Lee v. Coahoma County, Miss.
| Decision Date | 05 August 1991 |
| Docket Number | No. 90-1122,90-1122 |
| Citation | 937 F.2d 220 |
| Parties | 30 Wage & Hour Cas. (BN 764, 119 Lab.Cas. P 35,517, 20 Fed.R.Serv.3d 1017 Isaac LEE, et al., Plaintiffs-Appellants, Cross-Appellees, v. COAHOMA COUNTY, MISSISSIPPI, et al., Defendants-Appellees Cross-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles E. Webster, A. Jane Heidelberg, Clarksdale, Miss., for plaintiffs-appellants, cross-appellees.
Susan D. Fahey, Armin J. Moeller, Jr., Jackson, Miss., for defendants-appellees, cross-appellants.
Appeals from the United States District Court for the Northern District of Mississippi.
Before CLARK, Chief Judge, RONEY * and DUHE, Circuit Judges.
I.
Isaac Lee, Sammy Flowers, Dudley Lester, Randy Stewart, Danny Hill, Floyd Williams and David Rybolt seek to appeal the district court's award of compensatory damages pursuant to Sec. 7(k) of the Fair Labor Standards Act (FLSA). They also would contest the district court's award of attorney's fees. Coahoma County cross appeals from the district court's award of attorney's fees. We conclude that this court possesses jurisdiction over the appeals of the deputies, and we affirm in part, reverse in part, vacate the district court's order granting attorney's fees and remand for further proceedings.
II.
All appellants in this case were employed by the Coahoma County Sheriff's Department as deputies. After the Supreme Court's decision in Garcia v. San Antonio Metro Trans. Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), established that local governments were employers under the FLSA, the County concluded that the then existing method of calculating deputies' compensation violated the FLSA. The County's counsel, after attending a seminar on the FLSA, devised a compensation plan to take advantage of the Sec. 7(k) exemption to the FLSA. The plan involved changing the deputies' compensation from a salary base to a wage basis and adjusting the hourly rate to be paid to each employee. This plan allowed the County to pay the deputies substantially the same compensation as before. Sheriff Bonner estimated that each deputy worked approximately 245 hours per month with 171 hours of straight time and 74 hours of overtime. Each month, Sheriff Bonner would turn in time sheets indicating that each employee had worked 171 hours and 74 hours overtime. The Sheriff kept no records detailing the actual hours each deputy worked. It was admitted that the hours shown in the time sheets bore no relation to the true number of hours worked. The Sheriff informed some of the deputies that their pay scale was being altered. He testified that he did not know that the FLSA required accurate records be kept. The chancery clerk testified that he knew the FLSA required overtime be computed on interval of 28 days or less, but paid the deputies on a monthly basis because his computer calculated wages in intervals of one month.
The deputies filed suit against Sheriff Bonner and Coahoma County (collectively the "County") for back wages for overtime and liquidated damages under the FLSA. The County admitted miscalculation of overtime and tendered payment to the deputies. The deputies refused the tender and disputed the amounts owed. At a bench trial, the district court awarded the deputies amounts close to the County's calculations, denied the liquidated damages claim and awarded attorney's fees of $4800.00.
III.
The deputies claim the district court erred in calculating their overtime pay, improperly denied liquidated damages under 29 U.S.C. Sec. 260, and awarded inadequate attorney's fees. The County asserts the district court abused its discretion in allowing all deputies except Isaac Lee to file an amended notice of appeal. The County also contends that the deputies are not entitled to recover attorney's fees.
Twenty-eight days after the court entered its final judgment a notice of appeal was timely filed. However, this notice of appeal listed only deputy Isaac Lee by name and used the term "et al." It did not name the other six deputies. Shortly after filing this notice of appeal, the deputies' counsel became aware of the Supreme Court's holding in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), FED.R.APP.P. 3(c) to require that each appellant be listed by name in the notice of appeal. After the thirty day period allowed by FED.R.APP.P. 4(a)(1) for filing a notice of appeal had expired, the deputies moved for an extension of time to file a notice of appeal pursuant to FED.R.APP.P. 4(a)(5) and subsequently mailed an amended notice of appeal to the district court. They claimed that the failure to list all the appellants in the original notice of appeal was due to excusable neglect. The district court granted their motion ex parte and designated the amended notice of appeal listing all seven appellants as filed pursuant to that order.
