United States v. Caldwell Brief in Opposition to Petition for Writ of Certiorari

    No.

IN THE

coTEmtr m  mmzm $sz&ze%
October  Te r m , 1988

MINORITY EMPLOYEES OF THE TENNESSEE 
DEPARTMENT OF EMPLOYMENT SECURITY, 

INC., MS. ROSETTA N. DAVIS, MS. ALMA 
C. OLIVER AND MS. 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 W RIT OF CERTIORARI 
TO THE

UNITED STATES COURT OF APPEAUS 
FOR THE SIXTH CIRCUIT

RICHARD H. DINKINS 
RUSSELL T. PERKINS 
WILLIAMS & DINKINS 
203 Second Avenue,North 
Nashville, Tennessee 37201 
(615) 244-3988

Date: May 30, 1989

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR *
99 Hudson Street, 16th Floor 
New York, New York 10013 
♦Counsel of Record
Attorneys for Petitioners Rosetta N. Davis, 
Alma C. Oliver, and Hazel Perry



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1989

MINORITY EMPLOYEES OF THE TENNESSEE 
DEPARTMENT OF EMPLOYMENT SECURITY, 

INC., MS. ROSETTA N. DAVIS, MS. ALMA 
C. OLIVER AND MS. 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

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 and thereby allow an appeal by 
petitioners?

II. Whether the Court of Appeals below erred in holding that 
the use of the term “Minority Employees of the Tennessee Department 
of Employment Security, et al.” was insufficient to satisfy the require­
ments of Rule 3(c), Fed. R. App. C., for an appeal by petitioners?

III. Whether the Court of Appeals erred in denying petitioners’ 
motion to amend the notice of appeal, pursuant to 28 U.S.C.§1653, in 
order to name the petitioners herein, or to suspend the requirements of 
Rule (3) pursuant to Rule 2, Fed. R. App. C.?

l



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ....................................................  i
TABLE OF AUTHORITIES.................................................... iii
OPINIONS BELOW................ ........................... .................... . iv
JURISDICTION OF THE COURT............. .............................  iv
STATUTES............................................................................... iv
RULES...................................................................................... iv
STATEMENT OF THE CASE.................................................  1
REASONS WHY THE WRIT
SHOULD BE GRANTED.........................................................  5

I. THE COURT OF APPEALS BELOW DECIDED 
AN IMPORTANT QUESTION OF FEDERAL 
APPELLATE LAW WHICH HAS NOT BEEN,
BUT SHOULD BE, SETTLED BY THIS COURT............5

II. IN HOLDING THAT PARTIES MUST BE 
INDIVIDUALLY NAMED IN A NOTICE OF 
APPEAL AND THAT “FT AL.” CAN NOT 
BE USED TO ASSIST IN IDENTIFYING 
PARTIES TAKING AN APPEAL, THE COURT 
BELOW DECIDED FEDERAL QUESTIONS IN
CONFLICT WITH THIS COURT’S DECISIONS...........  8

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 ..........  10

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.........  11

CONCLUSION...... ..................................................................  12

l i



Cases Page
Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989)........................ . 7
Houston v. Lack, __U .S .__, 108 S. Ct.
___, 101 LEd2d 245 (1988)...................................................... 9
Roschen v. Ward, 279 U. S. 7 2 2 ............................................... 11
Santos- Martinez v. Soto Santiago, 863 F.2d
174 (1st Cir. 1988)......................................................................... 7

Torres v. Oakland Scavenger Co., __U .S .__ ,
108 S. Ct.. 2405, 101 L Ed 2d 285 (1988).................... 2, 5, 6, 7,

8 ,9 , 10, 11

Statutes
28U.S.C.§ 1653 ..............................................................  11,12

Rules
Rule 2, Fed. R. App. P........................................................  11, 12
Rule 3, Fed. R. App. P .............................. 3, 4, 6, 8, 9, 10, 11, 12
Rule 15(c), Fed. R. Civ. P............................................................12

TABLE OF AUTHORITIES

iii



OPINIONS BELOW

The judgment and 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, have Case No. 81-3114 in the United 
States District Court, Middle District of Tennessee, Nashville 
Division. See, Appendix herein.

