Opposition Brief — American Cast Iron Pipe Co. v. Cox

Supreme Court, U.S,

FILED

SEP 17 1066

OL, JR»

— CLERK

eens samme ~ ..

. “een, - >? -

No. 86-167 3

IN THE

Supreme Court Of Che United States

October Term, 1986

AMERICAN CAST IRON PIPE COMPANY,

Petitioner

Vs.

ANNETTE COx, et al.,

Respondents

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

RoserT L. WIGGINs, JR.

1500 Colonial Bank Building

Birmingham, Alabama 35203

(205) 328-0640

Counsel for Respondents

i

TABLE OF CONTENTS

TABLE OF CASES AND §$TATUTES —. —____

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT ___.-----_

I. THE CHALLENGE TO THE APPEAL BY

18 CLASS MEMBERS IS RENDERED MOOT

BY THE UNCHALLENGED APPEAL ON

BEHALF OF THE CLASS BY THE

CLASS REPRESENTATIVE

Il. THE ENTRY OF A NEW JUDGMENT

UNDER F. R. CIV. P. 54 (b) AFTER ALL

POST-JUDGMENT MOTIONS WERE FILED

RECOMMENCED THE TIME FOR APPEAL

AS TO THOSE CLAIMANTS AND ISSUES

CERTIFIED PURSUANT TO RULE 54 (b)

CONCLUSION

Page

ii

TABLE OF AUTHORITIES

Cases:

Acosta v. Louisiana Dept. of Health,

106 S.Ct. 2876 (1986)

American Pipe & Construction Co. v. Utah,

414 U.S. 538, 551-552, 94 S.Ct. 756,

38 L.Ed.2d 718 (1974)

Behring Intl., Inc. v. Imperial Iranian Air Force,

699 F.2d 657 (3rd Cir.) , reh’g denied,

712 F.2d 45 (Srd Cir. 1965) _._._.__

Coopers & Lybrand v. Livesay, 437 U.S. 463, 469,

98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) -

Crown, Cork & Seal Co., Inc. v. Parker,

103 S.Ct. 2392 (1981)

Davis v. Board of School Commissioners of Mobile

County, 600 F.2d 470, 475 (5th Cir. 1979)

Deposit Guaranty National Bank of Roper,

455 U.S. 326, 336-340, 100 S.Ct. 1166,

BE7S-1575, GD Lede GE) Cae nicer

E.E.0.C. v. Bailey Co., 563 F.2d 439, 450-454 (6th

Cir. 1977) , cert. denied, 435 U.S. 915 (1978)

E.E.0.C. v. Mississippi College,

626 F.2d 477, 483 (5th Cir. 1980)

Eisenberg v. Gagnon, 766 F.2d 770,

feeres Geta. 19) eee

Gonzales v. Cassidy, 474 F.2d 67,

75-76 (5th Cir. 1973)

Griggs v. Provident Consumer Discount

Company, 459 U.S. 56 (1982)

Hackeit v. McGuire Bros.,

445 F.2d 442 (8rd Cir. 1971)

Hill v. Western Electric Co., Inc.,

G72 F.2d 581 (40h Cis. T9068) Wee

Knighton v.Watkins, 616 F.2d 795,

757 (Sch Cir. 1900)

Page

oe ee,

lil

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Martin v. Campbell, 692 F.2d 112,

EE,

Metropolitan Life Ins. Co. v. Trafficante, 409 US.

205, 95 S.Ct. 364, 34 L.Ed.2d 415 (1972) _-.................. 6

Rogers v. E.E.0.C., 454 F.2d 234, 238 (5th Cir.

1971) , cert. denied, 406 U.S. 957 (1972)

United Airlines v. McDonald, 932 U.S. 385,

7 Ban, coos, oe 1.20.26 465 (1977) __ _ 7

United States Parole Commission v. Geraghty,

445 U.S. 388, 399-405, 100 S.Ct. 1202,

ea

Waters v. Hueblin, 547 F.2d 466, 469-470 (9th

Cir. 1976) , cert. denied, 433 U.S. 915 (1977) 6

White v. New Hampshire Dept. of Emp. Sec.,

455 U.S. 445, 451-454, 102 S.Ct. 1162,

en eee one (beee) DG

Statutes and Rules:

