Opposition Brief — Santoni Roig v. Iberia Lineas Aereas de Espana

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a & &

a @ | JUN 26 091

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

FELIX SANTONI ROIG, ET AL.,

Petitioners,

nize

IBERIA LINEAS AEREAS DE ESPANA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

EDWARD A. BRILL

(Counsel of Record)

PROSKAUER ROSE GOETZ

& MENDELSOHN

1585 Broadway

New York, New York 10036

(212) 969-3000

Attorneys for Respondent

Of Counsel

ANDREW P. MARKS

QUESTIONS PRESENTED

1. Whether the dismissal of the appeal as to all plaintiffs,

other than Felix Santoni Roig, was justified because (1) Mr.

Santoni was the only plaintiff named in the notice of appeal

and (2) the Secretary of Labor and Human Resources of

Puerto Rico was not a party to the case because he failed to

intervene in the action pursuant to Federal Rule of Civil Pro-

-cedure 24?

2. Whether the Secretary of Labor and Human Resources

of Puerto Rico, notwithstanding his failure to intervene pur-

suant to Federal Rule of Civil Procedure 24, became a party

in this action, as opposed to an attorney representing some of

the plaintiffs, when he filed a motion to assume legal repre-

sentation of some of the plaintiffs after plaintiffs’ previous

counsel had withdrawn?

3. Whether the dismissal of the appeal by Felix Santoni

Roig from the final judgment of the district court was proper

because (1) he had filed a stipulation of settlement of his

claims nearly four years earlier and (2) a subsequent motion

to reinstate him as a plaintiff was denied by the district court

and was not appealed?

LIST OF PARTIES

Iberia Lineas Aereas de Espana (Iberia Airlines of Spain) is

owned by the National Institute of Industry Council, an

entity of the government of Spain. Iberia Lineas Aereas de

Espana owns 35% of Aerolineas Argentinas and 30% of

Ladeco Airlines.

TABLE OF CONTENTS

REASONS FOR DENYING THE PETITION .......

1. The Decision Below Is Consistent with the

Decisions of this Court and Does Not Raise an

Important Issue of Federal Law.............

A. The Court of Appeals had no jurisdiction

over the attempted appeal by plaintiffs

Other tham Dis. Samtoml .......cccccccces

B. The Court of Appeals lacked jurisdiction

over the appeal by petitioner Santoni

because he was not a party to the judg-

nc cchsessbeceeecesss

2. The Conclusion that the Secretary Did Not

Intervene As a Party in the Action Does Not

Raise an Important Question of Federal Law.

3. Since the First Circuit Did Not Assign a Role

to the Secretary that Is Prohibited by the Stat-

utes of Puerto Rico, No Compelling Reason

Exists for Granting the Writ................

Teen ee ee coche bescescces

TABLE OF AUTHORITIES

Cases PAGE

Akins v. Board of Governors, 867 F.2d 972 (7th Cir.

RE ey aR AERC Let oh pi tare perns fire te ee eee 7

Bender v. Williamsport Area School Dist., 475 U.S.

FR le Fae Fy wt rr ee Oe ee ee Ope ye 11

Birdsong v. Wrotenberg, 901 F.2d 1270 (Sth Cir. 1990) 7

Brandt v. Schal Assoc., Inc., 854 F.2d 948 (7th Cir.

i sca chuned Kinde Oo Laee Een he Ooh Eeeee ee neeasy 10

Brookens v. White, 795 F.2d 178 (D.C. Cir. 1986)... 10

Browder v. Department of Corrections, 434 U.S. 257

SE seas daa Sneek USCA M) OO cee Pe OR edhe ese 60s 6

Casella v. Webb, 883 F.2d 805 (9th Cir. 1989)....... 10

Cole v. Tuttle, 540 F.2d 206 (Sth Cir. 1976)......... 10

Cosme Nieves v. Deshler, 786 F.2d 445 (lst Cir.). cert.

ee, ae Tis. ee Cre hae cewesc tees cccsce 12

Cruz v. Melendez, 902 F.2d 232 (3d Cir. 1990)...... 7

Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252

a6 cca kedanaréeebetntss teneeeeeenans 10

Granny Goose Foods, Inc. v. Brotherhood of Team-

sters & Auto Truck Drivers, Local No. 70, 415 U.S.

