Dilworth v. Riner Reply Brief for Appellants

    No. 90-169

In The

Supreme Court of the United States
October Term, 1990
----------------»------ ----------

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

v.
Petitioners,

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

COMMISSIONER OF THE TENNESSEE DEPARTMENT 
OF EMPLOYMENT SECURITY, TENNESSEE 

DEPARTMENT OF PERSONNEL,
WILLIAM C. KOCH, JR., COMMISSIONER OF 
PERSONNEL OF THE STATE OF TENNESSEE,

Respondents.
----------------♦---------------

BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

♦

M arian F. H arrison
215 2nd Avenue North
Nashville, Tennessee 37201
(615) 259-9600
Counsel for William C. Koch
in his individual capacity
S abin R. T hompson  
12th Floor
Life & Casualty Tower 
Nashville, Tennessee 37219 
(615) 242-0524 
Counsel for Robert f. Bible 
in his individual capacity

C harles W. B urson 
Attorney General and 

Reporter
State of Tennessee
J ohn K nox W alkup 
Solicitor General
M ichael D. P earigen 
Deputy Attorney General
"■Michael W. C atalano 
Deputy Attorney General 
450 James Robertson 

Parkway
Nashville, Tennessee 

37243-0485 
(615) 741-3499 
"[Counsel of Record]

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

1. Do the terms “M inority Em ployees of the Tennes­
see Departm ent of Em ployment Security, Inc., et ah," and

plaintiffs in the above action" fail to satisfy the specific­
ity requirem ent of Rule 3(c) of the Federal Rules of 
A ppellate Procedure as to the petitioners, Rosetta N. 
Davis, Alma C. Oliver, and Hazel Perry, resulting in no 
federal appellate jurisdiction over their claims?

2. Does Federal Rule of Appellate Procedure 26(b) 
prohibit the petitioners from am ending their notice of 
appeal pursuant to 28 U.S.C. § 1653, where the petitioners 
attem pted to make such an am endm ent more than thirty 
days after the final order of the district court?

Q U EST IO N S PRESEN TED  FO R REVIEW



11

PARTIES TO THE PROCEEDINGS BELOW

The petitioners in this action are Rosetta N. Davis, 
Alma C. Oliver, and Hazel Perry. Minority Employees of 
the Tennessee Department of Employment Security, Inc., 
was a party to the proceeding before the United States 
Court of Appeals for the Sixth Circuit; however, it is not a 
party to this petition for writ of certiorari. The respon­
dents in this action are the Tennessee Department of 
Employment Security, Robert J. Bible, Commissioner of 
the Tennessee Department of Employment Security, the 
Tennessee Department of Personnel, and William C. 
Koch, Jr., Commissioner of the Tennessee Department of 
Personnel.



Page

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR R E V IE W ...................... i

PARTIES TO THE PR O C E ED IN G S......................................  ii

TABLE OF A U TH O R ITIES....................................................  iv

JURISDICTION and PERTINENT RULES AND STAT­
UTES ..........................................................         2

REASONS FOR DENYING THE WRIT:

THE DECISION OF THE SIXTH CIRCUIT, EN BANC, 
REGARDIN G THE D ISM ISSA L OF THE PETI­
TIONERS FROM THIS APPEAL FOR FAILURE TO 
BE SPECIFIED IN THE NOTICE OF APPEAL IS IN 
ACCORD W ITH TH IS COU RT'S DECISION IN 
THE TORRES C A SE........................................................   3

WITH THE EXCEPTION OF THE NINTH CIRCUIT, 
THE DECISION  OF THE SIXTH CIRCUIT, EN 
BANC, IS CONSISTENT WITH ALL OTHER CIR­
CUITS WHICH HAVE ADDRESSED THIS ISSUE 
SU BSEQU EN T TO TORRES, IN CLUDIN G THE 
FIRST, SECON D , SEVEN TH , ELEVENTH AND
DISTRICT OF COLUMBIA C IR C U ITS........................  8

C O N C LU SIO N ........... ....................... ......................... ..............  n



IV

Page(s)

C ases C ited :

Akins v. Board of Governors of State Colleges and
Universities, 867 F,2d 972 (7th Cir. 1988)......................9

Appeal of District of Columbia Nurses Association,
854 F.2d 1448 (D.C.Cir. 1988) ..........................................9

