784 F.2d 1546 (11th Cir. 1986), 84-7382, Cox v. American Cast Iron Pipe Co.

Docket Nº:84-7382, 84-7462.
Citation:784 F.2d 1546
Party Name:4 Fed.R.Serv.3d 521 Annette COX, et al., Plaintiffs-Appellants, v. AMERICAN CAST IRON PIPE COMPANY, a corporation, Defendant-Appellee. Annette COX, et al., Plaintiffs-Appellants, Cross-Appellees, v. AMERICAN CAST IRON PIPE COMPANY, a corporation, Defendant-Appellee, Cross-Appellant.
Case Date:March 26, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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784 F.2d 1546 (11th Cir. 1986)

4 Fed.R.Serv.3d 521

Annette COX, et al., Plaintiffs-Appellants,


AMERICAN CAST IRON PIPE COMPANY, a corporation, Defendant-Appellee.

Annette COX, et al., Plaintiffs-Appellants, Cross-Appellees,



Defendant-Appellee, Cross-Appellant.

Nos. 84-7382, 84-7462.

United States Court of Appeals, Eleventh Circuit

March 26, 1986

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[Copyrighted Material Omitted]

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Robert L. Wiggins, Jr., Gordon, Silberman, Wiggins & Childs, Birmingham, Ala., for Annette Cox, et al.

F.A. Flowers, III, Thomas, Taliaferro, Forman, Burr & Murray, Carol H. Wolfe, J. Patrick Logan, Birmingham, Ala., for American Cast Iron Pipe Co.

Appeals from the United States District Court for the Northern District of Alabama.

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Before GODBOLD, Chief Judge, JOHNSON, Circuit Judge and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This is a "pattern and practice" sex discrimination suit brought by a class of women employed at the American Cast Iron Pipe Company (ACIPCO) in Birmingham, Alabama, under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Sec. 2000e et seq. During the decade in which these proceedings were heard by the district court under a succession of judges, the original class was decertified and judgment was ultimately entered in favor of only three of the individual claimants.

We conclude from our examination of these proceedings that the class decertification was improper and that numerous errors infect the district court's decisions in the individual cases. Accordingly, we REVERSE the decertification order and the judgments against the 18 losing plaintiffs, and we REMAND this case for retrial as a pattern and practice class action. Further, we VACATE the awards in favor of the three winning plaintiffs, and REMAND them for recalculation consistent with this opinion.

I. Jurisdiction in No. 84-7382.

Differing judgments for the two groups of plaintiffs involved in this Title VII sex discrimination suit have given rise to two separate appeals. The action styled No. 84-7382, which concerns the 18 plaintiffs who received unfavorable judgments in the lower court, raises a substantial jurisdictional question. 1 We turn first to that question, and then to the merits of each claim.

The facts relevant to our exercise of jurisdiction are as follows. On April 30, 1984, 585 F.Supp. 1143 (N.D.Ala.), the district court entered judgment in favor of three and against 18 of the 21 plaintiffs in the Title VII suit that gives rise to these actions. However, the court granted the 18 losing plaintiffs attorney's fees and costs as "prevailing parties," reasoning that their suit was a catalyst for change in the treatment of women at ACIPCO.

A number of Fed.R.Civ.P. 59 motions to alter or amend the judgment followed this order. Four of these motions were made on April 10, 1984, by the defendant, ACIPCO. Of these four, three concerned the judgment in favor of the winning parties, Morgan, Self and Williams. The fourth, which we consider here, was a request that attorney's fees and costs be assessed against the 18 losing plaintiffs. Plaintiffs also made several Rule 59 motions.

On May 21, 1984, the lower court denied all the plaintiffs' motions but left the four Rule 59 motions raised by the defendant pending, including the motion for attorney's fees and costs filed against the 18 losing plaintiffs. By the same order, the court, finding no just cause for delay, directed the entry of final judgment under Fed.R.Civ.P. 54(b) against the latter plaintiffs.

Rule 54(b) provides that "[w]hen more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b). This judgment must be appealed within 30 days. The 18 plaintiffs filed a notice of appeal within that period, on June 7, 1984.