hl errr rrr rrr) rir re rere erie 13

Hanna v. Plummer, 380 U.S. 460 (1965)............ 12, 13

Laidley v. McClain, 914 F.2d 1386 (10th Cir. 1990) .. 7

Marino v. Ortiz, 484 U.S. 301 (1988) ............4.-. 8

Matter of Leaf Tobacco Bd. of Trade, 222 U.S. 578

EE sb cccskoveeesebes dtecetbvetoutenrsnneneeers 8, 9

PAGE

McDonald v. E.J. Lavino, Co., 430 F.2d 1065 (Sth

I en a re 12-13

Minority Employees v. Tennessee Dep’t of Employ-

ment Security, 901 F.2d 1327 (6th Cir.), cert. denied,

BES ae Se ee Ms 5:0 ora oe cekeeaeesescasesses 7

Mitchell, Secretary of Labor v. Floyd Pappin & Son,

Inc., 122 F. Supp. 755 (D. Mont. 1954). ....cccees 15

Mitchell, Secretary of Labor v. Tampa Cigar Co., 36

Lab. Cas. (CCH) ¢ 65,198 (S.D. Fla. 1959)........ 15

Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271

ee POTN OE Freres err Cree rere eT Peers 12

Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365 (11th

Cir.), cert. denied, 464 U.S. 893 (1983) ........... 10

Shatah v. Shearson/American Express, Inc., 873 F.2d

ee ee ee cb bine edie ceeds be eotestneseces 7

Shevlin v. Schewe, 809 F.2d 447 (7th Cir. 1987) ..... 11

Sierra, Secretary of Labor vy. Superior Court, 81

ere rr rr eres re 15

Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326 (9th

Se NS 26 ob CEE E464 Sho ced asco eeie reese 11

Tobin, Secretary of Labor v. Carl F. Wilson, 19 Lab.

Cases (CCH) { 66,307 (N.D. Ill. 1951)............ 15

Torres v. Oakland Scavenger Co., 487 U.S. 312

Tere rT Tee reer ree rir err re rte 6, 7

United States v. Robinson, 361 U.S. 220 (1960)...... 6

Venegas v. Skaggs, 867 F.2d 527 (9th Cir. 1989), aff'd

on other grounds, 110 S. Ct. 1679 (1990) ......... 12

Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d

SE ee as PN iv once edcccvenskesdtccicvstes 10

PAGE

Washington v. Bumgarner, 882 F.2d 899 (4th Cir.

1989), cert. denied, 110 S. Ct. 874 (1990) ......... 6

Statutes and Rules

Foreign Sovereign Immunity Act,

28 U.S.C. §§ 1441(d) and 1603(b)................. 2

eck eC eb ial pawn eda she cen waa eae 6

ies beac cca seed asus tee ste 4, ll

alana ssc a nba 64 66 bbs bade Ree hs 4, 6

OR OE 2 ee rer rr yey ir 3, 10, 14

P.R. Laws Ann. tit. 32, App. III R. 21.4 (1983)..... 14

P.R. Laws Ann. tit. 32, § 3120 (1990) .............. i4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1751

> ,

FELIX SANTONI ROIG, ET AL.,

Petitioners,

—VY).—

IBERIA LINEAS AEREAS DE ESPANA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

COUNTERSTATEMENT OF THE CASE

This action was commenced by thirty former employees of

Iberia Lineas Aereas de Espana (‘‘Iberia’’) in Puerto Rico

whose jobs had been eliminated in 1985 pursuant to an agree-

ment between Iberia and the International Association of

Machinists and Aerospace Workers, AFL-CIO, the plaintiffs’

statutory bargaining representative under the Railway Labor

Act. The agreement gave Iberia the right to contract out

work at all airport locations in the United States and Puerto

Rico and provided the employees with enhanced severance

pay and other benefits in exchange for a general release of

claims. Plaintiffs, without the participation or assistance of

the Secretary of Labor and Human Resources of Puerto Rico

(the ‘‘Secretary’’), filed this case in the Superior Court of

Puerto Rico, claiming sums were due them under the laws of

Puerto Rico for vacation and extra hours (overtime) over a

10 year period, and for dismissal without just cause. Iberia

removed the action to the United States District Court for the

District of Puerto Rico, pursuant to the removal provisions

of the Foreign Sovereign Immunities Act, 28 U.S.C.

§ 1603(b) and 28 U.S.C. § 1441(d).

All plaintiffs were initially represented by Miguel A.

Cabrera, Esq. and Alejandro L. Lorenzo, Esq. During the

course of Iberia’s efforts to obtain pretrial discovery, Mr.

Lorenzo withdrew as plaintiffs’ counsel. Shortly thereafter,

Mr. Cabrera attempted to withdraw on the grounds that

plaintiffs were unable to pay his fees. Although Mr. Loren-

zo’s withdrawal was approved, the district court granted Mr.

Cabrera’s motion only with respect to plaintiff Felix Santoni.

(Mr. Santoni was ordered to appear through new counsel

and, on June 12, 1986, Carlos T. Gonzalez Contraras, Esq.

began representing Mr. Santoni.) The court’s order further

stated that ‘‘[aJny remaining plaintiffs wishing to change

counsel shall appear through new legal representation on or

before June 16, 1986.’’ Mr. Cabrera was directed to ‘‘con-

tinue representing the remaining plaintiffs until further Order

of this Court.’’ (Docket No. 52)!