Civil Rights Act of 1964, Title VII,

42 U.S.C. Section 2000e-5 (k) —... ee

Federal Rule of Appellate Procedure

gE

Federal Rule of Civil Procedure 4 (a) ad

Advisory Committee Note —... si cainagensacsins Re OO

Pousses mee Ge Gavel Sroceaure 25. CC

Federal Rule of Civil Procedure 54 (b) 0... passim

Federal Rule of Civil Procedure 58 | aaa eee,

Federal Rule of Civil Procedure 59,

oe (c), end 39 (ec) —___ tle Sibi tadieaseioionsnginn ...... passim

Other Authorities:

Moore’s Federal Practice, Vol. 9, Par. 203.18, p. 3-80 5

No. 86-167

IN THE

Supreme Court Of Che United States

October Term, 1986

AMERICAN CAST IRON PIPE COMPANY,

Petitioner

VS.

ANNETTE COX, et al.,

Respondents

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

STATEMENT OF THE CASE

The district court found as a fact that the defendant estab-

lished and maintained a pattern and practice of sexual segre-

gation of its workforce through a “policy of reserving plant

clerical jobs for men”. 585 F.Supp. at 1158. This finding was

completely supported by the evidence and has not been chal-

lenged by the defendant. The Court of Appeals reiterated the

facts as follows:

In the action before us it is undisputed that the defen-

dant had a policy of overt workforce sex segregation. Be-

fore December 1973 ACIPCO deliberately reserved cleri-

cal jobs in its all-male production plant for men. The non-

plant clerical jobs paid less than the plant clerical jobs.

2

Only after this suit was filed did defendant allow a few

women to make their way into the plant. Outside the

plant, women were also kept on the lowest level of the

workforce and paid the least.

The defendant maintained this discriminatory system

through word of mouth hiring. There was no posting or

announcing of vacancies in salaried jobs. There were also

no bid systems or formal applications for these jobs, and

no written criteria for selection — the system was entirely

one of subjective evaluation. Hourly job openings were

sometimes posted, but only in the plant where women, of

course, could not see them. In short, sex discrimination at

ACIPCO was pervasive and overt.

Despite the evidence of a common “policy of reserving plant

clerical jobs for men” which resulted in “‘pervasive and overt”

sex discrimination, the district court decertified the class after

the judge who had originally certified it resigned to return to

private practice and was replaced by a newly appointed district

judge in 1982. (App. 6-20). The Court of Appeals reversed

the decertification because of a series of abuses of discretion by

the district court in 1983 which neéd not be reiterated again

for present purposes. (App. 6-20) .

The defendant has not challenged the reversal of the decer-

tification of the class or any other part of the substantive rul-

ings by the Court of Appeals in its request for issuance of a

writ of certiorari in this Court. That ruling by the Court of

Appeals reinstated a class of 240 women employees of the de-

fendant. (App. 8). The defendant has limited the relief it

seeks in the current proceedings to dismissal of the separate

appeal of 18 of the 240 class members. Pet., p. 15. The de-

fendant has not challenged the Court of Appeals’ jurisdiction

of the remaining 222 members of the class, one of whom was

one of the two class representatives, Brenda Morgan.' Because

1There were two named individual plaintiffs who were certified as

class representatives, Annette Cox and Brenda Morgan. (App. 8). A third

named plaintiff, Joyce Pandellis, was not certified as a class representa-

tive. (App. 8). One of the class representatives, Brenda Morgan, was one

of the three prevailing class members awarded back-pay who filed the un-

challenged appeal in No. 84-7462. (App. 2 n.1, 8-9, 26-28). The other

3

it is undisputed that the class representative timely and prop-

erly appealed on behalf of the class after all post-trial motions

were denied, the unchallenged notice of appeal filed by class

representative Brenda Morgan also preserved the appellate

rights of the 18 class members challenged by the defendant in

its Petition in this Court in the same way that the class repre-

sentative’s notice of appeal preserved the appellate rights of

the other 222 members of the class. The Court of Appeals

specifically remanded the claims of the 18 challenged class

members for participation as class members in a classwide trial

of the ‘“‘pattern and practice” of discrimination. (App. 26).

Only 3 of the 222 class members who have not been challenged

jurisdictionally in the defendant’s Petition to this Court filed

any notice of appeal, and yet all 222 will be permitted to par-

ticipate in the classwide trial on remand.

