Minority Employees of the Tennessee Dept. of Employment Sec., Inc. v. State of Tenn., Dept. of Employment Sec., 88-5429

• Citation: 901 F.2d 1327
• Decision Date: 26 April 1990
• Docket Number: No. 88-5429,88-5429
• Parties: , 53 Empl. Prac. Dec. P 39,927, 58 USLW 2640, 18 Fed.R.Serv.3d 1137 MINORITY EMPLOYEES OF THE TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, INCORPORATED, Plaintiff-Appellant, Rosetta N. Davis, Alma C. Oliver, Hazel Perry, 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.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1327

901 F.2d 1327

103 A.L.R.Fed. 607, 53 Empl. Prac. Dec. P

39,927, 58 USLW 2640,

18 Fed.R.Serv.3d 1137

MINORITY EMPLOYEES OF THE TENNESSEE DEPARTMENT OF EMPLOYMENT

SECURITY, INCORPORATED, Plaintiff-Appellant, Rosetta N. Davis, Alma C. Oliver, Hazel Perry, 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.

No. 88-5429.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1989.

Decided April 26, 1990.

Julius L. Chambers, Napolean B. Williams, Jr., NAACP Legal Defense Fund, New York City, Russell T. Perkins, Richard H. Dinkins, Jr. (argued), Williams & Dinkins, Nashville, Tenn., and James M. Nabrit, III, NAACP Legal Defense & Educational Fund, New York City, Bud O. Patterson, NAACP Legal Defense & Educational Fund, Los Angeles, Cal., for plaintiffs-appellants.

Michael D. Pearigen, Charles W. Burson, Atty. Gen., Michael L. Parsons, Asst. Atty. Gen., Michael W. Catalano, Deputy Atty. Gen. (argued), Office of the Atty. Gen. of Tennessee, Nashville, Tenn., Fred D. Thompson, Thompson & Bussart, Ellen H. Pollack, Sabin R. Thompson, Law Office of Fred D. Thompson, and William R. Willis, Jr., and Jeffrey G. Rappuhn, Willis & Knight, Nashville, Tenn., for defendants-appellees.

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

ON PETITION FOR REHEARING EN BANC.

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. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). As with most decisions 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 The Supreme Court in Torres held that a notice of appeal using the phrase "et 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. 1 (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. Van Hoose v. Eidson, 450 F.2d 746 (6th Cir.1971).

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.g., Schiavone v. Fortune, 477 U.S. 21, 29-31, 106 S.Ct. 2379, 2384-85, 91 L.Ed.2d 18 (1986) (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, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (strictly construing 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, Ill. Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (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.

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 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 "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 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 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. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (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 Ford v. Nicks, supra, on this particular question, is expressly rejected as the law of this circuit. We hold that the term "et al." 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.

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). 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, 878 F.2d 1436 (6th Cir.1989) (unpublished per curiam).

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. Secs. 2000e et seq., and 42 U.S.C. Secs. 1981, 1983, 1985, and 1988. Plaintiffs named as defendants the State of Tennessee Department of Employment Security (TDES) and Department 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:

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...