Petition for Writ of Certiorari — Corwin v. Air Line Pilots Ass'n

(wD “me Court, US.

991662 APR 17 2008

OFHEE-OF-FHE CLERK

No.

In The

Supreme Court of the United States

®

CAPT. RICHARD CORWIN,

Petitioner,

AIR LINE PILOTS ASSOCIATION and

ROBERT O. HARRIS,

Respondents.

- o-

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

PETITION FOR A WRIT OF CERTIORARI

¢

NicHotas E. Karatinos, Esa.

Counsel of Record :

SEELEY & KaratINos, P.A.

3924 Central Avenue

St. Petersburg, FL 33711

(727) 328-1650

Counsel for Petitioner,

Capt. Richard Corwin

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

nr SE

ACCUM Haig rt te uy

LO aes 2

QUESTIONS PRESENTED

1. Whether as a prerequisite of federal appellate juris-

diction a party must file an initial, timely notice of appeal

followed by a succession of additional timely notices of

appeal in order to establish jurisdiction for the appeal?

2. Whether the Supreme Court should adopt as national

policy the position held by virtually all Federal Circuit

Courts of Appeal which accept for purposes of jurisdic-

tion a party’s timely initial notice of appeal by permitting

either a relation forward or a limited remand in order to

effectuate that party’s intent to appeal?

3. Whether a System Board of Adjustment Award prop-

erly issued under the Railway Labor Act can be defeated

by the application of principles of jurisdiction rejected by

most Federal Circuit Courts of Appeal?

il

RULE 29.1 STATEMENT

Pursuant to Rule 29.1 of the Rules of this Court,

petitioner Capt. Richard Corwin, an individual, was for-

merly a Captain with Eastern Airlines [EAL] with over

15,000 hours of flight experience. Since ending his career

with EAL, he has been employed as an aviation consul-

tant, as a pilot instructor, and as a contract pilot. Defen-

dant Air Line Pilots Association [ALPA] is a labor union

which represents pilots employed by the nation’s major

airlines. Defendant Robert O. Harris is a licensed attorney

with offices in Washington, D.C. who has served as a

consultant to ALPA.

,

" Ory epacamiiiaaliad ial POET ye

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TABLE OF CONTENTS

Page

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EPL L TEP TCT ENTREE OCEL TTT ET TUTTE TTT 1

Statutory Provision Involved...................645- 1

Statement ....... eee e eee eee eee e ence eens 1

SUMMARY GF ATRUMOERE «0... ccc ccc cscs ceneenene 7

Reasons for Granting the Petition.................. 8

EE LIE TEPC OTCOLE TEL TEE TET TCE TOT TT Ee 18

ET PSEC TTS TERT CELE TT, App. 1

iv

TABLE OF AUTHORITIES

Page

CASES

Agruirre v. S.S. Sohio Intrepid, 801 F.2d 1185 (9th

ek SS Sire ns a ek eR RR ea ae 11

A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d

pee Be er re re irre 9

Berman v. United States, 302 U.S. 211 (1937) ......... 11

Beckett v. Air Line Pilots Assn., 995 F.2d 280

ep Re BOO ek ee dsikhake Cine eae 17

Boyko v. Anderson, 185 F.3d 672 (7th Cir. 1999).. 10, 11, 15

Clausen v. Sea-3, Inc., 21 F.3d 1181 (1st Cir. 1994) ..8, 11

Construction Aggregates Ltd. v. Forest Commodities

Corp., 147 F.3d 1334 (llth Cir. 1998) ............... 7

Contemporary Mission, Inc. v. United States Postal

Sere., 668 F.20 FF Gd Cie T9GE) oa ose ccavcasdac 14

Crowley Maritime Corp. v. Panama Canal Comm'n,

SOD FA SEE Ce Ge. Toa bn lb eo hacen nk 9, 11

Diamond v. Terminal Ry., 421 F.2d 228 (5th Cir.

RO ds kd one pea aa oe ek 16

Feather v. United Mine Workers of America, 711 F.2d

oe TE . TH vb hk sak erie 9

First Nat'l Bank of Salem v. Hirsch, 535 F.2d 343 (6th

PPO ree rer ree Ce oe os

Freeman v. Hittle, 747 F.2d 1299 (9th Cir. 1985) ....... 9

Griggs v. Provident Consumer Discount Co., 459 U.S.

We CMR 6h a Seni ixanedesaeeiesesae ee «oe 40

NOI Mg ey

me

Vv

TABLE OF AUTHORITIES - Continued

Page

Good v. Ohio Edison Company, 104 F.3d 93 (6th Cir.

EE TUTE T ETT TEPC ee E TT Cr She rrr out eerie rer 9

Harrison v. Edison Bros. Apparel Stores, Inc., 924

io be 2k Me.) rer rrr rrr rrr rey 9,11

Haskell v. Washington Township, 891 F.2d 132 (6th

Pee Peerer rrr err rrT Torr TT rr rere eT 12

In re Chateaugay Corp., 922 F.2d 86 (2nd Cir. 1990) ..8, 11

Intel Corp. v. Terabyte Int'l, Inc., 6 F.3d 614 (9th Cir.

| errr mr rrr rr rr rT rrr erty. 12

International Assn. of Machinists v. Central Airlines,

772 U.S. 682 (1963), rehearing denied, 373 U.S. 947

terre rr er errr TS Terr rrr ere re fer rrr ee 16

Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th

Ce Fe acon dicccahieanekuawukencck ads henna 15

Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 896

OB. eae | Pre Tere errr TTT TTT ee 9

Kelley v. Michaels, 59 F.3d 1055 (10th Cir. 1995)....... 9

Kusay v. United States, 62 F.3d 192 (7th Cir. 1995)...10, 15

Lac Courte Oreilles Band v. Wisconsin, 760 F.2d 177

tf | Seer re a ee heer ere 11

Lairsey v. Advance Abrasives Co., 542 F.2d 928 (Sth

| RRS reer tern ror ere: re 14

Leonhard v. United States, 633 F.2d 599 (2nd Cir.

| oes ee ret rree er eras TT eer er eer rer 8

Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir.

| SLE Pee Eee PY OPT ae eee Trey eT rere herr re 11

Local P-171, Meatcutters Union v. Thompson Farms

Co., 642 F.2d 1065 (7th Cir. 1981) .................. 9

vi

TABLE OF AUTHORITIES - Continued

Page

:

Martinez v. Arrow Truck Sales, 865 F.2d 160 (8th Cir.

DOOD 6 + ve ncdetbusdevicnnesesananetedseeete 9, 11

Mesa v. U.S., 61 F.3d 30 (11th Cir. 1995).............. 7

Metallurgical Indus., Inc. v. Fourtck, Inc., 771 F.2d |

91S GR Cs, TOG acdc caccvesdesssacseusoie 11 f

Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1st

Cir. 1979), cert. denied, 450 U.S. 912 (1981) ........ 14

Salisbury v. United States, 356 F.2d 822 (D.C.Cir.