In response to the district court’s order, the Secretary filed

a ‘‘Motion to Assume Legal Representation’’ requesting

‘‘permission to represent’’ all plaintiffs. (3la; 32a) Iberia

opposed the motion on the grounds that ‘‘[s]ince the matter

does not involve a class action, the Secretary . . . cannot

assume the legal representation of plaintiffs in an ensuing

lawsuit who have not individually requested same.’’ (Docket

No. 57) On June 25, 1986, the district court ruled that it was

‘*not clear from the motion which of the plaintiffs the Secre-

tary is authorized to represent’’ and ordered the Secretary to

submit a ‘“‘list of each individual plaintiff’’ he represented.

1 References to ‘‘Docket No. __”’ refer to the documents filed in the

district court and recorded on the docket sheet. The petition is cited as

‘Pet, ___’’; ‘*__a’”’ refers to the appendix to the petition.

(Docket No. 59) The list filed by the Secretary by motion on

June 30 identified only fifteen plaintiffs that had authorized

the Secretary to represent them. (34a) A report by the magis-

trate of a conference held on July 2, 1986, confirms that

“the Secretary of Labor of the Commonwealth of Puerto

Rico will represent those plaintiffs appearing in the motion of

June 30, 1986. Thus, and pursuant to Judge Acosta’s order,

all other plaintiffs will continue to be represented by counsel

Miguel A. Cabrera.’’ (Docket No. 62)

Although the Secretary now contends that he became a

party to the action and not merely an attorney representing

the plaintiffs of record, nothing in the motion he filed sug-

gests that he sought to act in such a capacity. To the con-

trary, the Secretary responded to the court’s order by

obtaining and filing consents from fifteen of the plaintiffs—

not by asserting the statutory right to act on behalf of such

persons without their consent. The Secretary did not file a

complaint or a motion to intervene as a party as required by

Fed. R. Civ. P. 24(c).

On August 28, 1986, the district court dismissed the com-

plaint without prejudice based on plaintiffs’ failure to

respond adequately to interrogatories served by Iberia.’

(Docket No. 75) Several months later, the court reconsidered

and set aside that order. Iberia thereafter moved for sum-

mary judgment, which motion was denied by the court in an

opinion dated June 20, 1988. (Docket No. 115) Iberia

promptly filed a motion for reconsideration which, although

not addressed at that time, was granted on August 3, 1990.

2 _In anticipation of the dismissal of their claims, some of the plain-

tiffs, including Mr. Santoni, accepted settlements and entered into stip-

ulations for voluntary dismissal. (Docket No. 73) On January 25,

1989, the Secretary made a ‘‘Motion Based on Rule 21 of the Federai

Rules of Civil Procedures’’ to add Mr. Santoni and three other individ-

uals as plaintiffs on the grounds that the stipulations were not valid.

Iberia opposed that motion, explaining in detail the reasons why each

of the individuals was no longer a plaintiff. On May 16, 1990, the dis-

trict court signed orders denying the Secretary’s motion and granting

Iberia’s opposition. Those orders made clear that Mr. Santoni and the

others were not plaintiffs in the action. (Docket Nos. 143 and 146)

—————————OO

Judgment was entered the same day dismissing the complaint

for lack of jurisdiction, and remanding the claims to arbitra-

tion. (Docket No. 161)

The Secretary attempted to appeal from that judgment. On

September 4, 1990, the Secretary filed the first notice of

appeal. (la) But, contrary to the Federal Rules of Appellate

Procedure, the caption of that notice contained only the

name of Felix Santoni Roig and used the phrase ‘“‘et al.’’ to

designate the appellants. The body of the notice, moreover,

stated only that ‘‘[njotice is hereby given that the Secretary

of Labor and Human Resources of Puerto Rico, in represen-

tation of plaintiffs, hereby appeals to the United States Court

of Appeals for the First Circuit. .. .’’ Nowhere in the

notice were the names of the parties taking the appeal indi-

vidually listed, as required by Fed. R. App. P. 3(c).

Consequently, on September 27, 1990, the First Circuit,

acting sua sponte, entered an order that unless the appellant

filed a response demonstrating otherwise by October 12, ‘‘the

notice of appeal will be deemed valid only as to Felix Santoni

Roig’’. The order further stated that any new notice of

appeal listing all the plaintiffs or motion to extend the time

for filing a new notice of appeal should be promptly filed

with the district court. (3a)

The Secretary ignored the court’s order and failed to move

to extend the time for filing a notice of appeal by October 4,

the last date by which such motion could be made under Fed.

