Petition — International Union of Operating Engineers, Local Union No. 701 v. H. A. Andersen Co.

IN THE

Supreme Court of the United

OCTOBER TERM, 1976

No. 76-170 ;

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL UNION No. 701,

Petitioner,

V.

H. A. ANDERSEN Co., INCORPORATED, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

ROBERT J. MILLER

TERRY G. DESYLVIA

BLACK, KENDALL, TREMAINE,

BOOTHE & HIGGINS

3100 First National Bank Tower

Portland, Oregon 97201

Counsel for Petitioner

WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON, D. C. 20001

OPINIONS BELOW

JURISDICTION 8 —ͤ ae

QUESTION PRESENTED DEB

STATUTES AND FEDERAL RULES OF PROCED-

URE INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT ....................

I. The decision of the Court of Appeals in this case

II.

III.

is in conflict with the decisions of other courts

1

The decision of the Court of Appeals in this case

is in confliet with the decisions of this Court

This Court should decide the question presented

in this case because of its importance to the

proper and uniform administration of appellate

procedure in the federal court

— . ———— —

Cases:

Blunt v. United States, 100 U.S. App. D.C. 266, 244

TABLE OF CITATIONS

F.2d 355, 359 (19577

Gerringer v. United States, 93 U.S. App. D.C. 403,

IL

Harris Truck Lines, Inc. v. Cherry Meat Packers,

I eee

Paternack v. Comm. of Internal Revenue, 478 F.2d

4BB, GOB (DC. Cam. GTB) ncaa nanan nncnnnccecenen none

Reconstruction Finance Corp. v. Prudence Sec. Ad-

visory Grp., 311 U.S. 579 (194177

Reed v. Kroger Co., 478 F.2d 1268 (TECA 1973)

Riffie v. United States, 299 F.2d 802 (5th Cir.

——

10

12

13

7

9

5, 7

8

II

TABLE OF CITATIONS—Continued

Page

Ritchie v. Wilkins, 335 F.2d 1 (2d Cir. 1964) 8

Thompson v. Immigration and Naturalization

Service, 375 U.S. 384 (1964) 10

United States v. Cooper, 482 F.2d 1393 (TECA

3 —————— 5. 6, 7

West v. United States, 94 US. App. D.C. 46, 222

F. 2d 774 (1955) 9

Yanow v. Weyerhaeuser Steamship Co., 274 F.2d

274 282, N.12 (9th Cir. 1959), cert. denied, 356

/ xxx.. 7, 9

Statutes and Rules:

e - 12

ee 12

r ER or eT CRT 2

// /⸗xv 2, 11

, ee Te Me mE 2,11

Economic Stabilization Act of 1970, § 211(b) (2),

§ 211(g) — — 2, 3, 5

Emergency Petroleum Allocation Act of 1973, 15

, 12

Federal Energy Administration Act of 1974, 15

e eee 12

Federal Rule of Appellate Procedure 3 ( a) 3, 8, 12

Federal Rule of Appellate Procedure 4 a) 3

Rule of Temporary Emergency Court of Appeals,

„%%% ͤͤĩͤĩÄ7?74˙l̃ ͥ ˙ ns 4

Rule of Temporary Emergency Court of Appeals,

K» kent 4

IN THE

Supreme Cont of the United States

OCTOBER TERM, 1976

No.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL UNION No. 701,

Petitioner,

v.

H. A. ANDERSEN Co., INCORPORATED, Er AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

International Union of Operating Engineers, Local

Union No. 701 prays that a Writ of Certiorari issue to

review the order of the Temporary Emergency Court of

Appeals entered on July 8, 1976, dismissing the appeal

filed in this case.

OPINIONS BELOW

The order of the Temporary Emergency Court of

Appeals dismissing the appeal in this case is unreported.

It is printed in the appendix beginning on page la.

2

JURISDICTION

The order of the Temporary Emergency Court of Ap-

peals dismissing the appeal and refusing to accept a

transfer of the appeal from the Ninth Circuit was en-

tered on July 8, 1976. This court has jurisdiction to

review the order by Writ of Certiorari under 28 U.S.C.

