Opposition Brief — Presidio Valley Farmers Ass'n v. Salazar-Calderon

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, . Supreme Court, U.S,

' jue 26 269

No. 88-2086 JOSEPH F. SPANIOL, UR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

AMADO SALAZAR-CALDERON, et al.,

Petitioners,

VU.

PRESIDIO VALLEY FARMERS ASSOCIATION, et ai.,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION TO

PETITIONERS' PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THOMAS J. BACAS

940 Sweetwater Lane

Boca Raton, Florida 33431

Attorney for Respondents

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-2086

AMADO SALAZAR-CALDERON, et al.,

Petitioners,

v.

PRESIDIO VALLEY FARMERS ASSOCIATION, et al.,

Respondents.

Respondents Presidio Valley Farmers Association, et al.

submit this brief in opposition to the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit filed by petitioners Amado Salazar-Calderon,

et al.

I. THE FIFTH CIRCUIT'S DECISION THAT THE DIS-

TRICT COURT'S CLASS CERTIFICATION RULINGS

ON REMAND DID NOT RELATE BACK DOES NOT

CONFLICT WITH ANY DECISIONS OF THIS

COURT OR OF OTHER CIRCUITS. THE FIFTH CIR-

CUIT'S DECISION IS CONSISTENT WITH THIS

COURT'S DECISIONS IN AMERICAN PIPE & CON-

STRUCTION CO. V. UTAH AND CROWN, CORK &

. SEAL CO. V. PARKER.

The district court's original decisions to deny class

certification in both cases were affirmed by the Fifth

Circuit on the original appeals. On remand, the district

court certified classes in both cases and held that its class

certifications related back to the original filing of the class

actions, thus reviving the claims of many individuals that

otherwise would have been barred. Although the Fifth Cir-

2

cuit upheld the class certifications on remand, it ruied

that "[t]he two-year statute of limitations had run during

the time between the original denial and the district

court's reversal" and that the belated class certifications

did not revive claims that had become time-barred.' 863

F.2d at 390. The Fifth Circuit's ruling denying relation-

back effect to the subsequent class certifications does not

conflict with any other circuit court decisions and comes

squarely within the guidelines of this Court governing

class action tolling.

In trying to establish that the Fifth Circuit's decision

has "carved out an exception to the ‘relation back’

principle,” Petition for Certiorari, at 11, petitioners have

attempted to obscure the major difference between this

case and other situations where relation-back is clearly

and undisputedly justified. The rules governing class ac-

tion tolling are clear. There is no dispute that the filing of

a class action tolls the statute of limitations for all mem-

bers of the prospective class. American Pipe & Construc-

tion Co. v. Utah, 414 U.S. 538, 553 (1974); Crown, Cork &

Seal Co. v. Parker, 462 U.S. 345, 353 (1983). As a result of

such tolling, a district court's decision to certify a class

action relates back to the date the class action was first

filed, even when the decision to certify the class comes

many years after the class complaint was filed. A corollary

of the general rule is that such tolling ceases and the

statute of limitations begins to run anew when the district

court denies class certification. American Pipe & Con-

struction Co., 414 U.S. at 561; Crown, Cork & Seal Co., 462

‘In the Salazar case, class certification was originally denied on

March 30, 1981 and was granted on remand on April 18, 1986, more

than five years later. In the Montelongo case, class certification was

originally denied on April 5, 1983 and was granted on remand on April

18, 1986, more than three years later. The applicable statute of limita-

tions was two years. 863 F.2d at 390; 765 F.2d at 1351.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-2086

AMADO SALAZAR-CALDERON, et al.,

Petitioners,

UV.

PRESIDIO VALLEY FARMERS ASSOCIATION, ef al.,

Respondents.

Respondents Presidio Valley Farmers Association, et al.

submit this brief in opposition to the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit filed by petitioners Amado Salazar-Calderon,

et al.

I. THE FIFTH CIRCUIT'S DECISION THAT THE DIS-

TRICT COURT'S CLASS CERTIFICATION RULINGS

ON REMAND DID NOT RELATE BACK DOES NOT

CONFLICT WITH ANY DECISIONS OF THIS

COURT OR OF OTHER CIRCUITS. THE FIFTH CIR-

CUIT'S DECISION IS CONSISTENT WITH THIS

COURT'S DECISIONS IN AMERICAN PIPE & CON-

STRUCTION CO. V. UTAH AND CROWN, CORK &

SEAL CO. V. PARKER.