R. App. P. 4(a)(S). Rather, on October 10, one week after

the time to request an extension elapsed, the Secretary filed a

*‘New Notice of Appeal.’’ (Sa) The ‘‘New Notice’’ listed all

30 plaintiffs in the caption, although the Secretary never rep-

resented many of them, and others (including Santoni) had

admittedly settled their claims and were no longer plaintiffs.

The ‘‘New Notice’’—like the original—did not list the Secre-

tary as a plaintiff or an intervenor, in its caption or anywhere

else.

Iberia moved to dismiss the second appeal on the grounds

that it was untimely. It also moved to dimiss the first appeal

on the grounds that it was valid on its face only as to Mr.

Santoni, but, since Mr. Santoni was not a party, he had no

standing to appeal from the district court’s August 3 judg-

ment. On November 2, 1990, the First Circuit issued an order

directing “‘appellant . . . to either move for voluntary dis-

missal under Rule 42(b) F.R.A.P. or to show cause why this

appeal should not be dismissed.’’ (8a) It was only after this

order that the Secretary claimed in the court of appeals that

the first notice of appeal was sufficient because he was a

party to the action.

On December 20, 1990, the court of appeals dismissed the

appeals ‘‘for lack of jurisdiction’’, except as to Mr. Santoni,

“the one plaintiff named in the only timely notice of

appeal.’’ (13a-l4a) It found that the Secretary could not

come before the court as a party on appeal since he had not

intervened as a party but had ‘‘merely assumed legal repre-

sentation of the plaintiffs’ case.’’ (13a) Finally, the court dis-

missed the appeal of Mr. Santoni on the grounds that the

notice of appeal purported to appeal only from the August 3,

1990 judgment dismissing the complaint, and Mr. Santoni

was no longer a party at that time.

Petitioners request a writ of certiorari to review the order

dismissing the appeals.’

3 Although petitioners discuss the district court’s award of summary

judgment (Pet. 10-12) and suggest that that decision raises important

issues that ‘“‘may be clarified, eventually, by this Honorable Court, in

this case’’ (Pet. 14), the merits of the district court's decision are not

before this Court. Accordingly, Iberia does not respond to the claimed

“important issues”’ that were not presented to the Court of Appeals.

REASONS FOR DENYING THE PETITION

1. The Decision Below Is Consistent with the Decisions of

this Court and Does Not Raise an Important Issue of Fed-

eral Law.

The decision of the court of appeals to dismiss the appeals

involves the simple application of well-settled procedural

rules, consistent with decisions of this Court as well as other

circuit courts, and does not merit review by this Court.

A. The Court of Appeals had no jurisdiction over the

attempted appeal by plaintiffs other than Mr.

Santoni.

Rule 3 of the Federal Rules of Appellate Procedure pro-

vides that a ‘‘notice of appeal shall specify the party or par-

ties taking the appeal... .’’ As this Court made plain in

Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), Rule

3 creates ‘‘jurisdictional requirements’’ that ‘“‘may not [be]

waive[d] . . . even for ‘good cause shown’ ’’ 487 U.S. at

317. Thus, the “failure to name a party in a notice of appeal

. . constitutes a failure of that party to appeal.’’ 487 U.S.

at 314. The caption of petitioners’ only timely notice of

appeal did not identify any plaintiff other than Felix Santoni

Roig.* Although the caption referred to ‘‘Felix Santoni Roig,

Et Al.’’, the phrase ‘‘et al.’’ is wholly insufficient to specify

4 Rule 4(a) of the Federal Rules of Appellate Procedure requires that a

notice of appeal ‘‘be filed with the clerk of the district court within 30

days after the date of entry of the judgment or order appealed

from. .. ."” “*This 30-day time limit is ‘mandatory and jurisdic-

tional.’ ’’ Browder v. Department of Corrections, 434 U.S. 257, 264

(1978) (quoting, United States v. Robinson, 361 U.S. 220, 229 (1960)).

Appellate courts are ‘‘forbid{den] . . . to ‘enlarge’ the time limits for

filing a notice of appeal, which are prescribed in Rule 4.’’ Torres v.

Oakland Scavenger Co., 487 U.S. 312, 315 (1988). An untimely appeal

must be dismissed for lack of jurisdiction. See, e.g., Washington v.

Bumgarner, 882 F.2d 899, 900 (4th Cir. 1989), cert. denied, 110 S. Ct.

874 (1990). Although petitioners argued below that the “‘New’’ notice

of appeal should be considered an amendment to the first notice and,

therefore, as being timely, the First Circuit implicitly rejected that

claim and petitioners do not chalienge that decision before this Court.

