 
of all of the parties" must be included. 
But nowhere in any set of rules that I have 
seen is any such requirement imposed in 
connection with the notice of appeal. Rule 
3(c) merely requires that the notice of 
appeal "specify" the party or parties 
taking the appeal - and if words have 
meaning, the present notice of appeal does 
that.

Even as the court reads into Rule 3(c) 
a formalistic requirement which the 
drafters did not put there, it reads out of 
the rule a directive which the drafters 
clearly did put there. That directive, 
found in the rule's third sentence, is the 
directive not to dismiss an appeal for 
"informality" in the form of the notice.

The justification offered for treating 
the third sentence of Rule 3(c) as

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76a
inapplicable is that an outright failure to 
specify someone as a party to the appeal is 
a defect not of form, but of substance. 
And so it is. But the issue here is 
whether there has actually been a failure 
to specify three of the four plaintiffs as 
parties to the appeal - and unless there 
has been such a failure, the third sentence 
of Rule 3(c) is plainly applicable, and we 
must obey it no less faithfully than 
appellants must obey the first sentence of 
the rule.

Does the given name of each party 
specified as an appellant have to be 
formally published within the four corners 
of the notice of appeal, as if the notice 
were some kind of baptismal certificate? 
That is a pure question of form, in my 
view. It is a question to which the third 
sentence of Rule 3(c) speaks directly, and

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77a
the answer given by the rule - an appeal 
shall not be dismissed because of 
"informality" in the notice's form - is one 
I cannot reconcile with the answer given by 
the court.

Suppose that instead of beginning 
"[n]ow come plaintiffs in the above case 
and appeal to the Court of Appeals for the 
sixth Circuit," the body of the notice of 
appeal had begun "fnjow come each and every 
one of the plaintiffs named in the caption 
of the complaint filed in the above case on 
March 6, 1981, and appeal to the United 
States Court of Appeals for the Sixth 
Circuit." Such a notice would not include, 
within its four corners, the name of each 
and every party taking the appeal. But 
prior to the decision in Torres. at least, 
I do not believe that most practicing 
lawyers in this circuit could have doubted

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78a
that such a notice would adequately 
"specify" the parties taking the appeal. 
Neither do I believe that the 'spirit' of 
Torres somehow compels us to shut our eyes 
both to the actual language or Rule 3(c) 
and to the modes of expression commonly 
used by people who draft legal documents.

II
Unlike the instant case, Torres 

presented a situation in which, because of 
a clerical error in the notice of appeal, 
one would-be appellant was not specified as 
a party to the appeal in any way, shape or 
form. He was not specified by name, he was 
not specified by reference, he was not 
specified generically. There were 16 
intervening plaintiffs in Torres, only 15 
of whom were designated as appellants. The 
problem was not that the plaintiffs were 
specified as appellants by reference, as in

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79a
the case at bar; the problem was that 15 
were specified as appellants by repetition 
of their names in the body of the notice, 
and the odd man out was not specified as an 
appellant at all.

The Torres notice of appeal, 
reproduced as Attachment 2 to the court's 
opinion here, specified the following 
plaintiffs in intervention as the parties 
taking the appeal:

"JOAQUIN MORELES BONILLA, ARMA.ND
CARDENAS, ENRIQUE CARDENAS, HELIODORO
CARDENAS, BENJAMIN CEJA, JOSE GUZMAN,
JOSE LOPEZ, LUIS MAGALLON, OCTAVIO
MARQUEZ, RAUL MENDEZ , GILBERTO
PALAFOX, JOEL PINEDO, FELIX R.
SANCHEZ, JESUS SANCHEZ and CURTIS
STREDIC."
The individual whose name was

accidentally omitted from this list, Mr.

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80a
Jose Torres, was clearly an intervening 
plaintiff. Just as clearly, however, he 
was not an intervening plaintiff who had 
been specified as an appellant. The Torres 
notice did not so much as hint that Mr. 
Torres was among those participating in the 
appeal - and the Supreme Court held, not 
surprisingly, that the failure to "name" 
him with the other 15 was "more than 
excusable 'informality;' it constitute^]

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81a
a failure of that party to appeal."2 108 
S.Ct. at 2407, 101 L.Ed.2d at 290.

No such failure occurred in the case 
at bar. There was no clerical error here. 
There was no list of appellants from which 
one name had been omitted by accident.

