Bordallo v. Reyes

• Decision Date: 21 June 1985
• Docket Number: No. 84-1665,84-1665
• Citation: 763 F.2d 1098
• Parties: Ricardo J. BORDALLO, Governor of Guam, Plaintiff-Appellant, v. Tony REYES, Taro Kanai, Roberto Olaya, and Carl Peterson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1098

763 F.2d 1098

2 Fed.R.Serv.3d 999

Ricardo J. BORDALLO, Governor of Guam, Plaintiff-Appellant, v. Tony REYES, Taro Kanai, Roberto Olaya, and Carl Peterson Defendants-Appellees.

No. 84-1665.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 13, 1984.

Decided June 21, 1985.

Nancy Nye, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellant.

Gary Hull, Agana, Guam, for defendants-appellees.

Appeal from the United States District Court for the District of Guam.

Before WRIGHT, POOLE and WIGGINS, Circuit Judges:

POOLE, Circuit Judge:

Ricardo J. Bordallo, Governor of Guam ("Governor") appeals from a judgment of the District Court of Guam holding that the Guam Visitors Bureau ("Bureau"), as established pursuant to Public Law 17-32, Article I, Chapter 9, Title 12, Guam Code Annotated, is not an agency or instrumentality of the government, and that section 9106(a) of Public Law 17-32 does not contravene the Organic Act of Guam.

We affirm.

FACTS AND PROCEEDINGS BELOW

In November 1983, the seventeenth Guam Legislature passed Public Law 17-32 creating the Guam Visitors Bureau in its present form ¹ under the Guam Visitors Bureau Act ("Act"). Section 9102 of the Act provides:

There is hereby created a public corporation to be known as the "Guam Visitors Bureau" as hereinafter provided. The corporation shall be a non-stock, non-profit membership corporation to be governed in accordance with the applicable general corporation laws of the Territory of Guam, except as provided otherwise by this article. No articles of incorporation shall be required; this article shall be its charter.

The Bureau derives its funding partly from government sources and partly from sources within the private sector. Any individual, partnership, corporation or association may become a voting member by paying annual dues of at least $100.00. Under Section 9106(a) of the Act, ² four members of the board of directors were to be appointed by the Governor with the advice and consent of the Legislature. Four directors, contributing members in good standing, were to be elected by the membership. These eight directors were to select the ninth by a vote of at least six directors. The Act required the Governor to submit his four nominations for directors by December 15, 1983. The election of directors by the contributing members was to occur on December 28, 1983. ³

On December 13, 1983, the Governor brought an action in the District Court of Guam, naming as defendants the four membership directors. The action sought: (1) a declaration that section 9106(a) of the Act violated section 6 of the Organic Act, codified at 48 U.S.C. Sec. 1422, by infringing on the Governor's responsibility to control all agencies and instrumentalities of the Government of Guam; and (2) a preliminary and permanent injunction preventing the defendants from turning over control of the Bureau to private organizations by the election of directors by contributing members, which was scheduled for December 28.

On January 12, 1984, the district court filed its decision denying injunctive relief and holding that the Bureau was not an agency or instrumentality within the Executive Branch of the Government of Guam. The decision stated that a memorandum order and a judgment would follow. On February 8, the court issued its memorandum order explaining the basis of its holding that the Bureau was not an instrumentality of the government. On the same day, the court also filed a declaratory judgment upholding the validity of the December 28 election and section 9106(a), which provided that the Governor shall appoint four members of the Bureau. This judgment was entered on February 16.

On February 14, 1984, the Governor filed a notice of appeal, and on February 21, he filed a "motion for clarification, or in the alternative, a motion for a stay." The district court entered an order denying the motion for clarification or for a stay on April 6. The Governor appeals, on the same grounds as those tendered to the district court.

DISCUSSION

I. Jurisdiction

A threshold issue of timeliness of the notice of appeal must first be resolved. A timely notice of appeal is mandatory and jurisdictional. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Appellant's February 14, 1984, notice of appeal from the district court's judgment, which was decided on February 8, but not entered until February 16, was timely and is to be "treated as filed after such entry and on the date thereof." Fed.R.App.P. 4(a)(2). However, Rule 4(a)(4) provides that if a timely motion is made to alter or amend the judgment under Fed.R.Civ.P. 59(e), a notice of appeal filed before disposition of that motion is a nullity. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). In such a case, to perfect an appeal, the party must file a new notice of appeal within thirty days after disposition of the motion. Fed.R.App.P. 4(a)(4).

