Britt v. Whitmire ( 1992 )

United States Court of Appeals,
Fifth Circuit.
No. 90–2518.
Thomas A. BRITT, Individually, as President of the Houston
Patrolmen's Union, Local 109, et al., Plaintiffs–Appellants,
v.
Kathryn J. WHITMIRE, as Mayor and Chief Executive of the City of
Houston, Texas, et al., Defendants–Appellees.
March 31, 1992.
Appeals from the United States District Court for the Southern
District of Texas.
Before WILLIAMS, WIENER, Circuit Judges, and LITTLE, District Judge
*
.
WIENER, Circuit Judge:
A police patrolmen's union appeals the district court's grant
of summary judgment in favor of the City of Houston on all of the
union's Fair Labor Standards Act claims. Finding that we lack
jurisdiction to consider this appeal, we dismiss.
I.
FACTS
On April 15, 1988, Thomas A. Britt brought suit individually
and as President of the Houston Police Patrolmen's Union, together
with approximately 800 other Houston police officers (collectively,
"Britt"), against the Houston Police Department, the City of
*
District Judge of the Western District of Louisiana,
sitting by designation.
Houston, and Mayor Kathryn Whitmire (collectively, the "City").
The complaint alleged that (1) the City violated the Fair Labor
Standards Act (FLSA) by failing to pay cash in lieu of compensatory
time for overtime work in the absence of an agreement with the
plaintiffs' designated representative (the "comp time claim"); (2)
the City failed to compensate the officers for K–9, mounted,
motorcycle and other assignments; and (3) the City violated the
FLSA by failing to include incentive pay in the plaintiffs'
"regular rate of pay" for overtime payment calculations.
Britt moved for partial summary judgment on the comp time
claim on June 19, 1989. The City responded to Britt's motion and
simultaneously filed a cross-motion for summary judgment on all
claims on September 15, 1989. On May 15, 1990, the district court
issued a memorandum opinion in which it denied Britt's motion for
partial summary judgment and granted the City's "motion for partial
summary judgment" on the comp time claim. The district court did
not enter judgment in a separate document as required by
FED.R.CIV.P. 58. Britt filed a notice of appeal on May 30, 1990
naming "Thomas Britt, et al" as appellants. Britt amended the
notice of appeal on June 4, 1990 to list each of the other officers
as appellants. On June 8, 1990, the City filed a motion for entry
of final judgment, asserting that the city had moved for and was
entitled to summary judgment on all claims, but that the district
court's May 15 order granted only "partial summary judgment" and
addressed only the comp time claim.
On September 7, 1990, the district court issued an order
granting summary judgment in favor of the City on all claims and on
the same day entered final judgment in a separate document in
accordance with Rule 58. Britt never filed a separate notice of
appeal from the September 7 order. Instead, on October 11, 1990,
Britt filed a motion for leave to amend out of time his original
notice of appeal filed on May 30, 1990. In that motion, Britt
asserted that he had not filed a timely notice of appeal from the
September 7 order because he had miscalculated the date on which
such notice was due. Britt's motion was accompanied by an amended
notice of appeal which stated that Britt was appealing the
September 7 order granting full summary judgment in favor of the
City. On January 18, 1991, the district court granted Britt leave
to file the amended notice of appeal out of time.
II.
ANALYSIS
This case is fraught with jurisdictional issues. The City
argues that this court lacks jurisdiction over this appeal for two
reasons: (1) the district court abused its discretion in allowing
Britt to file an untimely amended notice of appeal, and (2) Britt's
original notice of appeal filed on May 30, 1990 became a nullity
when the City filed its motion for entry of final judgment.
A. Granting of Leave to File Untimely Amended Notice of Appeal.
FED.R.APP.P. 4(a)(1) requires that a notice of appeal be filed
within thirty days after the date of entry of the judgment or
order. FED.R.APP.P. 4(a)(5) provides that the district court, "upon
a showing of excusable neglect or good cause," may extend the time
for filing a notice of appeal if a motion therefore is filed not
later than thirty days after the last date for filing a notice of
appeal under Rule 4(a)(1). This court reviews extensions of time
under Rule 4(a)(5) for abuse of discretion, giving great deference
to the district court's determination of excusable neglect when the
application for extension is made before the expiration of the
initial time period during which a notice of appeal must be filed.1
When the application is made after that period has expired,
however, less deference is required,2 and the more lenient "good
cause" standard does not apply at all.3 Thus, when a party files
a motion for extension of time after the initial period for appeal
has expired, that party must make a showing of excusable neglect.