BOOS) «oss cvninnsssdsecicdudevewaaveton eae 14

Smith v. Barry, 3024JS. 244 (199Z) 200 cciecescssccee 12

Smith v. Lujan, 588 F.2d 1304 (9th Cir. 1979)......... 14

State Treasurer of the State of Michigan v. Barry, 168

FROG 3 CRs Cit. BURG sick occckonwsstesaunsee 7

Tidler v. Eli Lilly & Co., 824 F.2d. 84 (D:C.Cir. 1987) ..9, 11

Tilden v. Financial Corp. v. Palo Tire Service, Inc., 596

PAG 66 Ged Cin BORG his s daccenccaseeeecenareunas 8

United States v. Cronic, 466 U.S. 648 (1984) .......... 10

United States v. Hardage, 982 F.2d 1491 (10th Cir. }

APRS). oa sss crvevecedueeneouhseaneeneeneeennie 11 ; F

United States v. Ienco, 126 F.3d 1016 (7th Cir. 1997) .... 10

Usden v. Acker, 947 F.2d 1563 (11th Cir. 1991), cert.

denied, SOB US. S50 (I99S) «0 oes sccctecesasanes's 11, 12

Wilson v. Navistar International Transportation

Corp., 999 U.S. App. LEXIS 26847 (11th Cir. Oct.

26, 2900) oo oe ssi cncnxvessweeee gas eee 13

en eee

Zig Zag Spring Co. v. Comfort Spring Corp., 200 F.2d

ee eee, rrr rere ee 14

Vii

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND REGULATION

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PR MNEN le dno bG S50 usd bnsecescakua duce careers 14

PNG WE cid 4055s ekdnesacecesinusduuences 10, 15

PS Gio iis bnhdedo4s4seesed Roan suneehenes 9, 11

| BRT CC PCCTT CT OPTCT CTT T eee ere 10, 14

ok Se: rere 11, 12, 13, 14, 16

PS I ogy pase nidddnkcadeudekeudsnes 13, 14

PT Sob bk ns cnccncendennasvaceecans 14

Fed. RApp.P SaX6MBA).............0..0c0eceseecs. 14

POEUN. MIRO 6 65.5 ven dewsacccventosoavens 14

MIscELLANEOUS

Wright & Miller, Federal Practice and Procedure

8 go. a ae rrr eee ree 14

Wright & Miller, Federal Practice and Procedure

DS Bee COE I, FO his d ee danincdvcasannccecds 9

PETITION FOR A WRIT OF CERTIORARI

Capt. Richard Corwin petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Eleventh Circuit in this case.

o

OPINIONS BELOW

The Order of the court of appeals denying rehearing

of this case and the eaftier Orders of the court of appeals

and of the United States District Court are set forth in the

Appendix. None of the orders in this case are published.

¢

JURISDICTION

The judgment of the court of appeals denying rehear-

ing was entered on February 9, 2000. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

¢

STATUTORY PROVISION INVOLVED

The underlying case arises under the Railway Labor

Act, 45 U.S.C. § 153 First (p).

o

STATEMENT

This case originated with a System Board of Adjust-

ment (SBA) award brought by the Air Line Pilots Associa-

tion (ALPA) under the Railway Labor Act. The SBA

award issued on January 17, 1991, reinstating Capt. Cor-

win to his position as an airline captain with Eastern

Airlines (EAL), and making him whole by awarding

backpay and benefits. The SBA award reversed EAL’s

discharge of Capt. Corwin of June 26, 1987. The SBA

award placed Capt. Corwin in the same status as other

employed EAL pilots who had not been discharged

unlawfully. EAL complied fully with the Corwin SBA

award. EAL reinstated Capt. Corwin to his previous posi-

tion of pilot and removed the discharge from its records.

EAL’s amended records show Capt. Corwin to be

employed continuously by EAL from his hire in 1966

until the EAL shutdown on January 18, 1991. Suit was

brought by Capt. Corwin in this case to enforce the SBA

award provisions upon ALPA.

After the EAL shutdown, ALPA negotiated with EAL

a number of pilot group grievances and lawsuits for

additional monies leading to a three part settlement

agreement adopted by the bankruptcy court. Counts I

and II of the complaint in this case seek enforcement of

the Corwin SBA award which entitled Capt. Corwin to

share equally in the settlement agreements with other

EAL pilots. This action also seeks for Capt. Corwin the

additional post-bankruptcy pay and benefits that ALPA

negotiated for all pilots, including Capt. Corwin. The

Corwin SBA award was not challenged by ALPA under

45 U.S.C. § 153 First (p) of the Railway Labor Act which

provides that an SBA award may be set aside for only

three reasons: (1) failure to comply with the requirements

of the RLA; (2) failure to conform or confine itself to

matters within the arbitrator’s jurisdiction, or (3) fraud or

corruption by the arbitrator. In these circumstances, the

trial court’s failure in this case to enforce the provisions

of the SBA award upon ALPA is inexplicable.

Counts III, IV and V of the Corwin Complaint allege

that ALPA, and its agent, Robert O. Harris, violated the

common law of trusts by failing and refusing to accept as

precedent the legal and factual holdings of the SBA

award. Counts VI, VII, VIII and IX of the Complaint

allege violations of ERISA for failure to comply with the

Corwin SBA award. These provisions are pleaded in the

alternative as it remains unclear if the settlement agree-

ments in this case create common law trusts or ERISA

trusts. By the terms of the settlement agreements, ALPA,

and through ALPA, its agent, Robert O. Harris, are

responsible for adjudicating and disbursing funds from

the EAL bankruptcy estate which by law are held in trust

for beneficiaries such as Capt. Corwin. The bankruptcy

judge approved these settlement agreements using trust

principles in delegating to ALPA the responsibility for

concluding the work of the bankruptcy court.

ALPA placed mischievous language in the three set-

tlement agreements stating that the agreements “ . . . shall

not create any trust relationships and shall not impose

any trusteeship obligations upon ALPA or Eastern.” Yet,

when the funds of the $29.5 million settlement agreement

were received by ALPA from the bankruptcy court in

1992, these funds were immediately placed in a Grantor

Trust by ALPA. It cannot be otherwise as ALPA is stand-

ing in the shoes of the bankruptcy judge and making the

hundreds of individual decisions in disbursing the

money from the bankruptcy estate.

Capt. Corwin was a staunch supporter of ALPA

throughout the strike against EAL, and was compensated

for services performed for ALPA following his discharge

by EAL. The relationship between Capt. Corwin and

ALPA changed following the EAL shutdown. Capt. Cor-

win became a supporter of Pro Justicia, a group of pilot

dissidents within ALPA who objected to ALPA’s position

in the EAL bankruptcy case. A factor in ALPA’s refusal to

honor the Corwin SBA award may well be Capt. Corwin’s

dissident activities.

