Petition for Writ of Certiorari — District of Columbia Nurses Ass'n v. District of Columbia

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IN THE jenn. arenes

Supreme Court of the United States

OCTOBER TERM, 1988

DISTRICT OF COLUMBIA NURSES ASSOCIATION, .

THELMA BATTLE, et al.,

Petitioners

DISTRICT OF COLUMBIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

DOUGLAS TAYLOR *

GROMFINE AND TAYLOR, P.C.

1101 15th Street, N.W.

Suite 1010

Washington, D.C. 20005

(202) 296-7420

Counsel for District of Columbia

Nurses Association and all other

Petitioners

* Counse! of Record

WILSON - EPgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® ents 60

IT.

QUESTIONS PRESENTED

Where individual plaintiffs in a Fair Labor Stand-

ards Act opt-in class action have designated their

Union’s counsel to represent them, is a Notice of

Appeal filed by the Union sufficient to establish

jurisdiction over the appeal under Rules 3 and 4

F.R.A.P.?

Where a Union represents the members of an FLSA.

opt-in class action and others similarly situated in

collective bargaining over subject matter affected by

the action, may the Union appeal the trial courts

decision that the members are exempt from coverage

under FLSA?

(i)

PARTIES TO THE PROCEEDING BELOW

I. PLAINTIFFS APPELLANTS

District of Columbia Nurses Association:

Dianne Ambueh!

Salvacion Aquino

Thelma Battle

Jeanette A. Blackman

Anna Blais

6. M. Jane Blais

7. Annettee W. Byrd

8. Mary Jane Canete

9. Doris B. Childress

10. Shirley Claggett

11. Katherine P. Coleman

12. Carolyn A.B. Curtis

13. Patricia C. Evans

14. Helen M. Ferris

15. Mable A. Goss

16. Verna C. Hill

17. Roberta Holborough

18. Barbara J. Lorsung

19. Maudine B. McFadden

20. Emma Miles

21. Lillian M. Moore

22. Rose M. Murray

or xt Ww IO

23. Tazzie L. Onwubere

24. Beverly J. J. Freeman-Owen

25. Dorlinda M. Picolo

26. Patricia A. Powell

27. Gloria M. Rose

28. Yolanda D. Rowzie

29. Sandra K. Ruark

30. Christine S. Ruschmeyer

31. Jeanetta Shaw

32. Eldra Simmons

ili

Julie A. Sonn

Barbara K. Spivey

Louise M. Vayda

Juanita K. Wagner

Mary Wilks

Rosa W. Williams

Pauline R. Yeargain

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Il. DEFENDANT/APPELLEE

District of Columbia

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............0.0000000 0 i

PARTIES TO THE PROCEEDING .................. SA I tan en il

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JURISDICTIONAL STATEMENT ............0000000000000..... 1

STATUTES AND REGULATIONS INVOLVED ........ 1

STATEMENT OF THE CASE .............. eae er Aare ite 2

FS P81 cy gigeeRURep sey eS EROR RECREATE ENR SEAIOON RT IRETE MeleoPhT, Seed 4

I. The Notice of Appeal Was Adequate to Inform

the Court and the Appellee of the Desire of All

PAROTERTNG GO FAG annonce knees eens 5

II. DCNA Is Qualified to Maintain an Appeal, Even

Though No Longer a Party to the Lawsuit ...... 6

CARE oh eee ch cae SA An A A ee 9

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vi

TABLE OF AUTHORITIES

Cases:

Arrington v. NBC, 531 F. Supp. 498 ........................

Cohen v. Young, 127 F.2d 721 (6th Cir. 1942) .........

Matter of Penn Cent. Transp. Co., 596 F. 2d 1155

(3rd Cir.), cert. denied, 44 U.S. 835, 100 S. Ct.

i a a” ey, | eee a

Pelligrino v. Nesbit, 203 F.2d 463 (9th Cir. 1953)...

Research Corp. v. Asgrow Seed Co., 425 F.2d 1059

I SI 52, acs ud acc ahnoehennestobeaueaa bean eeneeeusiins

Torres v. Oakiand Scavenger Co.,

I UI UO eee pcnncdnscncaerckasseaccussoyounes

Tryforos v. Icarian Dev. Co., 518 F.2d 1258 (7th

Cir. 1975), cert. denied, 423 U.S. 1091, 96 S. Ct.

Oe ee, | ene a neeanee

United States v. ASCAP, 442 F.2d 601 (2d Cir.

tle SER IRS RAE OTETe eel lar ee

United States v. LTV Corp., 746 F.2d 51 (D.C.

