WELEX, A DIVISION OF HALLIBURTON COMPANY, PETITIONER V. ELIZABETH DOLE, SECRETARY OF LABOR No. 89-323 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The Respondent In Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The order of the court of appeals dismissing the appeal (Pet. App. 26a) is unreported. The district court's 1982 order on cross-motions for partial summary judgment (App., infra, 2a), its November 29, 1988 final judgment (App., infra, 1a), and its December 16, 1988 memorandum and order denying respondent's motion to amend the judgment (Pet. App. 16a-17a) are also unreported. JURISDICTION The judgment of the court of appeals was entered on April 20, 1989. A motion for reconsideration was denied on June 2, 1989 (Pet. App. 27a). The petition for a writ of certiorari was filed on August 25, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether respondent's motion to obtain restitutionary and prospective injunctive relief instead of the monetary relief awarded by the district court was properly characterized as a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). 2. Whether the court of appeals properly dismissed petitioner's appeal pursuant to Fed. R. App. P. 4(a)(4) because petitioner failed to file a notice of appeal after the district court denied respondent's motion to alter or amend the judgment. STATEMENT 1. The Secretary of Labor filed this action to enjoin petitioner from violating the overtime compensation provisions of the Fair Labor Standards Act of 1938 (FLSA or Act), 29 U.S.C. 201 et seq. Jurisdiction was alleged under Section 17 of the Act, 29 U.S.C. 217, which authorizes district courts "to restrain violations of Section 215 of this title, including * * * the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees." The Secretary alleged that petitioner had violated 29 U.S.C. 207 and 215(a)(2) by failing to pay certain employees for hours in excess of forty hours a week at a rate not less than one and one-half times their regular rate of pay. In its prayer for relief, the complaint specifically requested a permanent injunction against violation of these overtime pay provisions and "the restraint of withholding of payment of overtime compensation found by the court to be due employees under the Act," plus interest thereon. Complaint, Civ. Action No. V-79-19 (S.D. Tex. Sept. 17, 1979). In its defense, petitioner argued that its pay plan fell within the so-called "Belo" exception to the Act's overtime compensation requirements, an exception derived from Walling v. A.H. Belo Corp., 316 U.S. 624 (1942), and now codified at 29 U.S.C. 207(f). The district court held the Belo exception inapplicable, granting partial summary judgment ot the Secretary on that issue in an order filed August 25, 1982 (App., infra, 2a). A bench trial then was held on November 22, 1988, focusing primarily on the issue of willfulness. See McLaughlin v. Richland Shoe Co., 108 S. Ct. 1677 (1988); 29 U.S.C. 255(a). The court ruled from the bench that the violation was not willful (Tr. 58), and ordered petitioner to make "pass-due (sic) overtime payments of $120,667.47, which is the stipulated figures for the two years back on the statute of limitation under the non willful, non reckless standard to the stipulated employees." Tr. 60-61. On November 29, 1988, the district court entered final judgment for the Secretary, directing that she recover from petitioner for the benefit of 91 employees specified amounts of principal, prejudgment interest, and postjudgment interest (App., infra, 1a). On December 5, 1988, petitioner filed a notice of appeal in district court. Pet. App. 5a-7a; Pet. 2. One day later, on December 6, 1988, the Secretary filed a timely motion to alter or amend the judgment. Pet. App. 8a-15a; Pet. 2. Expressly relying on Rule 59(e), the Secretary argued that the court had erred both by entering a money judgment rather than a restitutionary injunction and by failing to enjoin petitioner permanently from violating the overtime provisions of the Act. Pet. App. 12a-14a. /1/ By an order signed on December 13, 1988 and entered on December 16, 1988, the district court denied the Secretary's motion to amend the judgment (id. at 16a), explaining that "(t)he granting of only the compensatory monetary relief in the final judgment implicitly but unequivocally denied the other relief the Secretary of Labor requested," and that "injunctive relief was unsupported by any evidence of current practices or intentions." Id. at 17a. 2. After the district court denied the Secretary's Rule 59(e) motion, petitioner did not file a new notice of appeal. It did, however, file two other documents with the court of appeals, both dated December 13 and filed December 18, 1988. Pet. App. 18a, 