914 F.2d 1386 (10th Cir. 1990), 89-5016, Laidley v. McClain

Docket Nº:89-5016.
Citation:914 F.2d 1386
Party Name:Wilma LAIDLEY; Cindy Thulin; Bettye Redding; and Renee Waisner, Plaintiffs-Appellants, v. Lantz McCLAIN, individually and in his official capacity as District Attorney of Creek County, State of Oklahoma; Ted Ritter, individually and in his official capacity as Director of the District Attorney's Training Coordination Council; Board of County Commis
Case Date:September 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1386

914 F.2d 1386 (10th Cir. 1990)

Wilma LAIDLEY; Cindy Thulin; Bettye Redding; and Renee

Waisner, Plaintiffs-Appellants,

v.

Lantz McCLAIN, individually and in his official capacity as

District Attorney of Creek County, State of Oklahoma; Ted

Ritter, individually and in his official capacity as

Director of the District Attorney's Training Coordination

Council; Board of County Commissioners, State of Oklahoma,

County of Creek, Defendants-Appellees.

No. 89-5016.

United States Court of Appeals, Tenth Circuit

September 13, 1990

Page 1387

[Copyrighted Material Omitted]

Page 1388

Chadwick Smith, Tulsa, Okl., for plaintiffs-appellants.

Robert A. Nance, Asst. Atty. Gen. of Oklahoma, Oklahoma City, Okl., Robert H. Henry, Atty. Gen. of Oklahoma, with him on the brief, for defendants-appellees.

Before McKAY and ANDERSON, Circuit Judges, and BROWN, District Judge. [*]

WESLEY E. BROWN, Senior District Judge.

The plaintiffs in this action were employees in the district attorney's office in District No. 24 in Oklahoma. In 1986, the defendant Lantz McClain was elected district attorney in that district. Upon taking office, Mr. McClain told the plaintiffs that he did not intend to retain them as employees. The plaintiffs, who had supported Mr. McClain's opponent in the district attorney primary election, filed this action under 42 U.S.C. Sec. 1983, alleging that the defendants had violated their First Amendment rights of free speech and association by terminating their employment. Additionally, plaintiffs alleged a Sec. 1983 claim for deprivation of a property interest without due process of law and they asserted various pendant state claims.

The district court granted the defendants' motions for summary judgment on the Sec. 1983 claims and dismissed the plaintiff's pendant state claims. The district court stated that there was no evidence to support a finding that the plaintiffs were discharged because of their political activities. Plaintiffs challenge this ruling on appeal. For the reasons set forth herein, we find that we have no jurisdiction over the appeals of plaintiffs Bettye Redding, Cindy Thulin, and Renee Waisner. Accordingly, those appeals will be dismissed. We have jurisdiction to consider the appeal of Wilma Laidley. Our review of the record shows that plaintiff Laidley has raised a genuine issue of material fact as to whether she was terminated by Mr. McClain because of her political activities. We therefore reverse the district court insofar as it granted summary judgment in favor of McClain individually against plaintiff Laidley.

I. Jurisdiction.

The court requested briefing by the parties as to whether the notice of appeal filed in this case was sufficient to confer appellate jurisdiction over all of the plaintiffs or only over the plaintiff Laidley. This question was raised in light of Torres v. Oakland Scavenger Company, 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), in which the Supreme Court held that the failure to specify a party in the notice of appeal constituted a jurisdictional bar to that party's appeal. The notice of appeal filed in the instant case specifically named only plaintiff Wilma Laidley. 1

We find that Torres controls the fate of the plaintiffs other than Wilma Laidley. Thus, the appeals of Bettye Redding, Cindy Thulin, and Renee Waisner (hereinafter referred to collectively as "plaintiffs") must be dismissed for lack of jurisdiction. In Torres, the court noted that Federal Rule of Appellate Procedure 3(c) provides in part that "[t]he notice of appeal shall specify the party or parties taking the appeal...." Although Rule 3(c) also provides that an appeal shall not be dismissed for informality of the form or title of the notice of appeal, this provision does not aid the plaintiffs'