IRS DRESSES EI ried eo AR tea e npn

United States v. United Fruit Co., 410 F.2d 553

(5th Cir.), cert. denied, 396 U.S. 820, 90 S. Ct.

im aesms, Meee, ee OR CROGD) oncoccenn. ccc. c

Statutes and Regulations:

Fair Labor Standard Act, 29 U.S.C. 207(a) (1),

al RUE Siri ROE NE PRA ME SARE feel ee

Federal Rules of Appellate Procedure, Rules 3 and

District of Columbia Code, §§ 1-618.16 and 17...

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

DISTRICT OF COLUMBIA NURSES ASSOCIATION,

THELMA BATTLE, et al.,

Petitioners

V.

DISTRICT OF COLUMBIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

OPINION BELOW

DCNA, Thelma Battle, et al., v. District of Columbia,

Ct. of App. No. 88-7074, August 30, 1988 is reported as:

Battle v. District of Columbia, 854 F.2d 1448 (D.C. Cir.,

1988).

JURISDICTIONAL STATEMENT

Jurisdiction for this Petition is based upon 28 U.S.C.

Section 1254/1) and 28 U.S.C. Section 2106. The Opin-

ion Appealed from was dated August 30, 1988.

STATUTES AND REGULATIONS INVOLVED

1. Fair Labor Standard Act, 29 U.S.C. 207(a) (1),

216(b).

2

2. Federal Rules of Appellate Procedure, Rules 3 and 4.

3. District of Columbia Code, §§ 1-618.16 and 17.

STATEMENT OF THE CASE

On June 18, 1987, the District of Columbia Nurses As-

sociation and nine individual Plaintiffs filed an action

against their employer, the District of Columbia, under

the Fair Labor Standards Act, 29 U.S.C. Section 201 et

seq., seeking injunctive relief, damages and attorneys’

fees as provided by that Act. (A. 9-15) The individual

plaintiffs were registered nurses employed by the District

of Columbia in various capacities throughout the City-

operated D.C. General Hospital, D.C. Public Schools, long-

term care facilities and social services agencies. They

were and are represented for purposes of collective bar-

gaining by the District of Columbia Nurses Association,

under the District’s collective bargaining law for public

employees, D.C. Code, $$ 1-618.16 and 17. The specific

ground of the lawsuit was that the overtime payments

earned by nurses are capped by City regulation at the

maximum hourly pay for the District Pay Grade of DS

15, which was substantialy less than time and one-half

as established by the maximum hours provision of FLSA,

29 U.S.C. § 207(a) (1).

Each named Plaintiff (three subsequent lists of claim-

ants presented to the court brought the total to 39) ex-

ecuted the following “FLSA Claim Authorization” form:

I am a Registered Nurse employed by the District

of Columbia. I hereby autherize the law firm of

Gromfine, Rosen and Taylor, P.C. (the “law firm’’),

counsel to the District of Columbia Nurses’ Associa-

tion, to represent me, in court, before agencies, or

in arbitration, to obtain all benefits and compensation

which I am entitled to receive because of the failure

of the District of Columbia to comply with the Fair

Labor Standards Act. The law firm is also author-

ized to seek reimbursement for attorneys’ fees for

3

effort by that firm on my behalf in actions in courts,

agencies, or arbitration. I further authorize the law

firm to negotiate on my behalf to settle my claim,

subject to my final approval.

(A. pp. 20-21). Each signature was accompanied by

the date, and the address and telephone number of each

claimant.

The parties set forth at a status conference on Sep-

tember 23, 1987, a procedure for exchanging cross-mo-

tions and affidavits in an attempt to reach a posture for

Summary Judgment. Plaintiffs and Defendants cross-

filed on November 18. The District moved for dismissal

of DCNA as a party, on grounds that an Association or

Union was not entitled to enforce FLSA provisions on

behalf of its members as a “representative party.” In

their reply to the District, the Plaintiffs simply moved

to remove DCNA as a party to the matter, so as to

streamline the litigation. This motion was made on No-

vember 30, 1987. The parties made further replies and

submitted further affidavits. On December 10, the DCNA

Motion to remove it as a party plaintiff was granted.

After oral argument, Judge Revercomb ruled in favor of

the District on the merits, holding that Registered Nurses

employed by the District were professional employees,

and therefore exempt from the maximum hours provi-

sions of the Fair Labor Standards Act. His order was

dated January 28, 1988 (A-3) and on February 26

Counsel for Plaintiffs filed the following Notice of Appeal:

Notice is hereby given that the District of Columbia

Nurses’ Association, Plaintiff named above, hereby

appeals to the United States Court of Appeals for the

District of Columbia Circuit from the final judgment

entered in this action on the 28th day of January,

1988.