1254 (1) and §211(g) of the Economic Stabilization

Act of 1970, as amended, Pub. L. No. 92-210, § 2, 85

Stat. 750 (1971).

QUESTION PRESENTED

Does a court of appeals have jurisdiction to hear an

appeal by accepting a transfer of the appeal or by

accepting the filing of a modified notice of appeal when

the notice of appeal was filed and served upon the ap-

pellee within the time required by law, but was erron-

eously filed in the wrong court and directed to the wrong

court of appeals?

STATUTES AND FEDERAL RULES OF

PROCEDURE INVOLVED

Statutes

28 U.S.C. § 1291. Final decisions of district courts.

“The courts of appeal shall have jurisdiction of appeals

from all final decisions of the district courts of the

United States, . . except where a direct review may be

had in the Supreme Court.”

28 U.S.C. § 1294. Circuits in which decisions review-

able.

“Appeals from reviewable decisions of the district

and territorial courts shall be taken to the courts of

appeals as follows:

3

“(1) From a district court of the United States

to the court of appeals for the circuit embracing

the district. ;”

Economic Stabilization Act of 1970, §211(b)(2) as

amended, Pub. L. No. 92210, § 2, 85 Stat. 749 (1971),

Judicial Review.

“Except as otherwise provided in this section, the Tem-

porary Emergency Court of Appeals shall have exclusive

jurisdiction of all appeals from the district courts of the

United States in cases and controversies arising under

this title or under regulations or orders issued there-

under. Such appeals shall be taken by the filing of a

notice of appeal with the Temporary Emergency Court

of Appeals within thirty days of the entry of judgment

by the district court.”

Federal Rules of Appellate Procedure

Rule 3 (a). Filing the Notice of Appeal.

“An appeal permitted by law as of right from a dis-

trict court to a court of appeals shall be taken by filing

a notice of appeal with the clerk of the district court

within the time allowed by Rule 4. Failure of an ap-

pellant to take any step other than the timely filing of

a notice of appeal does not affect the validity of the

appeal, but is ground only for such action as the court

of appeals deems appropriate, which may include dis-

missal of the appeal.

Rule 4(a). Appeals in Civil Cases.

“In a civil case in which an appeal is permitted by

law as of right from a district court to a court of appeals,

the notice of appeal required by Rule 3 shall be filed

with the clerk of the district court within 30 days of the

1

date of the entry of the judgment or order appealed

from.

Rules of The Temporary Emergency Court of Appeals

Rule 1. Scope of Rules.

“These Rules govern the procedure in the Temporary

Emergency Court of Appeals of the United States. Ex-

cept as to matters specifically covered by these Rules,

the Federal Rules of Appellate Procedure shall govern the

procedure in all cases or proceedings in this court. The

Rules shall be constructed to secure the just, speedy and

inexpensive determination of every action.”

Rule 15 (a). Notice of Appeal.

“A notice of appeal in any civil or criminal case aris-

ing under the Economic Stabilization Act of 1970 as

amended . . . shall be filed with the clerk of this court

within 30 days of the entry of judgment by the district

court. This time limitation shall be binding upon both

government appeals and private appeals.”

STATEMENT OF THE CASE

On March 2, 1976, the United States District Court

for the District of Oregon entered its judgment in favor

of the plaintiff and against the petitioner, International

Union of Operating Engineers, Local Union No. 701, for

compensatory damages of $79,694.00, punitive damages

of $50,000.00 and attorneys’ fees in the amount of $74,-

000.00. The complaint upon which the judgment was

based alleged a work stoppage and stated two counts,

one for breach of contract and one for alleged violation

of the Economic Stabilization Act of 1970.

On March 24, 1976, the petitioner filed a notice of

appeal with the United States District Court for the

District of Oregon. The notice stated that the appeal

5

was to the Court of Appeals for the Ninth Circuit. The

plaintiffs were promptly served with a copy of the notice.

The district court forwarded the notice to the Ninth

Circuit. On April 19, 1976, the plaintiffs filed a notice

of cross-appeal.