The order and memorandum opinion of the district court 
dismissing petitioners’ claims under Title VII of the Civil Rights 
Statute, 42 U.S.C.§2000e et seq., were filed September 3,1986 with 
Case No. 81-3114 in the United States District Court, Middle 
District of Tennessee, Nashville Division. See, Appendix herein.

The order of the Court of Appeals for the Sixth Circuit 
dismissing the appeal of petitioners consists of two pages, and is 
dated October 7, 1988. It has Case No. 88-5429 in the Court of 
Appeals. The February 28, 1989 order of the Court of Appeals 
denying petitioners’ motion to amend and to suspend the rules, 
consists of two pages, and has Case No. 88-5429. See, Appendix 
herein.

JURISDICTION OF THE COURT
The judgments of the Court of Appeals sought to be re­

viewed, were entered on October 7, 1988, and February 28, 1989. 
This Court has jurisdiction of the petition for a writ of certiorari 
pursuant to the terms of 28 U.S.C.§1291.

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.

IV



STATEMENT OF THE CASE

On March 6, 1961, individual petitioners Rosetta N.Davis, 
Alma C. Oliver, and Hazel Perry, and plaintiff corporation Minor­
ity Employees of the Tennessee Department of Employment Secu­
rity, Inc., commenced this employment discrimination action under 
Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C.§2000e,and42U.S.C.§§ 1981,1983,1985,and 1988, against 
respondent State of Tennessee Department of Employment Secu­
rity, 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 re­
spondents’ unlawful, racially discriminatory promotional policies 
and procedures.

Plaintiff Minority Employees of the Tennessee Department 
of Employment Security, Inc., is not a petitioner here for a writ of 
certiorari. It was formed to assist minorities in being hired and 
promoted within respondent Tennessee Department of Employ­
ment Security.

Petitioners and plaintiff Minority Employees of the Tennes­
see Department of Employment Security, Inc. brought this action as 
a class action to prevent respondents from employing promotional 
policies and practices that unlawfully discriminated against the 
plaintiffs and members of the class.

On April 28, 1982, the District Court entered an order 
denying class certification. On September 3, 1986, the District 
Court entered an order dismissing plaintiffs’ claims under Title VII, 
42 U.S.C.§2000e et seq.

On March 9, 1988, the District Court entered judgment 
dismissing, with prejudice, plaintiffs’ claims under 42U.S.C.§§ 1981, 
1983, and 1985, and the Thirteenth and Fourteenth Amendments to 
theU.S. Constitution, and dismissing without prejudice petitioners’ 
pendent state claims.

On April 11,1988, a notice of appeal from the three orders 
of the District Court was filed by plaintiffs’ attorneys.

The caption of the notice of appeal read as follows:

1



“MINORITY EMPLOYEES OF THE TENNESSEE DEPART­
MENT OF EMPLOYMENT SECURITY, et al„ plaintiffs vs. 
TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, 
et al., defendants.”

In the body of the notice of appeal there appeared 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.

On June 24,1988, this Court decided the case of Torres v.
Oakland Scavenger Co. .__U .S .__ , 108 S. Ct. 2405, 101 L.Ed 2d
285 (1988). Almost three weeks later, on July 14, 1988, plaintiffs 
served their appellants’ brief of the appeal in the United States Court 
of Appeals for the Sixth Circuit.

Defendant- appellants moved to dismiss the individual 
petitioners Davis, Oliver, and Perry from the appeal on the ground 
that they were not designated in the notice of appeal as required by 
this Court’s holding in Torres v. Oakland Scavenger Co., supra.

On October 7,1988, the Court of Appeals entered an order 
granting the motion to dismiss the individual petitioners from the 
appeal. The order of the Court of Appeals stated that:

2



Rule 3(c), Fed. R. App. P.< provides that the 
notice of appeal shall specify the party or 
parties talcing 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 consti­
tutes failure of that party to appeal... (cita­
tions 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 dismissed 
is granted.