. This case has been complicated by the filing of a

counterclaim by ALPA seeking to recover certain pay-

ments made by ALPA to Capt. Corwin during his service

to ALPA following his discharge on June 26, 1987, and up

until the EAL shutdown in January, 1991. ALPA assigned

Capt. Corwin a number of positions after his termination

including assignments during the strike and picket

duties. EAL complied with the Corwin SBA award by

agreeing to pay to Corwin backpay and benefits from the

date of the termination, June 26, 1987, to the EAL shut-

down, January 18, 1991. However, due to bankruptcy law

constraints for individuals not performing an actual ser-

vice for the estate, EAL compensated Capt. Corwin up to

the date of EAL’s bankruptcy filing, March 9, 1989. These

pre-bankruptcy funds were compromised by the bank-

ruptcy judge in the amount of $18,673.30, which was paid

to Capt. Corwin, who had filed the proof of claim.

ALPA’s counterclaim seeks this amount. These pre-bank-

ruptcy funds are different from and must be distin-

guished from the money placed in the three settlement

agreements. The monies placed in the three settlement

agreements were post-bankruptcy funds for additional

alent

pay and benefits litigated and settled by ALPA for all

employed pilots, including Capt. Corwin. Authorization

for the distribution of these funds was given to ALPA by

the bankruptcy judge via the three settlement agree-

ments.

ALPA has not expressed interest in pursuing the

counterclaim except as an adjunct to Capt. Corwin’s case

in chief. ALPA so advised the district judge after his entry

of summary judgment in this case. Thus, Capt. Corwin

filed an immediate Notice of Appeal on January 9, 1998,

from an order of the District Court dated December 23,

1997, dismissing Plaintiff’s case on summary judgment,

but retaining jurisdiction over Defendants’ counterclaim.

The 11th Circuit on February 25, 1998, requested that the

parties address whether the December 23, 1997, decision

. “disposed of Defendant{s] counterclaim, and thus, is final

and appealable.” The text of this Order is in Appendix G.

Thereafter, Plaintiff seeking to save time took a shortcut

and requested the trial judge issue a Rule 54(b) certifica-

tion. Despite a lack of jurisdiction (the case was on

appeal), the trial judge issued the certification on March

5, 1998. The text of the Rule 54(b) Order is in Appendix

H. Capt. Corwin by letter of March 13, 1998, sent the

54(b) Order to the 11th Circuit. The letter was not in the

form of a second Notice of Appeal.! Nothing further was

received from the clerk.

' Plaintiff’s letter is addressed to Mr. Kahn, the clerk of the

11th Circuit, and states:

Pursuant to Plaintiff’s Motion Pursuant to Rule 54(b)

F.R.C.P. Requesting that the Court Issue an Express

On August 5, 1998, the 11th Circuit dismissed the

appeal of January 9, 1998. The text of the August 5, 1998,

Order is in Appendix F. The 11th Circuit’s Order is silent

as to the March 13, 1998, Rule 54(b) Order of the trial

court leading Plaintiff to believe that the Rule 54(b) Order

was ineffective as well. Thus, Capt. Corwin read the

Court’s dismissal as requiring him to return to the trial

court and resume litigation of the counterclaim.

Before the trial court, Capt. Corwin refused repeated

requests from ALPA to join ALPA in a voluntary dis-

missal of the counterclaim. He further objected to ALPA’s

motion filed on September 17, 1988, with the trial court to

withdraw the counterclaim without prejudice to refile as

he understood that the counterclaim must be litigated or

finally disposed of as a condition precedent to an appeal

on the merits of the summary judgment dismissal.

On April 2, 1999, the trial court overruled Capt.

Corwin’s objections, and approved ALPA’s voluntary

withdrawal of the counterclaim without prejudice to

Direction for Entry of Final Judgment, the Hon.

Richard A. Lazzara, the trial judge in this action, has

granted the motion by Order issued on March 5, 1998.

Four copies of Judge Lazzara’s Order are enclosed

with this letter.

Kindly bring Judge Lazzara’s Order to the attention

of the Court. Given that an appropriate final Order

has been issued pursuant to Rule 54(b) by the trial

court, Plaintiff submits that the Eleventh Circuit

Court of Appeals may take jurisdiction over this

matter.

Do not hesitate to contact me if anything further is

required from me.

refile. On April 12, 1999, Capt. Corwin filed a second

Notice of Appeal and a brief on June 30, 1999, presenting

the merits of his case. On May 18, 1999, the 11th Circuit |

ordered the parties to address the following jurisdictional

issue:

Whether the district court's April 2, 1999, order

is a final decision, and therefore, appealable? See

State Treasurer of the State of Michigan v. Barry,

168 F.3d 8 (11th Cir. 1999); Construction Aggre-

gates, Ltd. v. Forest Commodities Corp., 147 F.3d

1334 (11th Cir. 1998); Mesa v. U.S., 61 F.3d 30

(11th Cir. 1995).

On October 21, 1999, the 11th Circuit refused to hear

the merits of the summary judgment dismissal on the

grounds that Capt. Corwin should have appealed within

30 days of the Rule 54(b) certification of March 6, 1998.

Capt. Corwin’s motion for reconsideration requesting

that this Court permit a relation forward or in the alterna-

tive, a remand to the trial court of the merits of this case,

was denied on February 9, 2000. The Order of February 9,

2000, is set forth in Appendix A.

o

SUMMARY OF ARGUMENT

Did Capt. Corwin’s timely-filed initial notice of

appeal effectively state his intent to really, really want to

appeal? Is the insistence by the 11th Circuit that a party

file an initial, timely notice of appeal, followed by addi-

tional, multiple timely notices of appeal based upon form

rather than substance? The right of a party to file an

effective initial notice of appeal should not be trumped

by the rules of excessive complexity applied by the 11th

Circuit. The Supreme Court should adopt as national

policy the majority view which permits a relation forward

and/or a limited remand from a party’s timely initial

notice of appeal which resolves the procedural issues of

Capt. Corwin’s case and other similar cases. The 11th

Circuit stands virtually alone in clinging to a minority

position which is unnecessarily complex resulting in the

ensnaring of unwary litigants, and which honors form

over substance. Moreover, the minority position applies

procedures which violate established precedents that pro-

hibit a trial court from issuing an effective Rule 54(b)

Order during the period in which the case is before the

Court of Appeals. The Supreme Court should adopt the

majority position as national policy. This initial appeal

which involves fundamental issues arising under the

Railway Labor Act should be permitted to proceed.