2In a context where each of 15 parties 
specified as appellants had been so 
specified by use of his given name, no 
undue significance should be attached to 
the Supreme Court's use of the verb "name" 
as a synonym for "specify" or designate." 
It is not reasonable to infer that the 
Court meant that a party cannot possibly be 
specified as an appellant except by use of 
his given name - for if the Court had meant 
that, it would have been pointless to speak 
(as the Court did) of the possibility that 
a party might be designated as an appellant 
"otherwise." 108 S.Ct. at 2409, 101 L.Ed.2d 
at 292. I find no suggestion in the 
Court's language that a party can only be 
specified as an appellant by using his 
given name, as opposed to using some other 
designation that provides fair notice of 
the party's inclusion as an appellant. The 
test under Torres is not whether a 
particular form of nomenclature has been 
used, but whether "fair notice" has been 
given. Id.

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82a
There is no reason to doubt that the 
plaintiffs' lawyer, an experienced and 
capable practitioner, intended the notice 
of appeal to specify as the parties taking 
the appeal the "plaintiffs" in Case No. 81- 
3114 —  and those are precisely the parties 
the notice of appeal did in fact specify as 
appellants. There was no error at all, 

"harmless" or otherwise.
This court's opinion acknowledges, 

properly, that the factual circumstances in 
Torres differ from the factual circum­
stances in the case at bar. But in 
extending Torres to the facts of the 
present case, the court extends it to a 
situation where the reasoning of Torres 

demonstrates, I believe, that the extension 

is not justified.
It was function, not form, in which 

the Torres court was interested, just as it

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83a
was function, not form, in which the 
drafters of Rule 3(c) were interested. 
(The Rules Advisory Committee noted in 
1979, when the third sentence was added to 
the rule, that "so long as the function of 
notice is met ... the substance of the rule 
has been complied with." (Emphasis 
supplied.)) "The purpose of the specificity 
requirement of Rule 3(c)," Torres 
explained, "is to provide notice both to 
the opposition and to the court of the 
identity of the appellant or appellants." 
108 S.Ct. at 2409, 101 L.Ed.2d at 292. The 
test of whether the specificity requirement 
has been met is a functional test: whether 
the parties to the appeal have been 
specified as such "by some designation that 
gives fair notice of the specific 
individual or entity seeking to appeal." 
Id. (Emphasis supplied.) That is the test

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84a
prescribed by the Supreme Court in Torres: 
"The specificity requirement of Rule 3(c) 
is met only by some designation that gives 
fair notice of the specific individual or 
entity seeking to appeal." The form of 
notice is immaterial, but only some 
designation that does actually give "fair 
notice" will suffice.

The fair notice standard is, of 
course, an objective one. See Ford v. 
Nicks. 866 F.2d 867, 870 (6th Cir. 1989) 
(" 'the function of notice' was met as to 
each of the defendants ... by the filing of 
a notice of appeal on behalf of 'the' 
defendants, without limitation"). Whether 
the function of notice has been performed 
in a particular case does not depend on the 
state of mind of the parties or their 
lawyers —  it depends on the meaning the 
words of the notice would convey to the

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85a
ordinary reader in the position of court 
and counsel. And applying that objective 
standard here, it seems to me, the words of 
the present notice of appeal gave fair 
notice that it was the plaintiffs 
without limitation —  who were appealing.

In Torres, by contrast, the notice of 
appeal gave fair notice that the 15 
intervening plaintiffs specifically named 
as appellants were appealing, and it did 
not give fair notice that the unnamed 
intervenor, Mr. Torres. was also appealing. 
The omission of Mr. Torres, was also 
appealing. The omission of Mr. Torres 
meant that he, in the Supreme Court's 
words, "did not file the functional 

e q u i v a l e n t of a notice of appeal; he was 
never named o r  oth e r w i s e  designated, 

h o w e v e r  inartfully, in the notice of appeal

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8 6 a

filed by the 15 other intervenors." Id. 

(Emphasis supplied.)
Surely it cannot be said that the 

plaintiffs in the case at bar did not even 
file "the functional equivalent" of a 
notice of appeal. If they were not named 
as appellants by repetition of their actual 
names, surely they were "otherwise 
designated," at least "inartfully," by 
reference to their position as plaintiffs. 
Who else, if not these plaintiffs, could 
the notice possible have been designed to 

specify?
The Supreme Court went out of its way, 

in Torres, to reaffirm the "important" 
principle, spelled out in Foman v. Davis, 
371 U.S. 178, 181 (1962), "that the 
requirements of the rules of procedure 
should be liberally construed and that 
'mere technicalities' should not stand in

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87a
the way of consideration of a case on its 
merits.” 108 S. Ct. at 2408, 101 L.Ed.2d at 
291. It is ironic, to say the least, that 
in the case at bar the technicality that 
stands in the way of our considering the 
individual plaintiffs' appeals on their 
merits would disappear, under this court's 
own analysis, if the plaintiffs' district 
court filings had not consistently used a 
form of caption that the Federal Rules of 
Civil Procedure say will be "sufficient" 
for every pleading filed after the 
complaint.