The district court's original decisions to deny class

certification in both cases were affirmed by the Fifth

Circuit on the original appeals. On remand, the district

court certified classes in both cases and held that its class

certifications related back to the original filing of the class

actions, thus reviving the claims of many individuals that

otherwise would have been barred. Although the Fifth Cir-

2

cuit upheld the class certifications on remand, it ruled

that "[t]he two-year statute of limitations had run during

the time between the original denial and the district

court's reversal" and that the belated class certifications

did not revive claims that had become time-barred.’ 863

F.2d at 390. The Fifth Circuit's ruling denying relation-

back effect to the subsequent class certifications does not

conflict with any other circuit court decisions and comes

squarely within the guidelines of this Court governing

class action tolling. .

In trying to establish that the Fifth Circuit's decision

has "carved out an exception to the ‘relation back’

principle," Petition for Certiorari, at 11, petitioners have

attempted to obscure the major difference between this

case and other situations where relation-back is clearly

and undisputedly justified. The rules governing class ac-

tion tolling are clear. There is no dispute that the filing of

a class action tolls the statute of limitations for al! mem-

bers of the prospective class. American Pipe & Construc-

tion Co. v. Utah, 414 U.S. 538, 553 (1974); Crown, Cork &

Seal Co. v. Parker, 462 U.S. 345, 353 (1983). As a result of

such tolling, a district court's decision to certify a class

action relates back to the date the class action was first

filed, even when the decision to certify the class comes

many years after the class complaint was filed. A corollary

of the general rule is that such tolling ceases and the

statute of limitations begins to run anew when the district

court denies class certification. American Pipe & Con-

struction Co., 414 U.S. at 561; Crown, Cork & Seal Co., 462

‘In the Salazar case, class certification was originally denied on

March 30, 1981 and was granted on remand on April 18, 1986, more

than five years later. In the Montelongo case, class certification was

originally denied on April 5, 1983 and was granted on remand on April

18, 1986, more than three years later. The applicable statute of limita-

tions was two years. 863 F.2d at 390; 765 F.2d at 1351.

3

U.S. at 354. At that point, members of the putative class

who wish to preserve their claims must either intervene or

file separate actions within the time remaining before the

statute of limitations expires. Jd.

There is one exception to the rule that tolling ceases

and the statute of limitations begins running anew upon

denial of class certification. It has been held that when a

court of appeals reverses a district court's denial of class

certification the certification ruling relates back to the

date that the original class complaint was filed. See, e.g.,

Gelman v. Westinghouse Elec. Corp., 556 F.2d 669, 701

(3rd Cir. 1977); Satterwhite v. City of Greenville, 578 F.2d

987, 997 (5th Cir. 1978) (en banc). The justification for

allowing relation-back in such cases is to preserve the

right to appellate review. Since interlocutory orders (such

as orders denying class certification) are not appealable

until a final judgment is rendered, "[a]ny other rule [than

relation-back to the date the class action was initiated]

would result in denying class members any meaningful

appellate review, since, in most cases, such review will not

be available until after the applicable limitations period

has run.” Gelman, 556 F.2d at 701.

This case clearly does not come within the limited ex-

ception allowing relation-back where the court of appeals

reverses the denial of class certification. The petitioners

sought appellate review of the district court's original

denial of class certification and were unsuccessful in

persuading the Fifth Circuit to reverse the district court's

denial of class certification, so the justification for

allowing relation-back in the limited exception cited above

does not apply to this case. Petitioners obtained meaning- ~

ful appellate review; they simply lost their appeal.

The Fifth Circuit's ruling that tolling ceased and the

statute of limitations began to run anew when the district

court originally denied class certification follows this

Court's rulings in American Pipe & Construction Co. and

Crown, Corr & Seal Co. Furthermore, the Fifth Circuit's

4

conclusion that the district court's belated class certifica-

tions on remand did not revive claims which had become

time-barred in the interim is consistent with a long line of

cases holding that no class action may proceed on behalf of

class members whose claims are barred by the applicable

statute of limitations and that certification of a class ac-

tion does not revive barred claims. See, e.g., Domingo v.

New England Fish Co., 727 F.2d 1429, 1442 (9th Cir.

1984); Laffey v. Northwest Airlines, Inc., 567 F.2d 429

(D.C. Cir. 1976); Escott y. Barchris Construction Cor-

poration, 340 F.2d 731, 733 n.3 (2d Cir. 1965); Burns v.

Ersek, 591 F.Supp. 837, 839-42 (D.Minn. 1984); Healy v.

Loeb Rhodes & Co., 99 F.R.D. 540, 543 (N.D.IIl. 1983);

Schmidt v. Intersiate Fed. Sav. & Loan Ass'n, 74 F.R.D.