Beaulieu v. United States, 58 U.S.L.W. 3834 (1990) . . . .  10

Cotton v. U.S. Pipe and Foundry Co., 856 F.2d 158
(11th Cir. 1988)....................................................................... 9

Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989)....................  10

Minority Employees of the Tennessee Department of 
Employment Security, Inc. v. State of Tennessee,
901 F.2d 1327 (6th Cir. 1990).............. 5, 6, 7, 8, 10, 11

Nat'l Center for Immigrants' Rights, Inc. v. Immigra­
tion and Naturalization Service, 892 F.2d 814 (9th 
Cir. 1 9 8 9 ).......................................................   9

Rosario-Torres v. Hernandez-Colon, 889 F.2d 314 (1st
Cir. 1 9 8 9 )................................................................................. 9

Santos-Martinez v. Soto-Santiago, 863 F.2d 174 (1st
Cir. 1988) ..................................................................................9

Shatah v. Shearson/American Express, Inc., 873 F.2d
550 (2nd Cir. 1989) ............................  9

Torres v. Oakland Scavenger Co., 108 S.Ct. 2408
(1988)............................................................................... passim

TABLE OF AUTHORITIES

S tatutes:

28 U.S.C. § 1254(a)................................................................. 2

28 U.S.C. § 1291................................................................... ... 2

28 U.S.C. § 1653................................................................... 3, 7



V

Page(s)

O ther A uthorities:

Federal Rule of Appellate Procedure 3(c)
.................................................................. 2, 3, 6, 8, 10, 11

Federal Rule of Appellate Procedure 4 ........................ 8

Federal Rule of Appellate Procedure 2 6 ( b ) ................. 2, 8

Supreme Court Rule 1 7 .1 ................................... ..................... 10

TABLE OF AUTHORITIES -  Continued



No. 90-169

--------------- *---------------

In The

Supreme Court of the United States
O ctober Term, 1990 

--------------- *--------- ------

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

Petitioners,
v.

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

COM M ISSIONER OF THE TENNESSEE DEPARTMENT 
OF EMPLOYMENT SECURITY, TENNESSEE 

DEPARTMENT OF PERSONNEL,
W ILLIAM  C. KOCH, JR., COMMISSIONER OF 
PERSONNEL OF THE STATE OF TENNESSEE,

Respondents.

BR IEF IN O PPO SITIO N  TO 
P ETITIO N  FO R W RIT OF CERTIO RA RI

-------------------4-------------------

The respondents respectfully request that this Court 
deny the petition for writ of certiorari seeking review of 
the Sixth Circuit decision, en banc, dated April 26, 1990. 
That decision is reported at 901 F.2d 1327 (6th Cir. 1990).

--------------- »---------------

1



2

JURISDICTION

The petitioners assert that this Court has jurisdiction 
to consider their petition for writ of certiorari pursuant to 
28 U.S.C. § 1291. That particular statutory provision vests 
jurisdiction w ith courts of appeal to hear final decisions 
from district courts, not jurisdiction for this Court to 
consider a petition for w rit of certiorari from a court of 
appeal. Jurisdiction for this Court to consider a petition 
for w rit of certiorari is pursuant to 28 U.S.C. § 1254(a) 
which provides that this Court may review cases in the 
federal courts of appeal by "w rit of certiorari granted 
upon the petition of any party to any civil or crim inal 
case, before or after rendition of judgment or decree."

--------------- «---------------

PERTINENT RULES AND STATUTES

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

The notice of appeal shall specify the party or 
parties taking the appeal; shall designate the 
judgm ent, 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 dism issed for inform ality of form or 
title of the notice of appeal.

Rule 26(b) of the Federal Rules of Appellate Pro­
cedure:

The court for good cause shown may upon 
m otion enlarge the tim e 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



3

allo w an ce, or a p e titio n  for p erm ission  to 
appeal. . . .

28 U.S.C. § 1653:

D efective allegations of ju risd iction  m ay be 
am ended, upon term s, in the trial or appellate 
courts.

--------------- «----------------

R EA SO N S FO R DEN YIN G  THE W RIT

I.

THE D EC ISIO N  OF THE SIXTH  C IRCU IT, EN BANC, 
R E G A R D I N G  T H E  D I S M I S S A L  O F  T H E  P E T I ­
T IO N E R S FRO M  T H IS APPEAL FOR FAILURE TO BE 
SP E C IF IE D  IN  TH E N O T IC E  O F APPEAL IS IN 
ACCORD W ITH  T H IS C O U RT'S D EC ISIO N  IN THE 
TORRES CASE.

