Campbell v. Wainwright
| Decision Date | 09 March 1984 |
| Docket Number | 82-6068,Nos. 82-5990,s. 82-5990 |
| Parties | Calvin CAMPBELL, et al., Plaintiffs-Appellants, Cross-Appellees, v. Louie L. WAINWRIGHT, et al., Defendants-Appellees, Cross-Appellants. Calvin CAMPBELL, et al., Plaintiffs-Appellees, v. Louie WAINWRIGHT, etc., et al., Defendants-Appellants. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Patterson & Traynham, Ben R. Patterson, Tallahassee, Fla., for plaintiffs-appellants, cross-appellees.
James A. Peters, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendants-appellees, cross-appellants.
Appeals from the United States District Court for the Northern District of Florida.
Before GODBOLD, Chief Judge, RONEY and TJOFLAT, Circuit Judges.
This case involves a class action brought on behalf of all present and future inmates of Florida penal institutions challenging the constitutionality of Florida's "pay as you stay" statute. Fla.Stat.Sec. 944.485. The district court held that the statute violated the due process clause of the fourteenth amendment and the fifth amendment right against self-incrimination. Defendants appealed. 1 Plaintiff-appellees (hereinafter "Campbell") move to dismiss the appeal because of defendants-appellants' (hereinafter Wainwright, Greadington and Lewis) failure to file a timely notice of appeal. 2
The chronology of this case is fairly complicated. Judgment was entered June 18, 1982. Campbell served a motion to alter or amend the judgment on June 28. Wainwright and Greadington filed notice of appeal July 15. The district court denied the motion to alter or amend August 26. Campbell filed notice of appeal September 22. September 23 the court ordered that all sums collected under the challenged statute be placed in an interest bearing account during the pendency of the appeal. October 4 Lewis filed notice of appeal from the September 23 order. October 12 the district court entered an order awarding Campbell attorneys' fees under 42 U.S.C. Sec. 1988. Wainwright, Greadington and Lewis filed notice of appeal from the order awarding attorneys' fees October 19. January 26, 1983, this court granted Lewis's unopposed motion to withdraw his October 4 appeal.
Campbell contends that the appeal from the judgment striking down Florida's "pay as you stay" statute must be dismissed because notice of appeal was not timely filed. Under FRAP 4(a) notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. The 30-day time limit is "mandatory and jurisdictional." Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Running of the time for filing notice of appeal may be tolled by a timely motion filed in the district court to alter or amend the judgment. Fed.R.Civ.P. 59(e); FRAP 4(a)(4). Under FRAP 4(a)(4):
A notice of appeal filed before the disposition of ... [a Rule 59 motion to alter or amend judgment] 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.
Thus, a notice of appeal is ineffective if it is filed while a timely Rule 59 motion is still pending. Griggs v. Provident Consumer Discount Co., --- U.S. ----, ----, 103 S.Ct. 400, 403, 74 L.Ed.2d 225, 229 (1982). As the Supreme Court recently stated:
Under the plain language of the current rule, a premature notice of appeal "shall have no effect;" a new notice of appeal "must be filed." In short, it is as if no notice of appeal were filed at all and if no notice of appeal was filed at all, the Court of Appeals lacks jurisdiction to act.
Id. --- U.S. at ----, 103 S.Ct. at 403, 74 L.Ed.2d at 230.
In the present case Wainwright and Greadington's July 15 notice of appeal was ineffective because it was filed while Campbell's Rule 59(e) motion was pending. In an effort to salvage his appeal Wainwright argues that the notice of appeal requirement was met by either (1) Campbell's September 22 notice of appeal; or (2) Lewis's October 4 notice of appeal; or (3) Wainwright, Greadington and Lewis's October 19 notice of appeal from the order awarding attorneys' fees. We consider each of these arguments in turn.
Having prevailed in the district court, Campbell filed a notice of appeal out of "an abundance of caution" to protect his right to challenge unnecessary adverse findings in the final judgment. (Should this court dismiss Wainwright's appeal Campbell requests that his cross-appeal be dismissed as well.) Campbell's timely notice gave this court jurisdiction over his appeal. Although Campbell's appeal is properly before us, Wainwright cannot use it as a vehicle for launching his own attack upon the judgment. While a party may raise any argument in support of a judgment, a party who has not appealed may not enlarge his rights under the judgment or diminish those of the opposing party. In U.S. v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed. 1087 (1924), the Supreme Court stated:
It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the right of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.
Wainwright seeks the reversal of the judgment below. Having failed to perfect his own appeal, he cannot use Campbell's appeal to destroy the ruling in Campbell's favor. Wainwright's attempt to hitch a ride on his adversary's notice of appeal must fail.
Wainwright contends that Lewis's October 4 notice of appeal should be construed as a legally sufficient notice of intent to appeal the June 18 judgment. We need not decide whether the notice of appeal would support such a liberal construction because ...
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