The City argues that the district court abused its discretion
in granting Britt's motion for an extension of time, which he filed
more than thirty days after the entry of the September 7 order,
because Britt failed to make a showing of excusable neglect. In
Allied Steel v. City of Abilene,4 Allied filed a motion to extend
1
Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th
Cir.1990).
2
Id.
3
Id. at 143 n. 3.
4
Note 1, supra.
the time for filing a notice of appeal more than thirty days after
the entry of judgment, asserting that (1) during the thirty-day
period after the entry of judgment Allied was preoccupied by an
urgent business situation, and (2) Allied had misconstrued the time
for filing a notice of appeal under Rule 4(a). The district court
granted Allied's motion, but we reversed, holding that the district
court abused its discretion because Allied's reasons for requesting
an extension of time did not constitute excusable neglect.
Britt's excuse is indistinguishable from the one asserted in
Allied. Therefore, we hold that the district court abused its
discretion in permitting Britt to amend his original May 30 notice
of appeal more than thirty days after the September 7 order which
the original notice was amended to include.
B. Validity of Britt's May 30, 1990 Notice of Appeal.
That holding does not fully dispose of the instant case,
however, because the district court issued two orders. That court
first granted partial summary judgment in favor of the City on the
comp time claim on May 15, 1990, from which Britt filed a timely
notice of appeal on May 30. The district court then issued an
order on September 7, 1990, purporting to grant summary judgment in
favor of the City on the comp time claim as well as on all
remaining claims. Britt chose not to file a separate notice of
appeal from that order; rather he attempted to amend his May 30
notice of appeal to include the September 7 order and its grant of
summary judgment on the remaining claims. Under Rule 4(a) Britt
was required to perfect a notice of appeal with respect to that
order within thirty days after September 7. As he did not, and as
he has not shown excusable neglect, he is precluded from pursuing
an appeal on the remaining claims. Previously, however, Britt had
filed a timely notice of appeal from the May 15 order granting
partial summary judgment on the comp time claim. Therefore, this
court has jurisdiction over Britt's May 30 appeal of that claim
unless, as urged by the City, Britt's May 30 notice of appeal with
respect to that claim was nullified.
FED.R.CIV.P. 4(a)(4) provides in part:
If a timely motion ... is filed in the district court by any
party: ... (iii) under Rule 59 to alter or amend the
judgment; ... the time for appeal for all parties shall run
from the entry of the order denying a new trial or granting or
denying any other such motion. A notice of appeal filed
before the disposition of any of the above motions shall have
no effect. A new notice of appeal must be filed within the
prescribed time measured from the entry of the order disposing
of the motion as provided above.
In Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc.,5 we
noted that under Rule 4(a)(4), a Rule 59(e) motion nullifies a
previously filed notice of appeal but a Rule 60 motion does not.
We established a bright-line rule (based solely on timing of filing
the motion relative to the date of the final order or judgment
sought to be modified) to determine the applicability of Rule
4(a)(4) to motions seeking to amend a judgment on grounds other
than purely clerical errors:
5
784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S.
930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986).
We hold that Rule 4 was not intended to apply to motions to
correct purely clerical errors, but it was intended to apply
to all other timely motions to amend a judgment served within
ten days of the judgment, even though some such motions might
also be considered timely by the district court if filed at a
later date. Accordingly, we hold that any post-judgment
motion to alter or amend the judgment served within ten days
after the entry of the judgment, other than a motion to
correct purely clerical errors covered by Rule 60(a), is
within the unrestricted scope of Rule 59(e) and must, however
designated by the movant, be considered as a Rule 59(e) motion
for purposes of Fed.R.App.P. 4(a)(4). If, on the other hand,
the motion asks for some relief other than correction of a
purely clerical error and is served after the ten-day limit,
then Rule 60(b) governs its timeliness and effect.6
We must determine the correct classification of the City's June 8,
1990 motion for entry of final judgment. If that motion was, as
the City urges, a timely-filed Rule 59(e) motion seeking to amend
the district court's judgment, then the district court's September
7, 1990 order granting summary judgment on all claims rendered
Britt's May 30 notice of appeal a nullity under Rule 4(a)(4). On
the other hand, if, as Britt argues, the City's motion sought
merely to correct a clerical error under Rule 60(a), then Rule
4(a)(4) did not apply and Britt's notice of appeal remained
intact.7
(1) Classification of the Motion
No matter how it is labeled, a motion is treated as one made
under Rule 59(e) if it "calls into question the correctness of a
6
Id. at 667.
