Cel-A-Pak v. California Agr. Labor Relations Bd., CEL-A-PAK

• Citation: 680 F.2d 664
• Decision Date: 02 July 1982
• Docket Number: No. 890,No. 79-4743,CEL-A-PAK,D,AFL-CI,W,890,79-4743
• Parties: 96 Lab.Cas. P 55,382 , a California Corporation, Plaintiff-Appellant, v. CALIFORNIA AGRICULTURAL LABOR RELATIONS BOARD, United Farm Workers of America,estern Conference of Teamsters and General Teamsters Warehousemen and Helpers' Union Localefendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 664

680 F.2d 664

96 Lab.Cas. P 55,382

CEL-A-PAK, a California Corporation, Plaintiff-Appellant, v. CALIFORNIA AGRICULTURAL LABOR RELATIONS BOARD, United Farm Workers of America, AFL-CIO, Western Conference of Teamsters and General Teamsters Warehousemen and Helpers' Union Local No. 890, Defendants-Appellees.

No. 79-4743.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 10, 1981.

Decided July 2, 1982.

Richard H. Foster, San Francisco, Cal., for plaintiff-appellant.

Ellen J. Eggers, Keene, Cal., Manuel M. Madeiros, Agricultural Labor Relations Bd., Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, WRIGHT, Circuit Judge, and BYRNE, ^* District Judge.

PER CURIAM:

Cel-A-Pak, which harvests and packs cauliflower for independent growers, brought this action against the California Agricultural Labor Relations Board ("ALRB") and the United Farm Workers of America ("UFW") to prevent assertion by the ALRB of jurisdiction over Cel-A-Pak's employees and to recover damages from UFW for injuries allegedly caused by secondary boycotts. On motion for summary judgment, the district court dismissed the claim against ALRB on the ground no justiciable controversy presently existed because appellant was not subject to threatened or actual injury by the potential exercise of jurisdiction by the ALRB, and dismissed the claim against UFW as barred by res judicata.

Judgment was entered on September 4, 1979. On September 18, appellant moved for rehearing and an injunction pending appeal. On October 26, appellant filed a notice of appeal from the September 4 judgment. On October 30, the district court filed an order denying the September 18 post-trial motions.

The notice of appeal was filed more than 30 days after entry of judgment and was therefore untimely under Fed.R.App.P. 4(a). Compliance with these time limitations is both mandatory and jurisdictional. Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Wallace v. Chappell, 637 F.2d 1345, 1346 (9th Cir. 1981) (en banc).

Since the post-trial motion was filed more than 10 days after entry of judgment it did not toll the Rule 4(a) limitation period. Browder, supra, 434 U.S. at 264-65, 98 S.Ct. at 560-61; see Fassler v. Moran, 576 F.2d 1372, 1373 (9th Cir. 1978).

Appellant did not move to extend the time for appeal under Fed.R.App.P. 4(a) (5). Mere acceptance of the untimely notice of appeal will not be construed as a grant of such an extension by the district court. U. S. v. Stolarz, 547 F.2d 108, 111 (9th Cir. 1976).

Appeal from the underlying judgment of dismissal is timely only if appellant's petition for rehearing and motion for injunction pending appeal (contained in one document) may be treated as a notice of appeal. Fed.R.App.P. 3(c) mandates liberality in determining compliance ("(a)n appeal shall not be dismissed for informality of form or title of the notice of appeal."); "courts of appeals have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal." Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978), quoting Cobb v. Lewis, 488 F.2d 41, 44 (5th Cir. 1974). Documents not so denominated have been treated as notices of appeal so long as they "clearly evince the party's intent to appeal" and provide notice to both the opposing party and the court. Cobb, supra, 488 F.2d at 45. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962); Blunt v. United States, 244 F.2d 355, 359 (D.C.Cir.1957). See e.g. Noa v. Key Futures, Inc., 638 F.2d 77, 78 (9th Cir. 1980) (stipulation of parties that new judgment be entered so as to allow proper appeal); Davis v. Dept. of Corrections, 446 F.2d 644, 645 (9th Cir. 1971) (defective motion for certificate of probable cause); Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 360 (9th Cir. 1967) (designation of contents of record on appeal and statement of points on appeal); Burdix v. United States, 231 F.2d 893, 894, 16 Alaska 170 (9th Cir. 1956) (leave to appeal in forma pauperis). But not every document challenging the judgment or relating to a possible appeal suffices. See Selph v. Council of City of Los Angeles, 593 F.2d 881, 883 (9th Cir. 1979) (motion to extend the time for appeal not to be treated as a notice of appeal under the circumstances of the case).