To illustrate the point, supposed that 
the complaint in Case No. 81-3114 had been 
filed by plaintiffs John Doe, Richard Roe, 
and Morris Moe. Suppose further that the 
caption of every subsequent filing in the 
district court had included in the title of 
the action the full names of all the

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8 8 a

parties. If, after losing their case, the 
plaintiffs had filed a notice of appeal in 
which the names of all three of them 
appeared in the title of the action, it 
would have availed Mr. Moe nothing, under 
Torres, if the body of the notice had said 
"Now come plaintiffs John Doe and Richard 
Roe and appeal to the United States Court 
of Appeals for Sixth Circuit." Such a 
notice, specifying only Doe and Roe as 
appellants, could only have been effective 
as to those particular plaintiffs, under 
Torres. because it would have specified no 
Moe in its actual designation of the 

parties to the appeal.
If, on the other hand, the body of the 

notice had said "Now come plaintiffs in the 
above case and appeal to the United States 
Court of Appeals for the Sixth Circuit," 
the notice would have been effective as to

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89a
all of the plaintiffs, under the Torres
test, because it would have given
notice that all the plaintiffs
participating in the appeal. And even 
under the more restrictive test adopted by 
this court, I take it, such a notice would 
have been effective as to all the 
plaintiffs as long as the names of all the 
plaintiffs were included in the title of 
the action as set forth in the caption.

I have some difficulty, I must say, 
with an approach under which the 
effectiveness of a notice of appeal that 
gives fair notice that all the plaintiffs 
are appealing can be thought to turn on 
whether the title of the action happens to 
take the form required for the complaint 
alone, as opposed to the form that is 
"sufficient," under the rules, for every 
other pleading.

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90a
III

As the court suggests, there appears 
to be a split of authority in the prior 
decisions of this circuit as to whether 
specification of appellants by reference is 
always unacceptable, regardless of whether 
that form of specification gives fair 
notice of who is appealing. Compare Ford 
v. Nicks. 866 F. 2d 865, 869-70 (6th Cir. 
1989), with Van Hoose v. Eidson. 450 F.2d 
746 (6th Cir. 1971).

A similar split existed, briefly, in 
the Ninth Circuit. Compare National Center 
for Immigrants Rights, Inc, v. INS. 8 92 
F.2d 814 (9th Cir. 1989) (notice that 
"defendants in the above-referenced action 
hereby appeal" is effective as to all 
defendants, where the caption of the notice 
refers to the defendants as "Immigration 
and Naturalization Service, et al. ,

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91a
Defendants") with Graves v. Repack, Inc. . 
891 F. 2d 254 (9th Cir. 1989) (withdrawn 
Feb. 2, 1990) (notice that "Plaintiffs 
hereby appeal" is not effective as to all 
plaintiffs, five in number, where the 
caption of the notice lists as plaintiffs 
"Sylvester Graves, individually and as 
Special Administrator of the Estate of 
Francis Milliner, Deceased, etc.") With 
the withdrawal of the latter decision in 
favor of the former, the Ninth Circuit now 
appears to have come down in favor of a 
position diametrically opposed to that 
being taken by our circuit in the case at 
bar.

Disagreement exists among the judges 
of the First Circuit. Without much 
analysis, however, that court has taken a 
position comparable to ours and contrary to 
the Ninth Circuit's See Marin-Piazza v.

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92a
Aponte-Roaue, 873 F.2d 432 (1st Cir. 1989), 
where Judge Coffin, who gave the court's 
decision, noted that he disagreed with his 
colleagues on the question whether a notice 
saying that "the codefendants in this 
action hereby appeal" was effective as to 
all codefendants. "This refers to a 
precise group of five persons, "Judge 
Coffin said. "In my view," he continued, 
"this is sufficient to meet the holding in 
Torres requiring 'some designation that 
gives fair notice of the specific 
individuals seeking to appeal.'" 873 F.2d 
at 433, n.l (citation omitted; emphasis 
supplied by Judge Coffin).