7
Id. at 668.
judgment" and seeks to alter or amend it.8 Although a motion under
Rule 60(a) also seeks to correct a judgment, Rule 60(a) provides
relief only:
[W]here the record makes apparent that the court intended one
thing but by merely clerical mistake or oversight did another.
Such a mistake must not be one of judgment or even of
misidentification, but merely of recitation, of the sort that
a clerk or amanuensis might commit, mechanical in nature...."
9
Rule 60(a) does not apply to a motion seeking correction of an
10
error of "substantive judgment" or an error that affects
substantial rights of the parties.11
The City's motion for entry of final judgment provided in
part:
The Court has entered an order granting Defendants' Motion for
Summary Judgment. However the order does not specifically
address claims raised by the Plaintiffs in their Complaint on
which they did not move for summary judgment, but on which
Defendants did move for summary judgment. Defendants moved
for summary judgment on all of Plaintiffs' claims. Defendants
have assumed that the Court intended to grant summary judgment
on all of Plaintiffs' claims, but the last paragraph of the
Court's order refers to granting Defendants' Motion for
Partial Summary Judgment. Defendants are assuming that this
was a typographical error (emphasis added).
8
Id. at 669–70.
9
Dura–Wood Treating Co., Division of Roy O. Martin Lumber
Co. v. Century Forest Industries, Inc., 694 F.2d 112, 114 (5th
Cir.), cert. denied, 459 U.S. 865, 103 S. Ct. 144, 74 L. Ed. 2d 122
(1982).
10
Harcon Barge, 784 F.2d at 669.
11
Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th
Cir.1976).
Britt argues that as the City expressly stated in its motion that
it sought the correction of a typographical error in the district
court's May 15 order, the motion necessarily qualified as a Rule
60(a) motion. Our analysis is not quite that simple, however, as
it is not the label that a party places on a motion or the
perceived nature of the relief sought, but the true nature of the
relief sought that determines under which rule a motion should be
classified.12
Although, as already noted, we established a bright-line rule
in Harcon Barge to distinguish between substantive motions under
Rule 59(e) and Rule 60(b) based on relative time of filing, we have
not established a definitive rule for determining whether a motion
should be considered merely clerical under Rule 60(a) or
substantive under either Rule 59(e) or Rule 60(b).13 Therefore, we
must draw guidance from prior decisions on this question.
Dura–Wood Treating Co., Division of Roy O. Martin Lumber Co. v.
Century Forest Industries, Inc.14 gives an example of the type of
relief covered under Rule 60(a). The parties had stipulated of
record that reasonable and necessary attorneys' fees were $4,680
for trial and $2,100 for appeal. The trial court's findings of
facts, however, incorrectly recited that the parties had stipulated
attorneys' fees at only $2,100, and the trial court rendered
judgment in favor of the plaintiff for $100,000 damages plus $2,100
12
Harcon Barge, 784 F.2d at 668–70.
13
Id. at 670.
14
694 F.2d 112 (5th Cir.1982).
in attorneys' fees. We reversed the judgment in part, affirmed the
damages in a lesser amount, and remanded to the trial court for
entry of a judgment consistent with our opinion. On remand, the
trial court entered judgment for the lesser amount of damages, plus
the correct amount of attorneys' fees as stipulated by the parties.
The defendants appealed, arguing, inter alia, that the trial court
had abused its discretion in increasing the award of attorneys'
fees. We held that the trial court's action was proper. We
concluded that the trial court clearly intended to recite the
parties' stipulation regarding attorneys' fees into its original
judgment and award that amount, but that, through a clerical error,
the court had mis-recited the stipulation. We found that the trial
court was entitled to correct its original award of attorneys' fees
because Rule 60(a) allows the court, on motion by a party or on its
own initiative, to correct a clerical error.15
Trahan v. First National Bank of Ruston16 and In re Galiardi17
provide examples of corrective actions that involve more than mere
clerical errors falling under Rule 60(a). In Trahan, the district
court held the bank liable for conversion of 15,000 shares of stock
and ordered the bank to return the stock to the plaintiff. We
affirmed the district court's judgment. After our decision, the
district court, recognizing that the value of the stock had fallen
since the date of conversion, amended its original award to require
15
Id. at 113–14.