(A. 99). The appeal was thereafter docketed, and the

respective parties filed docketing statements required by

Local Rules. Plaintiffs/Appellants’ docketing statement

4

was filed on March 29 and listed by name all individual

Plaintiffs along with the specific issues being appealed. -

The city did not object to the content of the Notice of Ap-

peal, and indicated its presumption that the Appeal was

on behalf of all named Plaintiffs. (A. 100) However,

the Circuit Court, sua sponte, ordered DCNA to show

cause why the appeal should not be dismissed because it

was filed by DCNA at a time when DCNA was no longer

a party to the lawsuit. (A. 122) DCNA responded argu-

ing that it was acting in a representative capacity when

it appealed and had, until only weeks before final judg-

ment, been a party to the lawsuit and thus entitled to

- appeal as an exception to the general rule that only

parties may appeal. (A. 125-132) The Court of Ap-

peals nevertheless dismissed the appeal, on grounds that

it was compelled to do so as a result of the decision of

this Court in the case of Torres v. Oakland Scavenger

Co., USS. —~, 108 S. Ct. 2405 (1988). Plain-

tiffs now seek Certiorari of this Court to reinstate their

appeal before the Court of Appeals for the District of

Columbia Circuit.

ARGUMENT

The Notice of Appeal filed in this case was sufficient

under the Torres decision to identify those appealing: all

individual Plaintiffs. The role of the District of Columbia

Nurses Association in this litigation and their interest

in this dispute created sufficient grounds to allow DCNA

to appeal on its own, although it was not formally a

party to the litigation regardless of whether the Notice

of Appeal was effective as to the individual Plaintiffs.

Because the Court of Appeals failed to allow the appeal,

it “departed from the accepted and usual course of judi-

cial proceedings” and its opinion raised “an important

question of federal law” which should be settled. In other

ways, the opinion was “in conflict with applicable de-

cisions by this court.” All of these are reasons why,

under Rule 17 of this Court, Certiorari should be granted.

5

I. The Notice of Appeal Was Adequate to Inform the

Court and the Appellee of the Desire of All Appellants

to Appeal.

The question under Rule 3 is whether the content of

the Notice of Appeal was sufficient to render to the Court

of Appeals jurisdiction over the dispute. In the case of

Torres, supra, the Notice did not because Torres’ name

was omitted (albeit by error) while the names of all

others were included. Here, by contrast, the name ap-

pearing on the Notice of Appeal was a generic one, the

District of Columbia Nurses Association. Under the cir-

cumstances of this case, that was sufficient to inform all

that all Plaintiffs were appealing.

The Plaintiffs were all members of the DNCA col-

lective bargaining unit. They nad from the beginning

been part of the DCNA effort to resolve the question of

their coverage under the Fair Labor Standards Act. In-

deed, the authorization (or “opt-in” statements) filed by

each Plaintiff specifically referred to their representative

attorney as the “counsel to the District of Columbia

Nurses Association.” Although the idea of a representa-

tive plaintiff and class certification had been dropped

from the litigation just before Summary Judgment, the

Plaintiffs had acted in unison in all matters pertaining to

the suit. The District, for example, had no difficulty

understanding that the appeal was brought on behalf of

all RN Plaintiffs: ‘The District of Columbia believes,

therefore, that the appellants in this Court are the named

individuals, but not the District of Columbia Nurses

Association.” (A. 100) The preliminary materials filed

by DCNA likewise listed each and every Plaintiff as an

appellant.

While the Court below has properly read Torres as

reaffirming the jurisdictional character of the Notice of

Appeal, it has misread the Torres opinion. The signifi-

cant fact in that case was that Torres’ own name was

left off a list of appellants, thereby leading everyone to

believe that he, by contrast with other Plaintiffs below,

6

had decided not to appeal. In this instant case, there

was no such indication. The generic appeal by DCNA,

whose counsel was specifically authorized to act on behalf

of all Plaintiffs, gave no indication that the individual

Plaintiffs were not part of the appeal. Indeed, knowing,

as both the District of Columbia and the Court of Ap-

peals did, that DCNA had withdrawn as a party, it was

most reasonable to construe the Notice of Appeal as a

general or all-inclusive one.

This issue here is not whether DCNA was a class

representative, but whether the appearance of the words

“Plaintiff, District of Columbia Nurses Association” was

sufficient in the Notice of Appeal to alert all concerned

that the DCNA members who had authorized DCNA to

pursue the litigation intended to appeal. It was, and the

Court of Appeals should have taken jurisdiction of the

matter.

II. DCNA Is Qualified to Maintain an Appeal, Even

Though No Longer a Party to the Lawsuit.