The County asserts that under Torres and the cases in this circuit which follow Torres, the original notice of appeal was insufficient to confer jurisdiction over any of the appellants except Isaac Lee. See Barnett v. Petro-Tex Chemical Corp., 893 F.2d 800 (5th Cir.1990); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1989). Further, the County asserts that the district court abused its discretion in extending the time allowed for filing a notice of appeal because of excusable neglect, see Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th Cir.1990), and by doing so ex parte when notice is expressly required under FED.R.APP.P. 4(a)(5).
The deputies admit the original notice of appeal was insufficient to perfect an appeal as to any plaintiff except Isaac Lee, but assert their motion to amend the notice of appeal at the outset of the appellate process distinguish Torres. They point to language in Torres which indicates the Court's decision might have been different had the petitioner Torres sought to amend the notice of appeal. See Torres, 108 S.Ct. at 2405. Because the deputies corrected notice of appeal filed under the extension provisions of Rule 4(a)(5) complied with the requirements of Rule 4(a)(3), we agree.
Within the time allowed by FED.R.APP.P. 4(a)(3), the defendants filed a Notice of Cross Appeal from the orders granting attorneys fees to the plaintiffs. Assuming that the effect of Torres on the initial notice of appeal was to perfect an appeal only as to the plaintiff Isaac Lee, then the defendants' notice of cross appeal would become the "first notice of appeal" under Rule 4(a)(3) as to all other plaintiffs. See In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1364 (9th Cir.1987). Accordingly, Rule 4(a)(3) granted all plaintiffs 14 days from this initial timely notice of appeal by defendants to file their own notice with the court. Plaintiffs' amended notice of appeal filed two days after the defendants' notice of cross appeal is well within the time allowed by FED.R.APP.P. 4(a)(3). As a result, the plaintiffs not listed in the original plaintiffs' notice of appeal have filed a timely notice of appeal and need not justify their conduct under the excusable neglect standard of Rule 4(a)(5).
This holding comports with Rule 4(a)(3)'s purpose to allow all parties an opportunity to see and respond to the actions of their adversaries. 9 J. Moore and B. Ward, Moore's Federal Practice Sec. 204.11 (2d ed. Supp.1980). While the plaintiffs in this case would be taking advantage of this rule to remedy their own miscalculations rather than as a matter of strategy, appellants in another circumstance might legitimately decide to let one of their co-appellants proceed alone on appeal unless the appellee decided to file a cross appeal. See North American Savings Ass'n v. Metroplex Development Partnership, 931 F.2d 1073 (5th Cir.1991). If Rule 4(a)(3) did not authorize the amended notice of appeal here, then an appellee could wait until the last possible day to file a cross appeal thereby preventing any challenge by other, as yet uninvolved, parties. Giving effect to the plaintiffs' amended notice of appeal under Rule 4(a)(3) in the circumstances of the present action does not distort the operation of the time limits for filing a notice of appeal under Rule 4. We do not reach or rule on the multiparty case in which limited appeals and cross appeals might leap-frog one another to expand the time for all parties to appeal for an unreasonable period.
The deputies claim that the district court made three errors in calculating the overtime pay due them under Sec. 7(k) of the FLSA. They claim that the district court erred in calculating their pay on a weekly basis rather than using a 28-day work period, that the district court erred in concluding their meal breaks and three hour rest periods on long weekend shifts were not compensable.
We will not disturb the district court's fact findings unless they are clearly erroneous. However, we review the district court's application of the FLSA de novo.
Section 7(k) of the FLSA creates an exception to the standard wage and hour provisions of the FLSA. 1 It provides special compensation rules for public law enforcement and fire protection departments. Section 7(k) contains two structural concepts not found elsewhere in the FLSA: the "tour of duty" and the "work period." A tour of duty means a shift or "period of time during which an employee is considered to be on duty." 29 C.F.R. Sec. 553.220. A work period "refers to any established and regularly recurring period of work which, under the terms of the [FLSA], cannot be less than 7 consecutive days nor more than 28 consecutive days." 29 C.F.R. Sec. 553.224. Both the tour of duty and the work period impact the determination of compensable hours and overtime compensation under Sec. 7(k) of the FLSA.
Under Sec. 7(k)(1)(B), the Secretary of the Department of Labor has determined that the average...
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...imposing individual and/ or supervisory liability appears to be operational control over employees. See e.g. Lee v. Coahoma County, Miss., 937 F.2d 220, 222 & 226 (5th Cir. 1991) (sheriff’s managerial duties meant he was considered an “employer” under the FLSA), modified on other grounds , ......
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