20a; Pet. 2. One was a letter referencing the parties and district court civil action number and enclosing a receipt for payment of the filing fee to the district court as required by Fed. R. App. P. 3(e). Pet. App. 18a-19a. The other was a letter, again referencing the caption of the case below, and enclosing the Fifth Circuit's "Form for Appearance of Counsel," which identified Welex as appellant and the Secretary of Labor as appellee. Pet. App. 21a-25a. Neither letter designated the "judgment, order or part thereof appealed from" (Fed. R. App. P. 3(c)) either by date or by description. Accordingly, on March 16, 1989, the Secretary moved to dismiss the appeal on the ground that petitioner had failed to file a notice of appeal, as required by Fed. R. App. P. 4(a)(1) and (4), within 60 days of the district court's order denying the Secretary's motion to alter or amend the judgment. The Secretary emphasized that this requirement is jurisdictional under Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61 (1982) (per curiam). The court of appeals summarily dismissed the appeal, over petitioner's opposition. Pet. App. 26a; Pet. 3. Petitioner filed a motion for reconsideration, arguing for the first time that its December 18 filings with the court of appeals satisfied the requirements for a notice of appeal under Fed. R. App. 3(c). Pet. 3. That motion was denied. Pet. App. 27a. ARGUMENT The summary decision of the court of appeals to dismiss this appeal is correct and applies well-established principles to the particular facts of this case. 1. Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that, where any party files a timely motion in district court to alter or amend a judgment under Rule 59, Fed. R. Civ. P., "the time for appeal for all parties shall run from the entry of the order" disposing of that motion. Rule 4(a)(4) (emphasis added) stipulates: 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 * * *. This unequivocal language, added by the 1979 amendments to the Federal Rules of Appellate Procedure, was designed to "make it clear" that, when a notice of appeal is filed before one of the specified post-trial motions, "the appellant should not proceed with the appeal during pendency of the motion but should file a new notice of appeal after the motion is disposed of." Fed. R. App. P. 4(a)(4), notes of advisory committee on appellate rules (1979 Amendment) (28 U.S.C. App. at 469). As this Court has held, "the post-1979 effect of a Rule 59 motion on a previously filed notice of appeal" is that "'(t)he appeal simply self-destructs.'" Griggs v. Provident Consumer Discount Co., 459 U.S. at 61 (quoting 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice Paragraph 204.12(1), at 4-65 n.17 (2d ed. 1982)). Under these circumstances, a previously filed notice of appeal has "'no effect'" and is simply "a nullity." Griggs, 459 U.S. at 61. Because a timely notice of appeal is both mandatory and jurisdictional, without such a timely notice, the court of appeals has no jurisdiction to act. Ibid. 2. Petitioner recognizes that, under Rule 4(a)(4), a timely Rule 59(e) motion nullifies a previously filed notice of appeal. Pet. 3, 5. However, petitioner seeks to escape the consequences of neglecting to file a second notice of appeal by asking this Court to recharacterize both respondent's motion to alter and amend and its own appellate filings. These efforts are unpersuasive. a. Petitioner argues (Pet. 7-9) that the Secretary's post-judgment motion, although clearly denominated a Rule 59(e) motion to alter or amend the judgment, was in reality a motion under Fed. R. Civ. P. 60(a) to correct the district court's clerical error in failing to "memorialize" part of its decision. Rule 60 motions, unlike 59(e) motions, do not affect the finality of a judgment for purposes of appeal, and do not nullify a previously filed notice of appeal under Fed. R. App. P. 4(a)(4). Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 666 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986); 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice, Paragraph 204.12(1), at 4-79, 4-82 (2d ed. 1989). Rather, clerical mistakes may be corrected during the pendency of an appeal under specified conditions. See Fed. R. Civ. P. 60(a). Petitioner's attempt to recast the Secretary's post-judgment motion is unavailing. The Secretary filed a Rule 59(e) motion to effect a substantive change in the judgment: to convert it from a money judgment to a judgment providing both a restitutionary injunction and a prospective injunction against future violations of the FLSA's overtime provisions. Pet. App. 8a, 12a-14a. A restitutionary injunction, providing for the restraint of any withholding of payment of past due