The District of Columbia Circuit is one of several which

acknowledges that there are exceptions to the rule that

only a party to a lawsuit may appeal, United States v.

LTV Corp., 746 F.2d 51 (1984) :

The first involved non-party appeals from consent

judgments and other final judgments in shareholder’s

derivative suits and class action. See, e.g., Tryforos

v. Icarian Dev. Co., 518 F.2d 1258 (7th Cir. 1975),

cert. denied, 423 U.S. 1091, 96 S. Ct. 887, 47 L. Ed.

2d 103 (1976); Research Corp v. Asgrow Seed Co.,

425 F. 2d 1059 (7th Cir. 1970); Cohen v. Young,

127 F. 2d 721 (6th Cir. 1042).

* * * *

The other set of cases Wheeling [putative ap-

pellant] relies upon involved collateral disputes which

arose subsequent to the entry of an antitrust decree.

See e.g., United States v. ASCAP, 442 F. 2d 601 (2d

Cir. 1971) (appeal by non-party to original judg-

ment from injunction against prosecution of col-

7

lateral challenge to original judgment); United

States v. United Fruit Co., 410 F. 2d 553 (5th Cir.)

(appeal by non-party to original judgment from

order sealing documents discovered in course of origi-

nal proceedings), cert. denied, 396 U.S. 820, 90

S. Ct. 59, 24 L. Ed. 2d 71 (1969). The appellants

in these cases were also effectively bound by the

original judgment.

Finally, Wheeling cites Matter of Penn Cent.

Transp. Co., 596 F. 2d 1155 (3rd Cir.), cert. denied,

44 U.S. 835, 100 S. Ct. 68, 62 L. Ed. 2d 45 (1979).

* * *

Fn. 5, p. 53. See also Pelligrino v. Nesbit, 203 F.2d 463

(9th Cir. 1953). However, the Court below failed to

recognize the instant case as belonging to this group.

Even where a representative party, like a Union or

Association, may not stand in place of individual claim-

ants seeking to enforce the Fair Labor Standards Act, the

Courts have acknowledged that such groups have a

valid supervisory or coordinating role in such cases, which

may even extend to acts encouraging members to file for

FLSA benefits and to sign notices of their intent to “opt

in” to ongoing litigation. Arrington v. NBC, 531 F. Supp.

498 (D.C., 1982). Thus, while DCNA may be unable to

decide whether to appeal, it may very well have the ca-

pacity to communicate the desires of those it represents

for collective bargaining purposes.

Not only does DCNA represent other RN’s who will be

affected, if not completely bound, by the court’s decision,

DCNA has interests of its own, separate from those of

any individual, which will be affected by the failure to

appeal. The collective bargaining agreement it negotiates

with the City periodically, embraces several issues which

are directly affected by a determination that the nurses

are or are not exempt from coverage under FLSA. For

example, the collective bargaining agreement establishes

procedures for so-called “on-call” and “call-back” pay.

8

The money which nurses actually receive for such work

during a week in which they already work a 40-hour

tour of duty is directly determined by coverage of

FLSA. If FLSA does not cover and a nurse who is

“called back” to work gets only the contractual premium

with no overtime, this changes dramatically the impact of

the contract clause and the priorities of DCNA at the bar-

gaining table. Similarly, if the FLSA maximum hours

provision does not apply to City nurses, DCNA must

attempt to secure an appropriate limitation at the bar-

gaining table. The Agreement which provides for these

and similar terms was before the Court of Appeals, and

should have led it to conclude that DCNA was entitled

to maintain an appeal apart from whether the Notice was

adequate as to any individual nurses. In sum, DCNA

was an active participant in the litigation before Judge

Revercomb, having been dismissed as a party only a short

time before the summary judgment which was appealed.

It and the nurses it represents were severely affected by

the lawsuit’s outcome, not only by loss of the protective

qualities of the Fair Labor Standards Act, but by an

impact on the collective bargaining agreement which

DCNA must negotiate and administer. For these reasons,

DCNA should have been permitted to appeal despite the

fact that it had not been a party to the lawsuit for a

brief period prior to judgment. The statement of the

majority opinion below that DCNA was a “stranger to

the litigation” is simply contrary to fact.

9

CONCLUSION

For the foregoing reasons, the Court should grant a

Writ of Certiorari to review the decision of the Court of

Appeals for the District of Columbia Circuit dismissing

the appeal.

Respectfully submitted,

DOUGLAS TAYLOR *

GROMFINE AND TAYLOR, P.C.

1101 15th Street, N.W.