In Torres v. Oakland Scavenger Co., 108 S.Ct. 2408 
(1988), this Court was confronted with the question of 
"w hether a federal appellate court has jurisdiction over a 
party who was not specified in the notice of appeal in 
accordance w ith Federal Rule of A ppellate Procedure 
3(c)." Id. at 2407. In that case, the petitioner, Jose Torres, 
was one of sixteen plaintiffs who had intervened in an 
employment discrim ination suit in the United States D is­
trict Court for the Northern District of California. Due to 
a "clerical error on the part of a secretary employed by 
the petitioner's attorney," Mr. Torres' name was inadver­
tently omitted from the body of the notice of appeal 
where the rem aining fifteen intervening plaintiffs' names 
were included. Id.

In upholding the Ninth C ircuit's dism issal of Mr. 
Torres' appeal for lack of jurisdiction under Rule 3(c),



4

Justice M arshall, writing for the majority, stated as fol­
lows:

[W]e find that petitioner failed to com ply with 
the specificity requirem ent of Rule 3(c), even 
liberally construed. Petition did not file the 
functional equivalent of a notice of appeal; he 
was never nam ed or otherwise designated, how­
ever inartfully, in the notice of appeal filed by 
the 15 other intervenors. Nor did petitioner seek 
leave to amend the notice of appeal within the 
time lim its set by Rule 4. Thus, the Court of 
Appeals was correct that it never had jurisdic­
tion over petitioner's appeal.

Id. at 2409.

In response to the petitioner's argument that the use 
of the term  "et a l." was insufficient to indicate his inten­
tion to appeal, this Court stated that:

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 appel­
lee and the court unable to determ ine with certi­
tude w hether 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 requirem ent of Rule 3(c) is met 
only by some designation that gives fair notice 
of the specific individual or entity seeking to 
appeal.

Id.

In applying the Torres analysis to the present case, the 
Sixth Circuit, en banc, concluded the following:

The use of the phrase 'et a l '  in the present 
notice of appeal, which was specifically rejected 
in Torres, is contrary to the language and spirit



5

of Torres and precludes a conferment of jurisdic­
tion over the appeal of the individual plaintiffs. 
Further, the use of the term 'plaintiffs' in the 
body of the notice failed to designate the indi­
vidual plaintiffs in light of the failure specifi­
cally to name them.

Minority Employees of the Tennessee Department of Employ­
ment Security, Inc. v. State of Tennessee, 901 F.2d 1327, 1332 
(6th Cir. 1990) (Minority Employees).

The petitioners argue that the use of the phrases 
"fu n ction al equ ivalent," "otherw ise d esign ated ," and 
"som e designation" by this Court in the Torres opinion 
should open the door for the Sixth Circuit to make an 
inquiry as to w hether the petitioners, Rosetta N. Davis, 
Alma C. Oliver, and Hazel Perry were, in fact, intended to 
be named in the notice of appeal. Petition for Writ of 
Certiorari, pp. 19-20. The Sixth Circuit agrees that such 
language "appears to contem plate something less than 
nam ing"; however, the Sixth Circuit did not read Torres to 
permit courts to inquire into whether or not the respon­
dents were m isled or prejudiced by the notice of appeal. 
Id. In fact, the Sixth Circuit concluded the import of the 
phrases "som e designation" or "otherw ise designated" as 
"possibly referring to issues such as class representa­
tion." Id. at 1336.

The Sixth Circuit identified the conflict among the 
circuits resolved by the Torres decision as being "w hether 
or not som ething less than naming would be acceptable." 
Id. at 1333 (emphasis in original). The Court said that "the 
explicit language of Torres supports a reading that nam­
ing is required: 'The failure to name a party in a notice of



6

appeal is more than excusable "informality"; it consti­
tutes a failure of the party to appeal.' 109 S.Ct. at 2407" 
Minority Employees, 901 F.2d at 1336.

More significantly, this Court in the Torres decision 
expressly rejected this "harmless error" analysis, stating 
that a "litigant's failure to clear a jurisdictional hurdle 
can never be 'harmless' or waived by a court." Torres, 108 
S.Ct. at 2409 n.3.1 Thus, the Sixth Circuit's interpretation 
of Rule 3(c) of the Federal Rules of Appellate Procedure is 
consistent with this Court's interpretation of that Rule in 
the Torres decision.