Seer

the party or parties taking the appeal, particularly where, as

here, the named plaintiff is not a class representative. 487

U.S. at 318 (‘‘The purpose of the specificity requirement of

Rule 3(c) is to provide notice both to the opposition and to

the court of the identity of the appellant or appellants. The

use of the phrase ‘et. al.,” which literally means ‘and others,’

utterly fails to provide such notice to either intended recipi-

ent.’’). The courts of appeals have strictly applied Torres and

dismissed appeals of plaintiffs not expressly named in the

notice of appeal. See, e.g., Laidley v. McClain, 914 F.2d

1386, 1388 (10th Cir. 1990); Birdsong v. Wrotenberg, 901

F.2d 1270, 1273 (Sth Cir. 1990); Cruz v. Melendez, 902 F.2d

232, 235 (3d Cir. 1990); Minority Employees v. Tennessee

Dep’t of Employment Security, 901 F.2d 1327 (6th Cir.),

cert. denied, 111 S. Ct. 210 (1990); Shatah v. Shearson/

American Express Inc., 873 F.2d 550 (2d Cir. 1989); Akins v.

Board of Governors, 867 F.2d 972 (7th Cir. 1988).

Petitioners assert that the notice of appeal was sufficient to

designate the ‘‘Secretary of Labor and Human Resources of

Puerto Rico, representing the public interest of Puerto Rico’’

as an appellant. (Pet. 14; emphasis added) The notice, how-

ever, contained no such designation. To the contrary, the

notice expressly stated that the ‘‘Secretary of Labor and

Human Resources of Puerto Rico, in representation of plain-

tiffs, hereby appeals... .”’ (la; emphasis added) Thus, the

notice conveys the meaning that the Secretary was acting only

in a representative capacity and does not constitute an appeal

by the Secretary as a party.’ But even if the notice of appeal

could be interpreted as petitioners suggest, dismissal of the

5 The Second notice of appeal confirms this. The caption of that

notice lists all the individual former employees of Iberia as plaintiffs

and does not include the Secretary of Labor and Human Resources as

a plaintiff. (Sa) The body of that notice, moreover, states that “‘the

Secretary of Labor and Human Resources of Puerto Rico, in represen-

tation of plaintiffs, hereby appeals ... .”’ (6a) If the Secretary

intended to appeal in his official capacity, he could have done so sim-

ply by stating that the ‘‘Secretary of Labor and Human Resources of

Puerto Rico, in his own behalf and in representation of plaintiffs,

T appeals.”

iil

appeal was proper because the Secretary was not a party to

the judgment and, under longstanding authority of this

Court, ‘‘[o]ne who is not a party to a record and judgment is

not entitled to appeal therefrom.’’ Matter of Leaf Tobacco

Bd. of Trade, 222 U.S. 578, 581 (1911); accord, Marino v.

Ortiz, 484 U.S. 301, 304 (1988) (‘‘The rule that only parties

to a lawsuit, or those that properly become parties, may

appeal is well settled.’’)

B. The Court of Appeals lacked jurisdiction over the

appeal by petitioner Santoni because he was not a

party to the judgment appealed from.

The court of appeals correctly held that petitioner Felix

Santoni lacked standing to appeal from the district court’s

August 3, 1990 judgment. Mr. Santoni was not a party of

record on August 3, 1990. Nearly four years earlier, in

response to a report and recommendation by the Magistrate

that Iberia’s motion to dismiss the complaint for failure to

respond to interrogatories should be granted, Mr. Santoni

(together with a number of other plaintiffs) accepted a settle-

ment offer by Iberia and executed a stipulation for voluntary

dismissal of his claims. Thereafter, he ceased to be a party to

this case although his name remained in the caption because

he had been the first-named plaintiff when the action was

originally filed. Indeed, on January 25, 1989, the Secretary

made a ‘‘Motion based on Rule 21 of the Federal Rules of

Civil Procedure’’ to reinstate as plaintiffs Mr. Santoni and

three other original plaintiffs who had stipulated to the dis-

missal of their claims. That motion was denied by the district

court on May 16, 1990 (Docket No. 146), making it clear that

Mr. Santoni was no longer a party. As discussed above,

**foJne who is not a party to a record and judgment is not

entitled to appeal therefrom.’’ Matter of Leaf Tobacco Bd.

of Trade, 222 U.S. at 581.

Although the petition raises as a question presented

whether the district court and the court of appeals ‘‘ilegally

[sic] validated the stipulations, waivers and releases, signed

by employees (petitioners) and not approved by the Secre-

tary,’’ (Pet. I-Il), the facts do not permit formulation, much

less require resolution, of that question. First, the ‘‘Admitted

Facts’’ section of the Joint Pre-Trial Order, signed by the

Secretary as “‘Plaintiffs’ Attorney’’ and submitted to the dis-

trict court on July 24, 1990, lists the fifteen plaintiffs repre-

sented by the Secretary who ‘‘still have live claims herein’’.

