ANNA KOWALESKI, WIDOW OF PETER KOWALESKI, AND JAMES T. LESHO,
ESQUIRE, PETITIONERS V. DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR

   No. 89-759

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Questions presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The decision of the court of appeals (Pet. App. 3a-13a) is reported
at 879 F.2d 1173.  The decisions of the Benefits Review Board and the
administrative law judge (App., infra, 1a-14a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 17, 1989.
A motion for rehearing was denied on August 15, 1989 (Pet. App.
1a-2a).  The petition for a writ of certiorari was filed on November
13, 1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the court of appeals properly dismissed a petition for
review pursuant to Fed. R. App. P. 15 because it was not taken in the
name of the real party in interest and because the motion to
substitute parties was not timely filed.

   2. Whether the court of appeals properly ordered that costs be
taxed directly against James Lesho, as counsel for the "nominal
appellant," when it dismissed a petition for review.

                               STATEMENT

   1. Peter Kowaleski (the "miner") filed an application for benefits
under the Black Lung Benefits Act of 1972, 30 U.S.C. 901 et seq.,
which provides benefits to coal miners (and eligible survivors) who
are totally disabled or die due to pneumoconiosis that arose out of
coal mine employment (Pet. App. 4a-5a;  App., infra, 6a).  In his
application, the miner listed his wife, Anna Kowaleski, as his sole
dependent (Pet. App. 5a).  On June 10, 1979, while the claim was
pending at the administrative level, Anna Kowaleski died (ibid.).

   The Department of Labor denied the claim on its merits in 1983
(Pet. App. 5a), but granted the miner's request for a formal hearing.
On March 1, 1985, while the case was pending, the miner died (ibid.).
Charles Kowaleski, the executor of the miner's estate, authorized
James T. Lesho, the miner's counsel for the black lung claim, to
continue representation on behalf of the estate (ibid.).

   On December 11, 1986, the administrative law judge issued a
decision and order denying benefits (App., infra, 6a-14a).  Although
the administrative law judge erroneously named "Anna Kowaleski, widow
of Peter Kowaleski" as the claimant in the caption to the order,
counsel did not move to have this error corrected, and instead
appealed the case to the Benefits Review Board in the name of and
purportedly on behalf of the deceased Anna Kowaleski (Pet. App. 5a).

   By order of August 31, 1988, the Benefits Review Board affirmed the
administrative law judge's denial of benefits (App., infra, 1a-5a).
Apparently confused by the captioning of the case, the Board
incorrectly noted in its decision and order that the claim was being
pursued by Anna Kowaleski (App., infra, 2a n.1).  Anna Kowaleski had
never authorized counsel to represent her interests, if any, in the
matter (Pet. App. 6a).

   2. On October 5, 1988, counsel filed a notice of appeal with the
court of appeals, again on behalf of "Anna Kowaleski, Widow of Peter
Kowaleski" (Pet. App. 6a).  By letter of June 7, 1989, the court
requested that counsel show cause why the case should not be dismissed
for lack of an appealable order (ibid.).  Counsel did not respond
directly to the court's request, but filed a motion on June 12, 1989,
to substitute Charles Kowaleski, the executor of the miner's estate,
for Anna Kowaleski (ibid.).

   The court of appeals denied the motion to substitute the executor
and dismissed the appeal for lack of a real party in interest (Pet.
App. 12a).  The court noted at the outset that the petition for review
lacked a real party in interest:  Anna Kowaleski's or her estate's
entitlement to black lung benefits depended on her surviving her
husband, and she had in fact predeceased him (id. at 7a).  The court
relied on this Court's holdings, in an analogous context, that "the
failure to name a party in a notice of appeal or to amend the notice
within the time for filing an appeal deprives the court of appeals of
jurisdiction over the unnamed parties." Id. at 8a, citing Torres v.
Oakland Scavenger Co., 108 S. Ct. 2405 (1988).  The court concluded
that although Torres had concerned the mandates of Federal Rules of
Appellate Procedure 3 and 4, "the same punctilious, literal, and exact
compliance" was required "with the identical jurisdictional
requirement in Rule 15 that the petition for review 'shall specify the
parties seeking review'" (Pet. App. 10a).  The court next determined
that it could not acquire jurisdiction over the petition by granting
the belated request to substitute the miner's executor for Anna
Kowaleski.  Even if the court were to construe the motion as a request
to substitute the miner's executor for the interests of the miner (as
opposed to the interests of Anna Kowaleski), the motion was not filed
within the time limits for filing the original petition, and thus had
to be denied under Torres.  Id. at 10a-12a.