The Court of Appeals rejected the defendant’s jurisdictional

challenge to the appellate rights of the 18 “non-prevailing”’

class members because those class members timely filed a notice

of appeal on their own behalf within 30 days after a judgment

was entered against them under F. R. Civ. P. 54 (b) which

certified that there “was no just reason” for delay of an appeal

by those 18 class members as to their challenge to the under-

lying judgment against them. The Rule 54 (b) judgment was

entered after all of the Rule 59 motions were filed and it

disposed of all such motions directed to the judgment against

the 18 non-prevailing class members. (App. 55). ‘There were

no motions filed after the 54 (b) judgment which suspended

the time for appeal from that judgment. As with all Rule

class representative was one of the 18 class members who were denied

back-pay. (App. 20). The remaining 237 members of the class were not

named plaintiffs. Of these 237, 18 class members presented claims for

back-pay, 123 class members were not permitted to present claims because

of the abusive opt-out procedure which was reversed by the Court of Ap-

peals, another 70 class members were not permitted to present claims be-

cause of the abusive discovery sanctions which were reversed by the Court

of Appeals and the remaining 26 class members elected not to participate

in the individualized trials because of the onerous nature of such proceed-

ings. (App. 10-17).

4

54 (b) judgments, there were parties and issues other than

those included in the 54 (b) judgment which were left pend-

ing in the trial court, but none of those were addressed to the

18 non-prevailing class members except for the defendant’s re-

quest for the assessment of fees and costs against such class

members and the defendant's opposition to the assessment of

fees and costs against it. (App. 52-53). The — of Appeals

held that the latter motion was not one which should operate

to suspend the time for appeal from the original underlying

judgment against the 18 class members or from the subsequent

Rule 54 (b) judgment because issues concerning fees and costs

were not capable of upsetting the judgment against the 18 class

members. Nor was such motion capable of creating a situation

where the validity of the underlying judgment against the 18

class members on the merits was being reviewed simultaneously

in the Court of Appeals and the trial court. (App. 4-6). The

same result is dictated by Rule 54 (b) which expressly permits

entry of judgments against less than all the parties and/or less

than all the issues.

The Rule 54 (b) judgment against the 18 class members

was entered on May 21, 1984 and those class members appealed

from that judgment on June 7, 1984. (App. 55-57). On June

14, 1984 judgment was entered as to all the remaining parties

and issues and the class representative, Brenda Morgan, ap-

pealed from that judgment on July 3, 1984. (App. 58-60).

There has never been any allegation by the defendant that it

was prejudiced by these events, nor could there be. Neither

was there ever any challenge to the Rule 54 (b) judgment in

the trial court by any party.

REASONS FOR DENYING THE WRIT

The decision of the Court below does not ccnflict with prior

precedent in this or any other Court. None of the prior prece-

dent relied upon by the Petitioner involved a Notice of Appeal

filed after denial of the Rule 59 motion and @fter that denial

was embodied in a new judgment entered pursuant to F. R.

5

Civ. P. 54 (b) as to less than all the parties and less than all

the issues. The claim of conflict by the Petitioner is mere

hyperbole. The decision of the Court below is an unexcep-

tional application of the obvious content and wording of F. R.

Civ. P. 54 (b) and F. R. App. 4 (a) (4) which allow the entry

of appealable judgments as to less than all the parties and less

than all the issues. The question deserves no further belabor-

ing by the courts. Even if this were not true, the question pre

sented is moot because of the unchallenged Notice of Appeal

by the class representative in a separate appeal which tolled

the time for appeal and obviated the need for separate Notices

of Appeal for all of the 240 members of the class, including the

18 who are challenged in the current proceedings.

I. The Challenge To The Appeal By 18 Class Members

Is Rendered Moct By The Unchallenged Appeal On

Behalf Of The Class By The Class Representative

The defendant's challenge to the appeal by the 18 non-pre-

vailing class members is rendered moot by the unchallenged

appeal filed by the class representative, Brenda Morgan, on

behalf of herself and the class that was erroneously decertified

by the trial court. The defendant does not challenge the Court

of Appeals jurisdiction over the class claims or the individual

claims of the class representative, Brenda Morgan, because it

concedes that she timely appealed from the interlocutory de-

certification of the class* and the final judgment on the merits

after all post-judgment motions were denied. (App. 60). The

only relief that is sought in the Petition For Writ Of Certiorari

2The class certification and decertification orders were interlocutory

and unappealable until a final judgment on the merits was entered. All

interlocutory orders are merged in the final judgment and appeal from

such a final judgment includes all prior interlocutory orders. Moore's

Federal Practice, Vol. 9, Par. 203.18, p. 3-80 [An appeal from the final

judgment draws in question all prior non-final orders and all rulings

which produce the judgment. Having thus appealed from the judgment,

the appellant is then free to attack any part of it in his brief, or any prior

non-final order or ruling leading up to it”.].

