U.S. v. Tippett

• Decision Date: 15 September 1992
• Docket Number: No. 91-1264,91-1264
• Citation: 975 F.2d 713
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Brooks TIPPETT, Defendant, and Edgar Lee Durre, Movant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 713

975 F.2d 713

23 Fed.R.Serv.3d 702

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Brooks TIPPETT, Defendant and Edgar Lee Durre, Movant-Appellant.

No. 91-1264.

United States Court of Appeals Tenth Circuit.

Sept. 15, 1992.

Edgar Lee Durre, pro se.

Michael J. Norton, U.S. Atty., George E. Gill, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Before LOGAN, BARRETT, and EBEL, Circuit Judges.

LOGAN, Circuit Judge.

Movant-Appellant Edgar Lee Durre appeals the denial of his application to be paid a witness fee. The success of his claim turns on whether the parties to appeals that are administratively consolidated in this court are deemed parties to each others' cases in this court and/or on review in the United States Supreme Court. ¹

I

While Durre was incarcerated in a Colorado state penitentiary, he was subpoenaed and testified as a fact witness during the criminal trial of a third party in the federal district court. At the same trial, three other Colorado state prisoners were subpoenaed and testified. Three of these prisoner witnesses, including Durre, submitted separate motions for witness fees to the district court, pursuant to 28 U.S.C. § 1821. The court denied them by minute orders. The fourth prisoner witness, Demarest, filed a Petition for Review of Acts and Omissions of Clerks of the District Court or, in the Alternative, Complaint for Relief in the Nature of Mandamus. A different district judge denied Demarest's petition. Demarest v. Manspeaker, No. 88-F-843, Order (D.Colo. June 10, 1988). Each of the four prisoner witnesses filed separate appeals to this court. We consolidated the four appeals ² in one opinion with separate captions and separate docket numbers for the four cases. Demarest v. Manspeaker, 884 F.2d 1343 (10th Cir.1989), rev'd, --- U.S. ----, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991). We affirmed the orders of the district court denying the appellants' respective motions for witness fees. Two of the prisoner witnesses submitted petitions for rehearing, which were separately denied. Durre did not submit a petition for rehearing.

Only one of the four appellants, Demarest, filed a petition for certiorari with the United States Supreme Court. Durre did not file a petition for certiorari, nor did he join in Demarest's petition. ³ The Supreme Court reversed our decision, holding that § 1821 was unambiguous and did not except prisoners from entitlement to witness fees. Demarest v. Manspeaker, 498 U.S. 184, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991). On remand, we recalled the mandate, vacated the earlier judgment, and remanded the matter to the district court for further proceedings in accordance with the Supreme Court's ruling, in an order captioned only with Demarest's caption and docket number. Demarest v. Manspeaker, 930 F.2d 33 (Table), No. 88-1899 (10th Cir. Feb. 22, 1991).

Congress reacted swiftly to the Supreme Court's Demarest decision in a rider to emergency supplemental appropriations legislation (Act). ⁴ The Act prohibits prisoners from receiving witness fees under § 1821. The Act, however, specifically excepts the "fact witness fee decided in [Demarest ]" from this prohibition.

Relying upon the Supreme Court's Demarest opinion, Durre submitted a second motion to the district court requesting § 1821 witness fees. The district court denied this second request, stating that the exception described in the Act did not apply to Durre. It noted that Durre "did not pursue his case in the Supreme Court.... [Durre's] case was not a component of the Supreme Court's decision in Demarest, and, therefore the Congressionally created exception does not apply." I R. tab 6 at 2. The district court held that because he had not appealed the decision against him in this court to the Supreme Court, this court's holding controlled the disposition of Durre's renewed request for witness fees under the principles of res judicata and law of the case. In the instant appeal, Durre claims error in this denial of his renewed motion for witness fees.

To decide whether Durre's renewed motion for witness fees should be granted under the cloak of the Supreme Court's opinion in Demarest, it is necessary to establish whether Durre was a party to Demarest's case in this court as a procedural effect of administrative consolidation and whether the "party" status recognized by Supreme Court Rule 12.4 is such as to render the specific exception in the Act--allowing "the fact witness fee decided in [Demarest ]"--applicable to Durre's claim for fees.