423, 428 (D.D.C. 1977).

The Fifth Circuit's decision in this case does not conflict

in any way with decisions of this Court or other circuit

courts. Counsel for the petitioners conceded in oral argu-

ment before the Fifth Circuit that petitioners had no cases

to support their argument concerning relation-back in this

case. In their petition, petitioners also admit that "the

issue in its narrowest form has not been addressed by

other courts." Petition for Certiorari, at 10. They contend,

however, that the Fifth Circuit's decision is in conflict “in

principal” with several decisions of the Third Circuit. The

two Third Circuit cases now cited by petitioners to support

their erroneous claim that there is a conflict in circuit

court decisions are clearly distinguishable from this case

and do not stand for the principle petitioners seek to

establish. The two cases, Neely v. United States, 546 F.2d

1059 (3rd Cir. 1976), and Norris v. Frame, 585 F.2d 1183

(3rd Cir. 1978), clearly fall within the limited exception

cited above, since in both cases the Third Circuit held that

the district court had acted improperly in denying class

certification and reversed the denial of class certification.

In Neely, the Third Circuit reversed the district court's

denial of class certification on the ground that the district

5

court made a determination that the class was

unmanageable without taking into account data regarding

the difficulty of determining class membership. Jd. at 1071

Although the court of appeals emphasized "that we are not

ordering the certification of a class," id. at 1971, the fact

that it negated the denial of certification and the fact that

the district court could certify the class on remand after

considering data it had failed to take into account prior to

the appeal brings this case squarely in line with those

cases where the court of appeals reverses the denial of

class certification.

Similarly, in Norris, the Third Circuit determined that

the district court had used an improper standard in deny-

ing class certification. The court of appeals held that the

district court had improperly used the standard applicable

to (b) (3) classes in ruling on a (b) (2) class and remanded

to the district court for it to redetermine the propriety of

class certification. The Norris case also fits squarely

within the line of cases where the court of appeals re-

verses the denial of class certification.

There is no merit to petitioners’ contention that "[dJeny-

ing full relation back effect to the certification decision

creates an unnecessary level of uncertainty and doubt in

the minds of potential members of any Rule 23(b) (3)

class." Petition for Certiorari, at 16. The hollowness of

petitioners’ argument is readily apparent when one con-

siders that the district court could have denied class cer-

tification following remand from the court of appeals.

Petitioners could not possibly argue that the time-barred

individuals could then have pursued their individual ac-

tions, since the time for intervening or filing separate

actions would have long since passed. This Court has

made clear in American Pipe and Crown, Cork & Seal

that, once a district court denies class certification, mem-

bers of the putative class must take the necessary steps to

preserve their claims within the time remaining before the

statute of limitations expires. In fact, petitioners were

6

fully aware of their obligation. They pointed out to the

district court, in connection with the Montelongo case,

that "[a]fter the class certification was denied April 5,

1983, the statute of limitations began to run against the

class, but because the statute had been tolled since July

13, 1978, Intervenors had ample time to preserve their

claims and did so." Montelongo, Intervenors' Response to

Counter-Claim Defendants’ Motion for Summary

Judgment, at 12-13 (November 14, 1983).

In fact, many of the petitioners who sought to use the

district court's certification rulings to revive their

moribund claims actually sought to intervene or file

separate actions following the district court's original

denial of class certification. For various reasons, the

claims of most of these individuals were originally denied

by the district court and the court of appeals. 863 F.2d at

390; 765 F.2d at 1351-52. On remand, the district court

relied on its relation-back decision to include in the

resurrected class three groups of workers whose claims

had been previously barred. Thus, it was not simply a

matter of the statute of limitations which barred recovery

by many of the petitioners, but the doctrines of res

judicata and law of the case, as well.

Finally, if this Court were to grant the petition as to this

issue, it would be necessary for the Court to consider the

propriety of the district court's certification of the classes

following remand. The growers challenged the grant of

certification both in the district court and in the court of

appeals on the ground that certification of the classes fol-

lowing remand violated Fed.R.Civ.P. 23(c) (1) since a deci-

sion had already been rendered on the merits and that the

requirements of Fed.R.Civ.P. 23(b) (3) were not met since

the only remaining issue was the individual determina-

tion of damages to award each plaintiff.

"7

‘

JI. THE FIFTH CIRCUIT DID NOT ERR WHEN IT

HELD THAT THE DISTRICT COURT VIOLATED

THE APPELLATE COURT'S EARLIER MANDATE

BY FINDING THE GROWERS LIABLE ON REMAND

UNDER A LEGAL THEORY OF RECOVERY NOT

EVEN URGED ON THE FIRST APPEAL. THE DE-

FENDENT GROWERS PRESERVED THEIR POINT

BOTH BEFORE THE DISTRICT COURT AND THE

COURT OF APPEALS.