On October 21,1988, tlie individual petitioners herein and 
plaintiff Minority Employees of the Tennessee Department of 
Employment Security, Inc., moved in the Court of Appeals, pursu­
ant to Rule 2, Fed. R. Civ. P„ and 28 U,S.C.§§1653, and 2071, for 
leave to amend their Notice of Appeal by typing petitioners’ names 
Rosetta Davis, Alma Oliver, and Hazel Perry on the face of the 
notice of appeal, and moved to suspend the requirements of Rule 
3(c), Fed. R. App. P., to permit the amendment.

Simultaneously with the motion to amend, the petitioners 
filed an amended notice of appeal. The caption of the amended 
notice of appeal read as follows: “Minority Employees of the 
Tennessee Department of Employment Security, Inc., Rosetta 
DA vis, Alma Oliver, and Hazel Perry”.

The body of the notice of appeal recited: “Now come 
plaintiffs in the above case, Minority Employees of the Tennessee 
Department of Employment Security, Inc., Rosetta Davis, Alma 
Oliver, and Hazel Perry, hereinafter plaintiffs, and appeal....”

On the same day, the Clerk’s office of the U.S. Court of 
Appeals, by letter, informed counsel for petitioners that:

3



This letter is to advise you that the order 
October 7, 1988 is not a final order that dis­
poses 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...

On October 21,1988, petitioners mailed an amended and 
corrected motion in which they requested (a) suspension of the rule 
requiring petitioners to be specifically designated in the notice of 
appeal, (b) leave to amend the notice of appeal to include the 
individual names of petitioners in the notice of appeal, (c) constru­
ing the original notice of appeal as if petitioners’ names were 
included therein, and (d) adopting a method of enforcing Rule 3(c) 
other than dismissing petitioners’ appeal. Petitioners requested, on 
October 26, rehearing en banc.

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

With respect to the request to suspend Rule 3(c), the Court 
of Appeals held that the “requirements of Rule 3 (c)... that a notice 
of appeal shall specify the party or parties taking the appeal is juris­
dictional in nature........Jurisdictional requirements may not be
waived.”

Denying the motion to amend, the Court of Appeals held 
that it had “no authority to amend a notice of appeal to add additional 
parties after the time for taking the appeal has expired”.

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.

4



REASONS FOR GRANTING THE WRIT

I.

THE COURT OF APPEALS BELOW DECIDED AN 
IMPORTANTQUESTTON OF FEDERAL APPELLATE LAW 
WHICH HAS NOTBEEN, BUT SHOULD BE, SETTLED BY

THIS COURT

In its order of October 7, 1988, the Court of Appeals for 
the Sixth Circuit decided a question of law the application of which 
will result in wide- spread forfeiture of the right to appeal of 
plaintiffs who have expressed a clear intent to appeal. The court’s 
ruling threatens the validity of appeals presently pending and 
appeals taken hereafter. The question decided by the court below 
is an important one 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 in Torres v. Oakland Scavenger Co., supra. It read this 
Court’s decision in Torres v. Oakland Scavenger Co., supra, as 
standing for the propositions: (1) that the phrase “et al” does not 
identify any party not individually named; and (2) that “(f)ailure to 
individually name a party in a notice of appeal constitutes failure of 
that party to appeal.”

Since petitioners’ names were not individually listed in the 
notice of appeal and the caption of the notice only said “Minority 
Employees of the Tennessee Department of Employment Security, 
et al,” the Court of Appeals held that Torres v. Oakland Scavenger 
Co., supra, construed as described above, required dismissal of 
petitioners’ appeal.

Whether the use in a notice of appeal of the phrase “et al,” 
meaning others, can ever be taken as an identification of other 
persons as specific parties to an appeal and whether the failure to use 
the individual names of persons in a notice of appeal represents a 
failure by those persons to take an appeal, are issues which this 
Court neither addressed nor decided in Torres v. Oakland Scaven­
ger Co., supra.

5



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

To be sure, the manner in which this Court initially framed 
the issue on review in Torres v. Oakland Scavenger Co., supra, may 
well have led the Court of Appeals below to conclude that the 
holding in Torres was broader than warranted by the facts of the 
case.

