Britt v. Whitmire

• Decision Date: 31 March 1992
• Docket Number: No. 90-2518,90-2518
• Citation: 956 F.2d 509
• Parties: 121 Lab.Cas. P 35,616, 23 Fed.R.Serv.3d 470 Thomas A. BRITT, Individually, as President of the Houston Patrolmen's Union, Local 109, et al., Plaintiffs-Appellants, v. Kathryn J. WHITMIRE, as Mayor and Chief Executive of the City of Houston, Texas, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 509

956 F.2d 509

121 Lab.Cas. P 35,616, 23 Fed.R.Serv.3d 470

Thomas A. BRITT, Individually, as President of the Houston Patrolmen's Union, Local 109, et al., Plaintiffs-Appellants, v. Kathryn J. WHITMIRE, as Mayor and Chief Executive of the City of Houston, Texas, et al., Defendants-Appellees.

No. 90-2518.

United States Court of Appeals Fifth Circuit.

March 31, 1992.

Michael T. Leibig, Houston, Tex., Zwerdling, Paul, Leibig, Kahn & Thompson, Washington, D.C., Richard H. Cobb, Houston, Tex., for plaintiffs-appellants.

Mark Thompson, John E. Fisher, Asst. County Attys., Houston, Tex., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before WILLIAMS, WIENER, Circuit Judges, and LITTLE, District Judge ^*.

WIENER, Circuit Judge:

A police patrolmen's union appeals the district court's grant of summary judgment in favor of the City of Houston on all of the union's Fair Labor Standards Act claims. Finding that we lack jurisdiction to consider this appeal, we dismiss.

I. FACTS

On April 15, 1988, Thomas A. Britt brought suit individually and as President of the Houston Police Patrolmen's Union, together with approximately 800 other Houston police officers (collectively, "Britt"), against the Houston Police Department, the City of Houston, and Mayor Kathryn Whitmire (collectively, the "City"). The complaint alleged that (1) the City violated the Fair Labor Standards Act (FLSA) by failing to pay cash in lieu of compensatory time for overtime work in the absence of an agreement with the plaintiffs' designated representative (the "comp time claim"); (2) the City failed to compensate the officers for K-9, mounted, motorcycle and other assignments; and (3) the City violated the FLSA by failing to include incentive pay in the plaintiffs' "regular rate of pay" for overtime payment calculations.

Britt moved for partial summary judgment on the comp time claim on June 19, 1989. The City responded to Britt's motion and simultaneously filed a cross-motion for summary judgment on all claims on September 15, 1989. On May 15, 1990, the district court issued a memorandum opinion in which it denied Britt's motion for partial summary judgment and granted the City's "motion for partial summary judgment" on the comp time claim. The district court did not enter judgment in a separate document as required by FED.R.CIV.P. 58. Britt filed a notice of appeal on May 30, 1990 naming "Thomas Britt, et al" as appellants. Britt amended the notice of appeal on June 4, 1990 to list each of the other officers as appellants. On June 8, 1990, the City filed a motion for entry of final judgment, asserting that the City had moved for and was entitled to summary judgment on all claims, but that the district court's May 15 order granted only "partial summary judgment" and addressed only the comp time claim.

On September 7, 1990, the district court issued an order granting summary judgment in favor of the City on all claims and on the same day entered final judgment in a separate document in accordance with Rule 58. Britt never filed a separate notice of appeal from the September 7 order. Instead, on October 11, 1990, Britt filed a motion for leave to amend out of time his original notice of appeal filed on May 30, 1990. In that motion, Britt asserted that he had not filed a timely notice of appeal from the September 7 order because he had miscalculated the date on which such notice was due. Britt's motion was accompanied by an amended notice of appeal which stated that Britt was appealing the September 7 order granting full summary judgment in favor of the City. On January 18, 1991, the district court granted Britt leave to file the amended notice of appeal out of time.

II. ANALYSIS

This case is fraught with jurisdictional issues. The City argues that this court lacks jurisdiction over this appeal for two reasons: (1) the district court abused its discretion in allowing Britt to file an untimely amended notice of appeal, and (2) Britt's original notice of appeal filed on May 30, 1990 became a nullity when the City filed its motion for entry of final judgment.