(Docket No. 156) That list does not include petitioner San-

toni. Paragraph 10 of that section, moreover, expressly states

that the stipulation of dismissal by Mr. Santoni ‘‘constitutes

a full and final settlement of all claims alleged in, related to,

or arising out of this case.’’

In any event, no timely appeal was taken from the district

court’s refusal to reinstate Mr. Santoni as a party, and there-

fore, the question is not properly before this Court. Fed. R.

App. P. 3(c) expressly requires that the notice of appeal

**shall designate the judgment, order or part thereof appealed

from.”’ As the court of appeals found, the notice filed by the

Secretary contains no ‘‘indication of any intent to appeal

from the denial of the motion to reinstate Mr. Santoni.”’

(14a)® Rather, the notice informed Iberia only of the appeal

“from the district court’s August 3, 1990 judgment remand-

ing this case to arbitration.’’ (14a) The failure to indicate the

intention to appeal from the refusal to reinstate Mr. Santoni

as a plaintiff deprived the court of appeals of jurisdiction

over that claim. See, e.g., Casella v. Webb, 883 F.2d 805,

807 n.2 (9th Cir. 1989); Brandt v. Schal Associates, Inc., 854

F.2d 948 (7th Cir. 1988); Brookens v. White, 795 F.2d 178

(D.C. Cir. 1986); Pitney Bowes, Inc. v. Mestre, 701 F.2d

1365 (11th Cir.), cert. denied, 464 U.S. 893 (1983); Elfman

6 Not only was the August 3 judgment identified by date in the notice

of appeal, but the notice contained an additional paragraph stating the

plaintiff's position that the court had ‘“‘erroneously remanded the case

to be Arbitrated under a collective bargaining agreement and the Rail-

way Labor Act, when the Court had to apply the local statutes of

Puerto Rico pertinent to the issues in the case.”’ (la-2a) No mention

was made in the notice of the May 16, 1990 order denying the motion

to add Santoni as a plaintiff. The scope of the notice was confirmed by

the Statement of Issues, which was similarly limited to the August 3

judgment.

Motors, Inc. v. Chrysler Corp., 567 F.2d 1252 (3d Cir. 1977);

Cole v. Tuttle, 540 F.2d 206 (Sth Cir. 1976).

2. The Conclusion that the Secretary Did Not Intervene As a

Party in the Action Does Not Raise an Important Ques-

tion of Federal Law.

There is no issue presented here as to whether the Secretary

was deprived of the substantive right under the laws of

Puerto Rico to intervene as a party to this action. The court

below held only that ‘‘the Secretary neglected to [intervene]

in this case.’’ (13a) That holding was clearly permissible

under governing federal law.

Fed. R. Civ. P. 24(c) requires that a ‘‘person desiring to

intervene shall serve a motion to intervene upon the parties as

provided in Rule 5. The motion shall state the grounds there-

for and shall be accompanied by a pleading setting forth the

claim or defense for which intervention is sought.’’ The Sec-

retary took no action whatever to comply with the Federal

Rules of Civil Procedure for obtaining status as a party in

this action. No motion to intervene was ever served. No

pleading setting forth the claim for which intervention was

sought was ever filed. Instead, the Secretary became involved

in this action by filing a ‘‘Motion to Assume Legal Represen-

tation’’ (31a) immediately after the district court had ordered

that ‘‘plaintiffs wishing to change counsel shall appear

through new legal representation on or before June 16,

1986.’ (Docket No. 52) On this basis alone, the determina-

tion that the Secretary did not intervene and, therefore, could

not appeal, was appropriate. See, e.g., Warner Bros., Inc. v.

Dae Rim Trading, Inc., 877 F.2d 1120, 1127 (2d Cir. 1989)

(‘‘Absent permitted intervention, Attorney . . . who was not

a party to the action below and who was not aggrieved by the

district court’s judgment, had no right at all to appeal.’’);

Shevlin v. Schewe, 809 F.2d 447 (7th Cir. 1987) (intervenor

failed to file any pleading on a timely basis); Spangler v. Pas-

adena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)

(error for court to conduct proceedings at the request of indi-

viduals who have not filed motion to intervene).’

The decision in Bender v. Williamsport Area School Dist.,

475 U.S. 534 (1986), is instructive. In that case, the appellant

had participated in the district court action as a member of a

school board, but when the school board refused to appeal

an adverse decision, appellant attempted to prosecute an

appeal in his individual capacity as a parent. In holding that

the Court of Appeals was without jurisdiction to hear the

appeal, the Court noted:

Because his status as a parent was obviously different

from his official status as a member of the Board, in

order to participate as a parent in the District Court liti-

gation it was incumbent upon [appellant] under Rule 24

of the Federal Rules of Civil Procedure to make ‘‘timely

application’’ by an appropriate motion ‘‘stat[ing] the

grounds’’ for intervention and ‘‘setting forth the claim

or defense for which intervention is sought.’’ No such

pleading was filed in either of the courts below.

