*1 OF APPEAL OF DISTRICT NURSES’
COLUMBIA ASSOCIATION. Douglas Taylor, D.C., Washington, BATTLE, Thelma et al. Cooke, Jr., Corp. Counsel, Frederick D. Reischel, Counsel, Deputy Corp. Charles L. DISTRICT OF COLUMBIA. McDonald, and Corp. Susan S. Asst. Coun- No. 88-7074. sel, D.C., Washington, Appeals,
United States Court Circuit. District BUCKLEY, Before GINSBURG, D.H. Aug. Judges. Circuit
Opinion PER CURIAM.
Concurring by statement filed Judge MIKVA.
ON TO RESPONSES ORDER TO SHOW CAUSE PER CURIAM: Appellant District of Columbia Nurses’ (“D.C.N.A.”) pur- Association noted this ported appeal by from an order entered granting district court the District of Co- lumbia’s motion for denying summary judg- motion for plaintiffs. ment filed individual Con- jurisdiction prompted cern about our court to issue an order for the show cause as to should not be dismissed for lack of responded District of Columbia with a urging short memorandum dismissal. D.C. responded N.A. with a motion to allow redesignate appellants. We D.C.N.A.’s motion and dismiss D.C.N.A. and several nurses who are D.C.N.A. members commenced this action challenge in the district court to the failure pay of the District of Columbia to its nurs- es at the rate of overtime time-and-a-half required by they contend is the Fair (“FLSA”), Act Labor Standards 29 U.S.C. (1982). and the indi- represented by the vidual nurses are same counsel.
The District of Columbia moved for sum-
alia,
mary judgment, claiming,
inter
*2
standing
cate of
Pursuant to General Rule
under the FLSA.
Counsel
D.C.N.A. lacks
claim,
plaintiffs
(“Originally,
filed March
response to
In
this
action,
complaint
party
to
was a
to this
a motion to amend
filed
[D.C.N.A.]
designate
Court”).
party
as a
but was removed
order
remove D.C.N.A.
Furthermore,
plain-
as lead
it is clear that
the district
of the individual nurses
granted
longer
court considered D.C.N.A. no
to
a
The district court
tiff.
complaint party
it
the amended
describes
and the Clerk filed
longer
“registered
a
nurses” with no mention of an
was no
listed as
which D.C.N.A.
organization.
January
Memorandum filed
plaintiff.
circumstances,
28, 1988 at 1. Given these
later,
weeks
Several
that it
still a
D.C.N.A.’s assertion
was
granted the District of Columbia’s
proceedings after
ty to the district court
filed a
summary judgment. D.C.N.A.
that court
the motion to amend
captioned “The District of
rings
indeed.
false
al., Plain
Nurses’
et
tiffs,”
hereby given
also claims that
if it is no
“[njotice
is
D.C.N.A.
even
above,
longer
standing
appeal.
party,
it has
to
[D.C.N.A.], Plaintiff named
misreads
from the D.C.N.A.
United States
LTV
hereby appeals to
court]
[this
(D.C.Cir.1984),
it
Corp.,
entered in this action on
judgment
final
that in order to
all that is
January, 1988.” This court
claims
day
28th
appellant
necessary
is that
... be
an order to show cause
entered
“[a]n
‘privy
ag-
record’ below and
since the
... be
appeal should not be dismissed
Ap-
grieved by
appealed
the order
from.’.’
longer
plain
no
purported appellant was
This court
pellant’s Memorandum at 4.
and no
tiff at the time of
general
“the
rule
clearly
remaining plaintiff had been identified
[is]
party
appellant
an
must be
v. Oakland Sca
an
See Torres
— U.S. -,
to file an
proceedings
venger
recognized that there
(1988) (court
Although we
appeals
at 53.
L.Ed.2d 285
general rule
exceptions
certain
appeals
are
only
has
over
party,
must be a
id. at 53
that an
appeal);
in notice of
United
identified
(D.C.
here.
applicable
n.
none is
Corp., 746 F.2d
States
LTV
Cir.1984)
district court action
(only
to
reliance on Adams
D.C.N.A.’s
appeal).
may note an
Morton,
cert.
F.2d 1314
cause,
response
In
to our order to show
denied,
arguments that it
misplaced.
raises several
equally
D.C.N.A.
L.Ed.2d
the court’s
Adams,
objections
claims establish
to
appellant filed
per-
appeal, none of which
over this
a motion
First,
that D.C.N.A.
it asserts
to
suasive.
did not file a motion
court but
district
party by the
properly
considered a
“appeared to be
court
“The
intervene.