Although there are other decisions in 
the First Circuit (and elsewhere) that seem 
to reject the idea that a designation 
giving fair notice of the specific 
individuals seeking to appeal complies with

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93a
Rule 3(c) whether or not the parties are 
specified by name, the number of such cases 
is perhaps not as great as the reader might 
think. Our decision in Life Time Doors, 
Inc, v. Walled Lake Door Co.. 505 F.2d 1165 
(6th Cir. 1974), for example, is entirely 
consistent with the "fair notice" concept.

There were two plaintiffs in Life 
Time, an individual plaintiff named Gilbert 
and a corporate plaintiff the name of which 
(accurately transcribed) was Lifetime 
Doors, Inc. After the district court 
entered final judgment in favor of the 
defendant, the corporate plaintiff filed a 
notice of appeal that read thus:

"Notice is hereby given that 
Lifetime Doors, Inc., Plaintiff above 
named, hereby appeals to the United 
States Court of Appeals for the Sixth 
Circuit from the Amended Judgement 
entered in this action on the first 
day of August 1973."

The lawyer who had represented both

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94a
plaintiffs,in the district court 
subsequently filed an affidavit in our 
court stating that he had been authorized 
to perfect an appeal for both plaintiffs, 
and that his failure to specify plaintiff 
Gilbert as a party to the appeal was the 
result of an error on the lawyer's part. 
"[I]t was the intent of myself, my 
secretary and my clients," the lawyer's 
affidavit said, " to file the Notice on 
behalf of Gilbert as well as Lifetime 
Doors, Inc." Id.

This court, quite properly, refused to 
allow the lawyer's subjective intent to 
override the objective meaning of the words 
of the notice:

"The notice of appeal heretofore 
quoted strictly complied with the 
rule; the only trouble with it was 
that it did not specify Gilbert as one 
of the parties taking the appeal." Id. 
at 1168.

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95a
A notice that specifies a single entity as 
the party taking the appeal —  "Lifetime 
Doors, Inc., Plaintiff above named" 
obviously does not specify more than one 
appellant. It would be wrong to convert 
the singular into the plural merely because 
the lawyer claims he made a mistake, just 
as it is wrong to convert the plural into 
the singular where the lawyer does not 
claim to have made a mistake.

If the Supreme Court, in footnote 1 of 
its Torres opinion, did not expressly 
approve our resolution of the question 
presented in Life Time. no reason is 
apparent to me why the Court should not 
have done so. And Farley Transportation 
Co. v. Santa Fe Trail Transportation Co.. 
778 F.2d 1365 (9th Cir. 1985), cited by the 
Supreme Court in conjunction with Life 
time, seems to fit the Life Time pattern

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96a
exactly. In Farley, as the Ninth Circuit 
opinion explained, "The notice of appeal 
. . . lists only 'Farelv Transportation Co., 
Inc. ' as a appellant." Id. at 1368. Where 
the notice specifies a single appellant, 
again, the court has no authority to 
convert the singular into the plural.3

3The other case that was linked with 
Life Time in footnote 1 of Torres, 
Covington v. Allsbrook, 636 F.2d 63 (4th 
Cir. 1989), cert, denied. 451 U.S. 914 
(1981), was a pro se prisoner case of a 
sort that presents special problems not 
normally encountered where, as in the case 
at bar, litigants are represented by 
counsel.
Of the three cases that the Torres footnote 
contrasts with the Life time group, two 
presented situations where courts of 
appeals undertook to make appellants out of 
parties who clearly and not been specified 
as parties to the appeal. I have no doubt 
that the courts were wrong in doing so. In 
the third case, Avres v. Sears. Roebuck & 
Co. . 789 F.2d "joanne Avers. et al. . 
Plaintiffs above named," as including 
plaintiffs whose actual names did not 
appear "above." If this was wrong and 
I do not read Torres as focusing directly 
on that narrow question it may suggest

96



97a

In Akins v. Board of Governors of 
State Colleges & Universities. 867 F.2d 972 
(7th Cir. 1988), similarly, it seems to me 
that the Seventh Circuit clearly reached 
the right result on the facts of the case. 
The body of the notice of appeal in that 
case said "Notice is here by given that 
ROBIN AKINS, the plaintiff named above, 
hereby appeals...." This gave fair notice 
that Robin Akins was appealing - and the 
caption of the notice could not change that 
fact. For other reasons, varying slightly 
from case to case, it seems to me that many 
- though by no means all - of the remaining 
cases cited by the majority here could be

that our decision in Van Hoose v, Eidson. 
450 F2.d 746 (6th Cir. 1971), where the 
facts were similar, could be defended on 
lack-of-fair-notice grounds.