The Governor's "motion for clarification, or in the alternative for a stay" was filed on February 21, 1984. If that motion was to alter or amend the judgment under Rule 59(e), this court would be without jurisdiction, since no new notice of appeal was filed within the prescribed time after the disposition of appellant's motion. If, on the other hand, the motion is characterized as merely seeking clarification and a stay under Fed.R.Civ.P. 62(c), then the notice of appeal would be valid, and jurisdiction would lie. This court sua sponte raised the issue of its jurisdiction, directing the parties to file supplemental briefs addressing the jurisdiction question.

Since "nomenclature is not controlling," a court must construe whether a motion, however styled, is appropriate for the relief requested. Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir.1983); Sea Ranch Ass'n v. California Coastal Zone Conservation Comm'ns, 537 F.2d 1058, 1061 (9th Cir.1976).

With this is mind, we consider the relief sought by the Governor's February 21 motion. The Governor sought clarification of the third paragraph of the district court's declaratory judgment, the language of which stated:

* * * pursuant to the provisions of Section 9106(a) of Article 1, four (4) members of the Board of Directors of the Guam Visitors Bureau, designated as "appointed directors" shall be appointed by the Governor of Guam with the advice and consent from the Guam Legislature. (Emphasis supplied.)

The Governor asked the district court to declare that this language was merely declaratory, or in the event the court found it mandatory, to grant a stay of the judgment pending appeal pursuant to Fed.R.Civ.P 62(c). There was no request to alter or amend the judgment, an action requiring a "substantive change of mind by the court." Miller, 709 F.2d at 527. Rather, it invited interpretation, which trial courts are often asked to supply, for the guidance of the parties. The district court treated the motion for clarification or for a stay in that light. It responded by stating that the language of the order clearly directed the Governor to act; hence the stay would be denied. ⁴ The court made no reference to an alteration or amendment of the judgment.

We consider the foundation of Appellate Rule 4 to be the accommodation of the time for lodging appeals with the necessary flexibility accorded to the court and litigants in seeking to know what rights and responsibilities are encompassed in the language of orders and judgments. Therefore, courts examine the real nature of motions so as to sustain jurisdiction on appeal even where it is not altogether free of doubt. E.g., Whittaker v. Whittaker Corp., 639 F.2d 516, 521 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981) (motion to retax costs characterized as Rule 59(e) motion to allow for timely filing of notice of appeal); Miller v. Transamerica Press, Inc., 709 F.2d 524, 527-28 (9th Cir.1983) (Rule 59(e) motion characterized as Rule 60(a) motion so as not to destroy pending notice of appeal). This comports with the policy of liberally construing the Federal Rules of Appellate Procedure to carry out Congress' desire for fairness in the administration of justice and a just determination of litigation. 9 Moore's Federal Practice p 201.08. In this case, however, we have no need to recharacterize the Governor's motion since we find that it was indeed a motion seeking either clarification or a stay, and not a motion to alter or amend the judgment. Accordingly, we hold that the Governor's notice of appeal was timely and that we have jurisdiction.

II. The Merits

The Governor contends that section 9106(a) of the Act violates that part of section 6 of the Organic Act of Guam, 48 U.S.C. Sec. 1422, which provides:

The Governor shall have general supervision and control of all the departments, bureaus, agencies and other instrumentalities of the executive branch of the Government of Guam.

If the Bureau is held to be a department, bureau, agency, or other instrumentality of the executive branch, then section 9106(a) is inconsistent with the Organic Act. The district court determined that it was not. Since the district court's determination resolved a question of federal law, which arose under the Organic Act of Guam, 48 U.S.C. Sec. 1421, et seq., we review it de novo. ⁵ In re Bialac, 712 F.2d 426, 429 (9th Cir.1983) (en banc); see also Matter of McLinn, 739 F.2d 1395, 1403 (9th Cir.1984) (en banc) (determination of state law subject to de novo review).

To support his claim that the Bureau is a government entity, the Governor relies principally on section 9(c) of Public Law 17-37, the legislative intent amendment of November 29, 1983, which was passed seven days after the original enactment of the Act. It provides:

Recently the Guam District Court ruled that the Guam Visitors Bureau is a private entity contrary to...