Suite 1010

Washington, D.C. 20005

(202) 296-7420

Counsel for District of Columbia

Nurses Association and all other

Petitioners

* Counsel of Record

STATUTORY APPENDIX

TABLE OF CONTENTS

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 3. Appeal as of Right-How Taken...

Rule 4. Appeal as of Right-When Taken...

FAIR LABOR STANDARDS ACT

Be Meas ENE GED iss eave psn caiseventcoeoeesee di deaeaete

Pe Ree MP csbrecsi enie snus eccaccce casino er Te

DISTRICT OF COLUMBIA CODE

§ 1-618.16. Collective bargaining concerning com-

RI secs vecreiiac nee Sete PETA PRES PARTI OF

§ 1-618.17. Collective bargaining concerning com-

I oo iicicecrrccenccaasciodalaptceintioievbes

SA-7

SA-1

STATUTORY APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 3. Appeal as of Right-How Taken.

(a) FILING THE NOTICE OF APPEAL. An appeal

permitted by law as of right from a district court to a

court of appeals shall be taken by filing a notice of appeal

with the clerk of the district court within the time al-

lowed by Rule 4. Failure of an appellant to take any step

other than the timely filing of a notice of appeal does not

affect the validity of the appeal, but is ground only for

such action as the court of appeals deems appropriate,

which may include dismissal of the appeal. Appeals by

permission under 28 U.S.C. §1292(b) and appeals by

allowance in bankruptcy shall be taken in the manner

prescribed by Rule 5 and Rule 6 respectively.

(b) JOINT OR CONSOLIDATED APPEALS. If two

or more persons are entitled to appeal from a judgment

or order of a district court and their interests are such

as to make joinder practicable, they may file a joint

notice of appeal, or may join in appeal after filing sepa-

rate timely notices of appeal, and they may thereafter

proceed on appeal as a single appellant. Appeals may be

consolidated by order of the court of appeals upon its

own motion or upon motion of a party, or by stipulation

of the parties to the several appeals.

(c) CONTENT OF THE NOTICE OF APPEAL. The

notice of appeal shall specify the party or parties taking

the appeal; shall designate the judgment, order or part

thereof appealed from; and shall name the court to which

the appeal is taken. Form 1 in the Appendix of Forms

is a suggested form of a notice of appeal. An appeal

shall not be dismissed for informality of form or title of

the notice of appeal.

(d) SERVICE OF THE NOTICE OF APPEAL. The

clerk of the district court shall serve notice of the filing

SA-2

of a notice of appeal by mailing a copy thereof to counsel

of record of each party other than the appellant, or, if

a party is not represented by counsel, to the last know

address of that party; and the clerk shall transmit forth-

with a copy of the notice of appeal and of the docket

entries to the clerk of the court of appeals named in the

notice. When an appeal is taken by a defendant in a

criminal case, the clerk shall also serve a copy of the

notice of appeal upon the defendant, either by personal

service or by mail addressed to the defendant. The clerk

shall note on each copy served the date on which the

notice of appeal was filed. Failure of the clerk to serve

notice shall not affect the validity of the appeal. Service

shall be sufficient notwithstanding the death of a party

or the party’s counsel. The clerk shall note in the docket

the names of the parties to whom the clerk mails copies,

with the date of mailing.

(e) PAYMENT OF FEES. Upon the filing of any

separte or joint notice of appeal from the district court,

the appellant shall pay to the clerk of the district court

such fees as are established by statute, and also the docket

fee prescribed by the Judicial Conference of the United

States, the latter to be received by the clerk of the district

court on behalf of the court of appeals.

Rule 4. Appeais as of Right-When Taken.

(a) APPEAL IN CIVIL CASES.

(1) In a civil case in which an appeal is permitted

by law as of right from a district court to a court of

appeals the notice of appeal required by Rule 3 shall be

filed with the clerk of the district court within 30 days

after the date of the entry of the judgment or order

appealed from; but if the United States or an officer or

agency thereof is a party, the notice of appeal may be

filed by any party within 60 days after such entry. If

a notice of appeal is mistakenly filed in the court of ap-

SA-3

peals, the clerk of the court of appeals shall note thereon

the date on which it was received and transmit it to the

clerk of the district court and it shall be deemed filed in

the district court on the date so noted.

(2) Except as provided in (a) (4) of this Rule 4,

a notice of appeal filed after the announcement of a deci-

sion or order but before the entry of the judgment or

order shall be treated as filed after such entry and on the

day thereof.

(3) If a timely notice of appeal is filed by a party,

any other party may file a notice of appeal within 14

days after the date on which the first notice of appeal

was filed, or within the time otherwise prescribed by this

Rule 4(a), whichever period last expires.