The Court began its opinion in Torres, supra, with the 
statement that “This case presents the question 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. The Court’s 
phraseology, “party who was not specified in the notice of appeal,” 
however, was no less unambiguous than the phrase “(t)he notice of 
appeal shall specify the party or parties taking the appeal,” used in 
Rule 3(c), which the Court was interpreting.

Both the phrase used by the Court and that of Rule 3(c) are 
open-ended. Neither determines the means which can be used to 
specify a party in a notice of appeal.

The Supreme Court’s almost exact use of the phrase used in 
Rule 3(c), suggests that it did not intend, in Torres, supra, to spell 
out, in precise terms, the myriad ways in which a notice of appeal 
might be used to specify the party taking the appeal.

This conclusion is further supported by the Court’s state­
ment in Torres, supra, that plaintiff failed 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 -101L Ed 2d at 292. Had the Court intended to be more 
specific concerning the means by which an appellant could be 
otherwise designated, it could have achieved its purpose by making 
clear here what it meant by “otherwise designated.”

The Court failed to make this clarification. Its use of the 
phrase “otherwise designated,” must therefore be interpreted as an 
attempt by the Supreme Court to leave unresolved, for the present, 
the manner in which a party can be specified in a notice of appeal 
other than by being named in it.

6



The court below, however, closed the door on this issue by 
holding that a party could not be specified in a notice of appeal 
unless the party’ name was specifically included there.

Another issue left unresolved by this Court in Torres, supra, 
was whether the term “et al.” could ever be used to aide a court in 
determining which parties were specified in a notice of appeal as 
taking an appeal.

In Torres, supra, this Court only went so far as to hold that 
the use of “et al.” in a notice of appeal filed by 15 specified plaintiff- 
intervenors, was insufficient to give notice to the court and the 
appellees of an appeal by the 16th plaintiff- intervenor, i.e., Torres.

The court below, however, made a general ruling on the use 
of “et al.” in notices of appeal. It effectively held, in contradistinc­
tion to this Court’s holding in Torres, supra, that the term “et al.” 
could never be used, whether by itself or in conjunction with other 
terms such as “plaintiffs in the above case,” to specify the parties in 
a notice of appeal taking an appeal, or to provide notice to the court 
and opposing party of the identities of the persons taking an appeal.

This ruling by the Court of Appeals thus constituted a 
decision on an important issue which has never been decided by this 
Court but which should be settled by this Court.

Other courts of appeal have reached the same result as the 
court below. See. Santos- Martinez v. Soto-Santiago. 863 F.2d 174 
(1st Cir. 1988).

The decision below, however, conflicts with a decision of 
another panel of the Court of Appeals for the Sixth Circuit in Ford 
v. Nicks. 866 F,2d 865 (6th Cir. 1989) where the panel held that a 
notice of appeal which specifically named one defendant, referred 
to the other defendants as “et al.”, and which used the term “the 
defendants”, as opposed to “defendants”, met the requirement of 
specificity required by this Court in Torres, supra. For this reason 
too, the Court should grant the writ of certiorari.

7



IN HOLDING THAT PARTIES MU ST BE IN­
DIVIDUALLY NAMED IN A NOTICE OF 
APPEAL AND THAT “ET AL.” CAN NOT 
BE USED TO ASSIST IN IDENTIFYING 
PARTIES TAKING AN APPEAL, THE 
COURT BELOW DECIDED FEDERAL 
QUESTIONS IN CONFLICT WITH THIS 
COURT’S DECISIONS

This Court decided in Torres, supra, and other cases certain 
issues which are direct conflict with the decision and judgment of 
the court below.

First, this Court held that a party could satisfy Rule 3(c)’s 
requirement by “fil(ing) the functional equivalent of a notice of 
appeal” . Id. ,101L Ed 2d at 292. Second, the Court held that a party 
filed “the 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 desig­
nation that gives fair notice of the specific individual or entity 
seeking to appeal”. Id- The decision of the Court of Appeals below 
was in conflict with each of the Court’s three holdings in Torres. 
supra.