overtime wages is, unlike a money judgment, enforceable through the court's contempt power. Usery v. Fisher, 565 F.2d 137 (10th Cir. 1977). A prospective injunction, of course, provides a ready remedy for future statutory violations. See, e.g., Walling v. James V. Reuter, Inc., 321 U.S. 671 (1944). The Secretary's motion, therefore, plainly sought significant and material changes in the remedy awarded by the district court for petitioner's violations of the FLSA, and thus was properly characterized by the Secretary and both courts below as a motion to alter or amend the judgment. Moreover, because the motion involved a "'reconsideration of matters properly encompassed in a decision on the merits'" (Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989), quoting White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 451 (1982)), it was properly filed as a Rule 59(e) motion to amend the judgment. Certainly the injunctive relief sought by the Secretary here was at least as closely related to full relief on the merits as was the prejudgment interest at issue in Osterneck, which the Court held was properly sought under Rule 59(e). Compare Buchanan v. Stanships, Inc., 108 S. Ct. 1130 (1988) (per curiam) (motion for costs under Fed. R. Civ. P. 54(d) is collateral matter, not Rule 59(e) motion); White v. New Hampshire Dep't of Employment Sec., supra (motion for attorneys' fees is not Rule 59(e) motion). Petitioner argues, however, that the Secretary's motion should have been treated as a Rule 60(a) motion because it purportedly asked the court simply to memorialize part of the ruling inadvertently omitted from its decision, as in Miller v. Trans American Press, Inc., 709 F.2d 524, 527-528 (9th Cir. 1983). This argument is not plausible. The court in Miller explicitly distinguished the kind of "clerical error" (id. at 527) it perceived in that case from a request for a "substantive change of mind by the court" (ibid.) that must be characterized as a Rule 59(e) motion. Here, the Secretary unquestionably was requesting a "substantive change of mind by the court." Indeed, the Secretary's motion asked the court to change a monetary award to a restitutionary injunction, as well as to add a prospective injunction to the existing judgment. And the district court confirmed, in denying the Secretary's motion, that it had not inadvertently omitted injunctive relief, but that its prior order "implicitly but unequivocally" denied such relief. Pet. App. 17a. A motion to alter or amend was the appropriate vehicle by which to challenge the correctness of the court's order limiting relief. Accordingly, the court of appeals properly characterized this motion as a Rule 59(e) motion to alter or amend the judgment. b. Petitioner also contends (Pet. 4-7) that its two December 18 letters to the court of appeals -- one including a form for appearance of counsel and the other a notice of payment of filing fee -- constituted a valid second notice of appeal pursuant to Fed. R. App. P. 3(c). That rule requires that a notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." The rule also states that an appeal "shall not be dismissed for informality of form or title of the notice of appeal." Petitioner, focusing on this last sentence of Rule 3(c), describes its errors as "mistakes of mere form" which should not be fatal to its appeal. Pet. 4-5. In fact, however, petitioner's December 18 filings demonstrate a more serious defect than mere form because they fail to designate the judgment appealed from as mandated by Rule 3(c). The substantive requirements for the content of a notice of appeal are jurisdictional in nature. See Torres v. Oakland Scavenger Co., 108 S. Ct. 2405, 2409 (1988) ("construing Rule 3(c) as a jurisdictional prerequisite" and affirming dismissal of appeal by party whose name was inadvertently omitted from notice of appeal). See also Osterneck, 109 S. Ct. at 989 (noting "the vital fact" that respondent was omitted from the notice of appeal). Even if petitioner's appearance of counsel form is viewed as satisfying the first requirement of Rule 3(c) by "specify(ing) the party * * * taking the appeal" and the third requirement by "nam(ing) the court to which the appeal is taken," petitioner's December 18 filings did not meet Rule 3(c)'s second requirement that the notice of appeal "shall designate the judgment order or part thereof appealed from." As described above (pp. 2-3, supra), the district court had entered at least three separate orders or judgments in this case on different dates. Thus, mere recitation of the case caption did not adequately identify the "judgment, order or part thereof appealed from," as the rule requires. Accordingly, the December 18 filings relied on by petitioner were