A. Granting of Leave to File Untimely Amended Notice of Appeal.

FED.R.APP.P. 4(a)(1) requires that a notice of appeal be filed within thirty days after the date of entry of the judgment or order. FED.R.APP.P. 4(a)(5) provides that the district court, "upon a showing of excusable neglect or good cause," may extend the time for filing a notice of appeal if a motion therefore is filed not later than thirty days after the last date for filing a notice of appeal under Rule 4(a)(1). This court reviews extensions of time under Rule 4(a)(5) for abuse of discretion, giving great deference to the district court's determination of excusable neglect when the application for extension is made before the expiration of the initial time period during which a notice of appeal must be filed. ¹ When the application is made after that period has expired, however, less deference is required, ² and the more lenient "good cause" standard does not apply at all. ³ Thus, when a party files a motion for extension of time after the initial period for appeal has expired, that party must make a showing of excusable neglect.

The City argues that the district court abused its discretion in granting Britt's motion for an extension of time, which he filed more than thirty days after the entry of the September 7 order, because Britt failed to make a showing of excusable neglect. In Allied Steel v. City of Abilene, ⁴ Allied filed a motion to extend the time for filing a notice of appeal more than thirty days after the entry of judgment, asserting that (1) during the thirty-day period after the entry of judgment Allied was preoccupied by an urgent business situation, and (2) Allied had misconstrued the time for filing a notice of appeal under Rule 4(a). The district court granted Allied's motion, but we reversed, holding that the district court abused its discretion because Allied's reasons for requesting an extension of time did not constitute excusable neglect.

Britt's excuse is indistinguishable from the one asserted in Allied. Therefore, we hold that the district court abused its discretion in permitting Britt to amend his original May 30 notice of appeal more than thirty days after the September 7 order which the original notice was amended to include.

B. Validity of Britt's May 30, 1990 Notice of Appeal.

That holding does not fully dispose of the instant case, however, because the district court issued two orders. That court first granted partial summary judgment in favor of the City on the comp time claim on May 15, 1990, from which Britt filed a timely notice of appeal on May 30. The district court then issued an order on September 7, 1990, purporting to grant summary judgment in favor of the City on the comp time claim as well as on all remaining claims. Britt chose not to file a separate notice of appeal from that order; rather he attempted to amend his May 30 notice of appeal to include the September 7 order and its grant of summary judgment on the remaining claims. Under Rule 4(a) Britt was required to perfect a notice of appeal with respect to that order within thirty days after September 7. As he did not, and as he has not shown excusable neglect, he is precluded from pursuing an appeal on the remaining claims. Previously, however, Britt had filed a timely notice of appeal from the May 15 order granting partial summary judgment on the comp time claim. Therefore, this court has jurisdiction over Britt's May 30 appeal of that claim unless, as urged by the City, Britt's May 30 notice of appeal with respect to that claim was nullified.

FED.R.CIV.P. 4(a)(4) provides in part:

If a timely motion ... is filed in the district court by any party: ... (iii) under Rule 59 to alter or amend the judgment; ... 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.

In Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., ⁵ we noted that under Rule 4(a)(4), a Rule 59(e) motion nullifies a previously filed notice of appeal but a Rule 60 motion does not. We established a bright-line rule (based solely on timing of serving the motion relative to the date of the final order or judgment sought to be modified) to determine the applicability of Rule 4(a)(4) to motions seeking to amend a judgment on grounds other than purely clerical errors:

We hold that Rule 4 was not intended to apply to motions to correct purely clerical errors, but it was intended to apply to all other timely motions to amend a judgment served within ten days of the judgment, even though some such motions might also be considered timely by the district court if filed at a later date. Accordingly, we hold that any post-judgment motion to alter or amend the judgment served within ten days after the entry of the judgment, other than a motion to correct purely clerical errors covered by Rule 60(a), is within the unrestricted scope of Rule 59(e) and must, however designated by the movant, be considered as a Rule 59(e) motion for purposes of Fed.R.App.P. 4(a)(4). If, on the other hand, the motion asks for some relief other than correction of a purely clerical error and is served after the ten-day limit, then Rule 60(b) governs its timeliness and effect. ⁶

We must determine the correct classification of the City's June 8, 1990 motion for entry of final judgment. If that motion was, as the City urges, a timely-served Rule 59(e) motion seeking to amend the district court's judgment, then the district court's September 7, 1990 order granting summary judgment on all claims rendered...