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cause. The failure to name a party in the notice of appeal is more than an excusable informality; it constitutes a failure of that party to appeal. Torres, at 315, 108 S.Ct. at 2408, 101 L.Ed.2d at 290. The Supreme Court made clear that the specificity requirement of Rule 3(c) is a jurisdictional threshold that cannot be waived by a court. Id. In this context, it is important to keep in mind that under Article III of the Constitution this court has only such jurisdiction as is granted to it by Congress. The Supreme Court recognized that construing Rule 3(c) as a jurisdictional prerequisite could lead to harsh results, but concluded that this harshness was imposed by the legislature and not by the judicial process. Id., at 318, 108 S.Ct. at 2409, 101 L.Ed.2d at 292.

The plaintiffs make several arguments as to why Torres should not apply in this case, but these arguments are of no avail. Plaintiffs first contend that the use of "et al." and the reference to "plaintiffs" in the notice of appeal were sufficient to satisfy Rule 3(c). We cannot agree. The Supreme Court flatly stated that the use of the phrase "et al." utterly fails to provide notice of the identity of the appellants. Torres, at 318, 108 S.Ct. at 2409, 101 L.Ed.2d at 292. Moreover, we agree with those courts that have found that the designation of unnamed appellants simply as "plaintiffs" does not meet the standard of Rule 3(c). See e.g., Minority Employees v. Tennessee Department of Employment Security, 901 F.2d 1327 (6th Cir.1990) (en banc); Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 317 (1st Cir.1989) (en banc). 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. Torres, 487 U.S. at 318, 108 S.Ct. at 2409, 101 L.Ed.2d at 292.

Although a statement that "plaintiffs hereby appeal," when combined with an "et al." designation of some of the plaintiffs, could be interpreted to mean that all of the plaintiffs intend to appeal, it could also be understood as designating less than all of the plaintiffs as appellants. Clearly, the specificity requirement of Rule 3(c) was intended to eliminate ambiguity as to the identity of the appellants. Cf. Minority Employees, 901 F.2d at 1336 ("Any ambiguity will defeat the notice.") and In re Woosley, 855 F.2d 687 (10th Cir.1988) ("The Supreme Court answered the question whether to require strict compliance with the rule in Torres...."). Thus, the failure to specifically designate a party somewhere in the notice of appeal is a jurisdictional bar to that party's appeal. Cf. Tri-Crown, Inc. v. American Federal Savings & Loan, 908 F.2d 578 (10th Cir.1990) (Naming appellant in the caption of the notice of appeal is sufficient).

Plaintiffs also argue that the purpose behind Rule 3(c) has been satisfied here because both the defendants and the court believed that all of the plaintiffs were appealing. Be that as it may, the Torres court precluded any such subjective inquiry because it rejected the suggestion that a harmless error analysis should be applied to defects in the notice of appeal. Torres, 487 U.S. at 317 n. 3, 108 S.Ct. at 2409 n. 3, 101 L.Ed.2d at 291 n. 3 ("[A] litigant's failure to clear a jurisdictional hurdle can never be 'harmless' or waived by a court."). The designation of the specific individual seeking to appeal is just such a jurisdictional hurdle. Plaintiffs also urge the court to consider the docketing statement filed with the court as being incorporated into the notice of appeal. See Brotherhood of Railway Carmen v. Atchison, Topeka & Santa Fe Railway, 894 F.2d 1463 (5th Cir.1990). This argument would not assist the plaintiffs, however, because their docketing statement was not filed within thirty days of the entry of the judgment against them. As such, any attempt to bolster the notice of appeal would be untimely. This court is without power to extend the time for filing a notice of appeal, either directly or indirectly. Torres, 487 U.S. at 315, 108 S.Ct. at 2408, 101 L.Ed.2d at 290 (Permitting courts to exercise jurisdiction over unnamed parties after the time for filing a notice of appeal has passed is equivalent to permitting courts to...

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