Taylor v. Texgas Corp.

• Decision Date: 03 November 1987
• Docket Number: No. 86-3670,86-3670
• Citation: 831 F.2d 255
• Parties: 45 Fair Empl.Prac.Cas. 244, 44 Empl. Prac. Dec. P 37,552, 9 Fed.R.Serv.3d 441 C.L. TAYLOR, Plaintiff-Appellant, Cross-Appellee, v. TEXGAS CORPORATION, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 255

831 F.2d 255

45 Fair Empl.Prac.Cas. 244,

44 Empl. Prac. Dec. P 37,552, 9 Fed.R.Serv.3d 441

C.L. TAYLOR, Plaintiff-Appellant, Cross-Appellee, v. TEXGAS CORPORATION, Defendant-Appellee, Cross-Appellant.

No. 86-3670.

United States Court of Appeals Eleventh Circuit.

Nov. 3, 1987.

Ben R. Patterson, Jerry G. Traynham, Patterson & Traynham, Tallahassee, Fla., for plaintiff-appellant, cross-appellee.

Julius F. Parker, Jr., Tallahassee, Fla., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Florida.

Before TJOFLAT and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

C. L. Taylor appeals from the district court's grant of appellee Texgas Corporation's Fed.R.Civ.P. 60(b) motion requesting that the court, on the basis of false testimony and newly discovered evidence, modify its earlier judgment. Because appellee has failed to prove fraud with clear and convincing evidence, and because it has not shown that it could not have produced the "newly discovered evidence" prior to the entry of judgment, we vacate the district court's modification of the earlier judgment. ¹

FACTS

C. L. Taylor was awarded back pay, unpaid overtime, and damages from Texgas Corporation ("Texgas") following a jury verdict that Texgas had dismissed him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634, and the Fair Labor Standards Act, 29 U.S.C. Secs. 201 et seq. On appeal, this court determined, citing Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985), that Taylor also should have been awarded prospective relief in the form of reinstatement or front pay in order "to make [him] whole." Taylor v. Texgas Corp., No. 85-3305, slip op. at 3 (11th Cir. April 17, 1986), [790 F.2d 87 (Table) ]. This court added, however, that on remand, the district court could consider the disability payments that Taylor had received from Texgas in determining the relief to which Taylor was entitled.

The district court held a hearing on the matter on June 10, 1987, at which Taylor was allowed to testify as to the amount of disability payments he had received. Because the hearing had been noticed as "oral argument," Texgas initially objected to the introduction of evidence, but subsequently withdrew the objection. It declined, however, to cross examine Mr. Taylor. Following Taylor's testimony, the court scheduled another hearing on the relief issue and provided the parties the opportunity to submit briefs. Appellant submitted a brief, but appellee failed to do so; nor did appellee present any evidence at the subsequent hearing.

The district court, on July 1, ordered Texgas to reinstate Taylor and pay him the full salary he would have earned from the date of judgment to the date of reinstatement, less the $4,042.40 in disability payments that he had received from Texgas following his discharge. Fifteen days later, appellee filed a motion for relief under Rule 60 of the Federal Rules of Civil Procedure. Texgas contended that the district court's order granting reinstatement and damages should be amended on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, ² and on the ground of fraud, alleging that Taylor gave untruthful testimony at the June 10 hearing. Specifically, Texgas alleged that Taylor failed to reveal at the June 10 hearing that he had received pension benefits from Texgas after his disability payments had been discontinued.

The district court, after a hearing, found that in addition to the disability benefits, Taylor had received $3,509.82 in pension payments from Texgas's pension plan, and that he had earned $3,507.24 from other unrelated jobs during the period after his discharge from Texgas. Accordingly, the court modified its prior judgment by deducting the total of those payments, $7,017.06, from the back wages that Texgas owed to Taylor. The court, however, never found that Taylor had committed fraud, although it determined that he had been "less than candid;" nor did it find that Texgas could not have discovered this evidence earlier through the exercise of due diligence.

