In re City of Memphis

• Citation: 293 F.3d 345
• Decision Date: 31 May 2002
• Docket Number: No. 01-0503.,01-0503.
• Parties: In re CITY OF MEMPHIS, Petitioner. West Tennessee Chapter of Associated Builders and Contractors, Inc.; Zellner Construction Company, Inc., Plaintiffs-Appellees, v. City of Memphis, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

293 F.3d 345

In re CITY OF MEMPHIS, Petitioner West Tennessee Chapter of Associated Builders and Contractors, Inc.; Zellner Construction Company, Inc., Plaintiffs-Appellees, v. City of Memphis, Defendant-Appellant.

No. 01-0503.

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2002.

Decided and Filed: May 31, 2002.

COPYRIGHT MATERIAL OMITTED

Robert L.J. Spence, Jr. (briefed), Monika L. Johnson (argued and briefed), City Attys. Office, Memphis, TN, for City of Memphis.

Steven L. Shields (argued and briefed), James L. Holt, Jr. (briefed), Cordova, TN, for Plaintiffs-Appellees.

Before GUY and CLAY, Circuit Judges; NUGENT, District Judge.^*

GUY, J., delivered the opinion of the court, in which NUGENT, D. J., joined.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant, City of Memphis (City), applies for permission to appeal from the district court's order holding that postenactment evidence cannot be presented by the City to demonstrate a compelling need for awarding construction contracts based on racial preferences. Plaintiffs, West Tennessee Chapter of Associated Builders and Contractors, Inc., and Zellner Construction Company, Inc., argue that the City's application is not timely and that the statutory requirements for interlocutory review have not been met under 28 U.S.C. § 1292(b). After review of the record, the law, and the arguments, we find interlocutory review is not appropriate under § 1292(b) and deny the application.

I.

Plaintiffs brought this action on January 4, 1999, challenging the use of minority preferences by the City in awarding construction contracts under the City's Minority & Women Business Enterprise Procurement Program (MWBE program). Plaintiffs alleged in relevant part that the MWBE program violated the Fourteenth Amendment.

The City adopted the MWBE program in 1996 as a remedy for past discrimination and to prevent future discrimination. At the time of enactment, the City relied on a disparity study covering the period from 1988 to 1992. Based on that study, the City concluded that it was an active and passive participant in discrimination.

In response to this litigation, the City proposed to commission a new study that would cover the period from 1993 to 1998. The City wishes to use this postenactment study as evidence to demonstrate a compelling governmental interest. The district court ruled on June 9, 1999, that the City could not introduce the postenactment study as evidence of a compelling governmental interest. The district court initially denied the City's motion to certify an interlocutory appeal.

In response to the City's motion to reconsider certification, the district court certified an interlocutory appeal on December 20, 2000.¹ It is undisputed that the parties did not receive notice of entry of the order until after the expiration of the 10 day period for filing an application for interlocutory appeal to this court. On January 9, 2001, the district court sua sponte entered an order granting the City an additional 30 days to file the interlocutory appeal. On May 1, 2001, this court denied the application for interlocutory appeal finding that the district court could not extend the 10 day period under 28 U.S.C. § 1292(b).

On May 17, 2001, the City filed a motion asking the district court to vacate and reenter its certification order. On July 5, 2001, the district court vacated its December 20, 2000 order. After considering anew whether certification would achieve the ends of § 1292(b), the district court reentered its certification order. On July 12, 2001, the City filed an application for permission to appeal.

II.

A. Timeliness of the Appeal

Under 28 U.S.C. § 1292(b), an application for appeal must be made within 10 days after the entry of the district court's certification order. See also Fed.R.App. P. 5(a)(2) and (3). Failure to file an appeal within the 10-day period is a jurisdictional defect that deprives this court of the power to entertain an appeal. Neither the district court nor the court of appeals can extend the 10-day period. Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407, 408 (6th Cir.1971). See also FED.R.App. P. 26(b)(1).

