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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2279%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 883

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2279%3A2. Public record. Not legal advice.