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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 862

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0399%3A1. Public record. Not legal advice.