16
720 F.2d 832 (5th Cir.1983).
17
745 F.2d 335 (5th Cir.1984).
the bank to return the shares of stock and to pay the difference in
value of the stock between the date of conversion and the date of
judgment. The bank appealed the amended award. We held that the
court's amendment was not to correct a clerical error and thus was
not under the aegis of Rule 60(a), as it constituted a substantive
judgment by the district court.18
Similarly, in In re Galiardi the plaintiffs filed a diversity
suit in federal district court in Texas. The defendants moved to
transfer the case to a federal district court in New York,
asserting both forum non conveniens and improper venue. The Texas
court transferred the case to New York without specifying the basis
for the transfer. The defendants moved the New York court to
dismiss the action as time-barred. Whether the suit was
time-barred depended on whether the Texas time-bar rule or the New
York time-bar rule applied. If the basis for the transfer to New
York was forum non conveniens, then the Texas rule would apply and
the suit would not be time-barred. If, however, the basis for the
transfer was that venue was improper in Texas, then the New York
time-bar rule would apply to bar the suit.
The New York district court concluded that the transfer had
been based on forum non conveniens and that the suit was not
barred. The defendants then filed a "Motion to Resettle Texas
Transfer Order" in the Texas district court, requesting that court
to specify the basis for its original transfer order, which had
18
Trahan, 720 F.2d at 834.
been entered two years earlier. The defendants based that motion
on Rule 60(a), apparently realizing that a court can grant a motion
under that rule "at any time" and that the time limits for actions
under both Rule 59(e) and Rule 60(b) had already expired. The
Texas court subsequently entered an order amending its earlier
transfer order to specify that the case had been transferred
because venue was improper in Texas.
The plaintiff asked this court for a writ of mandamus to
vacate that amended order by the Texas court. We held that the
amendment was not made pursuant to Rule 60(a) because it had
significant effect on the substantive rights of the parties and was
more than the mere correction of a clerical mistake. As Rule 60(a)
provided no support for the amendment and as the time limits for
corrections under Rules 59(e) and 60(b) had expired, we held that
the Texas court had no jurisdiction to enter the amended order.19
For examples of what constitutes a Rule 59(e) motion, we turn
to Cosgrove v. Smith20 and Barry v. Bowen.21 In Cosgrove, male
offenders of District of Columbia law who had been sentenced to
federal prison brought suit against the Attorney General of the
United States, challenging the application of the federal parole
guidelines to decisions on their parole. Their complaint included
statutory and equal protection challenges to the guidelines, as
19
Galiardi, 745 F.2d at 337.
20
697 F.2d 1125 (D.C.Cir.1983).
21
825 F.2d 1324 (9th Cir.1987).
well as a sex discrimination claim. The district court granted the
government's motion for summary judgment, but the judgment
specifically mentioned only the statutory and equal protection
challenges. The plaintiffs filed a motion seeking clarification
that the district court had not ruled on the sex discrimination
claim. The district court denied that motion. The District of
Columbia Circuit held that the district court's judgment had
disposed of the entire case, including the sex discrimination
claim, and that the plaintiffs' motion for clarification therefore
had sought an amendment of the judgment. Thus, concluded the
court, the motion qualified as a motion to alter or amend the
judgment under Rule 59(e).22
In Barry, the claimant sought district court review after the
Appeals Council reversed an Administrative Law Judge's decision
allowing his claim for disability benefits under the Social
Security Disability Amendments of 1980. The district court entered
an order granting the claimant's motion for summary judgment and
denying that of the government. The government subsequently filed
a "Motion for Clarification," seeking clarification of the district
court's order with regard to whether benefits were to be awarded
immediately or whether additional administrative proceedings were
to be conducted. The Ninth Circuit held that the government's
motion was for relief under Rule 59(e). The court noted that "a
motion seeking minor alterations in the judgment is properly one
under Rule 59(e)." The court concluded that such was the aim and
22
Cosgrove, 697 F.2d at 1127–28.
effect of the government's motion for clarification.23
We hold that, in the instant case, the City's motion for entry
of final judgment was not a Rule 60(a) motion. Even though the
motion stated that the City "assumed" that the district court had
committed a typographical error, in reality the effect of granting
the motion was more than a mere correction of a clerical error by
the district court. The motion sought to amend the district
court's May 15 order to grant summary judgment on two of Britt's
claims, an action clearly affecting substantial rights of the
parties. Unlike Dura–Wood, it is not apparent from the record of
the instant case that the district court intended to grant summary
judgment on all claims in its May 15 order but failed to do so
because of a clerical error. Rather, this case is closely
analogous to Cosgrove and Barry, in which the motions sought
substantive alterations in the judgments. Thus, the City's motion
was in fact and in law a Rule 59(e) motion. As that motion sought
more than clarification of a clerical error, Rule 60(a) was
inapplicable.
