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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 811

## Text

a & &

3
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

i
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counsel had withdrawn?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?

ii
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

10

14

16

iv

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

a

vi

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

Se

2

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

4

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

5

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.

6

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

8

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-

9

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.

ai

10

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)

1]

(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

ed

12

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

13

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

'

14

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.

15

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.

3

,

16

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,

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

June 27, 1991

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2081%3A2. Public record. Not legal advice.