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98a
read as not inconsistent with the fair 
notice concept.

I once thought our decision in Van 
Hoose v. Eidson. 450 F.2d 746, was 
consistent with it too (see Ford v. Nicks, 
866 F.2 at 869, (opinion by Nelson, J.)), 
but I have become more doubtful. The body 
of the Eidson notice said that "the above 
named Plaintiffs appeal to the United 
States Court of Appeals for the Sixth 
Circuit...." The caption showed that there 
were multiple plaintiffs, whose names could 
be ascertained from the complaint, but only 
one plaintiff was actually named "above." 
A literal reading of the Eidson notice, 
unlike a literal reading of the notice in 
the present case, might conceivably lead 
one to the conclusion that there was an 
ambiguity that ought to be resolved by 
selecting the stricter of two possible

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99a
interpretations. But my own view is that 
there was no ambiguity in Eidson; I think 
the decision was wrong and ought to be 
overruled.

Were it not for the special problem 
created in Eidson by the fact that the 
scrivener of the notice refereed to 
plaintiffs not actually named "above" as 
"the above named plaintiffs," one could 
argue that because the Eidson notice used 
the definite article -"the" above named 
plaintiffs - it specified the parties to 
the appeal even more precisely than the 
notice given in the case at bar. In its 
opinion here, however, our courts says "we 
cannot permit our jurisdiction to turn on 
the presence of absence of the definite 
article." I fully agree. If the meaning 
of the notice would be clear to the average 
lawyer or judge either way, it would be

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1 0 0 a

indefensible to let the efficacy of the 
notice turn on a semantic distinction such 
as this. In contemporary usage, as we all 
know, lawyers and judges omit the definite 
article all the time when referring to 
"plaintiffs," "defendants," or other 
parties. The omission of the article 
signifies nothing.

Support for our views may be found in
National Center for Immigrants' Rights,
Inc, v. INS. 892 F.2d 814, 816-17 (9th Cir.
1989) where the court that issued the
decision upheld by the Supreme Court in
Torres had this to say:

"Here [unlike Torres 1, no names were 
listed in the body of the notice, and 
no individual was inadvertently 
omitted as result of clerical error. 
Instead, the term 'defendants' was 
used in the body of the notice. The 
issue before us is whether that term 
fairly indicates that all and not just 
some of the defendants are appealing 
the decision below. We think that 
clearly it does.

1 0 0



1 0 1 a

"We hold that Torres does not 
require that the individual names of 
the appealing parties be listed in 
instances in which a generic term, 
such as plaintiffs or defendants, 
adequately identifies them. We find 
the reasoning of the Sixth Circuit in 
Ford v. Nicks. 866 F.2d 865, 870 (6th 
Cir. 1989), on this point persuasive.

* * *

"Following the reasoning of Ford 
we find that the notice of appeal here 
is also proper. Although the caption 
reads 'Immigration and Naturalization 
Service, Et al.,' the body of the 
notice reads '[n]otice is hereby given 
that defendants in the above- 
referenced action hereby appeal....' 
It is sufficiently clear from the body 
of the notice that all of the 
defendants are seeking to appeal. 
While their intentions might arguably 
have been clearer had the defendants 
used the article 'the' in front of the 
words 'defendants,' the omission of 
the article does not require a 
different result from that reached by 
the Sixth Circuit. Defendants, in its 
normal usage, means all defendants not 
just some. Had only some defendants 
intended to appeal, the proper term to 
be used in the body of the notice 
would have been 'certain defendants.' 
Alternatively, if only some defendants 
desired to appeal, those defendants 
could have identified themselves

1 0 1



1 0 2 a

individually." (footnotes omitted, 
emphasis in original.)

I think the National Center panel got 
it right. Aesthetically, perhaps, "the 
defendants" or "the plaintiffs" would be 
preferable to "defendants" or "plaintiffs." 
But the latter locution is probably more 
common than the former — lawyers must pick 
it up in law school, along with other 
questionable habits -and I do not see how 
anyone could quarrel with the Ninth 
Circuit's statement that "defendants, in 
its norman usage, means all defendants not 
just some."