On May 10, 1976, the plaintiffs filed a motion with the

Court of Appeals to dismiss the appeal upon the ground

that §211(b)(2) of the Economic Stabilization Act of

1970 gave the Temporary Emergency Court of Appeals

exclusive jurisdiction to review the judgment. On May

19, 1976, the petitioner filed a motion with the Court

of Appeals for the Ninth Circuit requesting that the

appeal be transferred to the Temporary Emergency Court

of Appeals. That motion is printed in the apperdix at

page 3a. On May 25, 1976, the petitioner filed a modified

notice of appeal with the Temporary Emergency Court of

Appeals along with a motion requesting that court to

accept transfer of the appeal from the Ninth Circuit.

That motion and the modified notice of appeal are printed

in the appendix at pages 7a and 9a. On May 25, 1976,

the Temporary Emergency Court of Appeals entered an

ex parte order accepting the filing of the modified notice

of appeal.

On July 8, 1976, the Temporary Emergency Court of

Appeals vacated the ex parte order, refused to accept a

transfer from the Ninth Circuit and entered its order

dismissing the appeal. The order stated that the matter

was controlled by two cases theretofore decided by that

court. Reed v. Kroger Co., 478 F.2d 1268 (TECA 1973),

and United States v. Cooper, 482 F.2d 1393 (TECA

1973).

6

REASONS FOR GRANTING THE WRIT

I. The decision of the Court of Appeals in this case is

in conflict with decisions of other courts of appeals.

First. The Court of Appeals for the Ninth Circuit has

held that an appeal in a case brought under the Economic

Stabilization Act of 1970 should be transferred to the

Temporary Emergency Court of Appeals when the no-

tice of appeal was timely filed but erroneously misdi-

rected to the Court of Appeals for the Ninth Circuit. In

this and in one other case the Temporary Emergency

Court of Appeals has held that such appeals should not

be transferred. In both cases it held that it had no

jurisdiction, refused to accept a transfer from the Ninth

Circuit, and dismissed the appeal.

In United States v. Cooper, 482 F.2d 1393 (TECA

1973), the United States District Court for the Central

District of California entered two judgments in one case,

one imposing civil penalties for violations of the Economic

Stabilization Act of 1970 and the other imposing a crimi-

nal penalty of probation for making false statements

in violation of a different federal statute. The defendant

filed one notice of appeal in the District Court. The

Court of Appeals for the Ninth Circuit entered an order

transferring the entire appeal to the Temporary Emer-

gency Court of Appeals. The Temporary Emergency

Court of Appeals held that it had no jurisdiction of the

criminal conviction because it did not involve the Eco-

nomic Stabilization Act. It returned that matter to the

Ninth Circuit. It held that as to the civil penalties aris-

ing under the Stabilization Act, it had “no jurisdiction”

because the appellant “failed to file a timely appeal with

the TECA.” 482 F.2d at 1400.

In this case the Temporary Emergency Court of Ap-

peals held that it was bound by its decision in the Cooper

7

case and it refused to accept a transfer from the Ninth

Circuit.

These decisions of the Temporary Emergency Court

of Appeals are in direct conflict with the decision of the

Ninth Circuit in the Cooper case. This Court should

resolve that conflict and establish a uniform rule either

permitting or refusing to permit a transfer from an

improper court of appeals to the proper court of appeals.

Second. The uniform rule in this Court and among the

courts of appeals of the various circuits is that. a notice

of appeal is sufficient to invoke the jurisdiction of the

court of appeals if it is timely filed even though it is

filed in the wrong court. In this case, in the Cooper case,

and in Reed v. Kroger Co., 478 F.2d 1268 (TECA 1973),

the Temporary Emergency Court of Appeals has held

that it has no jurisdiction of an appeal when the notice

of appeal, although timely filed, was filed in the wrong

court.

In Reed v. Kroger Co., supra, a judgment was entered

by the United States District Court for the Southern

District of Indiana on October 18, 1972. On November

15, 1972, the appellant delivered to the Clerk of the

District Court for the Southern District of Indiana a

notice of appeal to the Temporary Emergency Court of

Appeals. On January 29, 1973, the appellant filed a notice

of appeal with the Temporary Emergency Court of Ap-

peals with a motion that it be accepted nuc pro tunc.

The Temporary Emergency Court of Appeals held that

the failure to file the notice of appeal in the Temporary

Emergency Court of Appeals within the thirty-day period

required was fatal and dismissed the appeal.