Id. at 548 n.9 (citation omitted). Here the Secretary partici-

pated in the action before the district court as an attorney

representing some of the plaintiffs and initially attempted to

file an appeal on that basis. Only when it became clear that

the attempted appeal was deficient, did the Secretary claim

that he was entitled to appeal in his own right as a party

‘representing the public interests of Puerto Rico.’’ (Pet. 14)

In order to participate in that capacity, however, it was

incumbent upon the Secretary to intervene as a party.’ He

never did.

7 The fact that the Iberia did not object when the Secretary, in Sep-

tember 1986, answered interrogatories on behalf of the plaintiffs does

not establish that the Secretary was regarded as a party despite the fail-

ure to intervene. To the contrary, the interrogatory answers were not

signed by the Secretary as a plaintiff but, rather, were expressly signed,

“tin representation of Eduardo Bidot, Plaintiff.’’ (25a)

8 The public interest represented by the Secretary and the private

interests of employees are not always consistent. See, e.g., Cosme

Petitioners contend that the Secretary ‘‘intervened in the

case pursuant to the local statutes of the Commonwealth of

Puerto Rico’’ (Pet. 1) and that by failing to treat his motion

for representation as the equivalent of a motion for interven-

tion, the Court of Appeals ‘‘ignored’’ the local statutes of

Puerto Rico, the ‘‘ ‘law of the land.’ ’’ (Pet. 13) The simple

answer to that contention is that the procedural rules of

Puerto Rico do not apply in an action in federal court. In

Hanna v. Plummer, 380 U.S. 460 (1965), an action based on

diversity, it was held that federal rather than state procedural

law regarding service of process applied even though the

application of federal procedure ‘‘changed’’ the outcome of

the case in a manner inconsistent with state law.” The Court

reasoned that ‘‘[t]o hold that a Federal Rule of Civil Proce-

dure must cease to function whenever it alters the mode of

enforcing state-created rights would be to disembowel either

the Constitution’s grant of power over federal procedure or

Congress’ attempt to exercise that power in the Enabling

Act.”’ Id. at 473-74 (footnote omitted). Like the procedure

for service of process at issue in Hanna v. Plummer, the

mechanics of intervention is a matter of procedure which, in

an action pending in federal court, is governed by federal

law, not state law. See, e.g., Venegas v. Skaggs, 867 F.2d

527, 530 n.2 (9th Cir. 1989), aff’d on other grounds, 110 S.

Ct. 1679 (1990); Olden v. Hagerstown Cash Register, Inc.,

619 F.2d 271, 273-74 (3d Cir. 1980); McDonald v. E.J.

Lavino, Co., 430 F.2d 1065, 1070 (Sth Cir. 1970).'° Accord-

Nieves v. Deshler, 786 F.2d 445, 452-53 (ist Cir.), cert. denied, 479

U.S. 824 (1986) (Secretary supported defendant’s claim that Puerto

Rico wage laws did not apply to plaintiffs).

9 Service of process had been effected by leaving the summons and

complaint with the defendant’s wife at his residence, a method permit-

ted by federal law but not state law. 380 U.S. at 461.

10 The fact that this action was initially commenced in state court and

removed to federal court by defendant is irrelevant. ‘‘The Federal

Rules of Civil Procedure, like other provisions of federal law, govern

ingly, with respect to intervention, the ‘‘law of the land’’ is

federal law, and even if the Court of Appeals could be said

to have ‘‘ignored the local statutes of Puerto Rico’’ regarding

intervention, it was required to do so by long standing fed-

eral precedent.''

The decision in Hanna v. Plummer also addresses petition-

ers’ claim that if the decision below is allowed to stand, ‘‘tre-

mendous damage will be inflicted to the rights of employees

in Puerto Rico ... [because] [e]very employer who can

remove a case, will be seeking the most convenient forum

without any respect to comply with local statutes in Puerto

Rico.’’ (Pet. 16) Here, as in Hanna v. Plummer, the differ-

ence between the state practice (as described by petitioners)

and the federal rules is ‘‘of scant, if any, relevance to the

choice of forum.’’ 380 U.S. at 469. In removing the case to

federal court, Iberia was not presented with a situation where

application of federal law would have precluded intervention

by the Secretary; rather, adherence to the federal rule at most

merely altered the way in which intervention was to be

accomplished. It cannot be argued that altering the mode of

intervention affects the substantive rights created by the laws

of Puerto Rico.'”

the mode of proceedings in federal court after removal.’’ Granny

Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Driv-

ers, Local No. 70, 415 U.S. 423, 438 (1974).