(4) If a timely motion under the Federal Rules

of Civil Procedure is filed in the district court by any

party: (i) for judgment under Rule 50(b); (ii) under

Rule 52(b) to amend or make additional findings of fact,

whether or not an alteration of the judgment would be

required if the motion is granted; (iii) under Rule 59 to

alter or amend the judgment, or (iv) under Rule 59 for

a new trial, 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

appea! 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. No additional fees shall be required for such

filing.

(5) The district court, upon a showing of excus-

able neglect or good cause, may extend the time for filing

a notice of appeal upon motion filed not later than 30

days after the expiration of the time prescribed by this

Rule 4(a). Any such motion which is filed before expira-

tion of the prescribed time may be ex parte unless the

SA-4

court otherwise requires. Notice of any such motion

which is filed after expiration of the prescribed time shall

be given to the other parties in accordance with local

rules. No such extension shall exceed 30 days past such

prescribed time or 10 days from the date of entry of the

order granting the motion, whichever occurs later.

(6) A judgmerit or order is entered within the

meaning of this Rule 4(a) when it is entered in com-

pliance with Rules 58 and 79(a) of the Federal Rules of

Civil Procedure.

(b) APPEALS IN CRIMINAL CASES. In a criminal

case the notice of appeal by a defendant shall be filed in

the district court within 10 days after the entry of the

judgment or order appealed from. A notice of appeal

filed after the announcement of a decision, sentence or

order but before entry of the judgment or order shall be

treated as filed after such entry and on the day thereof.

If a timely motion in arrest of judgment or for a new

trial on any ground other than newly discovered evidence

has been made, an appeal from a judgment of conviction

may be taken within 10 days after the entry of an order

denying the motion. A motion for a new trial based on

the ground of newly discovered evidence will similarly

extend the time for appeal from a judgment of conviction

if the motion is made before or within 10 days after

entry of the judgment. When an appeal by the govern-

ment is authorized by statute, the notice of appeal shall

be filed in the district court within 30 days after the

entry of the judgment or order appealed from. A judg-

ment or order is entered within the meaning of this sub

division when it is entered in the criminal docket. Upon

a showing of excusable neglect the district court may,

before or after the time has expired, with or without

motion and notice, extend the time for filing a notice of

appeal for a period not to exceed 30 days from the expira-

tion of the time otherwise prescribed by this subdivision.

SA-5

FAIR LABOR STANDARDS ACT

29 U.S.C. §§ 207 (a) (1)

§ 207. Maximum hours

(a) (1) Except as otherwise provided in this section,

no employer shall employ any of his employees who in

any workweek is engaged in commerce or in the production

of goods for commerce for a workweek longer than forty

hours, unles such employee receives compensation for his

employment in excess of the hours above specified at a

rate not less than one and one half times the regular

rate at which he is employed; and

29 U.S.C. § 216(b)

(b) Any employer who violates the provisions of Sec-

tion 206 or Section 207 of this title shall be liable to the

employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime com-

pensation as the case may be and in an additional equal

amount as liquidated damages. Any employer who vio-

lates the provisions of section 215(a) (3) of this title

shall be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215 (a)

(3) of this title, including without limitation employ-

ment, reinstatement, promotion, and the payment of

wages lost and an additional equal amount as liquidated

damages. An action to recover the liability prescribed in

either of the preceding sentences may be maintained

against any employer (including a public agency) in any

Federal or State court of competent jurisdiction by any

one or more employee for and in behalf of himself or

themselves and other employees similarly situated. No

employee shall be a party plaintiff to any such action

unless he gives his consent in writing to become such a

party and such consent is filed in the court in which such

action is brought. The court in such action shall, in addi-

tion to any judgment awarded to the plaintiff or plain-

SA-6

tiffs, allow a reasonable attorney’s fee to be paid by

the defendant, and costs of the action. The right pro-

vided by this subsection to bring an action by or on behalf

of any employee, and the right of any employee to become

a party plaintiff to any such action, shall terminate upon

the filing of a complaint by the Secretary of Labor in an

action under section 217 of this title in which (1) re-

straint is sought of any further delay in the payment of

unpaid minimum wages, or the amount of unpaid over-

time compensation, as the case may be owing to such

employee under section 206 or section 207 of this title by

an employer liable therefor under the provisions of this

subsection or (2) legal or equitable relief is sought as

a result of alleged violations of section 215(a) (3) of this

title.

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DISTRICT OF COLUMBIA CODE

§ 1-618.16. Collective bargaining concerning compensation.