The Court of Appeals rejected this Court’s test of function­
ality altogether. No mention was made in the court’s opinion of that 
test, and no inquiry was undertaken by the Court of Appeals to 
ascertain whether the petitioners here had, in fact, filed the func­
tional equivalent of a notice of appeal.

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 whatsoever other than to determine whether petition­
ers were individually named in the notice of appeal.

II.

8



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 a party had to 
be individually named in the notice of appeal for the appeal with 
respect to that party to be good.

Since petitioners herein were not individually named in the 
notice of appeal, or, in what the Court of Appeals took to be the same 
thing, were not individually listed by names in the notice of appeal, 
the court held that the requirements of Rule 3(c) were not met.

Furthermore, the Court of Appeals failed to follow, or 
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 Ed2d at 
292.

The court, however, performed no inquiry to ascertain what 
type of fair notice was provided by petitioners’ designations in the 
notice of appeal, namely, the terms “plaintiffs in the above case” and 
“et al„”

Rather, the court adhered to its rigid rule requiring the 
rejection of any notice of appeal on behalf of any party who was not 
individually named in the notice of appeal. As a result, the Court’s 
statement in Torres, supra, that the “specificity requirement of Rule 
3(c) can be met by a “designation that gives fair notice of the specific 
individual or entity seeking to appeal,” was rendered meaningless.

The Court of Appeals’ ruling on this issue therefore clearly 
contradicts this Court’s opinion in Torres, supra.

Overall, the Court of Appeals’ ruling on these three issues 
amounts to a repudiation of this Court’ 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. C t.___ , 101 L Ed 2d 245 (1988).

The net effect of the Court of Appeals’ rulings, taken 
together, was not only a refusal to determine if petitioners herein 
had, in fact, filed the functional equivalent of a notice of appeal, but 
also a specific refusal, as a matter of law, to consider whether the

9



notice of appeal’s simultaneous use of the terms “plaintiffs in the 
above case” and “Minority Employees of the Tennessee Depart­
ment of Employment Security, et al.,” as designations, satisfied the 
specificity requirement of Rule 3(c).”

m

THE COURT OF APPEALS SO FAR 
DEPARTED FROM THE ACCEPTED AND 
USUAL COURSE OF JUDICIAL INTER­
PRETATION OF 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 de­
spite the fact that the term “plaintiffs” occurring in the body of the 
notice of appeal was plural, and did not specifically mention the 
Minority Employees of the Tennessee Department of Employment 
Security, Inc.

Purporting to interpret Rule 3(c) and to follow this Court’s 
decision in Torres, supra, the Court of Appeals ignored the body of 
the notice of appeal altogether, apparently on the supposition that 
the term “plaintiffs in the above case” did not constitute a name or 
designation of any kind.

The Court of Appeals believed that the opinion in Torres. 
supra, required it to disregard the use of “et al.” in the caption, 
thereby leaving the Minority Employees of the Tennessee Depart­
ment of Employment Security, Inc., as the sole party individually 
named in the notice of appeal. 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 accepted and usual way of interpreting legal 
documents that this Court should exercise its power of supervision

10



to correct the actions of the court below.
In interpreting the notice of appeal, the Court of Appeals 

should have heeded the opinion of Justice Holmes in Roschen v. 
Ward. 279 U.S. 722 (1929), which though addressed to the strict 
construction rule for criminal statutes, is applicable here as well. 
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.

IV

THE COURT OF APPEALS DECIDED AN 
IMPORTANT QUESTION OFFEDERALLAW 
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

In its order dated February 28, 1989, the Court of Appeals 
held that because the time requirement of Rule 3(c) was jurisdic­
tional, it lacked authority to amend a notice of appeal, pursuant to 
28 U.S.C. §1653, to add parties after the time for taking the appeal 
had 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 completely 
overlooked the applicability of 28 U.S.C.§1653. Moreover, be­
cause this Court held that the time requirement of Rule 3(c) was 
jurisdictional, it apparently assumed that it therefore could not be 
waived or altered, or that a default under the rule in satisfying the 
requirement could not be cured.

