Cotton v. U.S. Pipe & Foundry Co., 85-7587

Citation856 F.2d 158
Decision Date30 September 1988
Docket NumberNo. 85-7587,85-7587
Parties47 Fair Empl.Prac.Cas. 1765, 47 Empl. Prac. Dec. P 38,334, 12 Fed.R.Serv.3d 229 Hollie COTTON and Young Herrod, Arthur Davis, Harrison Brown, Mellernea Jackson and Betty J. Stockdale, Plaintiffs-Appellants, v. U.S. PIPE & FOUNDRY COMPANY, Coke By-Products Plant, and International Union District 50, Local Union Number 12014, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Homer C. Coke, Coke & Coke, Edward M. Coke, Birmingham, Ala., for plaintiffs-appellants.

Braxton Schell, Jr., Bradley, Arant, Rose & White, Robert K. Spotswood, Birmingham, Ala., for defendants-appellees.

Frederick T. Kuykendall, III, Joe R. Whatley, Jr., Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, Ala., for Local Union 12014.

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

Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and TIDWELL *, District Judge.

JOHNSON, Circuit Judge:

This appeal is taken from the district court's final judgment resolving all claims under Title VII, 42 U.S.C.A. Sec. 2000e et seq., arising from alleged racially discriminatory employment practices committed by U.S. Pipe and Foundry Company ("the company") between July 2, 1965 and January 14, 1975. Black workers at the company during this period had been certified as a class and had entered into a consent decree that, inter alia, established a procedure for filing grievances for back pay lost because of alleged discrimination. On August 8, 1985, the district court entered judgment on the 393 claims employees had filed in accordance with the established procedure. We affirm the district court with respect to appellants Cotton and Herrod, and dismiss the appeals of appellants Davis, Brown, Jackson, and Stockdale for lack of jurisdiction.

I. FACTS

Hollie Cotton and Young Herrod, two black employees, originally filed a complaint against the company on December 28, 1971, alleging that the company engaged in discriminatory employment practices. The plaintiffs brought suit under 42 U.S.C.A. Sec. 1981 and Title VII. In addition, they claimed that their union, United Steelworkers of America, International Union District 50, Local Union 12014 ("the union"), had breached its duty of fair representation in violation of 29 U.S.C.A. Sec. 151 et seq.

On October 25, 1974, the parties filed a joint motion to certify a class of plaintiffs under Fed.R.Civ.P. 23(b)(2) and to approve a proposed consent decree. The district court certified a class consisting of "[a]ll black employees at the North Birmingham Complex of [the company] who are presently employed, or who have been employed in the period of time since July 2, 1965." Consent Decree, Sec. III. Notice of the proposed settlement was given to the class members, and 187 members filed objections. After conducting hearings to consider the objections, the court suggested changes in the consent decree. These changes were incorporated in the decree, and the court entered final judgment on January 14, 1975. The class members objecting to the consent decree appealed, and a panel of the former Fifth Circuit affirmed. Cotton v. Hinton, 559 F.2d 1326 (5th Cir.1977).

In the consent decree, the parties established procedures and conditions for payment of back pay to employees who had suffered losses due to discrimination. Following the affirmance, the parties engaged in the informal back pay resolution procedure provided by the decree. On September 11, 1980, the district court established an October 31, 1980 deadline for filing individual back pay claims and referred the claims to U.S. Magistrate Edwin Nelson for evidentiary hearings and recommendations. The district court judge and the magistrate held a hearing on October 9, 1980, to explain the requirements for back pay eligibility to the possible claimants. During the next three years, the magistrate entered recommendations on 393 claims.

On June 4, 1985, the district court entered a preliminary order adopting the magistrate's recommendations in all but two of the claims. The court remanded those claims to the magistrate for a hearing to determine whether the claimants complied with the claim procedures and, if so, whether they were entitled to back pay. On July 2, 1985, attorney Homer Coke filed a notice of appeal.

After the remanded claims had been settled, the district court entered final judgment on August 8, 1985. On September 6, 1985, Coke filed a new notice of appeal from the final judgment styled Hollie Cotton and Young Herrod v. U.S. Pipe & Foundry Co. The notice of appeal stated that "the named Plaintiffs herein, on behalf of themselves and all others similarly situated, hereby appeal...." On September 19, 1985, a panel of this Court dismissed the July 2 appeal for lack of jurisdiction.