Petitioners contend that the Fifth Circuit erred when it

heid that the district court violated the mandate of the

original appeal on remand when it held the growers liable

under state law for breach of contract,’ a legal theory not

relied on by the district court in its original decision and

not urged by petitioners in their original appeal to the

Fifth Circuit. The Fifth Circuit held that its original deci-

sion had merely remanded one FLCRA violation to the

district court for a redetermination of damages and "did

not reopen the legal theory involved." 863 F.2d at 387.

Petitioners contend that their second issue raises “an im-

portant question of federal law," namely, "the deference

that an appellate court should extend to the district court

in the interpretation of an admittedly vague mandate."

_ Petition for Certiorari, at 10. Not only have the petitioners

failed to present an issue that warrants the attention of

this Court, but their argument rests on three false

premises.

*Three separate issues hinged on the new legal theory. By utilizing a .

different theory of recovery, the district court sought to circumvent the

Fifth Circuit's ruling that the individual! growers were not jointly and

severally liable for the Association's FLCRA violations in the 1978 case.

See Petition for Certiorari, at App.129-App.131. In addition, the district

court relied on the new legal theory to award attorney's fees to

petitioners, something it had not done prior to the original appeal. The

Fifth Circuit reversed the district court on both points. 863 F.2d at 387.

Petitioners also sought to use the change in legal theory as an oppor-

tunity to seek prejudgment interest, but both the district court and

Fifth Circuit rejected their claim. 863 F.2d at 392.

—————————

8

First, petitioners contend that the court of appeals re-

versed the district court on this point "without explana-

tion.” Petition for Certiorari, at 17. The Fifth Circuit's

opinion, however, explained that

.. . We originally vacated the trial court's damage

award for a sixth FLCRA violation, “failure to abide

by the working arrangement.” We remanded the case

to allow the district court to redetermine damages for

that FLCRA violation in light of "additional terms’

that we found were part of the work agreement. Sa/-

azar, 765 F.2d at 1353; Brock, 765 F.2d at 1353;

Brock, 765 F.2d at 1357. We did not reopen the legal

theory involved. Yet, on remand, the district court

found PVFA liable under a legal theory not urged in

the original appeals, breach of state law contract.

This finding reaches beyond our original mandate,

and we reverse the district court's findings insofar as

they are based on a state law breach of contract

theory. See Stamper v. Baskerville, 724 F.2d 1106,

1107-1108 (4th Cir. 1984) (trial court may decide

matters left open on remand only insofar as they are

consistent with appellate court's mandate).

863 F.2d at 387. The petitioners’ claim that the Fifth Cir-

cuit reversed the district court on this point "without ex-

planation” is clearly false.

Secondly, the petitioners contend that the defendant

growers failed to properly raise the issue, a charge that

the record clearly reveals to be false as well. When the

case was remanded to the district court, the growers filed

a written status report with the district court pointing out

that

[wlith respect to the Association, the only issues left

to be resolved involve the alleged FLCRA violation for

breach of the work agreement by the Association. In

connection with this issue, the Court must determine

(1) whether the workers waived actual damages, (2)

9

which workers are entitled to recover from the As-

sociation for this breach of FLCRA, and (3) how much

damages are to be awarded for this breach of FLCRA

_.. With respect to the individual grower members of

the Association, the only issues left to be resolved in-

volve the two alleged violations of FLCRA....

Presidio Valley Farmers Association v. Brock, Counter-

claim Defendants’ Status Report, at 2 (April 4, 1986). The

district court did ~.ut make clear that it was relying on a

different legal theory until it handed down its memoran-

dum decision and order and final judgment on June 17,

1987, leaving the growers no recourse but an appeal to the

Fifth Circuit.

The petitioners’ contention that the defendant growers

had not raised this issue on appeal to the Fifth Circuit

simply ignores the numerous references to this issue in

the briefs that the growers filed with the Fifth Circuit.

The growers stated in their Reply Brief that

_.. the workers miscontrue what the Fifth Circuit de-

cided when it remanded this case back to the district

court for a reassessment of damages. The Fifth Cir-

cuit did not reopen the question of whether the work-

ers could pursue on remand an entirely different

claim that they had abandoned prior to the original

appeal and had not raised on the first appeal to the

Fifth Circuit .. . The Fifth Circuit ruled that the

"[t]he damages award for breaches to the work

agreement is vacated and remanded for redetermina-

tion... ." 765 F.2d at 1359. The Fifth Circuit did not

direct or authorize the district court to retry the case

on a different legal theory.