*

REASONS FOR GRANTING THE PETITION

According to the 11th Circuit’s Order of October 21,

1999, and the February 9, 2000, Order denying recon-

sideration of the initial appeal, Plaintiff should have filed

a new notice of appeal within 30 days after the District

Court entered the Rule 54(b) certification on March 6,

1998.2 The 11th Circuit concluded that the appeal filed by

2 Excepting the 11th Circuit, perhaps the 10th Circuit, the

federal circuit courts of appeal do not require a second notice of

appeal after a Rule 54(b) certification. Clausen v. SEA-3, Inc., 21

F.3d 1181 (1st Cir. 1994); Leonhard v. United States, 633 F.2d 599

(2nd Cir. 1980); In re Chateaugay Corp., 922 F.2d 86 (2nd Cir.

1990); Tilden Financial Corp. v. Palo Tire Service, Inc., 596 F.2d 604

plaintiff at the close of the case in April of 1999 was

“more than a year late.” Plaintiff submits that the 11th

Circuit is in error. The 11th Circuit's practice of requiring

Parties to file a new notice of appeal when a Rule 54(b)

certification is entered while a case is already technically

on appeal violates Fed. R. App. P. 4 and well-established

principles of jurisdiction.

The District Court had no jurisdiction over the case

when it entered the March 6, 1998, Rule 54(b) certifica-

tion. Consequently, the Rule 54(b) certification is without

legal effect and does not begin the tolling period for

purposes of Fed. R. App. P. 4. It is textbook law that the

District Court is divested of jurisdiction over an issue on

appeal once the notice of appeal is filed. See, Griggs v.

Provident Consumer Discount Co., 459 U.S. 56, 58 (1982);

(3rd Cir. 1979); Feather v. United Mine Workers of America, 711

F.2d 530 (3d Cir. 1983); Harrison v. Edison Bros. Apparel, 924 F.2d

530 (4th Cir. 1991) (discussing the split in the circuits); Crowley v.

Panama Canal Comm'n, 849 F.2d 951 (5th Cir. 1988); Kelly v. Lee’s

Old Fashioned Hamburgers, Inc., 896 F.2d 923 (Sth Cir. 1990); Good

v. Ohio Edison Company, 104 F.3d 93 (6th Cir. 1997) (expressly

adopting the majority view); Local P-171, Meatcutters Union v.

Thompson Farms Co., 642 F.2d 1065, 1075 (7th Cir. 1981); Martinez

v. Arrow Truck Sales, Inc., 865 F.2d 160 (8th Cir. 1988) (expressly

adopting the majority view); Freeman v. Hittle, 747 F.2d 1299 (9th

Cir. 1985) (expressly adopting the majority view); Kelley v.

Michaels, 59 F.3d 1055 (10th Cir. 1995) (not requiring second

notice after a Rule 54 certification), but see A.O. Smith Corp. v.

Sims Consolidated Ltd., 647 F.2d 118 (10th Cir. 1981); Tidler v. Eli

Lilly & Co., 824 F.2d 84 (D.C.Cir. 1987) (expressly adopting the

majority view). “Most circuits have ruled that Rule 54(b)

certification is sufficient to validate a premature notice of

appeal.” 10 C Wright, A. Miller, & M. Kane, Federal Practice and

Procedure § 2660 (West Supp. 1986).

10

Boyko v. Anderson, 185 F.3d 672, 674 (7th Cir. 1999). The

Supreme Court states in Griggs:

[A] federal district court and a federal court of

appeals should not attempt to assert jurisdiction

over a case simultaneously. The filing of a notice

of appeal is an event of jurisdictional signifi-

cance - it confers jurisdiction on the court of

appeals and divests the district court of its con-

trol over those aspects of the case involved in

the appeal.

Id. at 459 U.S. 56.

With some exceptions not relevant here, see, Fed. R.

App. P. 4(a) (discussed below); Kusay v. United States, 62

F.3d 192, 194 (7th Cir. 1995), the “district court and the

court of appeals do not share jurisdiction over the same

case.” Boyko, 185 F.3d at 674, citing Griggs, 103 S. Ct. at 400;

United States v. Ienco, 126 F.3d 1016, 1018 (7th Cir. 1997).

Jurisdiction is either all in one court or all in the

other. This rule is necessary to prevent one

court’s stepping on the toes of the other, which

would waste judicial time as well as forcing the

parties to proceed in two courts in the same case

Boyko, 185 F.3d at 674 (Posner, J., finding a district court’s

grant of a Rule 60(b) motion while the case was on appeal

to be void); see also, Kusay, 62 F.3d at 193 (concluding that

district court findings while case was on appeal were a

“nullity”).3

3 A District Court may deny, but not grant, a post-judgment

motion while an appeal is pending. United States v. Cronic, 466

U.S. 648, 667 n.42 (1984). Thus, the District Court in this case did

11

Fed.R.App.P. 4 addresses explicitly the situations in

which concurrent jurisdiction may be exercised by the

appellate and district courts. Subsection (a)(2), allows

relation forward in cases where the notice of appeal is

filed after a district court’s decision but before entry of

judgment. Subsection (a)(4) sets forth the instances in

which action in the district court will potentially have

some impact on the jurisdiction of the court of appeals.

Virtually all Courts of Appeals have dealt with the

problem of premature appeals in Fed.R.Civ.P. 54(b) situa-

tions either by embracing the type of relation forward

allowed by Fed. R. App. P. 4(a)(2) or by allowing a

limited remand to perfect appellate jurisdiction. See

Clausen v. Sea-3, Inc., 21 F.3d 1181, 1184 (1st Cir. 1994);

Boyko, 185 F.3d at 674.4 This policy protects the

not possess jurisdiction to grant a Rule 54(b) motion given the

pending appeal. In this vein, Berman v. United States, 302 US.

211, 214 (1937), holds that a district judge lacks authority to

resentence a defendant while an appeal is pending.

4 Virtually all of the circuits, that have addressed

__jurisdictional quagmires similar to this one have held that a

belated Fed. R. Civ. P. 54(b) certification ripens a premature

notice of appeal as of the date of the certification. See, United

States v. Hardage, 982 F.2d 1491, 1494-95 (10th Cir. 1993); Harrison

v. Edison Bros. Apparel Stores. Inc., 924 F.2d 530, 532 (4th Cir.

1991); In re Chateaugay Corp., 922 F.2d 86, 91 (2nd Cir. 1990);

Martinez v. Arrow Truck Sales, 865 F.2d 160, 161-62 (8th Cir. 1988);

Crowley Maritime Corp. v Panama Canal Comm'n, 849 F.2d 951, 954

(Sth Cir. 1988); Metallurgical Indus., Inc. v. Fourtek, Inc., 771 F.2d

915, 916 (5th Cir. 1985); Tidler v. Eli Lilly & Co., 824 F.2d 84, 85-86

(D.C.Cir. 1987); Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189

(9th Cir. 1986); Lac Courte Oreilles Band v. Wisconsin, 760 F.2d 177,

180-81 (7thCir. 1985); Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645

(10th Cir. 1988). But see Useden v. Acker, 947 F.2d 1563, 1570 (11th

12

Appellant’s right to preserve the appeal. Relation for-

ward is warranted here in that Plaintiff notified the 11th

Circuit by letter on March 13, 1998, enclosing the District

Court’s Fed.R.Civ.P. 54(b) certification issued on March 6,

1998, just five days before. Although not in the form of a

notice of appeal, Plaintiff’s letter of March 13, 1998, read

together with the initial Notice of Appeal, which the

letter sought to amend, should permit a relation forward

which would save this appeal. See, Smith v. Barry, 532 U.S.