IV
Rejecting some over-broad language in 

the Seventh Circuit's Allen Archery 
opinion, 857 F.2.d at 1177, our court
concludes that because the actual name of 
plaintiff Minority Employees was used in

1 0 2



103a
the caption of the notice of appeal here, 
the designation of "plaintiffs in the above 
case" as the appellants was not ineffective 
as to plaintiff Minority Employees. The 
caption saves the day for the plaintiff 
who, having been named first in the 
complaint, was designated by name in the 
caption of the caption of the notice - and 
it saves the day, in the court's view, 
notwithstanding that the caption itself did 
not purport to specify anyone at all as an 
appellant.

I agree, obviously, with the court's 
ultimate conclusion that we have 
jurisdiction to hear plaintiff Minority 
Employees' appeal. As is equally obvious,
I would reach that conclusion by a 
different route: In specifying "plaintiffs 
in the above case" as the parties taking 
the appeal, the notice necessarily

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104a
specified each of the four plaintiffs, 
including plaintiff Minority Employees.

I agree also with the court's 
conclusion that the appeal of plaintiff 
Minority Employees fails on the merits.

Whether any of the other three 
plaintiffs had a meritorious claim, I do 
not know. Although the district court 
disagreed, a United States Magistrate did 
find that one of the individual plaintiffs, 
had in fact been the victim of a racially 
discriminatory manipulation of the civil 
service process designed to preselect a job 
seeker of another race. If the magistrate 
was right, it is doubly distressing that 
the appeal of this plaintiff should be 
dismissed for failure to comply with a 
procedural requirement not evident on the 
face of our procedural rules.

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105a
As suggested earlier, I think it is 

wrong to set traps for the unwary by 
reading into our rules requirements which 
the average lawyer would be unlikely to 
discern in the rules' actual text. If it 
be thought desirable to have a 
jurisdictional requirement that the given 
name of each and every party taking the 
appeal be included in the notice of appeal, 
the text of Rule 3(c) ought to be amended 
to impose such a requirement explicitly.4 

Because the court's decision imposes such 
a requirement without an appropriate change 
in the text of the rule itself, I 
respectfully dissent.

BOYCE F. MARTIN, JR., Circuit Judge, 
dissenting. Torres v. Oakland Scavenger 
Co,., 487 U.S. -, 101 L. Ed. 2d 285 (1988), I

I concur, of course, in footnote 4 
of the court's opinion.

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106a
rejected the argument that the use of the 
term "et al.11 in the style of a notice of 
appeal cured the omission of a would-be 
appellant from the list of appellants in 
the body of that notice. The majority of 
my colleagues now extend that holding to 
reject the use of the term "appellants" in 
the body of a notice of appeal to include 
those seeking to appeal. I disagree.

This case does not concern the use of 
the term "et ah" in the style of a notice 
of appeal to supply a missing name from the 
list of appellants. Rather, unlike Torres. 
this case concerns whether appellants may
use a general, generic term, such as
"appellants" or "plaintiffs" or
"defendants," in the body of the notice of
appeal in lieu of specifically listing, by 
proper noun, each party which appeals some 
ruling or activity in the district court or

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107a
administrative body from which the appeal 
is generated.

Rule 3(c) of the Federal Rules of
Appellate Procedure stats that:

The notice of appeal shall 
specify the party or parties 
taking the appeal; shall 
designate the judgment, order or 
part thereof appealed from; and 
shall name the court to which the 
appeal is taken. Form 1 in the 
Appendix of Forms is a suggested 
form of a notice of appeal. An 
appeal shall not be dismissed for 
informality of form or title of 
the notice of appeal.

In addition to being a prerequisite to our
jurisdiction, see Torres. 487 U.S. at __,
101 L.Ed.2d at 291-292, a notice of appeal 
simply states that a disagreement with a 
decision will be lodged before the court of 
appeals.

Judge Nelson best frames the purpose 
of Rule 3(c), stating in his dissent here 
at ___ F.2d at :

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It was function, not form, 
in which the Torres court was 
interested, just as it was 
function, not form, in which the 
drafters of Rule 3(c) were 
interested. (The Rules Advisory 
Committee noted in 1979, when the 
third sentence was added to the 
rule, that "so long as the 
function of notice is met ... the 
substance of the rule has been 
complied with." (Emphasis 
supplied.)) "The purpose of the 
specificity requirements of Rule 
3(c), " Torres explained, "is to 
provide notice both to the 
opposition and to the court of 
the identity of the appellant or 
appellants." 108 S.Ct. at 2409, 
101 L.Ed.2d at 292. The test of 
whether the specificity 
requirement has been met is a 
functional test: whether the
parties to the appeal have been 
specified as such "by some 
designation that gives fair 
notice of the specific individual 
or entity seeking to appeal." 
Id. (Emphasis supplied.) that is 
the test prescribed by the 
Supreme Court in Torres: "The
specificity requirement of Rule 
3(c) is met only by some 
designation that gives fair 
notice of the specific individual 
or entity seeking to appeal." 
The form of notice is immaterial,

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but only some designation that 
does actually give "fair notice" 
will suffice.