6

is dismissal of the separate appeal] filed by the 18 class members

who participated in the trial on the merits. Pet., p. 15. The

defendant seeks no such dismissal or any other relief as to the

other 222 members of the class benefitted by the appellate re-

versal of the decertification of the class. Jd. The 18 class mem-

bers which the defendant seeks to have dismissed should not

be held to be in any different posture than the other 222 class

members because both groups were equally protected by the

unchallenged notice of appeal filed by the class representative,

Brenda Morgan, after the denial of ali Rule 59 motions. The

Court of Appeals specifically reinstated the 18 non-prevailing

class members to the class and remanded their claims for prose-

cution as a part of a classwide trial of the “pattern and prac-

tice’’ of employment discrimination which is common to both

the 222 class members who filed no notice of appeal and the

18 class members who filed an allegedly defective notice of

appeal. (App. 26).

There is no basis for treating the 18 participating class mem-

bers any differently from the 222 passive class members when

it comes to the jurisdictional and procedural effect of the class

representative's appeal on behalf of the class. The class repre-

sentative has the right and responsibility to appeal denial of

class certification on behalf of the class as a whole.* Deposit

’The class representative has continued to have a direct stake in the

outcome of the class certification issue because as of yet she has not ob-

tained the injunctive, declaratory or monetary relief necessary to make

her whole or to end future discrimination against her. (App. 26-28).

Moreover, she continues to have the same vital interest in working in a

sexually neutral work environment in which women are able to rise to

the heights that their talents can take them without regard to their sex.

See, Metropolitan Life Ins. Co. v. Trafficante, 409 U.S. 205, 95 S.Ct. 364,

34 L.Ed.2d 415 (1972) (White plaintiff has personal stake and standing

to seek injunctive and declaratory relief against racial discrimination

aimed at blacks because of white plaintiff's interest in living in integrated

environment.) ; E.E.0.C. v. Mississippi College, 626 F.2d 477, 483 (5th Cir.

1980); E.£.0.C. v. Bailey Co., 563 F.2d 439, 45-54 (6th Cir. 1977), cert.

denied, 435 U.S. 915 (1978); Waters v. Hueblin, 547 F.2d 466, 469-470

(9th Cir. 1976), cert. denied, 433 U.S. 915 (1977); Hackett v. McQuire

Bros., 445 F.2d 442 (3rd Cir. 1971). See generally, Rogers v. E.E.0.C.,

454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972); Davis

7

Guaranty National Bank of Roper, 455 U.S. 326, 336-340, 100

S.Ct. 1166, 1173-1175, 63 L.Ed.2d 427 (1980); United States

Parole Commr. v. Geraghty, 445 U.S. 388, 399-405, 100 S.Ct.

1202, 1210-1214, 63 L.Ed.2d 479 (1980) ; Coopers & Lybrand

v. Livesey, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458, 57 L.Ed.2d

351 (1978); Eisenberg v. Gagnon, 766 F.2d 770, 784-85 (3rd

Cir. 1985) ; Gonzales v. Cassidy, 474 F.2d 67, 75-76 (5th Cir.

1973). Even a putative class member can appeal the denial of

the class certification order when the class representative fails

to do so.* The timely filing of a notice of appeal by the class

representative tolls the time for filing a notice of appeal by

the putative class members. See, United Airlines v. McDonald,

432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 443 (1977); Crown,

Cork & Seal Co., Inc. v. Parker, 103 S.Ct. 2392 (1981) ; Ameri-

can Pipe & Construction Co. v. Utah, 414 U.S. 538, 551-552,

94 S.Ct. 756, 38 L.Ed.2d 718 (1974) [Court held that the limi-

tation period for filing a claim was tolled for absent class mem-

bers by the filing of the class complaint, and there was no need

for absent class members to intervene to protect their own in-

v. Board of School Commissioners of Mobile County, 600 F.2d 470, 475

(5th Cir. 1979). Surely if white employees have standing to challenge em-

ployment practices which adversely affect blacks, black employees also

have standing to challenge such practices and female employees have

standing to challenge sex discrimination against other females.

