Jusino v. Zayas, s. 87-1850

• Decision Date: 01 March 1989
• Docket Number: 88-2198,Nos. 87-1850,s. 87-1850
• Citation: 875 F.2d 986
• Parties: Waddie JUSINO, et al., Plaintiffs, Appellees, v. Carmen Sonia ZAYAS, etc., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 986

875 F.2d 986

13 Fed.R.Serv.3d 1417

Waddie JUSINO, et al., Plaintiffs, Appellees, v. Carmen Sonia ZAYAS, etc., et al., Defendants, Appellants.

Nos. 87-1850, 88-2198.

United States Court of Appeals, First Circuit.

Heard March 1, 1989.

Decided June 1, 1989.

Reina Colon de Rodriguez, Asst. Sol. Gen., with whom Rafael Ortiz Carrion, Sol. Gen., and Norma Cotti Cruz, Deputy Sol. Gen., were on brief for defendants, appellants.

Frank Rodriguez Garcia with whom Francisco J. Rodriguez Juarbe, was on brief for plaintiffs, appellees.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

SELYA, Circuit Judge.

We today confront a procedural motley, consisting of a miswritten docket, a timeous motion thought late, a further motion (of uncertain provenance), a wrongly-captioned appeal, a long-delayed reconsideration and reversal of position by the district court (eventuating at a time when its jurisdiction, arguably, was in abeyance), a second appeal, and a compendium of interwoven details (including the remnants of a waived motion for directed verdict). Underneath the case lie, however, more comforting threads--principles of equity and common sense. Their presence allows us to shape the dizzying patchwork of these appeals into a set of serviceable vestments.

I

Defendants-appellants Carmen Sonia Zayas, Wilfredo Vega Garcia, Martin A. Giron, and Luis Pastrana, high-ranking officials of Puerto Rico's Department of Social Services (DSS), were sued in federal district court by some twenty-three DSS employees. The suit was yet another battle in the drawn-out war which developed in the aftermath of the November 1984 gubernatorial election in Puerto Rico. See, e.g., Goyco de Maldonado v. Rivera, 849 F.2d 683 (1st Cir.1988); Juarbe-Angueira v. Arias, 831 F.2d 11 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988); Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987); Jimenez Fuentes v. Torres Gatzambide, 807 F.2d 236 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). The plaintiffs claimed that they were discharged without due process and in derogation of their first amendment rights; they also asserted pendent claims under Puerto Rico's employment discrimination laws. Following a seven day trial, the jury found liability and awarded plaintiffs compensatory damages equal to their lost wages. The district court then considered the matter of supplemental relief and issued an order providing for reinstatement, double damages under local law, attorneys' fees under 42 U.S.C. Sec. 1988, and costs.

Then and thereafter, a series of ragged accouterments appeared, marring the dress of the case. And, because the cloth from which these accessories were gathered was multiple steps in the sewing, we set forth a detailed chronology as to what occurred from that point forward.

1. June 1, 1987. The district court signed a judgment which (1) embodied the jury's awards of lost wages and the court's doubling of those awards, (2) ordered plaintiffs reinstated to their government posts, and (3) authorized the filing of a section 1988 fee application.

2. June 5, 1987. The clerk entered the judgment on the docket as required by Fed.R.Civ.P. 58. But, he misinscribed the docket sheet and indicated there that entry of the judgment had taken place on June 2, 1987. This slip of the pen, as we shall see, was not without further consequence.

3. June 19, 1987. Defendants moved under Fed.R.Civ.P. 59(e) to alter or amend the judgment, contending that the district court erred in doubling damages. Such a motion must be filed within "10 days after entry of the judgment." Id. The 10 days include only working days and do not include the day judgment is entered. Fed.R.Civ.P. 6(a). Applying these criteria, the motion was timely vis-a-vis the judgment entered on June 5, 1987 but would have been late had the judgment in fact been entered three days earlier.

4. July 17, 1987. Deceived by the misinscribed docket sheet, and believing that the judgment had been entered on June 2, the district court denied defendants' Rule 59(e) motion as untimely. The court, certain that a stitch not in time saved nothing, abjured consideration of the motion's substance.

5. August 6, 1987. Defendants filed a motion asking reconsideration of the July 17 order. This pleading called to the district court's attention that the judgment had been entered on June 5 not June 2, thus rendering defendants' Rule 59(e) motion timeous.