The question presented here is whether the district court can restart the 10-day period by vacating its original certification order and then reentering the order. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the district court had recertified its original interlocutory order nine months after the original 10-day period had expired due to the appellant's failure to properly file its petition in the circuit court for leave to appeal. The majority reached the merits of the appeal without mentioning this procedural history. Justice Stevens (joined by Justices Brennan and Marshall) noted these facts, and stated that he was "persuaded by the view, supported by the commentators, that interlocutory appeals in these circumstances should be permitted, notwithstanding the fact that this view essentially renders the 10 day time limitation, if not a nullity, essentially within the discretion of a district court to extend at will." Id. at 162, 104 S.Ct. 1723.

In Woods, 441 F.2d at 408, we refused to allow the district court to vacate and, without reconsideration, reenter the certification order. The petitioner in Woods missed the original filing deadline through its own inadvertence. We reasoned that the district court could not do indirectly what it could not do directly. We declined to decide, however, "whether, following expiration of the time period for the filing of an application for permission to appeal, the Court of Appeals could acquire jurisdiction upon the District Court's reconsideration of its prior order and the timely filing of an application after the entry of such order upon reconsideration." Id.

Other circuits allow the district court to vacate and reenter a certification order to permit a timely appeal. The Fifth Circuit concluded that because the district court retains jurisdiction until final judgment, it can reconsider an interlocutory order. The Fifth Circuit, therefore, permits recertification even if the petitioner through its own inadvertence failed to take advantage of the original certification as long as the district court finds that the previous justification for interlocutory appeal continues to exist. Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir.1981). To hold otherwise would preclude an interlocutory appeal where the criteria under § 1292(b) are met, and both the district court and the court of appeals have concluded that an interlocutory appeal is appropriate. Id.

In Marisol v. Giuliani, 104 F.3d 524, 528-29 (2d Cir.1996), the Second Circuit decided that recertification is proper if it serves judicial efficiency and advances the purposes of § 1292(b). Accord In re Benny, 812 F.2d 1133, 1137 (9th Cir.1987); and Nuclear Eng'g Co. v. Scott, 660 F.2d 241, 247 (7th Cir.1981). In Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 867 (4th Cir.2001), the Fourth Circuit found that in order to recertify, a district court must also find (1) that the petitioner's failure to timely file under the original certification order was a result of excusable neglect and (2) that there is no prejudice to the other party in recertifying the interlocutory order.

In Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d Cir.1977), the Third Circuit distinguished between the hapless party who did not receive timely notice and the neglectful party who was simply remiss in pursuing the appeal. The court discussed the evolution of Fed.R.Civ.P. 77(d) and Fed.R.App. P. 4(a). Id. at 953-54. Rule 77(d) states that failure to receive notice of entry of an order from the clerk of the court does not affect the time for appeal or authorize the court to relieve a party for failure to appeal within the time allowed except as permitted by Appellate Rule 4(a). The purpose behind Rule 77(d) was to protect the finality of judgments. Appellate Rule 4(a) pertains to appeals as of right from final judgments and authorizes extending the time to appeal when notice is not received from the clerk. The language in Appellate Rule 4(a) was derived from former Rule 73(a), which permitted relief for failure to timely appeal from both final judgment and nonfinal orders and judgments. The elimination of the remedy for failure to receive notice from the clerk for nonfinal orders and judgments was seemingly the result of an oversight. The Third Circuit concluded that Rule 77(d) should "not be read woodenly so as to preclude such relief in the interlocutory situation, particularly given its limited purpose — to protect the finality of judgments." Id. at 954. The interest in the finality of judgments would not be affected by reconsideration and reentry of an interlocutory order. The Third Circuit stated: "[W]e do not read Rule 77(d) and its precursors to forestall the district court from granting relief because of its own failure to provide adequate notice to the defendants. It was in response to defendants' petition that the district court entered the certification in the first instance. As a result, it was not unreasonable for the defendants to await notice of any action which had been taken on their petition — especially since no party has been prejudiced by the reentry of the certification order." Id. at 954-55. The Third Circuit based its ruling on the broad power that a district court has over a case before a final judgment is entered. See Hall v. Cmty. Mental Health Ctr., 772 F.2d 42, 43 (3d Cir.1985).

In this case, as distinguished from the petitioner in Woods, the City did not miss the 10 day filing period through its own inadvertence. It was the hapless party identified in Braden. When neither party received timely notice of the first certification order, the district court sua sponte attempted to cure that error by extending the filing period. The City then...