4In United Airlines, Inc. v. McDonald, 432 U.S. 385, 394, 97 S.Ct. 2464,

2468-71, 73 L.Ed.2d 423 (1977), this Court allowed a putative class

member to step into the class representative’s shoes and file a timely

appeal of the denial of class certification on behalf of other putative

class members. Her timely filing of a notice of appeal of the class

certification order effectively tolled the time for appeal for the other

putative class members and obviated the need for such class members to

file their own separate appeals once Ms. McDonald moved to protect

their interests. Id. 97 S.Ct. at 2468-2471. See, also Hill v. Western Elec-

tric Co., Inc., 672 F.2d 381 (4th Cir. 1982) [Relying on McDonald, Court

held that putative class members could not be expected to intervene on

appeal until the original class represéntatives had exhausted their appel-

late remedies.]. Clearly, under McDonald, if a putative class member can

toll the time for appeal and obviate the need for separate appeals by other

class members, a class representative can do the same for the class she

represents.

8

terests until it became apparent that the class representatives

were not adequately protecting the class.].

For all the foregoing reasons, once the class representative,

Brenda Morgan, filed a timely notice of appeal on July 3, 1984,

the time limitations imposed by Federal Rule of Appellate Pro-

cedure 4 (a) (1) and 4 (a) (4) were tolled for the putative

class members and there was no need for the 18 class members

who had earlier filed a notice of appeal from the Rule 54 (b)

judgment to file a new notice of appeal after the class repre-

sentative had done so for them. Because the 18 non-prevailing

class members have an identical interest to that of the other

222 class members in the appeal of the decertification of the

class, the request for appellate review at the behest of the class

representative served as a notice of appeal for all members of

the ‘‘decertified” class and not just the 222 class members who

filed no notice of appeal whatsoever.> Therefore, the defen-

dant’s Petition addresses a moot point by challenging the June

7, 1984 notice of appeal and ignoring the July 3, 1984 notice

of appeal by the class representative.

II. The Entry Of A New Judgment Under F. R. Civ. P.

54 (b) After All Post-Judgment Motions Were Filed

Recommenced The Time For Appeal As To Those

Claimants And Issues Certified Pursuant To Rule

54 (b)

The defendant’s reasons for granting the writ are invalidated

by the plain wording and intent of F. R. Civ. P. 54 (b) and

5The purpose of designating a class representative is to have at least

one person responsible for maintaining the requirements of jurisdiction,

venue and appeal. In McDonald and American Pipe, supra, this Court

was concerned with the potential problems that a rule requiring putative

class members to intervene shortly after denial of certification would

cause by spawning the very multiplicity of activity that Federal Rule of

Civil Procedure 23 sought to avoid. 97 S.Ct. at 2470 fn. 15. 97 S.Ct. at

2470. Requiring putative class members to file separate appeals after final

judgment, when a valid class representative has moved to protect their

interests would recreate the identical multiplicity problem that McDonald

and American Pipe sought to avoid.

9

F. R. App. P. 4 (a) (4). Rule 54 (b) expressly empowers a

district court to enter a final appealable judgment as to less

than all the parties and less than all of the issues in the case

whenever the court certifies that “there is no just reason for

delay and upon an express direction for the entry of judg-

ment”. F. R. Civ. P. 54 (b). That is exactly what the district

court did on May 21, 1984 when it entered judgment pursuant

to Rule 54 (b) as to the 18 class members who were denied

back-pay in the original judgment entered April 30, 1984.

(App. 55). The new judgment entered under Rule 54 (b)

came after all post-trial motions were filed and expressly de-

nied all such motions addressed to the claims of the 18 class

members certified in the 54 (b) judgment except ones dealing

with attorney’s fees and costs. (App. 55-60). The new judg-

ment entered as to these 18 class members fits exactly within

the intent and wording of Rule 54 (b) because it involved less

than all the parties and less than all the issues and was accom-

panied by the requisite certification that there was no just rea-

son for delay of an appeal. (App. 55).