244, 252 (1992) (In Smith, Plaintiff filed an informal brief

rather than a notice of appeal causing the Court to write:

“When papers are ‘technically at variance with the letter

of [Rule 3], a court may nonetheless find that the litigant

has complied with the rule if the litigant’s action is the

functional equivalent of what the rule requires.’ ”), Intel

Corp. v. Terabyte Int'l, Inc., 6 F.3d 614, 617 (9th Cir. 1993).

In the alternative, the 11th Circuit should have permitted

a limited remand to preserve Capt. Corwin’s appeal

rights. Capt. Corwin’s timely letter of March 13, 1998, set

forth in full in footnote 1, supra, is the functional equiva-

lent of a second notice of appeal and should have been

accepted as such.

At the time Capt. Corwin filed his first notice of

appeal, the 11th Circuit allowed neither relation forward

under Fed.R.App.P. 4(a)(2), see, the Order of August. 5,

1998, nor limited remands, to perfect appeals over cases

of this sort. See, Useden v. Acker, 947 F.2d 1563, 1569 (11th

Cir. 1991). On October 26, 1999, however, Judges Carnes,

Cir. 1991), cert. denied, 113 S.Ct. 2927 (1993); Haskell v.

Washington Township, 891 F.2d 132, 133 (6th Cir. 1989).

13

Black and Godbold issued a per curium opinion recogniz-

ing that under Fed. R. App. P. 4(a)(2), “when a notice of

appeal is filed between the time of decision or order and

the time that the order is rendered appealable by the

entry of judgment the otherwise premature notice of

appeal is treated as if filed on the date of and after entry

of judgment.” Wilson v. Navistar International Transporta-

tion Corp., 1999 U.S. App. LEXIS 26847 (11th, Cir., October

26, 1999) (asserting jurisdiction over case in which a

Fed.R.Civ.P. 54(b) certification was entered after notice of

appeal on the ground that Fed.R.App.P. 4(a)(2) allows

relation forward and, in the alternative, the appellant had

filed a new notice of appeal). Note, however, that

Fed.R.App.P. 4(a)(2) does not require that the appellant

file a new notice of appeal; it acts automatically to move

the filing of the notice of appeal forward to the appropri-

ate date. Wilson is congruent with the majority view, but

does not cite it; however, it appears that the three judges

in Wilson may be embracing the majority rule.

Fed.R.App.P. 4(a)(4) covers all other situations in

which activity in the district court during the pendency

of the appeal may affect the jurisdiction of the Court of

Appeals. Under Fed. R. App. P. 4(a)(4) only a small hand-

ful of actions in the district court will affect the legit-

imacy and/or timing of the initial notice of appeal filed

with the Court of Appeals. Specifically, Rule 4(a)(4) iden-

tifies motions involving Fed.R.Civ.P. 50(b), Fed.R.Civ.P.

52(b), attorneys fees under Fed.R.Civ.P. 54 (if district

court extends appeal time under Rule 58), Fed.R.Civ P. 59,

14

and Fed.R.Civ.P. 60.5 Note further that subsection

(a)(4)(B)(i) provides explicitly that “the notice becomes

effective to appeal a judgment or order [listed in

4(a)(4)(A)] when the order disposing of the last such

remaining motion is entered.” In the event a party plans to

challenge an order listed in 4(a)(4)(A), subsection

4(a)4)(B)(ii) provides for the filing of a new or amended

notice of appeal within 30 days” from the entry of the

order disposing of the last such remaining motion.” Signif-

icantly, Fed.R.App.P. 4(a)(4) does not mention judgments

or certifications entered pursuant to Fed.R.Civ.P. 54(b).

The clear intent of Fed.R.App.P. 4(a)(2) and (a)(4) is

to limit the instances in which the federal district and

appellate courts exercise concurrent jurisdiction. The

Rule seeks to avoid the very type of confusion that

occurred in the instant case by defining the universe of

situations in which it is permissible to file a second notice

of appeal regarding an issue that is technically on appeal

at the time. See Fed. R. App. P. 4(a)(4)(B)(ii). Thus,

because the initial appeal in this case did not fall within

either of the relevant provisions of Fed. R. App. P. 4(a) (as

> Under Rule 60, after a notice of appeal has been filed,

absent an order from the appellate tribunal remanding the

matter, the trial court does not retain jurisdiction to grant a

motion to vacate judgement. Puerto Rico v. SS Zoe Colocotroni,

601 F.2d 39 (1st Cir. 1979), cert. denied, 450 U.S. 912 (1981);

Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d

97 (2nd Cir. 1981); Zig Zag Spring Co. v. Comfort Spring Corp., 200

F.2d 901 (3rd Cir. 1953); Lairsey v. Advance Abrasives Co., 542 F.2d

928 (Sth Cir. 1976); First Nat'l Bank of Salem v. Hirsch, 535 F.2d 343

(6th Cir. 1976); Smith v. Lujan, 588 F.2d 1304 (9th Cir. 1979);

Salsbury v. United States, 356 F.2d 822 (D.C.Cir. 1966). See Wright

& Miller, Federal Practice and Procedure § 2873 at 263-66 (1973).

ee Te

15

construed by the 11th Circuit in its Order of August 5,

1998 — when the initial appeal was dismissed), the Dis-

trict Court had no jurisdiction to enter the Rule 54(b)

certification order on March 5, 1998. That certification is

therefore void. Accord, Boyko, 185 F.3d at 674, 675 (Posner,

J., finding a district court’s grant of a Rule 60(b) motion

while the case was on appeal to be void); see also Kusay,

62 F.3d at 193 (concluding that district court findings

while case was on appeal were a “nullity”).

This appeal should not have been deemed tardy. No

valid 54(b) certification has ever been entered by the

District Court in this case. The case came to conclusion

when, on April 2, 1999, the district court allowed the

defendants to voluntarily dismiss the remaining counter-

claims over Plaintiff’s objection. At that point, Capt. Cor-

win again filed a timely Notice of Appeal asking for

review of the proceedings below. Again, the 11th Circuit

requested clarification on whether the issues were

appealable because of the voluntary dismissal, essentially

asking whether the case fell into the Jetco exception.”

© Plaintiff, without objection from the Defendants,

mistakenly asked the district court to enter a Fed.R.Civ.P. 54(b)

order while the case was before the 11th Circuit. The district

judge mistakenly entered the order apparently not realizing that

he did not possess jurisdiction because the case was on appeal.