11 =‘ Petitioners claim that the ‘‘reason why the Secretary of Labor and

Human Resources does not appear in the caption of the case, as inter-

venor, is because such amendment was never taken care of by the

United States District Court for the District of Puerto Rico.’’ (Pet. 13)

Petitioners do not identify the ‘‘amendment’’ to which they refer

because there was none. While petitioners assert that they ‘“‘have not

changed the caption because [they] have to be faithful to the manner in

which it still appears in the lower courts’’, (Pet. 13) the fact is that the

Secretary is not identified as an intervenor or a plaintiff in the body of

the notice of appeal or in the pretrial order prepared and signed by him

as ‘‘Plaintiffs’ Attorney’’.

12. The asserted ‘‘conflict’’ between federal and state law is, moreover,

not readily apparent. The Puerto Rico rule governing intervention

3. Since the First Circuit Did Not Assign a Role to the Secre-

tary that Is Prohibited by the Statutes of Puerto Rico, No

Compelling Reason Exists for Granting the Writ.

As has been made evident herein, the First Circuit did not,

as petitioners’ claim, add the role of legal representative or

counsel to the Secretary. (Pet. 16) The Secretary assumed

that role when he filed a motion to represent some of the

plaintiffs in this case in response to the district court’s order

regarding change of counsel. Nothing in the statutes of

Puerto Rico cited by petitioners expressly prohibits the Secre-

tary from acting as a lawyer in an action previously com-

menced by the employees without the assistance or

participation of the Secretary. Accordingly, the interpretation

by the First Circuit is not ‘‘seriously inconsistent with the

‘law of the land... .’’’ (Pet. 16)

The cases discussed at pages 17-20 of the petition are

entirely inapposite. Unlike the instant case, they involve situ-

ations where the government agency, acting as a plaintiff,

commenced the action in its own name and thus was a party

rather than a lawyer representing the plaintiffs. For example,

in Sierra, Secretary of Labor v. Superior Court, 81 P.R.R.

540 (1959), the court relied on the ‘“‘essential fact’’ that the

(Rule of Civil Procedure of 21.4, P.R. Laws Ann. tit. 32, App. III R

21.4 (1983)), is virtually identical to the Fed. R. Civ. P. 24(c): ‘‘A per-

son desiring to intervene shall serve a motion to intervene upon the

parties as provided in Rule 67. The motion shall state the grounds

therefor and shall be accompanied by a pleading setting forth the claim

or defense for which intervention is sought.’’ These rules govern “‘[i]n

all cases prosecuted under sections 3118-3132 of this title,’’ the sum-

mary procedure under which the complaint herein was apparently

filed, ‘‘insofar as they are not in conflict with the specific provisions of

these sections or with the summary nature of the procedure hereby

established’. P.R. Laws Ann. tit. 32, § 3120 (1990).

Although petitioners initially assert that ‘‘[iJt is always interpreted in

Puerto Rico that [a motion for] representation is an ‘intervention’ ”’

(Pet. 13), petitioners subsequently limit that claim to what is ‘‘nor-

mally understood in the local courts, under local statutes.’’ (Pet. 13) In

neither instance do petitioners offer any statutory or case law support

for that assertion.

Secretary of Labor actually initiated the proceedings and

“appeared in court as plaintiff in this litigation ‘in represen-

tation and for the benefit’ of the 16 workmen mentioned in

the complaint.’’ Jd. at 552. Similarly, the federal cases of

Mitchell, Secretary of Labor v. Tampa Cigar Co., 36 Lab.

Cas. (CCH) ¢ 65,198 (S.D. Fla. 1959), Mitchell, Secretary of

Labor v. Floyd Pappin & Son, Inc., 122 F. Supp. 755 (D.

Mont. 1954), and Tobin, Secretary of Labor v. Carl F.

Wilson, 19 Lab. Cas. (CCH) 4 66,307 (N.D. Il. 1951), each

involved actions where the government agency commenced

the action.

As the statutes quoted by petitioners state (Pet. 4-8), under

the laws of Puerto Rico, both the Secretary and the individ-

ual employees could have commenced an action against Ibe-

ria.’ Had the Secretary done so, he would have been a party

to this action, listed in the caption and body of the com-

plaint. Only the employees commenced an action, however.

The Secretary had authority to intervene in the employees’

action, if he chose to do so. But, in federal court (and, most

likely, in state court) he was required to file a motion to

intervene and a pleading setting forth the claim for which

intervention was sought, which he did not do.

13 ~— Petitioners’ claim that ‘‘in cases involving labor matters, under local

statutes, . . . the only adverse party is the Secretary. . .’’ (Pet. 17),

is flatly contradicted by the local statutes cited by petitioners.

Conclusion

There is no compelling issue of federal law here and no

conflict between the First Circuit and any other court. This is

simply a case where the Secretary neglected to comply with

unambiguous procedural rules applicable in the federal

courts. The petition for a writ of certiorari should be denied.

Respectfully submitted,