In response to the September 6 appeal, this Court remanded the case on February 25, 1986, because of confusion regarding the identity of the appellants, their status on appeal, and the status of attorneys Homer Coke and Edward Coke and their clients. The Court questioned whether this was an appeal by a class, as Coke's notice of appeal suggested, and whether any class had been certified. The Court appointed Magistrate Nelson as special master and directed him to gather information and make findings of fact on these issues.

The magistrate attempted to answer the questions put to him, but over a period of approximately a year and a half he failed to elicit any meaningful response to his inquiries from either Homer or Edward Coke. In his findings of fact, the magistrate remarked on Coke & Coke's inability or unwillingness to provide a list of the appellants whom they represent. 1 The magistrate concluded that, at the time the second notice of appeal was filed, Coke & Coke had no firm belief as to the specific identities of the particular individuals for whom they proposed to appeal. Report of the Master at 16. The magistrate "inferred" that the Cokes represented Cotton and Herrod, the named appellants. Id. The magistrate also found that Coke & Coke had probably intended to appeal on behalf of Brown, Davis, Jackson, and Stockdale. Id.

On July 23, 1987, a two-judge panel of this Court considered the magistrate's findings of fact and denied the appellees' motion to dismiss Cotton and Herrod's appeal. The panel carried appellees' motion to dismiss with respect to Brown, Davis, Jackson, and Stockdale with the case, and granted the motion to dismiss as to all other appellants.

II. DISCUSSION
A. Identity of Appellants

The first question in this case is the identity of the appellants. Attorney Homer Coke filed his September 6, 1985 notice of appeal in Hollie Cotton and Young Herrod v. U.S. Pipe & Foundry Co., stating that "the named Plaintiffs herein, on behalf of themselves and all others similarly situated, hereby appeal...." The notice of appeal could be interpreted as an appeal by a class 2 or, alternatively, as an appeal only by the named parties, Cotton and Herrod. 3 We accept the latter interpretation.

Cotton and Herrod cannot represent the original certified class of Company employees. The parties settled that class action by consent decree approved on January 14, 1975. The former Fifth Circuit affirmed the district court's approval of that decree in 1977. Cotton v. Hinton, 559 F.2d at 1334.

No other class has been certified in this case. The consent decree did establish an apparatus whereby an "affected subclass" of black employees who fulfilled certain criteria could submit claims for back pay. 4 The affected subclass members had to submit individual claims to counsel for the class, who would confer with counsel for the Company and the union. Consent Decree, Sec. VII(b)(2). If the parties failed to agree on a back pay award, a claimant then had the right to litigate his claim. Id.

The affected subclass is the only relevant class that may have existed after the parties signed the consent decree. Once members of the affected subclass filed their individual claims, however, those claims were no longer class claims. Rather, they were purely individual claims for back pay based on the individual facts of each person's employment. Cotton and Herrod cannot represent the interests of these employees in this appeal. See United Steelworkers v. University of Alabama, 599 F.2d 56, 58-59 (5th Cir.1979).

Additionally, this Court dismissed all appellants other than the two named parties and the four persons Coke "intended" to represent on appeal. Order of July 23, 1987. Consequently, Attorney Edward Coke's September 6, 1985 notice of appeal could not have been notice of an appeal by a class.

The issue remains which individuals are pressing this appeal. Only Cotton and Herrod are named on the face of the notice of appeal. In his report, the magistrate found that Coke & Coke intended to appeal on behalf of Davis, Brown, Jackson, and Stockdale, four individuals who had filed motions in district court on May 15, 1985, to substitute the Cokes as attorneys of record. None of these names appears on the September 6, 1985 notice of appeal, however. Consequently, these four appellants failed to perfect their appeals.

Fed.R.App.P. 3(c) provides, in pertinent part:

The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.

In Torres v. Oakland Scavenger Co., --- U.S. ----, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Supreme Court held that "[t]he failure to name a party in a notice of appeal ... constitutes a failure of that party to appeal." Id. --- U.S. at ----, 108 S.Ct. at 2407. The Court adopted this test even though the omission of the petitioner's name from the notice of appeal in Torres was a clerical mistake made by his attorney's secretary. Id. --- U.S. at ----, 108 S.Ct. at...

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