There is nothing within Rule 54 (b) which indicates that a

district court cannot enter a Rule 54 (b) judgment as to less

than all of the parties and issues after the finality of an original

judgment has been suspended. Once the Rule 54 (b) judg-

ment is entered, the time for appeal from that judgment begins

to run automatically. The party against whom such a judg-

ment is entered cannot avoid filing a notice of appeal within

30 days merely because motions as to other parties and issues

which are not covered by the 54 (b) certificate are left pending

in the district court. It is the express purpose of Rule 54 (b)

to require appeal of some issues and parties while other issues

and parties are left pending in the trial) court. See e.g., Martin

v. Campbell, 692 F.2d 112, 115 (11th Cir. 1982) [The final

judgment rule contemplates a single, unfragmented appeal, as

opposed to a case carved up with part of it in the appellate

court and another part alive in the district court (except where

the district court enters a Rule 54 (b) direction and certificate

finding fragmentation justifiable) ’’.).

10

The defendant is able to cite no precedent or authority

which indicates that a Rule 54 (b) judgment should be a

nullity when entered while Rule 59 motions are pending as

to parties and issues other than the ones contained in the Rule

54 (b) certification and judgment.® Contrary to the defen-

dant’s argument, the literal language of F. R. App. 4 (a) (4)

does not support such a result. That Rule states on its face

that “[a] notice of appeal filed before the disposition of any of

the above motions shall have io effect”. F. R. App. 4 (a) (4)

(emphasis supplied). The challenged notice of appeal in the

current case was not filed ‘‘before the disposition of any of the

[Rule 59] motions’, but instead was filed after such motions

were denied as to the parties and issues contained in the 54 (b)

certificate and judgment. Admittedly, there were other issues

and parties still pending in the trial court after the entry of the

Rule 54 (b) certificate and judgment, but it is the express

purpose of the latter rule for that to occur. Appellate Rule

4 (a) (4) cannot be relied upon to change the operation of

Rule 54 (b) unless the word “any” in Rule 4 (a) (4) is

changed to the word “‘all” so that it reads as follows: ‘‘a notice

of appeal filed before the disposition of all of the above mo-

6The defendant’s argument that the decision in the current case is in

“direct conflict” with this Court’s decision in Griggs and Acosta is frivo-

lous. Pet. p. 9. In Griggs v. Provideit Consumer Discount Company, 459

U.S. 56 (1982), there was no judgment or ruling disposing of any part of

the Rule 59 motion at the time that the notice of appeal was filed. That

is the exact opposite of the current case because here the plaintiffs only

appealed after the applicable motion for new trial was denied and after

a new judgment under Rule 54 (b) was entered which recommenced the

running of the suspended time for appeal. Similarly, the decision in

Acosta v. Louisiana Dept. of Health, 106 S.Ct. 2876 (1986), also involved

the inapposite situation where the plaintiff appealed prior to the entry

of an order denying the Rule 59 Motion. As in Griggs, there was never

any Rule 54 (b) judgment entered in Acosta after the filing and denial

of the Rule 59 motion. The only way that either Acosta or Griggs could

apply to the situation in the current case would be if the Rule 54 (b)

judgment and denial of the Rule 59 motion on May 21, 1984 were ig-

nored. That, of course, cannot be done. All of the other decisions relied

upon by the defendant suffer from the same defect. Pet. p. 10 n.3. None

of them involve a situation where a Rule 54 (b) judgment is entered

after the Rule 59 motion is denied and before the notice of appeal is filed.

i]

tions shall have no effect’’.’ The Rule, however, does not state

that, but instead states that a notice of appeal filed before the

disposition of “‘any’’ (i.e. one or more) of the Rule 59 motions

“shall have no effect’.

The word “any” renders appellate Rule 4 (a) (4) consistent

with Rule 54 (b) because it permits the district court to ren-

der a final appealable judgment as to the issues and parties in

one Rule 59 motion while retaining the issues and parties in-

volved in another motion for further proceedings in the trial

court. Such a result obviously satisfies the central purpose of

Rule 54 (b) and satisfies the intent and literal language of

appellate Rule 4 (a) (4) which merely suspends the time for

appeal from an original judgment during the period prior to

“the disposition of any of the [post-judgment] motions”. Once

“any” of the Rule 59 motions are denied and that denial is

accompanied by a Rule 54 (b) certificate and judgment, the

purpose and literal language of appellate Rule 4 (a) (4) is

served and there is no further reason to continue the suspen-

sion of the time for appeal.®

This construction of Rule 54 (b) and appellate Rule 4 (a)