(2) Timeliness of the Motion
Having determined that the City's motion for entry of final
judgment was not a Rule 60(a) motion, we must now determine whether
the motion was timely filed. A Rule 59(e) motion must be filed
within ten days after the entry of judgment to be timely. As we
23
Barry, 825 F.2d at 1328 n. 1.
held in Harcon Barge, if the City filed the motion in a timely
manner, then under Rule 4(a)(4) the motion destroyed the
effectiveness of Britt's May 30 notice of appeal. If, however, the
motion was not timely under Rule 59(e), then Rule 60(b) governed
its effect and Britt's notice of appeal remained intact.24
In Craig v. Lynaugh,25 the district court issued a memorandum
order dismissing the plaintiff's complaint as frivolous. The
district court did not enter a separate judgment in compliance with
Rule 58 at that time. Five months later, the plaintiff filed both
a motion to vacate the judgment and a notice of appeal from the
dismissal order. The district court denied the motion to vacate
and entered final judgment pursuant to Rule 58. The plaintiff did
not file another notice of appeal.
On appeal, we noted that, provided the motion to vacate was
filed within ten days after entry of judgment, it was actually a
Rule 59(e) motion because it challenged the correctness of the
order of dismissal, and it destroyed the plaintiff's notice of
appeal under Rule 4(a)(4). But, if the motion to vacate was not
timely as a Rule 59(e) motion, then under Harcon Barge the motion
did not nullify the notice of appeal.26
24
Harcon Barge, 784 F.2d at 667.
25
846 F.2d 11 (5th Cir.1988), cert. denied, 490 U.S. 1093,
109 S. Ct. 2436, 104 L. Ed. 2d 993 (1989).
26
Id. at 12.
 We held in Craig that because the district court had not
complied with Rule 58 in its initial order of dismissal, the
judgment was not final at the time of the plaintiff's motion to
vacate, but the motion to vacate was nonetheless effective. We
held further that if a Rule 59(e) motion is filed before a final
judgment has been entered, the motion is timely whenever filed and
serves to nullify a previously filed notice of appeal.27 Therefore,
we concluded, such motion to vacate was a timely Rule 59(e) motion
and nullified the plaintiff's notice of appeal. As the plaintiff
did not file a new notice of appeal within thirty days after entry
of final judgment, we dismissed the appeal for lack of
jurisdiction.
Craig is applicable to this case. Here, as in Craig, the
district court did not enter a separate judgment pursuant to Rule
58 to accompany its May 15 order granting partial summary judgment.
Thus there was no final judgment either when Britt filed his May 30
notice of appeal or later when the City filed its June 8 motion for
entry of final judgment. The City's motion was a Rule 59(e) motion
and, under Craig, it was timely when filed; thus, it nullified
Britt's May 30 notice of appeal. As Britt failed timely to file a
new notice of appeal after the entry of final judgment on September
7, we lack jurisdiction over this appeal and therefore must dismiss
it.
III.
27
Id. at 13.
 CONCLUSION
We have no jurisdiction over this appeal because we are not
presented with a valid notice of appeal with respect to any order
or judgment of the district court. First, the district court
abused its discretion in granting Britt leave to file an untimely
amended notice of appeal because Britt's efforts to do so occurred
more than thirty days after the last date to file a notice of
appeal timely and then he made no showing of excusable neglect.
Second, even had Britt attempted to amend his May 30 notice of
appeal in a timely manner, he could not have done so because that
notice of appeal was rendered nugatory by the City's Rule 59(e)
motion for entry of final judgment. Consequently, Britt was
required to file a new notice of appeal within thirty days after
the district court's entry of final judgment on September 7. As he
did not, we lack jurisdiction. For these reasons, this appeal is
DISMISSED.