In Yanow v. Weyerhaeuser Steamship Co., 274 F.2d

274, 282-83 (9th Cir. 1959), cert. denied, 356 U.S. 957

(1958), and Pasternack v. Comm. of Internal Revenue,

478 F.2d 588, 593 (D.C. Cir. 1973), the courts said:

8

“There is a considerable body of authority indicat-

ing that in determining whether an attempted ap-

peal has been accomplished, most informally drawn

papers and improperly labelled documents have been

sufficient to accomplish the apparent objective of

taking an appeal...

“The rationale of the cases relating to informal or

irregular appeals is that notwithstanding the papers

filed are inaptly worded or labelled, or even failed

to use the word ‘appeal’ or were filed in the wrong

court, yet they sufficed to show the parties intended

to appeal.” (Emphasis added.)

Federal Rule of Appellate Procedure 3(a) states:

“Failure of an appellant to take any steps other

than the timely filing of a n tice of appeal does not

affect the validity of the appeal, but is ground only

for such action as the court of appeals deems ap-

propriate, which may include dismissal of the ap-

peal.”

That rule has been interpreted to mean that an appeal

is valid when the notice of appeal was filed within the

time permitted, even though it was filed in the wrong

court.

Erroneous filing of a notice of appeal with the court

of appeals within the 30 days permitted (when the rule

requires filing in the district court) has been held to be

sufficient to effect an appeal and to invoke the jurisdic-

tion of the court of appeals. Ritchie v. Wilkins, 335 F.2d

1 (2d Cir. 1964). A letter written to a judge of the

court of appeals (when a notice should have been filed

in the district court) has been held to be effective as a

duly filed notice of appeal when it was filed within the

time permitted. Riffle v. United States, 299 F.2d 802

(5th Cir. 1962).

Blunt v. United States, 100 U.S. App. D.C. 266, 244

F.2d 355, 359 (1957); Gerringer v. United States, 93

U.S. App. D.C. 403, 218 F.2d 346 (1954); and West

v. United States, 94 U.S. App. D.C. 46, 222 F.2d 774

(1955), all held that there was “a sufficient notice of

appeal although the paper was labelled a motion for

leave to appeal in forma pauperis and in each case the

document was filed in the wrong court.” Yanow v.

Weyerhaeuser Steamship Co., 274 F.2d 274, 282, n.12,

(9th Cir. 1959), cert. denied, 356 U.S. 957 (1958).

(Emphasis added.)

If uniform principles are applied throughout the sys-

tem of federal courts, the erroneous filing of a notice

of appeal in the United States District Court whose judg-

ment is appealed from (when the rules require the no-

tice of appeal be filed with the court appealed to) should

be no less fatal than the erroneous filing of a notice

of appeal with the United States Court of Appeals that

is appealed to (when the rules require that the notice

be filed with the court appealed from).

In Reconstruction Finance Corp v. Prudence Sec. Ad-

visory Grp., 311 U.S. 579 (1941), the petitioner filed a

notice of appeal in the District Court when the statute

required that it be filed in the Court of Appeals. The

Court of Appeals for the Second Circuit dismissed the

appeal. This Court reversed, stating:

“Normally the Circuit Court of Appeals would be

wholly justified in treating the mere filing of a

notice of appeal in the District Court as insufficient.

But the defect is not jurisdictional in the sense that

it deprives the court of power to allow the appeal.

The court has discretion, where the scope of review

is not affected, to disregard any such irregularity

in the interest of substantial justice. In this case

the effect of procedural irregularity was not sub-

stantial. The scope of review was not altered. There

was no question of the good faith of petitioners, of

10

dilatory tactics, or of frivolous appeals . . . . The

failure to comply with statutory requirements

is not necessarily a jurisdictional defect.” 311 U.S.

at 582-83.

This difference between the decisions of the Temporary

Emergency Court of Appeals and those of the circuit

courts is not justified by any difference in the language

of the applicable statutes or rules of procedure. The

language of the rules of appellate procedure, the Eco-

nomic Stabilization Act, and the rules of the Temporary

Emergency Court of Appeals is virtually identical inso-

far as it prescribes the time and the place for filing a

notice of appeal.