In other words, did the notice of appeal in 
this case adequately and in a timely 
fashion provide notice that all of the 
losing parties wished to appeal the rulings 
of the district court? The rule does not 
require the best notice of appeal, rather, 
like the standard for stating a complaint 
in a civil action, it requires an adequate 
notice. Cf. Conley v. Gibson. 355 U.S. 41 
(1957) (complaint must only give fair 
notice of the claim).

I am inclined to accept Judge Nelson's 
hypothesis that the generic terms of 
"plaintiff" or "defendant" adequately 
notify their adversaries and the court that 
the plaintiff or defendant appeals a ruling 
of the lower court. The plural form of 
these generic terms, likewise, adequately

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announces that all of the plaintiffs or 
defendants are appealing a ruling of the 
lower court. I believe that this reading 
of Rule 3(c) is consistent with the rule, 
the commentary to the rule, and the Torres 
decision. In Torres, the majority
dismissed Torres's attempt to join the rest 
of the named petitioners in the notice of 
appeal, stating that he "did not file the 
functional equivalent of a notice of 
appeal; he was never named or otherwise 
designated, however inartfuly, in the
notice of appeal." Torres, 487 U.S. at __,
101 L.Ed.2d at 291 (emphasis supplied).

In situations not involving an all- 
or-one reference, I agree that blanket 
generic terms are inadequate. Unlike 
Torres, that is not the situation in the 
case before this court. The use of 
blanket, generic plural terms adequately

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and comprehensibly communicates the intent 
of the speaker in a host of ever day 
situations. For example, if I state that 
"my children" want to go outside, I notify 
the listener essentially the same 
information imparted by a listing of the 
names of each of my children prior to 
stating that they desire to be outside. 
While the listener has more knowledge about 
the number and names of my children if I 
name each one, the purpose of my statement 
is to announce that all of them want to go 
outside. My statement is quite possible 
over-inclusive, but it does include all of 
my children like the term "plaintiffs" 
includes all of the plaintiffs. This is 
dramatically distinct from the notice of 
appeal in Torres where a would-be appellant 
is not in any way referenced in the notice 
of appeal. That is, in Torres. the notice

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was under-inclusive; in this case, at 
worst, the notice is over-inclusive.

The majority here, however, believes 
Torres requires that each appellant 
individually be named in the notice. That 
view flatly contradicts language in the 
Torres decision which provides for the 
appellants to be "otherwise designated."
See Torres. 487 U.S. at _ , 101 L.Ed.2d at
292. In deciding the very issue before us, 
the Ninth Circuit, I think quite 
properly,allowed the use of a generic term 
to indicate that all of the defendants were 
filing a notice of appeal where no 
individual names were set out in the body 
of the notice of appeal. National Center 
for Immigrants7 Rights, Inc, v. Immigration 
and Naturalization Service. 892 F.2d 814 
(9th Cir. 1989) (holding that the issue was 
not governed by Torres). This view,

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113a
espoused first by Judge Nelson in Ford v. 
Micks, 866 F.2d 865 (6th Cir. 1989), which 
the majority here rejects, reflects not 
only a common sense understanding of the 
function of the notice of appeal, but also 
a fidelity to the spirit of the Federal 
Rules of Civil Procedure which were adopted 
to replace the highly technical code 
pleading requirements of the past. It is 
ironic that given the inconsistency and 
lack of clarity in recent appellate 
opinions, in which I recognize my own 
failings, we now demand such rigid and 
superfluous requirements from the attorneys 
practicing before us.

Nearly every litigant in the federal 
court system has some right to appeal to 
the court of appeals. The majority's 
ruling attempts to overlay these appeals 
with rigid and unnecessary booby traps for

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the average practitioner. Instead of 
reducing our docket load, I fear that this 
will create yet another opportunity for 
delay and senseless collateral battles 
among the attorneys who come before this 
court. Every notice of appeal will be 
subject to a motion to dismiss for lack of 
"proper" listing of the parties, or lack of 
timeliness. Consequently, our docket will 
be inundated with the sort of nitpicking 
squabbles that our modern rules of 
procedure were supposed to avoid. Under 
the majority's view, I would suggest that 
we hereafter refrain from using the term 
"Per Curiam" to denote that all of the 
judges on the panel agree with the decision 
in a case and list just our names.