insufficient to constitute a new notice of appeal conferring jurisdiction on the court of appeals. /2/ Petitioner contends (Pet. 5-6) that the Fifth Circuit's decisions regarding the requirements of a notice of appeal are inconsistent with one another. However, neither in this case nor in any other case has the Fifth Circuit agreed that its decisions present an intra-circuit conflict. Instead, the Fifth Circuit has determined that the very decisions that petitioner claims are in conflict are actually in harmony. /3/ See, e.g., Van Wyk El Paso Inv., Inc. v. Dollar Rent-A-Car Systems, Inc., 719 F.2d 806, 807-808 (5th Cir. 1983) (per curiam) ("We hold that even under the liberal constructions accorded the documents filed in Cobb (v. Lewis, 488 F.2d 41 (5th Cir. 1974)) and Stevens (v. Heard, 674 F.2d 320 (5th Cir. 1982) (per curiam)), Dollar Rent-A-Car has failed to give a timely notice of appeal."). Compare Pet. 5-6 (asserting that Van Wyk is in conflict with Cobb and Stevens). Petitioner also suggests that the District of Columbia Circuit "has taken a different view" (Pet. 6) from the Fifth Circuit. That contention is without merit. Both courts recognize that, when a notice of appeal has been nullified under Rule 4(a)(4), Rule 3(c) applies as if no notice of appeal had been filed at all. Van Wyk El Paso Inv., Inc., 719 F.2d at 807; Nichols v. Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 888 (D.C. Cir. 1987). Moreover, both circuits recognize that the timely filing of a document will satisfy the requirements of Rule 3(c) as long as it accomplishes the three notice requirements of that rule. Van Wyk El Paso Inv., Inc., 719 F.2d at 807; Nichols, 835 F.2d at 889. See also Page v. DeLaune, 837 F.2d 233, 236 (5th Cir. 1988) (filing of designation of record on appeal and timely service of notice of appeal on opponent satisfy Rule 3(c)). Whether the notice requirements of Rule 3(c) have been met in a particular case is largely a factual question. Thus, in Nichols, the D.C. Circuit held that a certificate filed by appellants under Fed. R. App. P. 10(b)(1) "contain(ed) the data Federal Appellate Rule 3(c) necessitates for an efficacious notice of appeal" (835 F.2d at 888 (footnote omitted)) because, in addition to identifying the parties bringing the appeal and the court in which appellate review was sought, it adequately identified the judgment appealed from by describing it as the decision on cross-motions for summary judgment. Id. at 889. In Van Wyk, by contrast, the Fifth Circuit held that a form for appearance of counsel did not satisfy Rule 3(c) because it failed to indicate whether the party was appellant or appellee and did not refer to the order or judgment it intended to appeal. 719 F.2d at 808. In this case, similarly, the notice of appeal lacked the specificity about the "judgment, order, or part thereof appealed from" which the D.C. Circuit explicitly found in Nichols. /4/ In sum, there is no conflict in the circuits and no reason for this Court to review the court of appeals' application of established principles to the facts of this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT P. DAVIS Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Counsel for Appellate Litigation ELLEN L. BEARD Attorney Department of Labor OCTOBER 1989 /1/ Although the Secretary's motion twice referred erroneously to a date of June 13, 1988 as the date of the judgment (Pet. App. 8a, 12a), it also correctly referred to November 29, 1988 as the date of the judgment. Id. at 13a. /2/ In contrast to petitioner's December 18 submissions, Form 1 in the Appendix of Forms to the Federal Rules of Appellate Procedure, which is specifically referenced in Rule 3(c) as "a suggested form of a notice of appeal," calls for the appellant to specify that its appeal is from either a "final judgment" or from an "order (describing it)" and to note the date on which the judgment or order was entered. /3/ In any event, an intra-circuit conflict provides no basis for this Court's review. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /4/ See also Page v. DeLaune, 837 F.2d at 236 (reviewing cases in which Fifth Circuit has found particular filings to be valid notices of appeal); Greater Houston Chapter of ACLU v. Eckels, 763 F.2d 180 (5th Cir.) (appeal information sheet fails to designate judgment, order, or part appealed from under Rule 3(c) and is not valid notice of appeal), cert. denied, 474 U.S. 980 (1985); Alamo Chem. Transp. Co. v. M/V Overseas Valdes, 744 F.2d 22 (5th Cir. 1984) (motion for enlargement of time to file appellate brief is not valid notice of appeal); Florida Women's Medical Clinic, Inc. v. Smith, 706 F.2d 1172 (11th Cir. 1983) (appellate brief is not valid notice of appeal). APPENDIX