Williams v. Bolger

• Decision Date: 22 December 1980
• Docket Number: No. 79-3733,79-3733
• Parties: Ellis WILLIAMS, Plaintiff-Appellant, v. William F. BOLGER, Postmaster General et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 410

633 F.2d 410

Ellis WILLIAMS, Plaintiff-Appellant, v. William F. BOLGER, Postmaster General et al., Defendants-Appellees.

No. 79-3733

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 22, 1980.

William F. Rucker, Decatur, Ga., for plaintiff-appellant.

William Bolger, Postmaster Gen. et al., Myles E. Eastwood, Asst. U. S. Atty., Atlanta, Ga., John G. Hollingsworth, Jr., Asst. Regional Labor Counsel, U. S. Postal Service, Memphis, Tenn., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL, GARZA and THOMAS A. CLARK, Circuit Judges.

GARZA, Circuit Judge:

The procedural history of this litigation confronts us with a jurisdictional question we have noticed sua sponte : is a notice of appeal from a District Court order which is filed during the pendency of a Fed.R.Civ.P. 59(e) motion to reconsider that order a nullity under Fed.R.App.P. 4(a)(4)? In explaining our affirmative answer to this question, we begin with the axiom that a valid notice of appeal is a jurisdictional prerequisite to review by this court. See Fed.R.App.P. 3; Lindsey v. Perini, 409 F.2d 1341 (6 Cir. 1979); Blitzstein v. Ford Motor Company, 288 F.2d 738 (5 Cir. 1961).

Appellant Ellis Williams was terminated as a postal service employee on June 6, 1978. On May 4, he had received a "Notice of Charges-Removal" setting out the justification for his dismissal. It recited that on April 24, he had been reprimanded by a superior for excessive talking and had then become abusive, receiving a five-day suspension. The notice further alleged that on May 3, Williams threatened to shoot the supervisor after blocking his car in a parking lot.

Williams appealed his dismissal to the Federal Employee's Appeal Authority, and a hearing was held. He denied having behaved in the manner described, and presented witnesses whose testimony rebutted the supervisor's allegations. Also introduced was evidence that Williams had been suspended in 1974 for threatening a supervisor. The appeals authority affirmed Williams' discharge, choosing not to credit the version offered by him or his witnesses.

Williams then filed suit in District Court to challenge the Board's affirmance, pursuant to 5 U.S.C. § 701. His complaint asserted (1) that the evidence presented at the hearing was insufficient to sustain his dismissal, (2) that the appeals officer "failed to conduct the hearing in a quasi-judicial manner," and (3) that the charges, if established, were insufficient to justify a dismissal. Williams sought an order of reinstatement as well as money damages to compensate him for injury to his reputation and for mental suffering.

The defendants moved for summary judgement and, on April 30, 1979, their motion was granted. After noting that Williams had filed no opposition to the motion, the District Court held that "no apparent violations of the applicable standards" were disclosed by its review of the record. On May 30, assisted by new counsel, Williams moved the court to vacate its judgement "pursuant to (Fed.R.Civ.P.) 60(1)(6)." It was contended that his former counsel's negligence in "not filing a timely response to the government's motion would cause a miscarriage of justice unless the court relieved him of the effect thereof."

The District Court entered an order denying the motion to vacate on July 17th. On July 26, the plaintiff timely served a motion for reconsideration "pursuant to (Fed.R.Civ.P.) 59(e)," asking the court to reconsider "its order of July 18, (sic) 1979." In support of this motion, he merely pointed out that the judgement of April 30th had not specifically addressed his contentions that he was neither given proper notice before discharge, nor notified of all the reasons for the discharge. On September 13, while the motion for reconsideration was pending On this appeal, Williams complains of the failure of the District Court to find (1) that his notice of removal did not satisfy the thirty-day requirement of 5 U.S.C. § 7512(b)(1), (2) that the notice did not comport with the specificity requirements of that provision, and (3) that the decision of the appeals authority was arbitrary and capricious.

Williams filed a notice of appeal from the denial of his motion to vacate the judgement entered for the defendants. ¹ The motion for reconsideration of that decision was not denied until November 7th.

We do not reach the merits, for we find Williams' notice of appeal to be invalid under Fed.R.App.P. 4(a)(4) as amended in 1979:

(4) If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions 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. No additional fees shall be required for such filing. (Emphasis added).

This version, effective approximately six months before Williams filed his notice of appeal, clearly provides that the listed motions under the Federal Rules of Civil Procedure will toll the running of time for appeal, and that a notice of appeal filed before the disposition of any such motion must be treated as void. By the inflexibility of its language, the amendment effectively overrules several previous decisions of this court which suggested that a premature filing could be excused under certain circumstances. ² It is equally clear that a Here, Williams, suing the government, had sixty days to appeal the summary judgement granted the defendants. He did not do so. Instead, he filed a motion to vacate the judgement under Fed.R.Civ.P. 60(b). It was denied. He then asked the court to reconsider that denial under Fed.R.Civ.P. 59(e), and while his motion was pending, noticed an appeal from the same denial. His motion under Rule 59(e) was served within ten days of the denial of the motion to vacate and was thus timely, tolling the time for appeal from it and triggering the prohibition of Fed.R.App.P. 4(a)(4) against the premature filing of a notice of appeal. Williams' notice was accordingly a nullity, and we have no jurisdiction over this appeal.

motion to reconsider under Rule 59(e) will toll the time for appeal, and will require determination before a valid notice may be filed. ³

APPEAL DISMISSED.

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1 William's notice of this appeal read as follows:

PETITION FOR APPEAL

ELLIS WILLIAMS, hereby appeal the Motion of denial of July 18, 1979.

We will treat this filing as a notice of appeal from the July 17th order. See Fed.R.App.P. 3(c).

2 The relevant portion of Rule 4 before the 1979 Amendment read as follows:

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. A judgment or order is entered within the meaning of this subdivision when it is entered in the civil docket.

Under this version of the Rule, the Court held in Turner v. HMH Publishing Co., 328 F.2d...