The decisions of the Temporary Emergency Court of

Appeals are in direct conflict with decisions of all other

courts of appeals that hold that a notice of appeal is

effective if it is timely filed even if it is filed in the

wrong court.

This Court should resolve this conflict by establishing

a uniform rule applicable to all appeals and all courts of

appeal and stating whether the timely filing of a notice

of appeal is or is not effective if it is filed in the wrong

court.

II. The decision of the Court of Appeals is in conflict with

decisions of this Court.

This Court has held that when a district court causes

an appellant to believe that he has more than the per-

mitted time for filing an appeal, unique circumstances

exist and the appeal is effective even if the nctice of

appeal is not filed in time. Thompson v. Immigration

and Naturalization Service, 375 U.S. 884 (1964) ; Harris

Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S.

215 (1962).

In this case the petitioner was misled by two incon-

sistent United States Statutes.

11

28 U.S.C. § 1291 states:

“The courts of appeal shall have jurisdiction of ap-

peals from all final decisions of the district courts

of the United States. . . except where a direct re-

view may be had in the Supreme Court.” (Emphasis

added. )

28 U.S.C. § 1294 provides:

“Appeals from reviewable decisions of the district

and territorial courts shall be taken to the courts

of appeals as follows:

“(1) From a district court of the United States

to the court of appeals for the circuit embracing the

district ;”

There is no exception in this statute indicating that

appeals from any district court judgment should be taken

to any court of appeals other than the one in the circuit

embracing the district court whose judgment is appealed

from. When Congress granted to the Temporary Emer-

gency Court of Appeals the exclusive jurisdiction to hear

appeals from district court decisions involving the Eco-

nomic Stabilization Act of 1970, it did not amend or

provide an exception to 28 U.S.C. § 1291 or § 1294.

When Congress has considered the matter, it has pro-

vided that cases filed in improper courts may be trans-

ferred to proper courts. See 28 U.S.C. § 1506 providing

for transfer of cases from the court of claims to the

district court. But, in this case, Congress inadvertently

created a trap that has resulted in the filing of a notice

of appeal in the wrong court. These circumstances are

unique to the same extent as those in the Thompson and

Harris cases and should be sufficient to permit the Tem-

porary Emergency Court of Appeals to retain jurisdiction.

12

III. This Court should decide the question presented in this

case because of its importance to the proper and uni-

form administration of appellate procedure in the

federal courts.

Uniform principles should apply to rules of procedure

in all United States courts of appeals. The Federal Rules

of Appellate Procedure apply in the Temporary Emer-

gency Court of Appeals except where matters are spe-

cifically covered by that court’s own rules. The Tem-

porary Emergency Court of Appeals has no rule con-

trary to Federal Rule of appellate Procedure 3(a) which

states:

“Failure of an appellant to take any step other than

the timely filing of a notice of appeal does not affect

the validity of the appeal... .”

No reason appears from the language of the applicable

statutes or rules of procedure that would justify applica-

tion of different principles in the Temporary Emer-

gency Court of Appeals than those that are applied in

the circuit courts.

If different principles should apply, such a rule should

be established by a decision of this Court.

There are several circumstances in which a party might

seek review in the wrong United States court of appeals.

The statute providing for review of administrative rules

published by the Federal Erergy Administration states

that review of rules of national applicability can be

obtained only in the Court of Appeals for the District

of Columbia, and that review of rules that are not of

national applicability can be obtained only in the Court

of Appeals for the appropriate circuit. Federal Energy

Administration Act of 1974, 15 U.S.C. § 766 (i) (2) (A).

The Emergency Petroleum Allocation Act of 1973, 15

U.S.C. § 754 (a) (1), incorporates § 211 of the Economic

Stabilization Act of 1971 and provides that the Tem-

13

porary Emergency Court of Appeals has exclusive juris-

diction to review district court judgments involving that

statute. Thus, the problem existing in this case may

continue to arise. This Court should, to the extent pos-

sible, establish that timely filing of a notice of appeal in

the wrong court is or is not fatal to the appeal, that

transfers from an improper to a proper court will or

will not be permitted, and that uniform principles are

or are not to be applied when determining jurisdictional

questions in all the courts of appeal.