However, when these parties filed their notice of appeal, defendant's Rule 59 motion for attorney's fees was still pending--it was not decided, in fact, until June 14, 1984. Fed.R.App.P. 4(a)(4) prohibits appeal when Rule 59 motions are pending. It provides in relevant part:

If a timely motion under the Federal Rules of Civil Procedure is filed in the

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district court by any party ... (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. [Emphasis added.]

The 18 plaintiffs filed no new notice of appeal after the Rule 59 motions were decided. (The three prevailing plaintiffs, who had received no Rule 54[b] judgment, did so.)

Under the plain language of Rule 4(a)(4), the 18 plaintiffs' June 7, 1984, notice of appeal would appear to have no effect. The Supreme Court in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982), held that a notice of appeal filed while a Rule 59 motion was pending, is "not merely defective; it [is] a nullity"--or, as "Professor Moore ... aptly described the post-1979 effect of a Rule 59 motion on a previously filed notice of appeal: 'The appeal simply self-destructs.' " This Circuit has several times made similar observations. See Gibbs v. Maxwell House, Div. of General Foods Corp., 701 F.2d 145, 146 (11th Cir.1983); Scott v. Wainwright, 698 F.2d 427, 428 (11th Cir.1983); United States v. Valdosta-Lowndes County Hospital Authority, 668 F.2d 1177, 1178 (11th Cir.1982).

However, the Advisory Committee Notes to Rule 4(a)(4) indicate that "it would be undesirable 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." Fed.R.App.P. 4(a)(4) Advisory Committee Note (emphasis added). This Court must decide whether or not a Rule 59 motion for attorney's fees is such a motion--or, put differently, whether a motion for attorney's fees under Title VII is properly styled a Rule 59 motion.

We hold that a motion for attorney's fees in a Title VII action is not a motion to alter or amend a judgment under Rule 59. Our ruling parallels that of this Court in Lucas v. Florida Power & Light Co., 729 F.2d 1300, 1301 (11th Cir.1984) (securities fraud class action), in which we said:

A motion respecting costs is not a motion to alter or amend a judgment under Rule 59. Rule 59 applies to motions for reconsideration of matters encompassed in a decision on the merits of the dispute, and not matters collateral to the merits. A motion for costs does not seek reconsideration of substantive issues resolved in the judgment, but relates exclusively to the collateral question of what is due because of the judgment.

Title VII on its face treats attorney's fees as costs. "[T]he court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C.A. Sec. 2000e-5(k). The former Fifth Circuit found a similar statutory provision persuasive in considering whether a motion for attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. Sec. 1988, was a motion to alter or amend a judgment under Rule 59(e). In Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir.1980), that Court said:

In this case, attorneys fees are by statute part of the costs. Because they may be awarded only to prevailing parties, and in the discretion of the district court guided by the Johnson factors, attorney's fees will ordinarily be sought only after litigation. [Citation omitted.] Thus, a motion for attorney's fees is unlike a motion to alter or amend a judgment.

See also White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (a postjudgment request

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for an award of attorney's fees under Sec. 1988 was not a "motion to alter or amend the judgment" subject to the timeliness standard of Rule 59[e]. This reasoning logically extends to a motion for attorney's fees under Title VII. Cf. Gordon v. Heimann, 715 F.2d 531, 536-37 (11th Cir.1983) (Rule 59 request for attorney's fees in RICO case was "collateral to the main action").

Our ruling is, furthermore, consistent with the district court's Local Rule 11 which provides that the question of attorney's fees "does not extend the time for appealing from ... the judgment [including a Rule 54(b) judgment] giving rise to the claim for attorney's fees...." N.D.Ala. Local Rule 11 (1982).

In sum, "[t]hough [defendant] styled its motion a Rule 59 ... motion, 'nomenclature is not controlling.' " Lucas, 729 F.2d at 1302, quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir.1983). Our exercise of jurisdiction is appropriate in action No. 84-7382.

II. The Class Action

A. Facts and procedural history.

We turn now to the merits of the Title VII "pattern and practice" (i.e., class disparate treatment) sex discrimination suit before us. The named plaintiffs, Annette Cox, Brenda Morgan and Joyce Pandellis (nee Mitchell), filed this suit for both injunctive and individual monetary relief in the Northern District of Alabama on May 15, 1974, after the EEOC found probable cause to believe that the American Cast Iron Pipe Company (ACIPCO) discriminated on the basis of...

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