6. August 17, 1987. Having heard nothing further from the district court, defendants filed a prophylactic notice of appeal (the "first notice"). As matters turned out, the first notice was less protective than defective: apart from Zayas, the remaining defendants were not named or otherwise specifically identified as appellants. As to all except the lead appellant, therefore, the first notice ran afoul of the specificity requirement of Fed.R.App.P. 3(c). See Torres v. Oakland Scavenger Co., --- U.S. ----, 108 S.Ct. 2405, 2408-09, 101 L.Ed.2d 285 (1988) (a court of appeals lacks power to entertain an appeal from a party not named or specified in the notice of appeal); Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 513-514 (1st Cir.1989) (same); Gonzalez Vega v. Hernandez Colon, 866 F.2d 519, 519 (1st Cir.1989) (same); Santos Martinez v. Soto Santiago, 863 F.2d 174, 175 (1st Cir.1988) (same).

7. October 7, 1988. ¹ The district court granted plaintiffs' section 1988 application and ordered defendants to pay attorneys' fees in the amount of $45,085.50. At the same time, the court granted defendants' long-dormant motion for reconsideration (see supra No. 5); confirmed that the docket entry was mistaken and that the judgment had not been entered until June 5, 1987; and therefore declared the Rule 59(e) motion to have been filed within the prescribed period. That constituted an outright reversal of the district court's previous ruling (see supra No. 4). Defendants' triumph was short-lived: the district court now considered the content of the Rule 59(e) motion for the first time and found it jejune. The court again ruled that the disputed Puerto Rico statutes were applicable and reaffirmed plaintiffs' entitlement to double damages.

8. October 11, 1988. The October 7 order and the supplementary judgment implementing it were entered on the docket pursuant to Fed.R.Civ.P. 58.

9. November 9, 1988. Defendants filed a new notice of appeal (the "second notice"), purporting to appeal from both the earlier and later judgments. This time, the notice of appeal was smartly stitched. It identified all four appellants in a manner which passed Torres muster.

II

The parties wrangle at length about the size and shape of the two notices of appeal, and consequently, their force and effect. From our coign of vantage, that bickering constitutes considerable ado about very little. We explain briefly.

In a civil case not involving the federal sovereign, a party aggrieved has 30 days from "the date of entry of the judgment or order appealed from ..." within which to file a notice of appeal. Fed.R.App.P. 4(a)(1); see also Fed.R.App.P. 26(a) (computation of time). A timely Rule 59 motion tolls the appeal period; the meter is turned back to zero and starts anew upon disposition of the motion. Fed.R.App.P. 4(a)(4). ² Initially, the district court decided that defendants' Rule 59(e) motion was out of time. See supra No. 4. If the court was correct as to timeliness, then the first notice of appeal (filed on August 17, 1987, see supra No. 6) was impuissant to contest the judgment (entered on June 5, 1987, see supra No. 2) because, without the benefit of the tolling supplied by a timely Rule 59 motion, the first notice was filed too late (well over 30 days after entry of the judgment). At that point, the notice was effectual only to test the court's denial of the Rule 59(e) motion. See Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir.1989); cf. Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28-29 (1st Cir.1988) (Rule 60(b) motion).

But, the district court was not correct in assessing timeliness. As the court later recognized and candidly conceded, its ruling had been based on a record-keeping error for which the clerk, not the appellants, was responsible. Contrary to the judge's July 17, 1987 finding, the Rule 59 motion was timely filed. Therefore, it sufficed to toll the appeal period vis-a-vis the original judgment. See Fed.R.App.P. 4(a)(4).

Equally as important, the appellants did not simply try to appeal; they also moved for reconsideration of the erroneous order, directing the district court's attention to the record-keeping error. ³ That motion was filed before the first appeal was taken; hence, the district court had jurisdiction over it. To be sure, the district court waited over a year to act--and when it did, the case was on appeal. Technically, the district court lacked jurisdiction at that time and, before granting reconsideration, should have issued a brief memorandum asking us to remand. Cf., e.g., Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir.1979) (district judge may request remand if, during pendency of appeal, judge is inclined to allow Rule 60(b) motion for relief from judgment); Fed.R.Civ.P. 60(a) ("leave of appellate court" required for district judge to correct clerical mistake in district court record during pendency of appeal); Crumpacker v. Crumpacker, 516 F.Supp. 292, 296-97 (N.D.Ind.1981) (discussing Rule 60(a)). The request-for-remand procedure is not only formally correct, but salutary; we caution the district courts to utilize it whenever an appeal from the judgment is pending and the trial court's jurisdiction thereby cast in doubt. Be that as it may, in this instance any error was harmless; given the circumstances, we would certainly have remanded.

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