CONCLUSION

For the reasons stated, the Petition for Certiorari

should be granted.

Respectfully submitted,

ROBERT J. MILLER

TERRY DESYLVIA

BLACK, KENDALL, TREMAINE,

BOOTHE & HIGGINS

1300 S.W. Fourth Avenue

Portland, Oregon 97201

APPENDIX

APPENDIX

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

No. 9-33

No. 9-34

H. A. ANDERSEN Co., INCORPORATED, ET AL.,

Plaintiffs-A ppellees, Cross-Appellant,

V.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL UNION No. 701,

Defendant-A ppellant, Cross-A ppellee.

Appeal from the United States District Court

for the District of Oregon

(Civ. 72-726)

Terry DeSylvia, Black, Kendall, Tremaine, Boothe &

Higgins, Portland, Oregon, for the Appellant.

Michael G. Holmes, Dezendorf, Spears, Lubersky & Camp-

bell, Portland, Oregon, for the Appellees.

ORDER

Before CARTER, CHRISTENSEN and ESTES, Circuit

Judges

This case is controlled by prior decisions of this court,

Reed v. Kroger Co. (T.E.C.A. 1973), 478 F.2d 1268, and

United States v. Cooper (T.E.C.A. 1973), 482 F.2d 1393.

The motion of the plaintiffs to vacate the order of

May 25, 1976, allowing the defendant’s out-of-time filing

of a notice of appeal in No. 9-33 is granted.

2a

The motion of the plaintiffs to dismiss the defendant's

appeal in No. 9-33 is granted. Accordingly, the plain-

tiffs cross appeal in No. 9-34 is also dismissed.

July 8, 1976

3a

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 76-1816

H. A. ANDERSEN Co., INCORPORATED, ET AL.,

Plaintiffs-Appellees,

vs.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOcAL UNION No. 701,

Defendant-A ppellant.

MOTION TO TRANSFER

Defendant-appellant, International Union of Operating

Engineers, Local Union No. 701, moves this court:

I,

To transfer this appeal to the United States Tem-

porary Emergency Court of Appeals in Washington, D.C.

II.

To withhold any decision on plaintiffs-appellees’ mo-

tion to dismiss the file herein pending a decision by the

United States Temporary Emergency Court of Appeals

as to whether that court would accept the transfer of this

appeal.

In support of this motion, defendant-appellant will rely

on the affidavit of Terry DeSylvia, one of the attorneys

for defendant-appellant, attached hereto as Exhibit “A,”

4a

together with points and authorities cited in its reply

to appellees’ motion to dismiss this appeal.

Respectfully submitted,

/s/ Terry DeSylvia

TERRY DESYLVIA

BLACK, KENDALL, TREMAINE, BOOTHE

& HIGGINS

Attorneys for Defendant-Appellant

5a

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 76-1816

H. A. ANDERSEN Co., INCORPORATED, ET AL.,

Plaixtiffs-Appellees,

vs. .

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL UNION No. 701,

Defendant-Appellant.

AFFIDAVIT

STATE OF OREGON, )

) ss.

COUNTY OF MULTNOMAH )

I, TERRY DeSYLVIA, being first duly sworn, on oath

depose and say:

That I am one of the attorneys for the defendant-

appellant (Local 701) in the above-entitled case. On

March 2, 1976, judgment was entered against Local 701

herein. Up to the time of judgment, I had not partici-

pated in the defense of this matter. Following the entry

of the judgment, I was requested to contact Local 701

to ascertain whether an appeal was to be made. I did

this and it was determined that an appeal should be

filed. The judgment order from which the appeal was

taken made no mention of the Economic Stabilization

Act of 1970 or the Temporary Emergency Court of Ap-

peals. Having had experience in effecting appeals from

the United States District Court for the District of

Oregon to its regular appellate court, the Ninth Circuit

Court of Appeals, I directed the appeal in this case to

said appellate division of the Federal Court system. On

6a

March 24, 1976, the notice of appeal was timely filed

in the regular course with the clerk of the United States

District Court for the District of Oregon.