[district]
“it
not clear
objections
and that
as a formal
appellant’s
court below”
viewed
longer
party”
case,
be-
was no
decided the
entry
that D.C.N.A.
into
appear in the
partici
its name continued
if
had
cause
motion as
prepared by the district
papers
proceed
caption
stage of
pated
_
granted the motion to
the court
con
[Appellant’s
court after
counsel
ings
in Sup-
Appellant’s Memorandum
treated as
amend.
client should be
that his
ceded
case,
Appeal and Redes-
Motion to Allow
In this
port of
intervenor.” Id.
(“Appel-
Appellants
ignate
hand,
All Plaintiffs as
itself
D.C.N.A. removed
the other
Memorandum”)
at
participating
lant’s
from the case after
suc
Accordingly, it cannot
stages.
earlier
from the
removed itself
D.C.N.A.
that it is still
be
cessfully argue
In the mind of
its own motion.
case on
participated below.
cause it
counsel,
long
D.C.N.A. was no
D.C.N.A.’s
asserts that because
D.C.N.A. also
questioned its
party until this court
er a
among
congruity of interests
Certifi-
jurisdiction over
3(c)
(“Thelma Battle,
by the Fifth Circuit in
et
of Rule
used
the individual nurses
parties taking
ap-
al.”),
Ayres, and held that
appeal by
should be
named or otherwise identified
by the individual
must be
considered
The court of
body in the notice of
argues that if the
nurses. D.C.N.A.
peals
over an
“District of
had read
*3
identi-
appeal by purported
rath-
not
et al.”
Columbia Nurses’
Nurs-
fied
the notice.
Id.
simply
er than
“District of Columbia
Association,” the individual nurses
es’
explicitly rejected
argu-
the
The Court
appellants.
permitted as
have been
would
term
suffi-
ment that use of the
“et al.”
claim, the Association moves
Based on this
appellant,
ciently identifies a
as an
designating the
this court for an order
pro-
utterly
that the term
fails “to
appellants.
nurses as
opposition
vide notice
and to the
both
identity
or
court of the
relies
support
of its
open
left
appellants.” Id. While the Court
Ayres
opinions
two
of the Fifth Circuit:
possibility
the
of amendment of the notice
Sears,
Co.,
Torres was one number provide power All Act could Writs who, receiving proposed after notice of a identify amend the notice to agreement, em- settlement intervened ployment against suit Oak- discrimination 3(c) requires ap While Rule Scavenger. complaint in The interven- pellants require identified it does not be plaintiffs ap- tion was dismissed and the identified; therefore, appellees pealed, inadvertently but Torres’ name was identified, appellee is not as in omitted from Chathas, jurisdiction the court has over the Ninth Circuit reversed and remanded the adding of a writ and the issuance case. appellee as an would be “in aid below remand, applied
On U.S.C. [that] ].” 3(c) strictly 1651(a). purported appellant Rule and held that Torres had When a identified, however, original judgment; failed to the court has no not therefore, Torres, was final as to over the grant- An of this court him. The Ninth Circuit affirmed. The Su- S.Ct. at 2409. preme ing appellants to the individual Court certiorari to resolve a status as circuits, identifying creating as nurses the effect of Ayres conflict would have following contrary in this court when the court cases power jurisdiction, rule. at 2407 & n. 1. The not S.Ct. granted by McClung All Act. rejected application Court the more liberal the Writs tough the Wheat) 598, uniquely the case illustrates how (6 5 L.Ed. Silliman, 19 U.S. rule can be. Research (1821); Telecommunications FCC, 750 F.2d Action Center & of their Plaintiffs’ Therefore, we do not have (D.C.Cir.1984). simply case will not be heard “redesignate” the nurses power to specify failed to all their appellants. though there has been no names—even reliance, surprise, detrimental or undue plain-' by a former appeal was noted This appellee. I cannot believe prejudice stranger that had become tiff with the intent of result is consistent noted an remaining plaintiff litigation. No just, Rules to “secure the Federal not have the does appeal, and this court speedy, inexpensive determination of appellants to grant power to status It would action.” Fed.R.Civ.P. on the use remaining plaintiffs based *4 those days appear are back to the bad old we “et al.” in the the term the snares and that would befall tricks remaining relationship between or the common law. pleader inartful at the not- plaintiff that and the former the Federal Rules of Civil advent of deny the we appeal. Consequently, ed the Procedure, implies, sup- the title redesignate ap- appeal and to allow process and look to to civilize posed lack of appeal for and dismiss the pellants, rather than technicalities. fairness Congress or the Su- and until Unless So ordered. otherwise, we must decrees preme Court I right litigants these concurring: Judge, reluctantly concur. separately to underscore I write from to- result follows ticularly harsh agree I in this case.
day’s decision Supreme Court’s compelled by the result is Federal Rule of interpretation of recent 8(c) Torres Oak- Appellate Procedure (1988);