(a) The Board shall provide for collective bargaining

concerning compensation under the procedures of and on

the dates provided in § 1-618.17. The Mayor, the Board

of Governors of the School of Law for its educational

employees, the District of Columbia Board of Education

for its educational employees and the Board of Trustees

of the University of the District of Columbia for its edu-

cation employees shall negotiate agreements regarding

non compensation issues at the same time as compensa-

tion issues.

(b) The provisions of this section shall become effective

on January 1, 1980, and shall apply to all employees,

including employees described in § 1-602.4, of a par-

ticular occupational group who are represented by a labor

organization which has been granted exclusive recognition

under this chapter by the Board. The determination of

an appropriate unit for the purpose of negotiations con-

cerning compensation shall not require a request from a

labor organization. In determining appropriate bargain-

ing units for negotiations concerning compensation, the

Board shall authorize broad units of occupational groups

so as to minimize the number of different pay systems or

schemes. The Board may authorize bargaining by multi-

ple employer or employee groups as may be appropriate.

$ 1-618.17. Collective bargaining concerning compensation.

(a) Collective bargaining concerning compensation is

authorized as provided in §§ 1-602.6 and 1-618.16. Such

compensation bargaining shall preempt other provisions

of this subchapter except as provided in this section.

The principles of § 1-612.3 shall apply to compensation

set under the provisions of this section.

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(b) As provided in this section, the Mayor, the Board

of Education, the Board of Trustees of the University of

the District of Columbia, the Board of Governors of the

School of Law, and each independent personnel author-

ity, or any combination of the above (hereinafter re-

ferred to in this section as “management’’) shall meet

with labor organization(s) (hereinafter referred to in

this section as “labor”) which has (have) been author-

ized to negotiate compensation at reasonable times in

advance of the District’s budget-making process to nego-

tiate in good faith with respect to salary, wages, health

benefits, within-grade increases, overtime pay, education

pay, shift differential, premium pay, hours and any other

compensation matters.

(c) Before the expiration of any existing negotiated

agreement between the parties, the parties may agree to

begin a thorough study of the compensation being paid to

comparable occupational groups of employees in other

jurisdictions in the Washington D.C. Standard Metro-

politan Statistical Area and the nation’s 30 largest cities

by population. The annual study may include hours of

work, health benefits and vacation time. The annual

study may also include the current percentage change in

the Consumer Price Index for the Washington Metro-

politan Area published by the Bureau of Labor Statistics,

United States Department of Labor.

(d) Repealed.

(e)(1) If the parties choose to conduct an annual

study pursuant to subsection (c) of this section, the

results of the annual study shall be made public and shall

be available to the parties involved in negotiations for

such use as they may mutually agree upon.

(2) The results of the annual study may be up-

dated at any time by any party to the negotiation.

Such updates shall constitute supplements to the annual

study and shall be made public and utilized in the same

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manner as the annual study pursuant to paragraph (1)

of this subseciton.

(f) (1) Negotiations among the parties to existing

contracts shall commence no later than 90 days before

the expiration of the existing contracts. The failure of

any party to begin negotiations by 90 days before the

expiration of existing contracts, without the express writ-

ten consent of all parties, shall constitute an automatic

impasse. Any party may notify the Executive Director

of the Public Employee Relations Board in writing of

this automatic impasse. The Executive Director shall

assist in the resolution of this automatic impasse by

selecting an impartial person experienced in public sec-

tor disputes to serve as a mediator. If the mediator does

not resolve the automatic impasse within 30 days, or any

shorter period designed by the mediator, the Executive

Director shall then appoint an impartial Board of Arbi-

tration to investigate the labor-management issues in-

volved in the dispute, conduct whatever hearings it deems

necessary, and issue a written award to the parties with

the object of achieving a prompt and fair settlement of

the dispute. The award shall be issued within 20 days

after the Board has been established. The award shall

contain findings of fact and a statement of reasons. The

award shall be final and binding upon the parties in

the dispute.

(2) Negotiations shall continue among the parties

until a settlement is reached or until 180 days after ne-

gotiations have commenced. If the parties have failed to

reach settlement on any issues by the 180th day, then an

automatic impasse may be declared by any party. The

declaring party shall promptly notify the Executive Di-

rector of the Public Employee Relations Board in writing

of an impasse. The Executive Director shall assist in

the resolution of this declared automatic impasse by

selecting an impartial person experienced in public sec-

tor disputes to serve as a mediator. If the mediator does

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not resolve the declared automatic impasse within 30

days, or any shorter period designated by the mediator,

or before the automatic impasse date, the Executive Di-

rector, upon the request of any party, shall appoint an

impartial Board of Arbitration to investigate the labor-

management issues involved in the dispute, conduct what-

ever hearing it deems necessary, and issue a written

award to the parties with the object of achieving a

prompt and fair settlement of the dispute. The last best

offer of each party shall be the basis for such automatic

impasse arbitration. The award shall be issued within

20 days after the Board has been established. The award

shall contain findings of fact and a statement of reasons.