The parties and the judge were blinded by the desire to expedite

the appeal without first litigating ALPA’s minor counterclaim.

Plaintiff by its request cannot confer jurisdiction upon the

district court which it otherwise does not possess.

7 Jetco allows an exception to the finality rule when a series

of court orders, considered together, terminated the litigation as

effectively as a formal order. Jetco Elec. Indus., Inc. v. Gardiner,

473 F.2d 1228 (5th Cir. 1973).

16

Plaintiff responded to this request noting that the case

clearly fell into that exception (a conclusion apparently

shared by the 11th Circuit since it has allowed an appeal

from the April 2, 1999 decision). Defendant contended,

however, that Plaintiff should have appealed within 30

days from the entry of judgment under Rule 54(b) in

March of 1998. As noted above, the case was on appeal

when the 54(b) certification was entered; the District

Court’s March 6, 1998 certification, which as noted

should not have been issued, is therefore without effect.

The plaintiff's choice after the 11th Circuit declined to

accept jurisdiction over the first appeal under the provi-

sion of Fed. R. App. P. 4(a)(2) was to request a second

54(b) certification and appeal; or to await final resolution

of the case in the district court. The plaintiff took the

second course and appealed after the April 2, 1999 order

was entered.8

8 Capt. Corwin sued ALPA to enforce his SBA award which

made him whole for pay, benefits and employment status. EAL

fully implemented the award by changing its personnel records

to show Capt. Corwin employed continuously with EAL from

1966 to January 18, 1991, when EAL shut down and laid off its

employees. Both parties to the Corwin SBA award, EAL and

ALPA, are bound to its terms. International Ass’n of Machinists v.

Central Airlines, 772 U.S. 682, 688 (1963), rehearing denied, 373

U.S. 947 (1963). The Corwin SBA award binds EAL and ALPA to

the facts of the award as well as its holding. See, Diamond v.

Terminal Ry., 421 F.2d 228, 233 (5th Cir. 1970) (The scope of

System Board awards”... is among the narrowest known to the

law.”). The trial court’s failure to enforce the Corwin SBA award

by binding ALPA to the holding and facts of the award remains

inexplicable. This case is analogous to a recent decision in which

ALPA violated rights of individual beneficiaries by taking

money from a settlement corpus created through a court decree.

17

The 11th Circuit’s determination of October 21, 1999,

is exceptionally harsh. It denies to Capt. Corwin an initial

appeal from the summary judgment dismissal of the Dis-

trict Court. The Defendant and the District Court in this

case clearly understood Capt. Corwin’s expressed intent

to appeal the merits of the summary judgment dismissal.

The initial Notice of Appeal of January 9, 1998, was filed

by Capt. Corwin following statements by the Defendant

and the trial judge that neither desired to invest the

resources necessary to litigate the counterclaim, the total

value of which is less than $18,000.9 Following the 11th

Circuit’s Order of August 5, 1998, Capt. Corwin was

consistent in his refusal to agree to a voluntary dismissal

of the counterclaim, insisting strenuously that the coun-

terclaim should be either litigated or dismissed with prej-

udice so that his appeal on the merits could proceed. It is

respectfully submitted that Capt. Corwin thereby pre-

served the right to appeal the merits of the summary

judgment dismissal as he filed a second Notice of Appeal

within 30 days of the District Court’s final order of April

2, 1999.

A constructive trust was imposed by the court which required

ALPA to follow fiduciary principles in administering the trust.

See, Beckett v. Air Line Pilots Ass'n, 995 F.2d 280, 287 (D.C.Cir.

1993).

9 Defendants filed motions to the trial court seeking

voluntary dismissal of their counterclaim following the 11th

Circuit’s August 5, 1998 Order dismissing the appeal. These

filings are consistent with Defendants’ position throughout this

litigation that their counterclaim not be litigated except as an

adjunct to a trial on the merits of Plaintiff’s claim.

18

A party should not lose its right to an initial appeal

due to the 11th Circuit’s insistence upon retaining the

minority view. Capt. Corwin filed a timely initial notice

of appeal which expressed clearly his intent to appeal

from an adverse ruling by the trial court. He should not

lose his right to access to the appellate level due to the

11th Circuit’s misapplication of jurisdictional principles.

Had Capt. Corwin resided in most any of the 47 other

states of the union not served by the 11th Circuit, his

appeal would have been heard. The Supreme Court

should adopt the majority position of the federal courts

f appeals as a national policy of jurisdiction which

would avoid the quagmire presented by cases of this

genre. The enforcement of the merits of the Corwin SBA

award which raises fundamental issues under the Rail-

way Labor Act must not be defeated by technical rules of

jurisdiction which have been rejected by most Federal

Court of Appeals. This case should be heard.

+

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

NicHotas E. Karatinos, Esa.

Counsel for Petitioner,

Capt. Richard Corwin

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-10543-JJ

RICHARD CORWIN, Captain,

Plaintiff-Counter-Defendant-

Appellant,

versus

AIR LINE PILOTS ASSOCIATION,

Defendant-Counter-claimant-

Appellee,

ROBERT O. HARRIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

Before: COX, HULL and MARCUS, Circuit Judges.

BY THE COURT:

Appellant’s motion for reconsideration of the Court’s

October 21, 1999, order dismissing this appeal for lack of

jurisdiction is DENIED. Corwin’s notice of appeal, filed

April 12, 1999, was untimely from the district court’s

March 5, 1998, Fed.R.Civ.P.54(b) certification. See

Fed.R.App.P. 4(a)(1)(A); Usden v. Acker, 947 F.2d 1563,

1570 (11th Cir. 1991), cert. denied, 508 U.S. 959 (1993);

App. 2

McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th

Cir. 1981), cert. denied, 456 U.S. 979 (1982).

Issued February 9, 2000.

App. 3

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-10543-JJ

RICHARD CORWIN, Captain,

Plaintiff-Counter-Defendant-

Appellant,

versus

AIR LINE PILOTS ASSOCIATION,

Defendant-Counter-Claimant-

Appellee,

ROBERT O. HARRIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

Before: COX, HULL and MARCUS, Circuit Judges.

BY THE COURT:

Appellee Air Line Pilots association’s motion for

remand is carried with the case.

Issued February 9, 2000.

App. 4

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-10543-J]

RICHARD CORWIN, Captain,

Plaintiff-Counter-Defendant-

Appellant,

versus

AIR LINE PILOTS ASSOCIATION,

Defendant-Counter-claimant-

Appellee,

ROBERT O. HARRIS,

Defendant, Appellee.

Appeal from the United States District Court

for the Middle District of Florida

Before: COX, HULL and MARCUS, Circuit Judges.

BY THE COURT: .