Even if Rule 3(c) of the Federal Rules of Appellate 
Procedure permits something less than the naming of the 
individual appellants on the face of the document of the 
notice of appeal through some other means of designa­
tion, the petitioners in this case have failed to be "other­
wise designated" in the notice of appeal. The pertinent 
language of the notice of appeal in this case is two-fold. 
First, the caption states "Minority Employees of the Ten­
nessee Department of Employment Security, Inc., et al." 
Second, the body of the notice of appeal states "Now 
come plaintiffs in the above case and appeal. . . . " 
Whether taken separately or together, the language of 
these two pertinent portions of the notice of appeal in no

1 Likewise Justice Scalia in his concurring opinion in Torres 
stated that "[b]y definition all rules of procedure are techni­
calities; sanction for failure to comply with them always pre­
vents 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." 
Torres, 108 S.Ct. at 2410 (Scalia, J., concurring).



7

way designates the petitioners, Rosetta N. Davis, Alma C. 
Oliver, and/or H azel Perry as appealing the district court 
decision.

First, this Court in Torres rejected the argument that 
the term  "et a l." was sufficient to designate Mr. Torres as 
an appellant. Torres, 108 S.Ct. at 2409. Likewise, the term 
"et a l." is insufficient to designate the petitioners, Rosetta 
N. Davis, Alma C. Oliver, and Hazel Perry as appellants 
from the district court to the court of appeals. As for the 
use of the term "plaintiffs" in the body of the notice of 
appeal, it is im possible to know which of the "plaintiffs" 
are being designated as appellants, especially in light of 
the fact that there are four plaintiffs in the case. There is 
no indication that some or all of the plaintiffs are appeal­
ing the decision of the district court.2

As for the petitioners' argument that the Sixth Circuit 
erred in not perm itting them to amend their notice of 
appeal pursuant to 28 U.S.C. § 1653, such an argument 
fails due to the fact that the petitioners attem pted to 
make such an am endm ent after the time for taking the 
appeal had expired. This Court in Torres noted that the 
petitioner did not "seek leave to amend the notice of

2 Likewise, in his concurring opinion, Judge Guy states 
that "[cjompany or corporate names are treated grammatically 
the same as collective nouns." Minority Employees, 901 F.2d at 
1340 (Guy, J., concurring). Thus, according to Judge Guy, one 
might appropriately say that 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 Secu­
rity, Inc., is the only appellant in this case.' " Id. at 1340-41 
(emphasis in original).



8

appeal within the time limits set by Rule 4." Torres, 108 
S.Ct. at 2409.

Likewise, the Sixth Circuit stated that under Rule 
26(b) of the Federal Rules of Appellate Procedure, courts 
may not enlarge the time for filing of a notice of appeal. 
Minority Employees, 901 F.2d at 1337. The petitioners in 
this case failed to amend their notice of appeal within the 
time prescribed under Rule 4; therefore, such an attempt 
to amend the notice of appeal is of no effect.

The decision of the Sixth Circuit, en banc, is consistent 
with the analysis of this Court in the Torres case. The 
principles and guidelines in Torres regarding Rule 3(c) 
were properly applied by the Sixth Circuit. Accordingly, 
this Court should deny the writ in this case.

II.
WITH THE EXCEPTION OF THE NINTH CIRCUIT, 
THE DECISION OF THE SIXTH CIRCUIT, EN BANC, 
IS CONSISTENT WITH ALL OTHER CIRCUITS 
WHICH HAVE ADDRESSED THIS ISSUE SUBSE­
QUENT TO TORRES, INCLUDING THE FIRST, SEC­
OND, SEVENTH, ELEVENTH AND DISTRICT OF 
COLUMBIA CIRCUITS.

Subsequent to this Court's decision in the Torres case, 
a number of other circuits have rendered decisions which 
are in agreement that the use of the term "et al." is 
insufficient to name or otherwise designate a party for 
purposes of notices of appeal under Rule 3(c). Those 
decisions are as follows:



9

First Circuit -  Santos-Martinez v. Soto-Santiago, 863 
F.2d 174 (1st Cir. 1988) (use of the phrase "et a l." in the 
caption of the present appeal is inadequate to specify the 
plaintiffs who are actually appealing); Rosario-Torres v. 
Hernandez-Colon, 889 F.2d 314 (1st Cir. 1989) (en banc) (the 
use of the term  "e t a l."  is insufficient to designate; 
unnamed plaintiffs failed to appeal);