The award shall be final and binding upon the parties to

the dispute.

(3) If the parties reach an impasse on any issues

in negotiations before the declared automatic impasse

date, any party shall promptly notify the Executive Di-

rector of the Public Employee Relations Board in writ-

ing. The Executive Director shall assist in the resolu-

tion of this impasse by selecting an impartial person

experienced in public sector disputes to serve as a media-

tor. If the mediator does not resolve the impasse within

30 days, or any shorter period designated by the media-

tor, or before the automatic impasse date, the Executive

Director, upon the request of any party, shall appoint an

impartial Board of Arbitration to investigate the labor-

management issues involved in the dispute, conduct

whatever hearing it deems necessary and issue a writ-

ten award to the parties with the object of achieving a

prompt and fair settlement of the dispute. The last best

offer of each party shall be the basis for this impasse

arbitration. The award shall be issued within 20 days

after the Board has been established. The award shall

contain findings of fact and a statement of reasons.

The award shall be final and binding upon the parties

to the dispute.

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(4) If the procedures set forth in paragraph-(1),

(2) or (3) of this subsection are implemented, no change

in the status quo shall be made pending the completion

of mediation and arbitration, or both.

(5) The fact finder, mediator and any members

of the Board of Arbitration appointed by the Executive

Director of the Public Employee Relations Board shall

be entitled to compensation at the maximum daily rate

allowable by law for each day they are actually engaged

in performing services under this section. Compensation

for arbitration shall be divided equally and paid one-half

by management and one-half by labor; compensation for

mediation and fact-finding shall be paid by the moving

party, or shared if by mutual request.

(g) Multi-year compensation agreements are encour-

aged. No compensation agreement shall be for a period

of less than 3 years. When multi-year agreements are

negotiated, the annual negotiations for the years in

which a new contract is not being negotiated shall be

suspended.

(h) Compensation negotiations pursuant to this sec-

tion shall be confidential among the parties: Provided,

however, that the Council may appoint observers from

its membership and staff, or both, to the negotiations.

Such Council observers will be responsible for informing

the members of the Council of the progress of negotia-

tions. All information concerning negotiations shall be

considered confidential until impasse or settlement.

(i) Any settlement agreed to before September 15th

of any year(s), including an arbitrator’s award, shall be

included in the Mayor’s budget request in mid-Septem-

ber. Any other settlement shall be included in a supple-

mental budget request submitted by the Mayor. The

Mayor shall fully support the passage of such settlement

by every reasonable means before all legislative bodies

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provided that the Mayor shall not be required to support

an arbitrator’s award.

(j) Within 60 days after the parties have reached

agreement or a board of arbitration has issued its award,

the management shall transmit the settlement to the

Council for its review. If the management fails to trans-

mit the settlement to the Council within the 60-day pe-

riod, it shall be deemed to be submitted on the 61st day.

Within the 60-day review period in this subsection, the

Council may accept or reject, by resolution, a settlement.

All labor relations settlements negotiated or otherwise

determined pursuant to this section shall become effective

by their terms, unless the Council rejects the settlement

by a two-thirds vote of its members within 60 calendar

days of its submission by the Mayor. The 60 calendar

days for Council review shall not include days that pass

during a recess of the Council. If the Council rejects

a settlement with a two-thirds vote of its members, then

the settlement shall be returned to the parties for re-

negotiation, with specific reasons for the rejection ap-

pended to the document disclosing the rejection of the

settlement.

(k) Any settlement, including an arbitrator’s award,

shall be included in either the District budget request or

in any supplemental budget request and shall be fully

supported by the District by every reasonable means

before Congressional bodies.

(1) Notwithstanding any provisions of subchapters

XXII, XXIII, or XXVII of this chapter to the contrary,

the health, life and retirement programs authorized by

these subchapters are proper subjects of collective bar-

gaining under this section.

(m) When the Public Employee Relations Board

(“Board”) is required to determine an appropriate bar-

gaining unit for the purpose of compensation negotia-

tions pursuant to § 1-618.16, negotiations for compensa-

SA-13

tion between management and the exclusive representa-

tive of the appropriate bargaining unit shall begin no

later than 90 days after the Board’s determination. The

timetable for the conduct and conclusion of such negotia-

tions shall be that provided for in subsection (f) of this

section. The Mayor shall negotiate agreements concern-

ing working conditions at the same time as he or she

negotiates compensation issues.