   Finally, the court noted that its result stemmed "more from the
ineptitude of the interested parties and their counsel than from the
strictures of the jurisdictional prerequisites of Rule 15" (Pet. App.
12a;  see also id. at 4a, 7a n.2, 10a n.3).  The court taxed costs
against James Lesho, counsel for the "nominal appellant" (id. at 12a).

                               ARGUMENT

   The decision of the court of appeals to dismiss is correct and
applies well-established principles to the particular facts of this
case.  Moreover, the court properly taxed costs directly against
attorney James Lesho under Fed. R. App. P. 39, because no other person
against whom costs could have been assessed was before the court.

   1. Rule 15 of the Federal Rules of Appellate Procedure requires
that a petition for appellate review of an agency order be filed
"within the time prescribed by law" and that the petition "shall
specify the parties seeking review." The requirements of Rule 15 for
obtaining review of an administrative decision thus track those of
Federal Rules of Appellate Procedure 3 and 4 for obtaining review of a
district court decision.

   In Torres v. Oakland Scavenger Co., 108 S. Ct. 2405, 2407 (1988),
this Court held that the failure to name a party in a notice of appeal
"constitutes a failure of that party to appeal." There, as the result
of a clerical error, the notice of appeal omitted a party's name.
Characterizing Appellate Rules 3 and 4 as establishing a "single
jurisdictional threshold" (id. at 2408), the Court held that the
failure to name a party in a notice of appeal or to amend the notice
within the time for filing an appeal is more than "excusable
'informality'" (id. at 2407).  Rather, it deprives the court of
appeals of jurisdiction over the unnamed parties (id. at 2407-2409).

   Petitioners do not challenge the court of appeals' conclusion that
Torres, which addressed the mandates of Appellate Rules 3 and 4,
equally applies to the identical jurisdictional requirement in
Appellate Rule 15 that the petition specify the party seeking review.
Nor do petitioners contest that since Anna Kowaleski, the only named
petitioner for review, did not survive her husband, she has no
entitlement to benefits and thus no cognizable interest in the claim.
See 20 C.F.R. 725.201 (1988) (providing that benefits are payable to
the miner or, if the miner is deceased, to certain specified
survivors).  Finally, it is undisputed that the motion to substitute
the miner's executor for Anna Kowaleski was filed well after "the time
prescribed by law." Section 422(a) of the Black Lung Benefits Act of
1972, 30 U.S.C. 932(a) (1982 & Supp. V 1987), incorporating Section
21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
921(c), requires that a petition for review of an order of the
Benefits Review Board be filed in the court of appeals within 60 days
after the issuance of that order.  /1/ In this case, the motion was
filed on June 12, 1989, almost a year after the decision of the
Benefits Review Board on August 31, 1988.

   a. Nevertheless, petitioners assert (Pet. 13) that they filed the
"functional equivalent" of a notice of appeal because the notice
"named or otherwise designated (the appellant), however inartfully" or
contained "some designation that gives fair notice of the specific
individual or entity seeking to appeal." Ibid. (citing Torres, 108 S.
Ct. at 2409).  But while this court in Torres recognized that a
litigant need only comply with the "functional equivalent" of what
Appellate Rules 3 and 4 require, it established that a party who is
not named or otherwise designated as the appellant in the notice has
not filed the functional equivalent of a notice of appeal.  108 S. Ct.
at 2409.  Thus, the Court ruled that the use of the phrase "et al." in
the notice did not give fair notice of the party seeking to appeal.
Ibid.  Similarly here, although the petition for review indicated
(erroneously) that Anna Kowaleski was the widow of Peter Kowaleski, it
did not suggest that review was being sought on his behalf.