After reviewing the materials submitted in response

to this Court's jurisdictional question, regarding the final-

ity of the district court’s April 2, 1999, order granting

Appellee Air Line Pilots Association’s motion to volun-

tarily dismiss its counterclaim, we conclude that the

appeal MAY PROCEED. The scope of the appeal is lim-

ited to review of the April 2, 1999, order. The district

court’s March 5, 1998, Rule 54(b) certification rendered

perrerrrercemiiel

App. 5

the summary judgment order “final and appealable.” See

McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th

Cir. 1981), cert. denied, 456 U.S. 979 (1982). Thus, Corwin’s

notice of appeal should have been filed within 30 days of

the March 6, 1998, entry of the final judgment, or by

Monday, April 6, 1998. See Fed.R.App.P. 4(a)(1)(A),

26(a)(3); Useden v. Acker, 947 F.2d 1563, 1570 (11th Cir.

1991), cert. denied, 508 U.S. 959 (1993). Corwin’s notice of

appeal, filed April 12, 1999, was more than one year late.

Issued October 21, 1999

App. 6

APPENDIX D

Memorandum Order of the Eleventh Circuit Court of

Appeals issued by the Clerk of the court to the parties on

May 18, 1999, requiring the parties’ statement of position

regarding the following jurisdictional questions(s):

Whether the district court’s April 2, 1999, order

is a final decision, and therefore, appealable?

See, State Treasurer of the State of Michigan v. Barr.,

168 F.3d 8 (11th Cir. 1999); Construction Aggre-

gates, Ltd. v. Forest Commodities Corp., 147 F.3d

1334 (11th Cir. 1998); Mesa v. U.S., 61 F.3d 30

(11th Cir. 1995).

App. 7

APPENDIX E

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CAPTAIN RICHARD

CORWIN,

Plaintiff, CASE NO.

- 96-1260-CIV-T-26C

AIR LINE PILOTS

ASSOCIATION and

ROBERT O. HARRIS,

Defendants.

ORDER

Before the Court is Plaintiff's Request for Recon-

sideration of the Order of Dismissal, and Reconsideration

of Plaintiff’s Motion of September 18, 1998, Requesting

Reopening of discovery and a Hearing (Dkt. 83).

On December 22, 1997, this Court granted Defen-

dants’ motion for summary judgment as it related to

Plaintiff’s amended complaint, but denied the motion as

it related to the counterclaim of Air Line Pilots Associa-

tion (ALPA) (Dkt. 61). On December 23, 1997, the Clerk

entered judgment for Defendants on Plaintiff’s amended

complaint (Dkt. 62). On January 8, 1998, Plaintiff filed a

notice of appeal directed to the order granting summary

judgment for Defendants (Dkt. 67). On January 26, 1998,

this Court administratively closed the case pending reso-

lution of Plaintiff’s appeal (Dkt. 70). On February 27,

App. 8

1998, Plaintiff filed a motion seeking certification for

immediate review pursuant to Federal Rule of Civil Pro-

cedure 54(b) (Dkt. 71). On March 5, 1998, the Court

granted Plaintiff’s Rule 54(b) motion, determining that

there was no just reason for delay and directing the Clerk

to enter final judgment on behalf of Defendants (Dkt. 72).

On March 11, 1998, the Clerk entered an amended judg-

ment (Dkt. 73). On August 5, 1998, the Eleventh Circuit

dismissed the appeal for lack of jurisdiction. Specifically,

the Court of Appeals stated that the December 23, 1997,

judgment was not “final and appealable” and that appel-

lant’s notice of appeal, filed before this Court entered the

Rule 54(b) certification, was “premature and ineffective.”

On September 17, 1998, ALPA filed a motion for dismissal

of its counterclaim without prejudice (Dkt. 79). On

December 2, 1998, this Court dismissed the counterclaim

without prejudice.

Plaintiff argues in his Request for Reconsideration

that “acceptance of a withdrawal of the counterclaim is

inconsistent with the Order of the 11th Circuit of August

5, 1998, which requires a ‘final’ adjudication of all matters

before the trial court.” Plaintiff maintains that this Court

is limited to two courses of action regarding the counter-

claim: 1) trial of the counterclaim; or 2) dismissal of the

counterclaim with prejudice. The Court concludes that

the Eleventh Circuit’s Order does not limit this Court to

the two options advanced by Plaintiff. The Court of

Appeals dismissed the appeal because the December 23,

1997, judgment was not final and appealable. The judg-

ment was not final and appealable because it did not

“dispose of all the claims of all of the parties to the

App. 9

action[.]” Indeed, the December 22, 1997, Order speci-

fically denied summary judgment as to Defendants’

counterclaim. Therefore, ALPA’s counterclaim remained

viable at the time of the December 23, 1997, Order.

Plaintiff will not suffer “clear legal prejudice” if the

Court permits Defendant to dismiss its counterclaim

without prejudice in accordance with Federal Rule of

Civil Procedure 41(a)(2). See McCants v. Ford Motor Com-

pany, Inc., 781 F.2d 855 (11th Cir. 1986). Plaintiff would be

foreclosed from appealing this case if the parties stipu-

lated to a voluntary dismissal of the counterclaim without

prejudice. See State Treasurer of the State of Michigan v.

Barry, 168 F.3d 8 (11th Cir. 1999). However, Plaintiff has

opposed ALPA’s motion for voluntary dismissal in its

motion to reopen discovery (Dkt. 81) and in the instant

motion for reconsideration. Therefore, the Order granting

the counterclaimant’s motion for voluntary dismissal is

appealable by the counter-defendant. See Kirkland v.

National Mortgage Network, Inc., 884 F.2d 1367 (11th Cir.

1989) (holding that district court’s order granting plain-

tiff’s motion for voluntary dismissal without prejudice

under Rule 41(a)(2) was final and appealable by defen-

dant, where district court denied defendant’s motion for

reconsideration of dismissal without prejudice and

motion for dismissal with prejudice); see also Barry, 168

F.3d at 14 (“[A]s applied by Kirkland, a defendant who

opposes the dismissal [under rule 41(a)(2)] has suffered

an adverse final judgment and may appeal.”). Plaintiff as

counter-defendant has suffered an adverse final judg-

ment. As such, the Eleventh Circuit may review the pre-

ceding nonfinal order granting summary judgment. See

Kirkland, 884 F.2d at 1369-1370. Furthermore, to the extent

App. 10

that Plaintiff has suffered any prejudice, such prejudice is

attributable to Plaintiff’s failure to file an amended notice

of appeal subsequent to this Court’s Rule 54(b) certifica-

tion.

Accordingly, it is ordered that Plaintiff’s Request for

Reconsideration of the Order of Dismissal, and Recon-

sideration of Plaintiff’s Motion of September 18, 1998,

Requesting Reopening of Discovery and a Hearing Dkt.

83) is denied. Plaintiff has not argued that the Court

should impose conditions on the voluntary dismissal.