Within fourteen days after filing said notice, plaintiffs-

appellees filed in this court a notice of cross-appeal from

the same judgment. On May 10, 1976, I received service

of a motion filed by plaintiffs-appellees to dismiss this

appeal on the grounds that this court lacks jurisdiction

and that the appeal properly should have been taken to

the Temporary Emergency Court of Appeals. Because

plaintiffs-appellees delayed filing the motion to dismiss

for a period of sixty days, there was no opportunity to

seek relief under Rule 4(a), Federal Rules of Appellate

Procedure.

TERRY DESYLVIA

Terry DeSylvia

Subscribed and sworn to before me this 18 day of

May, 1976.

ELIZABETH A. MOORE

Notary Public for Oregon

My commission expires: 6/17/79

7a

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

TECA Docket No.

District Court No. 72-726

H. A. ANDERSEN Co., INCORPORATED, GORDON H. BALL,

INC., GENERAL CONSTRUCTION COMPANY, W. H. GREG-

ORY COMPANY, HANNAN BROS. CONSTRUCTION, INC.,

PETER KIEWIT SONS’ Co., MATICH CONSTRUCTORS,

ROGERS CONSTRUCTION, INC., WESTERN PACIFIC PILE-

DRIVING Co., WHITE BROS. CONSTRUCTION Co., INC. AND

WILLARD R. ROGERS AND DONALD C. ROGERS, DBA

ROGERS CONSTRUCTION Co.,

Plainti ffs-A ppellees

vs.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL UNION No. 701,

Defendant-A ppellant.

MOTION TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

The International Union of Operating Engineers, Local

No. 701, defendant-appellant, moves this court to allow

the filing of the modified notice of appeal set forth in

Exhibit 1 attached, or in the alternative, to accept a

transfer of the appeal filed in the United States Court

of Appeals for the Ninth Circuit on March 24, 1976,

entitled H. A. Andersen Co., Inc., et al, plaintiff-appel-

lees, vs. International Union of Operating Engineers, Lo-

cal No. 701, defendant-appellant,” in the United States

Court of Appeals for the Ninth Circuit, Registry No.

76-1816.

This motion is based on the notice of appeal attached

as Exhibit 1, the statement in supplement to notice of

8a

appeal attached as Exhibit 2, the affidavit of Terry De-

Sylvia attached as Exhibit 3, and the memorandum of

points and authorities submitted herewith.

/s/ Terry DeSylvia

TERRY DESYLVIA

BLACK, KENDALL, TREMAINE, BOOTHE

& HIGGINS

3100 First National Bank Tower

Portland, Oregon 97201

— —

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

TECA Docket No.

District Court No. 72-726

H. A. ANDERSEN Co., INCORPORATED, GORDON H. BALL,

INC., GENERAL CONSTRUCTION COMPANY, W. H. GREG-

ORY COMPANY, HANNAN BROS. CONSTRUCTION, INC.,

PETER KIEWIT SoONs’ Co., MATICH CONSTRUCTORS,

ROGERS CONSTRUCTION, INC., WESTERN PACIFIC PILE-

DRIVING Co., WHITE Bros. CONSTRUCTION Co., INC. AND

WILLARD R. ROGERS AND DONALD C. ROGERS, DBA

ROGERS CONSTRUCTION Co.,

Plaintiffs-Appellees,

VS.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL UNION No. 701,

Defendant-A ppellant.

MODIFIED NOTICE OF APPEAL

Notice is hereby given that International Union of

Operating Engineers, Local No. 701, defendant-appellee

above named, hereby appeals to the Temporary Emer-

gency Court of Appeals of the United States from the

final judgment awarding compensatory damages, attor-

neys’ fees and punitive damages entered in this action

on the 2nd day of March, 1976, by Judge James M.

Burns in the District Court for the District of Oregon.

10a

This notice is a modification of the notice of appeal

from the judgment herein filed on March 24, 1976 in the

United States Court of Appeals for the Ninth Circuit.

DATED this 24 day of May, 1976.

/s/ Terry DeSylvia

TERRY DESYLVIA

BLACK, KENDALL, TREMAINE, BOOTHE

& HIGGINS

3100 First National Bank Tower

Portland, Oregon 97201