II

Whether consolidation of separate appeals, with one opinion filed under separate captions and docket numbers, transforms all of the appellants into "parties" of each others' cases, is a matter of first impression in this circuit.

Federal Rule of Appellate Procedure 3(b) provides:

Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

Our local rules offer no guidance as to the procedural effects of case consolidation at the appeals court level relevant to the issue before us.

Although there is a dearth of guidance about the effects of consolidation in the federal appeals court, consolidation in the federal district court is analogous and relevant, see Fed.R.Civ.P. 42(a), ⁵ and legal authority interpreting the effect of Rule 42(a) is more plentiful. The Supreme Court considered the effects of district court consolidation in Johnson v. Manhattan Ry. Co., 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331 (1933). There, the Court held that "consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Id. at 496-97, 53 S.Ct. at 727-28.

Despite Johnson, which antedates the federal rules of civil and appellate procedure, other circuit courts of appeal have wrestled with the problem of cases consolidated in the district courts principally in the context of when there is a final appealable judgment. The Sixth Circuit has retained a bright-line approach holding that separate notices of appeal must be filed to give the appeals court jurisdiction over consolidated cases. See Stacey v. Charles J. Rogers, Inc., 756 F.2d 440, 442 (6th Cir.1985) (timely motion for new trial by party to one case does not extend time to file appeal for party to another case in the consolidated trial). But see Advey v. Celotex Corp., 962 F.2d 1177 (6th Cir.1992) (divided panel treating consolidated cases as merged in the context of examining appellate jurisdiction in the face of a Rule 59 motion by a defendant of one of the consolidated cases).

The Seventh and Eighth Circuits have held that they must identify retention of separate case status or merger of identities on a case-by-case basis. See Mendel v. Production Credit Ass'n, 862 F.2d 180, 182 (8th Cir.1988) ("We are satisfied ... that technical consolidation into a single action did not occur, but rather an arrangement for joint proceedings and hearings, for convenience."); Soo Line R.R. Co. v. Escanaba & Lake Superior R.R. Co., 840 F.2d 546 (7th Cir.1988):

Have [the cases] been consolidated just to hold convenient hearings, or have they been merged? The question is important because appellate jurisdiction depends on the finality of the judgment, and a disposition might be final with respect to one case but not the other. If the cases have been merged for all purposes, any open question prevents an appeal in the absence of findings under Rule 54(b); if the cases retain separate identities, appellate jurisdiction depends only on the finality of the disposition of each separate case.

Id. at 548; see also Ivanov-McPhee v. Washington Nat'l Ins. Co., 719 F.2d 927, 930 (7th Cir.1983) (to determine extent of consolidation, court looks to evidence of whether consolidation was for limited purpose and whether litigant's interests will be seriously undermined by treating consolidation as merger).

The Fifth Circuit treats consolidated cases as separate when determining whether the district court had jurisdiction to entertain the suits. E.g., Kuehne & Nagel (AG & CO) v. Geosource, Inc., 874 F.2d 283, 287 (5th Cir.1989) ("[W]e must view each consolidated case separately to determine the jurisdictional premise upon which each stands."); McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.1982) ("[C]onsolidation does not cause one civil action to emerge from two; the actions do not lose their separate identity; the parties to one action do not become parties to the other."); see also EEOC v. West La. Health Servs., Inc., 959 F.2d 1277, 1280 (5th Cir.1992) (consent to trial by magistrate judge). We assume all circuits would hold similarly that no suit filed independently could escape the jurisdiction requirements of federal question or diversity because it was consolidated with another after filing.

The Fifth Circuit otherwise appears to follow the case by case approach of the Seventh and Eighth Circuits when considering finality issues. See id. at 1280 ("We have recognized that, although consolidation does not eliminate the independent existence of the actions, where the claims have been treated as one throughout the trial, they may be treated similarly for purposes of the notice of appeal."); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 281 (5th Cir.1984) (dismissing appeal under Fed.R.App.P. 4(a)(4) on basis of later-filed motion to amend judgment by one defendant in multiparty...