Therefore, the Court does not consider the imposition of

conditions.

DONE AND ORDERED at Tampa, Florida, on April

2, 1999.

RICHARD A. LAZZARA

UNITED STATES DISTRICT

JUDGE

COPIES FURNISHED TO:

Counsel of Record

App. 11

APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-2050

RICHARD CORWIN, Captain,

Plaintiff-Counter-Defendant-

Appellant,

versus

AIR LINE PILOTS ASSOCIATION,

Defendant-Counter-Claimant-

Appellee,

ROBERT O. HARRIS,

Defendant-Appellee,

Appeal from the United States District Court

for the Middle District of Florida

Before: HATCHETT, Chief Judge, DUBINA and HULL,

Circuit Judges.

BY THE COURT:

This appeal is DISMISSED for lack of jurisdiction.

The December 23, 1997, judgment was not final and

appealable because it did not dispose of all the claims of

all of the parties to the action and initially was not

certified for immediate review under Rule 54(b). See 28

U.S.C. § 1291; Fed.R.Civ.P. 54(b); McLaughlin v. City of

LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981), cert. denied,

App. 12

456 U.S. 979 (1982). Appellant’s notice of appeal, filed

before the district court entered the Rule 54(b) certifica-

tion, was premature and ineffective. See McLaughlin, 662

F.2d at 1387.

Issued August 5, 1998.

App. 13

APPENDIX G

Memorandum Order of February 25, 1998, issued by the

Clerk of the Eleventh Circuit Court of Appeals requesting

that the parties address the following jurisdictional ques-

tion:

Whether the December 23, 1997, judgment dis-

posed of defendant Air Line Pilots Association’s

counterclaim, and thus, is final and appealable?

28 U.S.C. § 1291; Fed.R.Civ.P. 54(b); Williams v.

Bishop, 732 F.2d 885 (11th Cir. 1984); In re Yarn

Processing Patent Litigation, 680 F.2d 1338 (11th

Cir. 1982).

App. 14

APPENDIX H

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CAPTAIN RICHARD

CORWIN,

ee CASE NO.

Plaintiff, 96-1260-CIV-T-26C

V.

AIRLINE PILOTS

ASSOCIATION and

ROBERT O. HARRIS,

Defendants.

ORDER

Before the Court is Plaintiff's Motion Pursuant to

Rule 54(b) F.R.C.P. requesting that the Court issue an

Express Direction for Entry of Final Judgment (Dkt. 71).

After carefully considering the motion, which recites that

the Defendants have no objection to it, the Court is of the

opinion that the motion should be granted. To rule other-

wise is to risk the dismissal of the Plaintiff's appeal, see

Penton v. Pompano Constr. Co., 963 F.2d 321 (11th Cir.

1992), and to delay the ultimate resolution of this case.

ACCORDINGLY, it is ORDERED AND ADJUDGED as

follows:

1) The Plaintiff’s Motion Pursuant to Rule 54(b)

F.R.C.P. Requesting that the Court Issue an Express Direc-

tion for Entry of Final Judgement (Dkt. 71) is granted.

2) In accord with Federal Rule of Civil Procedure

54(b), the Court expressly determines that there is no just

App. 15

cause for delay in the entry of final judgment on behalf of

the Defendants, notwithstanding the pendency of the

Defendant Airline Pilots Association’s pending counter-

claim, in that the core issues in this case, including those

involved in the counterclaim, were decided by the Court

in granting summary judgment for the Defendants and in

dismissing the Plaintiff’s counterclaim.

3) The Clerk is directed to enter an amended judg-

ment in favor of the Defendants as to the Plaintiff’s

complaint.

4) The Clerk is further directed to keep this file

administratively closed pending the outcome of the Plain-

tiff’s appeal.

DONE AND ORDERED at Tampa, Florida, on March

5, 1998.

RICHARD A. LAZZARA

UNITED STATES DISTRICT

JUDGE

COPIES FURNISHED TO:

Counsel of Record

App. 16

APPENDIX I

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CAPTAIN RICHARD |

CORWIN,

ie CASE NO.

Plaintiff, 96-1260-CIV-T-26C

V.

AIR LINE PILOTS

ASSOCIATION and

ROBERT O. HARRIS,

Defendants.

ORDER

The Court notes that the Plaintiff has appealed from

this Court’s entry of final summary judgment in favor of

the Defendants. The Court further notes that the Defen-

dant ALPA’s counterclaim against the Plaintiff remains

pending for disposition. The Court is of the opinion that

it is not in the interest of judicial economy for it to try the

Defendant ALPA’s counterclaim until such time as the

Plaintiff’s appeal is resolved, especially since Plaintiff’s

counterclaim and the Defendant ALPA’s counterclaim are

inextricably intertwined. Accordingly, the clerk is

directed to administratively close this file until the Plain-

tiff’s appeal is resolved.

App. 17

DONE AND ORDERED at Tampa, Florida, this 26th

day of January, 1998.

RICHARD A. LAZZARA

UNITED STATES DISTRICT

JUDGE

COPIES FURNISHED TO:

Counsel of Record

App. 18

APPENDIX J

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RICHARD CORWIN,

Plaintiff, CASE NO.

y 96-1260-CIV-T-26C

AIR LINE PILOTS

ASSOCIATION and

ROBERT HARRIS,

Defendant.

ORDER

This cause came on for a hearing before the Court on

Monday, December 22, 1997, on the Defendants’ Motion

for Summary Judgment (Dkt. 27) and the Plaintiff’s

Motion for Partial Summary Judgment. Att the conclusion

of the hearing, the Court orally granted the Defendant’s

motion as it related to the Plaintiff's complaint, denied

the motion as it related to the Defendant ALPA’s counter-

claim, and denied the Plaintiff’s motion. In doing so, the

Court announced on the record findings of fact and con-

clusions of law supporting the determinations as to the

respective motions. It is, therefore, ordered and adjudged

as follows:

1) The Defendants’ Motion for Summary Judgment

(Dkt. 27) directed to the Plaintiff's Amended Complaint is

granted and the clerk is directed to enter a judgment for

the Defendants.

App. 19

2) Defendant ALPA’s Motion for Summary Judg-

ment (Dkt. 27) directed to its counterclaim is denied.

3) The Plaintiff’s Motion for Partial Summary Judg-

ment (Dkt. 26) is denied.

4) The findings of fact and conclusions of law

announced on the record in support of the Court’s grant-

ing of the Defendants’ Motion for Summary Judgment are

incorporated in this order and made a part hereof for all

purposes.

DONE AND ORDERED at Tampa, Florida, this 22nd

day of December, 1997.

RICHARD A. LAZZARA

UNITED STATES DISTRICT

JUDGE

COPIES FURNISHED TO:

Counsel of Record

Law Clerk

Rita Cole, Courtroom Deputy