   Indeed, the Benefits Review Board's understandable assumption that
Anna Kowaleski was alive and had appealed the denial of benefits
belies any suggestion that the designation in the petition for review
fairly indicated that the executor of the estate of Peter Kowaleski
was seeking review.  It cannot be said that the notice given here met
the specificity requirement of the Federal Rules of Appellate
Procedure "to provide notice both to the opposition and to the court
of the identity of the appellant or appellants." Torres, 108 S. Ct. at
2409.  /2/ The courts thus apply a bright-line test requiring that the
notice of appeal clearly specify which of the parties is taking an
appeal, thus "avoid(ing) the need to determine which parties are
actually before the court long after the notice of appeal has been
filed." See, e.g., Farley Transp. Co. v. Santa Fe Trail Transp. Co.,
778 F.2d 1365, 1369 (9th Cir. 1985).  /3/

   b. Petitioners also erroneously argue (Pet. 17-18) that the court
of appeals should have substituted the miner's executor for Anna
Kowaleski pursuant to Appellate Rule 2 or 28 U.S.C. 1653.  In Torres,
this Court rejected the suggestion that Appellate Rule 2, which gives
the courts power to suspend the requirements of the Appellate Rules,
can be used to avoid the jurisdictional requirement that a notice of
appeal specify the party taking the appeal.  Rather, the Court noted
that Appellate Rule 26(b) acts as a limitation on this broad grant of
equitable discretion by providing that appellate courts "may not
enlarge the time for filing a notice of appeal." Fed. R. App. P.
26(b), Torres, 108 S. Ct. at 2407-2408.  Appellate courts similarly
may not enlarge the time for filing a petition for review of an agency
order.  Fed. R. App. P. 26(b).

   Nor does 28 U.S.C. 1653, which provides that "(d)efective
allegations of jurisdiction may be amended, upon terms, in the trial
or appellate courts," permit a different result.  The purpose of
Section 1653 is to allow amendments of defective allegations of
jurisdiction, not to provide a remedy for defective jurisdiction
itself.  /4/ The court of appeals dismissed this case for lack of
jurisdiction not because the statement of jurisdiction was technically
defective but because the real party in interest had not filed a
timely petition for review or a timely motion to amend.  /5/

   2. Petitioner Lesho argues (Pet. 10-12) that the court of appeals
denied him due process of law by ordering that costs -- in the amount
of $76.20 -- be taxed against him personally without giving him
"pre-sanction notice and an opportunity to be heard." The assertion is
without merit.

   First, the court did not tax costs against Lesho as a sanction in
this case.  Rather, the court of appeals imposed costs pursuant to
Appellate Rule 39(a), which requires taxation of costs against the
appellant if an appeal is dismissed "unless otherwise agreed by the
parties or ordered by the court." /6/ In ordering that "(c)osts will
be taxed against James Lesho, counsel for the nominal appellant" (Pet.
App. 12a), the court indicated that Lesho was being taxed because,
under the peculiar facts of the case, he effectively stood in the
place of the appellant.  There was, in fact, no appellant in the case
against whom the court could otherwise assess costs.  See, e.g.,
Hafter v. Farkas, 498 F.2d 587, 591 (2d Cir. 1974) (costs assessed
against lawyer where appeal taken without consent of client).

   Second, the manner in which the court assessed costs in this case
is consistent with the standard practice of the federal appellate
courts under Appellate Rule 39 and provided Lesho all the process to
which he was due.  Pursuant to this rule, the prevailing party
"bec(omes) entitled to an award of costs as a matter of course, save
only to the extent that the court might direct otherwise." Saunders v.
Washington Metropolitan Area Transit Authority, 505 F.2d 331, 333
(D.C. Cir. 1974).  Appellate Rule 39(d) specifically requires a party
who desires to be reimbursed for costs to file an itemized and
verified bill of costs and provides that objections to the bill of
costs be filed within ten days thereof.  After the court of appeals
ordered that the government's costs be taxed against Lesho, the
Department of Labor filed a bill of costs with the court and served
counsel with a copy.  Lesho, like any individual against whom Rule 39
costs are claimed, could have objected to the $76.20 in claimed costs
at that time, but did not do so.  Cf. United States v. Nesglo, Inc.,
744 F.2d 887, 890 (1st Cir. 1984) (hearing not required prior to award
of attorneys' fees and costs for frivolous litigation where appellants
did not respond to motion for fees and costs and request hearing).