Not only does the majority's opinion 
foreshadow a morass of appeals based on the 
sufficiency of future notices of appeal,

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115a
its retroactive application of its reading 
of Torres to include notices of appeal 
filed well before that decision was 
announced opens a Pandora's box of 
potential appeals and requests to vacate 
prior judgements because of scantily-pled 

notices of appeal.
The majority holds that under Torres. 

a late notice of appeal is jurisdictional, 
therefore, we are powerless to consider 
retroactivity. I disagree. The 
distinction we should make is between the 
filing of a piece of paper entitled, 
"Notice OF Appeal," and the content of that 
piece of paper. In Torres. no notice of 
appeal was filed on Torres's behalf. Thus, 
the Court properly held that the Ninth 
Circuit had no jurisdiction over Torres's 
appeal. This case differs because a notice 
of appeal was filed on behalf of all the

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appellants, but the majority holds that the
contents of the notice are deficient. That
is a procedural, not a jurisdictional,
decision. Because I believe our decision
is procedural, not jurisdictional,
retroactivity is a proper concern in
implementing the majority's holding. See
McMichael v. United States. 856 F.2d 1024,
1025 (8th Cir. 1988).

Moreover, I believe the majority's
retroactive application of its reading of
Torres is clearly improper absent an
analysis under Chevron Oil Co. v. Huson,
404 U.S. 97 (1971). See Carter v. City of
Chattanooga. 850 F.2d 1119 (6th Cir. 1988)
fen banc). Under Chevron, we must consider
three independent factors:

First, the decision to be applied 
nonretroactively must establish 
a new principle of law, either by 
over-ruling clear past precedent 
on which litigants may have

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relied . . . , or by deciding an 
issue of first impression whose 
resolution was not clearly 
foreshadowed.... Second, it has 
been stressed that "we must . . . 
weigh the merits and demerits in 
each case by looking to the prior 
history of the rule in question, 
its purpose and effect, and 
whether retrospective operation 
will further or retard its 
operation." ... Finally, we have 
weighed the inequity imposed by 
retroactive application, for 
"[wjhere a decision of this Court 
could produce substantial 
inequitable results if applied 
retroactively, there is ample 
basis in our cases for avoiding 
the 'injustice or hardship' by a 
holding of nonretroactivity."

404 U.S. at 106-07 (citations omitted). In
civil cases, the Chevron Oil standard has
been somewhat refined:

In the civil context, in 
contrast, the "clear break" 
principle has usually been stated 
as the threshold test for 
determining whether or not a 
decision should be applied 
nonretroactively. Once it has 
been determined that a decision 
has "establish[ed] a new 
principle of law, either by 
overruling clear past precedent

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on which litigants may have 
relied ... or by deciding an 
issue of first impression whose 
resolution was not clearly 
foreshadowed," the Court has gone 
onto examine the history, 
purpose, and effect of the new 
rule, as well as the inequity 
that would be imposed by its 
retroactive application. Id. . at 
106-07.

United States v. Johnson. 457 U.S. 537, 550 
n. 12 (1982) (Citations omitted).

The court then amplified on what it 
determined to be such a "clear break":

In general, the Court has 
not subsequently read a decision 
to work a "sharp break in the web 
of the law," ... unless that 
ruling caused "such an abrupt and 
fundamental shift in doctrine as 
to constitute an entirely new 
rule which in effect replaced an 
older one...." Such a break has 
been recognized only when a 
decision explicitly overrules a 
past precedent of this Court,... 
disapproves a practice this Court 
arguably has sanctioned in prior 
cases,... or overturns a long­
standing and widespread practice 
to which this Court has not 
spoken, but which a near-

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unanimous body of lower court 
authority has expressly approved.
Johnson. 457 U.S. at 551 (citations

omitted).
Here, I believe the Torres decision 

establishes an unforseen issue of first 
impression - especially in view of our 
liberal pleading standards. Clearly, this 
decision disapproves a practice this court 
arguably has sanctioned in prior cases and 
overturns a longstanding and widespread 
practice among practicing attorneys. If 
applied retroactively, severe inequities 
will result in our revisitation of long- 
mouldering decisions on the rationale that 
the notice of appeal was defective. 
Consequently, this decision should not be 
retroactively applied.

Because I disagree with the reasoning 
of and am concerned with the consequences

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from the majority's 
respectfully dissent.

decision, I

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