But 28 U.S.C.§1653 specifically provides that “Defective 
allegations of jurisdiction may be amended, upon terms, in the trial 
or appellate courts.”

11



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 requirement 
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 merits, and knew, or should 
have known, that, but for a mistake concerning the identity of the 
proper party, the appeal would have included the purported appel­
lant.

Permitting an amendment of the notice of appeal under 28 
U. S.C. § 1653, with or without the suggested limitation derived from 
Rule 15(c), should be allowable under Rule 3(c). The court below, 
however, held that an amendment under 28 U.S.C.§1653 was 
unauthorized.

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).

CONCLUSION
For the foregoing reasons, this Court should grant a writ of 

certiorari to review the judgments below.

Respectfully submitted,, a
" f l  Kf> K a-#-k_ & .
JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR.* 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212)219-1900 
* Counsel of Record 

Attorneys for Petitioners

12

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



1

TABLE OF CONTENTS OF APPENDIX

Page

ORDERS OF COURT OF APPEALS
Court of Appeals, Feb. 28, 1989 ..............................  la
Court of Appeals, Oct. 7, 1988 .................................  3a

ORDERS OF DISTRICT COURT
District Court’s Order, Sept. 3, 1986 ......................  5a
District Court’s Order, March 11, 1988 ................... 7a



la

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 88-5429

Minority Employees of the Tennessee Department of 
Employment Security, Incorporated; 

do  Leon Wilson, President,
Plaintiffs-Appellants

Rosetta N. Davis; 
Alma C. Oliver; 

Hazel Perry, M.S.

v.
Plaintiffs

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., Commis­

sioner of the State of Tennessee Department of Personnel,
Defendants-Appellees.

FILED 
FEB 28 1989
LEONARD GREEN, Clerk

ORDER

Before: MARTIN and RYAN, Circuit Judges; and POT­
TER, 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.

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



2a

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 re­
quirements may not be waived. Id. at 2409; see also H ins­
dale v. Farmers N a t’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 Corp. v. Marv, 781 F.2d 136 (9th Cir. 1986) 
(per curiam); Cook and Sons Equipment, Inc. v. Killen, 271 
F.2d 607 (9th Cir. 1960).

It is ORDERED that plaintiffs 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



3a

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 88-5429

Minority Employees of the Tennessee Department of Em ­
ployment Security, Incorporated; et ah,

Plaintiff-Appellants,

Hazel Perry, MS.

vs.
P la in tiff

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 Davis, Oliver and Perry from this appeal pur­
suant 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 a l” utterly fails to provide the 
requisite notice. Failure to individually name a party in a



4a

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 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 “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



5a

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

No. 81-3114 
Judge Higgins

MINORITY EMPLOYEES OF THE TENNESSEE DEPART­
MENT OF EMPLOYMENT SECURITY, INC., et al.

v.

STATE OF TENNESSEE, DEPARTMENT OF EMPLOY­
MENT 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 M agistrate’s find­
ing of disparate treatm ent as to the plaintiff Davis and 
disparate impact as to the plaintiffs Davis and Oliver are 
sustained. The plaintiffs’ claims under Title VII are hereby 
dismissed.

It is so ORDERED.

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



6a

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

NO. 81-3114 
Judge Higgins

MINORITY EMPLOYEES OF THE TENNESSEE DEPART­
MENT 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 M agistrate’s Report and Recommendation filed Janu­
ary 20, 1988.

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 
M agistrate’s application of the doctrines of res judicata

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.

2 The defendants are the Tennessee Department of Employment Se­
curity; 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.



7a

and collateral estoppel to the facts at issue. Rather, the 
plaintiffs challenge the correctness of the underlying judg­
ments. The Court finds this objection to be without merit, 
since it attem pts to attack m atters previously considered 
and decided.

Secondly, the plaintiff, Hazel Perry, objects to the Mag­
istra te’s recommendation as to the disposition of her claims 
on the ground that she has been deprived of “an oppor­
tunity 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 re­
sponse to the defendants’ properly supported motion for 
summary judgment on the issue of an alleged discrimi­
natory 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 Fourteenth Amend­
ments are dismissed with 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.

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