   Finally, although Lesho asserts that he was not given an
opportunity to object to the court's assessment of costs against him,
it is doubtful that he would have profited from any such opportunity.
While the court of appeals did not give advance notice of its
intention to tax costs directly against Lesho, it did give him the
opportunity to argue why the case should not be dismissed for lack of
a real party in interest.  Lesho did not respond to this directly, but
instead simply filed a motion for substitution of parties.  Given the
standard allocation of costs pursuant to Rule 39, Lesho should have
known that his failure to name a real party in interest in a notice of
appeal could lead to the assessment of costs against him directly.  As
this Court has held, the process that is "due" a party "turns, to a
considerable extent, on the knowledge which the circumstances show
such party may be taken to have of the consequences of his own
conduct." Link v. Wabash R.R., 370 U.S. 626, 632 (1962).  As the Court
found in that case, "(t)he circumstances here were such as to dispense
with the necessity for advance notice and hearing." Ibid.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   STEVEN J. MANDEL

      Counsel for Appellate Litigation

   ELIZABETH HOPKINS

      Attorney Department of Labor

   JANUARY 1990

   /1/ See Brown v. Director, OWCP, 864 F.2d 120 (11th Cir. 1989)
(60-day appeal period jurisdictional);  Mussatto v. Director, OWCP,
855 F.2d 513 (8th Cir. 1988) (same);  Danko v. Director, OWCP, 846
F.2d 366 (6th Cir. 1988) (same).

   /2/ The courts of appeals that have examined the issue in light of
Torres have correctly rejected the notion that dismissal is
appropriate only where the appellee might have been misled by the
omission.  See, e.g., In re Woosley, 855 F.2d 687, 688 (10th Cir.
1988) (rejecting harmless error analysis in dismissing contempt appeal
of attorneys taken in name of client);  see also Rogers v. National
Union Fire Ins. Co., 864 F.2d 557, 559 (7th Cir. 1988) (finding naming
requirement in Rule 3(c) jurisdictional and inflexible);  Allen
Archery, Inc. v. Precision Shooting Equipment, 857 F.2d 1176, 1177
(7th Cir. 1988) (recognizing that Torres changed the law of the
circuit by requiring "punctilious, literal, and exact compliance" with
specificity requirement).

   /3/ The cases that petitioners cite (Pet. 13 n.11) are not to the
contrary;  in each case the notice of appeal did specify the parties
taking the appeal.  See King v. Otasco, Inc., 861 F.2d 438, 442-443
(5th Cir. 1988) (no lack of jurisdiction where appellant did not omit
his name from notice of appeal but merely failed to designate all
capacities in which he brought suit);  Ford v. Nicks, 866 F.2d 865,
869-870 (6th Cir. 1989) (use of "et al." was sufficient to perfect
appeal for both parties because body of notice of appeal indicated
that both plaintiffs were appealing);  Pope v. Mississippi Real Estate
Comm'n, 872 F.2d 127, 129 (5th Cir. 1989) (same);  Arnow v. United
States Nuclear Regulatory Comm'n, 868 F.2d 223, 225 n.1 (7th Cir.
1989) (exhibit setting forth full names of every party, which was
attached to and specifically referred to in notice of appeal, was
sufficient to serve as notice that those parties were appealing).

   /4/ Compare, e.g., McCurdy v. Greyhound Corp., 346 F.2d 224, 225
n.1(3d Cir. 1965) (Section 1653 permits amendment to cure defective
allegation of corporate party's principal place of business), with,
e.g., Field v. Volkswagenwerk AG, 626 F.2d 293, 306 (3d Cir. 1980)
(since diversity jurisdiction is to be determined by the citizenship
of the parties at the time the action is commenced, Section 1653 does
not permit the later substitution of a diverse representative of an
estate for a non-diverse representative).

   /5/ Petitioners also assert (Pet. 15-16) that the court of appeals
should have substituted the executor of the estate of Peter Kowaleski
for Anna Kowaleski under Fed. R. App. P. 43(a).  As the court of
appeals noted, however, a party is substituted under Appellate Rule
43(a) only as the personal representative of a deceased party.  Pet.
App. 11a;  id. at 10a-11a & n.4;  Fed. R. App. P. 43(a).  Thus, if the
executor of the estate of Peter Kowaleski had been substituted here,
it could have been only as the representative of Anna Kowaleski.  See
Pet. App. 11a n.4.  Since that party has no real interest in the case,
the substitution would be futile.

   /6/ Thus, the cases cited by petitioner (Pet. 11, 12 n.10), which
involve imposition of sanctions and not taxation of costs under Rule
39, are not on point.

   APPENDIX