Second Circuit -  Shatah v. Shearson/American Express 
Inc., 873 F.2d 550 (2nd Cir. 1989) ("et a l." is insufficient to 
designate; notice of appeal sufficient only with respect to 
two parties specifically named);

Seventh Circuit -  Akins v. Board of Governors o f State 
Colleges and Universities, 867 F.2d 972 (7th Cir. 1988) 
(appeal dism issed with respect to all individuals except 
the plaintiff actually named in the notice);

Eleventh Circuit -  Cotton v. U.S. Pipe and Foundry Co., 
856 F.2d 158 (11th Cir. 1988) (appeal effective only as to 
named parties);

District of Columbia Circuit -  Appeal of District of 
Columbia Nurses Association, 854 F.2d 1448 (D.C.Cir. 1988) 
("et a l." is insufficient to designate unnamed parties).

On the other hand, there is a decision of the Ninth 
Circuit which does conflict with the decision of the Sixth 
Circuit in this case along with the decisions of the First, 
Second, Seventh, Eleventh, and District of Columbia Cir­
cuits. See Nat'l Center for Immigrants' Rights, Inc. v. Immi­
gration and Naturalization Service, 892 F.2d 814 (9th Cir. 
1989).3

3 It is interesting to note that the Ninth Circuit expressly 
followed the reasoning of and quoted extensively from a panel 

(Continued on following page)



10

The fact that there is a conflict among the circuits on 
a particular issue does not mean that this Court should 
autom atically grant a petition for writ of certiorari. Rule 
17.1 of the Supreme Court Rules provides that the factors 
listed in considering review on certiorari, including con­
flicts among the circuits, are "neither controlling nor fully 
m easuring the court's discretion . . . "  Moreover, during 
its last term, this Court denied certiorari in at least forty- 
eight instances where a conflict did exist among the cir­
cuits on an issue of federal law.4 More importantly, the 
overwhelm ing num ber of circuit decisions are consistent 
with the Sixth C ircuit's decision in this case. Only the 
Ninth Circuit disagrees with the decision of the Sixth 
Circuit.

Finally, although the results in this case may appear 
to be harsh, the Sixth Circuit, along with five other cir­
cuits, have attem pted to faithfully follow and apply the 
principles established by this Court in the Torres case. As 
presently written, Rule 3(c) requires precision for the 
party w ishing to appeal the decision of a district court.

(Continued from previous page) 
decision of the Sixth Circuit in Ford v. Nicks, 866 F.2d 865 (6th 
Cir. 1989), which has now been explicitly rejected by the Sixth 
Circuit en banc in this case. Minority Employees, 901 F.2d at 1330.

4 In the case of Beaulieu v. United States, 58 U.S.L.W. 3834 
(1990), Justice White in dissenting from a denial of a petition 
for writ of certiorari noted that "on 48 occasions I dissented 
because in my view there were conflicts among courts of 
appeal sufficiently crystallized to warrant certiorari if the fed­
eral law is to be maintained in any satisfactory, uniform condi­
tion." Id.



11

The petitioners failed to m eet that standard by a wide 
margin; accordingly, this Court should deny the w rit.5

--------------- «---------------

CO N CLU SIO N

Based upon the foregoing authorities and analyses, 
the respondents respectfully urge this Court to deny the 
petition for writ of certiorari.

M arian F. H arrison
215 2nd Avenue North
Nashville, Tennessee 37201
(615) 259-9600
Counsel for William C. Koch
in his individual capacity
S abin  R. T hompson  
12th Floor
Life & Casualty Tower 
Nashville, Tennessee 37219 
(615) 242-0524 
Counsel for Robert J. Bible 
in his individual capacity

Respectfully submitted,

C harles W. B urson 
Attorney General and 

Reporter
State of Tennessee

J ohn K nox W alkup 
Solicitor General

M ichael D. P earigen 
Deputy Attorney General

"'M ichael W. C atalano 
Deputy Attorney General 
450 James Robertson 

Parkway
Nashville, Tennessee 

37243-0485 
(615) 741-3499 
"■[Counsel of Record]

5 If, as all of the members of the Sixth Circuit suggest, "a 
revision in Rule [3(c)] might be beneficial. . . .  ", Minority 
Employees, 901 F.2d at 1335 n. 4, the proper avenue for such 
refinements is through rule-making rather than case-by-case 
adjudication.