(4) renders them consistent with one another, whereas the

construction argued by the defendant places them in an ir-

reconcilable conflict in which Rule 54 (b) has no room for

operation in a post-judgment context where issues and parties

7The defendant-petitioner states in its Petition that “[{u]nder the plain

language of Rule 4 (a) (4), a notice of appeal filed before the disposi-

tion of any and all Rule 59 (ec) motions ‘shall have no effect’, and a new

notice of appeal ‘must be filed’”. Pet. p. 8. (emphasis supplied). The

defendant can point to nothing in the plain language of Rule 4 (a) (4)

which says “any and all”. The defendant’s argument takes an unwar-

ranted license with the Rule by inserting the word “all” where it does

not appear.

8The defendant argues that the policy against piecemeal appeals em-

bodied in 28 U.S.C. Section 1291 supports its position. Those policies,

however, are modified by .he policy and purpose of Rule 54 (b) which

expressly contemplates entry of a final judgment as to less than all of

the parties and less than all of the issues. When the requisite certification

that “there is no just reason for delay” is made by the district court under

Rule 54 (b), the volicies against piecemeal appeals is adumbrated.

12

other than those certified in the 54 (b) judgment are left pend-

ing in the district court by way of separate Rule 59 motions.

The defendant disavows that its argument has this effect and

argues that “Rule 54 (b) would still have full play in post-trial

proceedings” in the situation involved in Behring Intl., Inc. v.

Imperial Iranian Air Force, 699 F.2d 657 (3rd Cir.) , reh’g

denied, 712 F.2d 45 (3rd Cir. 1983). The situation in Behring,

however, is inapposite to that in the current case because there

the Rule 54 (b) judgment was entered before the Rule 59

motion was filed which suspended the time for appeal from the

latter judgment. In the current case, of course, the exact oppo-

site occurred when the Rule 54 (b) judgment was entered

after the Rule 59 motion was filed and denied. The refusal to

recognize this crucial distinction is a defect in the defendant's

argument that is common to all of the precedent it relies upon.

See footnote 6 supra.

Even if this distinction did not render the decision in Behring

useless for present purposes, the decision plainly states that a

notice of appeal filed before a denial of any Rule 59 motion

is valid “if the appeal and the Rule 59 motion [do not] raise

identical or closely related legal issues in the same factual con-

text’. The Court of Appeals in the current case, of course,

held that the motions which remained pending after the Rule

54 (b) judgment involved issues unrelated to the parties and

issues certified in the 54 (b) judgment. (App. 4-6). The only

thing left pending after the Rule 54 (b) judgment which was

addressed to the 18 non-prevailing class members was the de-

fendant’s motion requesting fees and costs against such class

members and opposing the assessment of fees and costs against

it for time spent by the plaintiffs’ attorneys litigating such

losing claims. (App. 58-59). The Court of Appeals correctly

9The Court in Behring stated that it “express[ed] no opinion as to

whether F. R. Civ. P. 4 (a) (4) and Griggs might permit a party to ap-

peal a decision certified pursuant to Fed. R. Civ. P. 54 (b) while the

opposing party’s Rule 59 motion was pending if the appeal and the mo-

tion did not raise common legal issues in a shared factual [context]”.

Id. 712 F.2d at 47 n.2.

eee y

ao

13

held that a motion disputing the assessment of fees and costs

was collateral to the question of whether the 18 plaintiffs were

the victims of employment discrimination and could not lead

to the appellate court and the trial court simultaneously re-

viewing the judgment against the 18 class members on the lat-

ter question. (App. 4-6). See, White v. New Hampshire Dept.

of Emp. Sec., 455 U.S. 445, 451-454, 102 S.Ct. 1162, 1166-1168,

71 L.Ed.2d 325 (1982) (“Consistently with this original under-

standing, the federal courts generally have invoked Rule 59 (e)

only to support reconsideration of matters properly encom-

passed in a decision on the merits. *** By contrast, a request

for attorney’s fees under Section 1988 raises legal issues col-

lateral to the main cause of action — issues to which Rule

59 (e) was never intended to apply”.) ; Knighton v. Watkins,

616 F.2d 795, 797 (5th Cir. 1980).

In so holding, the Court below specifically relied upon the

Advisory Committee Note which states that “it would be un-

desirable to proceed with the appeal while the district court

has before it a motion the granting of which would vacate or

alter the judgment appealed from’. App. 4 [quoting from F. R.