Reply Brief for Appellants, at 3, 5. Later, in the same

brief, the growers stated that

{als noted earlier, to the extent the district court

based its judgment on the state law contract claim, it

went beyond the mandate of the Fifth Circuit. The

10

Fifth Circuit had merely vacated the award of dam-

ages for one FLCRA violation and remanded for a re-

determination of damages for that one violation. It

did not thereby reopen for relitigation a claim which

the workers had not pursued in the district court or

on their earlier appeal.

Id. at 33-34. Later, in the same brief, the growers re-

sponded to the workers’ cross appeal on the prejudgment

interest issue by noting that

. aS pointed out earlier, the workers miscontrued

the mandate of the Fifth Circuit in the earlier ap-

peals. The Fifth Circuit decided that the award of

damages for the one FLCRA violation should be va-

cated and reassessed in light of the additional work

terms. The Fifth Circuit did not remand for the pur-

pose of relitigating the case on a different legal

theory, especially one that had not been pressed be-

low prior to the original appeal and was not part of

the original appeal. The remaining cause of action

still remained one based on FLCRA, not a common

law breach of contract.

Id. at 36.° Thus, the petitioners’ second issue ("Whether

the court of appeals erred in reversing the district court's

interpretation of the mandate where defendants did not

object to that interpretation in the district court or on

appeal") is completely undercut by the fact that the grow-

ers clearly preserved their position both in the district

court and the court of appeals.

‘See also Salazar, Brief tor Appellants, at 27 ("The only issue left to

be resolved was the proper amount of damages to assess for the one

FLCRA violation which the Fifth Circuit had vacated on appeal.") and

44 ("As noted earlier, what the Fifth Circuit did was reverse the award

of damages for the one FLCRA violation (breach of work agreement)

while upholding the award of damages for the other five FLCRA viola-

tions. The remand for redetermination of damages for the one vacated

FLCRA violation did not convert the action into one for breach of

contract." )

11

Thirdly, the mandate of the earlier appeal was clear, not

“vague,” as the petitioners contend. Petition for Certiorari,

at 10. The Fifth Circuit had clearly remanded the case for

a redetermination of damages for the one FLCRA viola-

tion, not to try the case on a different legal theory.‘ In fact,

as the Fifth Circuit noted in its opinion, the district court

relied on a legal theory on remand that the workers had

not even urged in the original appeals. 863 F.2d at 387.

The court of appeals was certainly in a better position

than the district court to determine what its mandate was

and to determine what issues had been preserved on ap-

peal by the petitioners. Circuit Judge Higginbotham, who

wrote both opinions on the first appeals, also served on

the panel that heard the second appeals. Moreover, the

workers raised this same issue in the petition for rehear-

ing en banc filed with the Fifth Circuit, and not one judge

on the Fifth Circuit requested a poll of the court, not even

the other active judge who served on the original panel

which issued the mandate in question.

Even apart from their false charges, the petitioners

have not otherwise raised any valid claim that would war-

rant this Court's attention. In asking this Court to side

with the district court over the court of appeals as to the

proper interpretation of the court of appeals’ mandate,

petitioners are trying to put the cart before the horse. This

Court has stated in the strongest terms that ". . . an in-

ferior court has no power or authority to deviate from the

mandate issued by an appellate court." Briggs v. Pennsyl-

‘In Salazar, the Fifth Circuit had stated that “[blecause we have

concluded that additional terms were part of the work agreement,

however, we remand the award of damages for defendants’ alleged

breaches of the agreement and remand so that the district court can

award d-mages for those terms and so that it can consider the parties’

other complaint about the award.” 765 F.2d at 1353. In Brock, the Fifth

Circuit had stated that "[t]he damages award for breaches of the work

agreement is vacated and remanded for redetermination. . . .’ 765 F.2d

at 1359.

12

vania R. Co., 334 U.S. 304, 306 (1948). To allow the dis-

trict court to override the court of appeals’ interpretation

of the appellate mandate would eviscerate the rule that

the lower court must follow the decision of a higher court

at an earlier stage of the case and seriously undermine the

authority of the appellate courts.

CONCLUSION

For the reasons set forth above, the petition for a writ of

certiorari filed by petitioners should be denied as to both

issues.

Respectfully Submitted,

THOMAS J. BACAS

940 Sweetwater Lane

Boca Raton, Florida 33431

407/338-6956