Appellant's Rule 60(b) motion for rehearing clearly cannot be treated as a notice of appeal. It does not "clearly evince" an intent to appeal. To hold otherwise would circumvent the established rule that such a motion does not toll the appeal limitations period. See Saunders v. Cabinet Makers & Millmen, Local 720, 549 F.2d 1216, 1217 (9th Cir. 1977).

The motion for injunction pending appeal presents a closer question since it indicates appellant contemplated taking an appeal. In a somewhat similar case, Cutting v. Bullerdick, 178 F.2d 774, 776-77, 12 Alaska 528 (9th Cir. 1949), we held that Fed.R.Civ.P. 73(b), the predecessor to Fed.R.App.P. 3, could be satisfied by a notice of motion to stay execution so appellant could post a supersedeas bond and perfect an appeal. Nonetheless, we conclude that Cutting is not dispositive and decline to exercise our discretion to disregard the irregularity in the present case.

Since appellant is represented by counsel and neither life nor liberty is at stake, solicitude for unwary pro se and criminal litigants, a factor which often warrants exercise of the court's discretion to tolerate informalities (see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Alley v. Dodge Hotel, 501 F.2d 880, 883 (D.C.Cir.1974)), is not applicable to this case.

The motion seeking an injunction pending appeal has collateral consequences that could conceivably benefit the appellant even if no appeal were perfected. This distinguishes it from motions that constitute an integral and necessary part of the process of taking an appeal. Such motions offer clearer evidence of an intent to appeal, since they have no independent significance distinct from the appeals process.

If a motion for injunction pending appeal were deemed a notice of appeal, the document filed by appellant would be internally inconsistent since it contains not only the motion for injunction, but also a motion for rehearing. Appellant could not take an appeal and at the same time obtain a rehearing by the district court since an effective notice of appeal would divest the district court of jurisdiction and prevent it from acting upon the Rule 60(b) motion. Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1318 (9th Cir. 1981), vacated on other grounds, --- U.S. ----, 102 S.Ct. 468, 70 L.Ed.2d 242 (1981); Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979); Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 869 (9th Cir. 1976).

Appellant's counsel indicated in his briefs and at oral argument that he intended that the document not be treated as a notice of appeal precisely because it would divest the district court of jurisdiction to act on the Rule 60(b) motion.

Appellant cannot help but comment on the agonizing procedural situation which, in the absence of some definite rule, faced it. If a formal notice of appeal had been filed, the District Court might well have refused to consider the Rule 60(b) motion, no matter what its merits, causing another disastrous delay in decision.

Appellant's Brief in Opposition to Motion to Dismiss Appeal, p. 6. To treat the motion for injunction as a notice of appeal and yet allow the district court to retain jurisdiction would allow appellant to have its proverbial cake and eat it too.

The document filed by appellant and counsel's statements regarding it evince a desire to have the district court retain jurisdiction and alter its judgment rather than a desire to effectively take an appeal and thus terminate the district court's jurisdiction. This distinguishes Cutting where the notice contained no inherent ambiguity and indeed expressly stated appellants' "desire to post a supersedeas bond and perfect an appeal." 178 F.2d at 775-76.

Appellant argues that an earlier order of this court remanding the case to the district court for further proceedings was only a "limited remand," and that this court retained jurisdiction. Although the court had power to retain jurisdiction and order a limited remand, see Sekaquaptewa v. MacDonald, 544 F.2d 396, 400-01 (9th Cir. 1976); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3937 (1977), this court's order indicated no intention to do so. Cf. United States v. Theriault, 526 F.2d 698, 699 (5th Cir. 1976).

For these reasons we decline to treat the petition as a notice of appeal, and conclude that no timely appeal was taken from the underlying judgment.

The actual notice of appeal, however, may be...