DISCUSSION

A. Jurisdiction

At the time the court entered its July 1 order granting Taylor reinstatement, it retained jurisdiction over the case to award Taylor attorney's fees and costs. The court's subsequent order of August 29, modifying the July 1 order, did not dispose of the attorney's fee issue. Taylor filed a timely notice of appeal from the August 29 order. This court sua sponte raised the question of whether the August 29 order was a final and appealable order as required for our jurisdiction under 28 U.S.C. Sec. 1291, ³ as the district court had not resolved the attorney's fee issue and had not certified the case pursuant to Fed.R.Civ.P. 54(b). ⁴

This circuit follows the rule that "[t]he finality of an order, which determines all the issues except for the award of attorneys' fees 'depends on the circumstances of each case.' " C.I.T. Corp. v. Nelson, 743 F.2d 774, 775 (11th Cir.1984) (footnote omitted) (quoting McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984)). The court in McQurter reasoned:

When attorney's fees are similar to costs ... or collateral to an action ... a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits. When, however, the attorney's fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment.

724 F.2d at 882 (quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983)).

An award of attorney's fees under the ADEA is controlled by 29 U.S.C. Secs. 216(b), 626(b). See Hedrick v. Hercules, Inc., 658 F.2d 1088, 1096-97 (5th Cir. Unit B 1981). ⁵ Taylor contends that the district court's August 29 order was final because an award of attorney's fees under the ADEA is collateral to the merits. We agree. The statute provides that "[t]he court in [an ADEA] action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant and costs of the action." 29 U.S.C. Sec. 216(b) (emphasis added). Thus, the language of the ADEA itself indicates that an award of attorney's fees is extraneous to, rather than central to, the merits.

The Supreme Court's reasoning in White v. New Hampshire, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) supports our interpretation. In White the Court held that a motion for attorney's fees under 42 U.S.C. Sec. 1988 was not properly categorized as a Rule 59(e) ⁶ motion to alter or amend the judgment because it raised issues collateral to rather than essential to the merits of the case. As in White, the motion for fees here requires no reconsideration of the issues on the merits, as the motion "in no way urged the court to reconsider its holdings of law and fact to determine whether its prior judgment was correct." Gordon v. Heimann, 715 F.2d 531, 537 (11th Cir.1983) (requests for attorneys' fees were collateral to the underlying RICO action). Nor can attorney's fees "fairly be characterized as an element of 'relief' indistinguishable from other elements." White, 455 U.S. at 451, 102 S.Ct. at 1166. Moreover, because the plaintiff is entitled to attorney's fees only in addition to a judgment on the merits, the court cannot make an award of such fees until the litigation on the merits is finalized. Thus, we conclude that the district court's August 29th order, although it failed to determine the amount of fees to be awarded, was final and appealable.

B. Whether relief should have been granted under Rule 60(b)

"[T]he decision whether to grant a motion to amend a judgment rests within the discretion of the trial judge and will not be overturned absent an abuse of discretion." Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 611 (11th Cir.1987). Here, Taylor argues that the district court either employed an improper legal standard or abused its discretion in granting relief under Fed.R.Civ.P. 60(b), as the evidence supports neither a finding that Taylor gave untruthful testimony nor that Taylor's receipt of pension benefits constituted "newly discovered evidence."

Rule 60(b) provides in part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party....

It is unclear from the district judge's order which provision of Rule 60(b) he relied upon in amending the judgment. Although he found that Taylor had been "less than candid," he made no specific finding under either Rule 60(b)(2) or 60(b)(3). Moreover, after reviewing the record, we conclude that Texgas did not establish that it was entitled to have the judgment amended under either of those prongs of Rule 60(b).

First, there exists no basis for granting relief to Texgas under Rule 60(b)(2). To prove a basis for relief under this rule, a party must demonstrate that (1) the evidence is newly discovered since the judgment was entered; (2) due diligence on the part of the movant to discover the new evidence has been exercised; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that is likely to produce a new outcome if the case were retried, or is...