Civ. P. 4 (a) (4) Advisory Committee Note with emphasis

supplied by the Court below]. The Court of Appeals con-

cluded that the mere fact that a motion concerning attorney’s

fees was pending at the time that the Rule 54 (b) judgment

as to other issues was entered was not sufficient to suspend the

time for appealing from the Rule 54 (b) judgment because

the motion concerning attorney's fees and expenses was not

one which, in the words of the Advisory Committee and the

Court below, “ ‘would vacate or alter the judgment appealed

from’”’. (App. 4). That is certainly true in the current case.

The 18 plaintiffs appealed from the underlying judgment

which held that they were not the victims of sexual discrimina-

tion in employment opportunities. The defendant’s effort to

have attorney’s fees and costs assessed against such plaintiffs

and not against itself was not something that “would vacate or

alter the judgment appealed from”. (App. 4). The “judgment

appealed from” was the ruling that the 18 class members were

14

not the victims of sex discrimination. There was absolutely

nothing left in the trial court after the June 7, 1984 notice of

appeal which could have possibly overturned the latter judg-

ment or lead to simultaneous review in the appellate and trial

courts.?°

The Advisory Committee Note to Appellate Rule 4 (a) (4)

relied upon by the Court of Appeals is consistent with Rule

54 (b) because they both recognize that there are some issues

which should not suspend the time for appeal as to other un-

related issues. The defendant offers no plausible reason for

doubting the wisdom of the Court of Appeals in holding

that a motion directed to attorney’s fees and costs is one

of those issues which should not interrupt the finality of

a judgment on the merits of the case. (App. 4-7). Attorney’s

fees are part of the “costs” in a Title VII case such as the cur-

rent one. (App. 5-6). F. R. Civ. P. 58 expressly states that

“fe]ntry of the judgment shall not be delayed for the taxing of

costs”. There is substantial other precedent for refusal to allow

a dispute over fees and costs to suspend an otherwise final judg-

ment which is recited in the Court of Appeals decision herein-

below. (App. 5-6). Not the least of such authority is Rule 54

(b) which expressly empowers the district court to enter an

appealable judgment as to less than all the issues or parties.

10[t would be bizarre indeed if the defendant’s motions were capable of

overturning the judgment on the merits entered in favor of the defendant

on the 18 class members’ claims. The defendant is merely torturing the

English language and all notions of logic to suggest that a motion ad-

dressed solely to the question of who is entitled to attorney’s fees inter-

poses the possibility that the underlying judgment that the 18 class

members were not the victims of sex discrimination may be vacated or

overturned as a result of such a motion. Any semblance of doubt regard-

ing such a possibility was removed when the district court denied the

18 plaintiffs’ direct challenge under Rule 59 to the judgment, against

them and certified under Rule 54 (b) that there was no longer “any just

reason for delay” of an appeal by such plaintiffs from the denial of their

Rule 59 motions and the original judgment against them.

Se eer st

15

CONCLUSION

This case is not one that should be reviewed by the Court.

The Court of Appeals simply applied the obvious intent and

effect of F. R. Civ. P. 54 (b) and F. R. App. 4 (a) (4) by

permitting the 18 plaintiffs to file a separate Notice of Appeal

after the denial of the Rule 59 motion directed to the merits

of the decision that they were not the victims of sex discrimi-

nation and after that denial was embodied in a new judgment

entered pursuant to F. R. Civ. P. 54 (b) as to less than all the

parties and less than all the issues. This ruling does not in-

volve a conflict with prior precedent, but instead involves a

mundane application of the federal rules of procedure which

does not merit further belaboring at the behest of a defendant

who must account for the “pervasive and overt’ sexual dis-

crimination it practiced against the class on remand regardless

of the outcome of the challenge to 18 of the 240 members of

that class in the current proceedings. The unchallenged Notice

of Appeal by the class representative renders the entire ques-

tion prescnied by the Petitioner moot.

Respectfully submitted,

SPLBE

RoseErT L. WIGGINS, JR.

GORDON, SILBERMAN, WIGGINS

& CHILDS, P. C.

Attorneys at Law

1500 Colonial Bank Building

Birmingham, Alabama 35203

(205) 328-0640