November 25, 2002 VIA FEDERAL EXPRESS Marcia M. Waldron, Clerk United States Court of Appeals for the Third Circuit 21400 United States Courthouse 601 Market Street Philadelphia, PA 19106-1790 Re: EEOC v. Hesco Parts Corp., Nos. 02-1318 & 02-1474 Dear Ms. Waldron, The Court has asked the EEOC to file a supplemental memorandum discussing the timeliness of Hesco's notice of appeal. In brief, we believe Hesco's appeal is timely because the EEOC “is a party” to this case within the broad meaning of Fed. R. App. P. 4(a)(1)(B). Background On December 14, 1999, the district court granted the EEOC's motion for voluntary dismissal of all its claims against Hesco. The court's order — which was issued under Fed. R. Civ. P. 41(a)(2), because the parties could not reach agreement on the terms of the dismissal — reserved the issue of attorney's fees for a later date. The district court denied Hesco's motion for attorney's fees in an order entered on November 30, 2001. Hesco filed its notice of appeal (docketed as No. 02-1318) from this order 59 days later, on January 28, 2002. Thus, Hesco's appeal is timely only if the 60-day period of Fed. R. App. P. 4(a)(1)(B) applies — that is, if “the United States or its officer or agency is a party.” Around the same time, the jury returned a verdict against Gene Schwerdtfeger, and the district court denied his Rule 59(e) motion for a new trial in an order entered on November 26, 2001. The court entered two collateral orders against Schwerdtfeger, the first denying his motion for sanctions (entered on November 30, 2001, as part of the same order denying Hesco's motion for fees, costs, and sanctions) and the second upholding the clerk's taxation of costs against him (entered on January 8, 2002). Schwerdtfeger filed a notice of appeal (docketed as No. 02-1474) from all three orders on February 11, 2002 — 77 days after the court denied his motion for a new trial, 73 days after the court denied his motion for sanctions, and 34 days after the court upheld the taxation of costs, but only 14 days after Hesco's notice of appeal. Is the 60-day period of Rule 4(a)(1)(B) applicable to Hesco's notice of appeal? Yes. Hesco appeals from the district court's ruling on its motion for attorney's fees against the EEOC and Schwerdtfeger. Although the EEOC had previously dismissed all of its claims against Hesco and therefore was no longer a party to the underlying litigation, the EEOC remained a party to the fees dispute. Cf. Valley Disposal v. Central Valley Solid Waste Mgmt. Dist., 71 F.3d 1053, 1057 (2d Cir. 1995) (holding that a district court retains subject-matter jurisdiction to award attorney's fees even after a case is voluntarily dismissed); Sequa Corp. v. Cooper, 245 F.3d 1036, 1037-38 (8th Cir. 2001) (same for costs even though the defendant is not a “prevailing party”). The EEOC has litigated the issue of attorney's fees both in this district court and in this Court. And had the district court ruled against us on the fees issue, we certainly would have had 60 days in which to file our appeal. Because it would be unfair to allow 60 days for the EEOC to appeal but only 30 for Hesco, cf. Montelongo v. Meese, 777 F.3d 1097, 1099 (5th Cir. 1985) (quoting the Advisory Committee Notes to Rule 4's predecessor), Hesco also had 60 days to appeal the court's decision on attorney's fees. But regardless of whether the EEOC technically remained a party after December 14, 1999, the EEOC “is a party” to the case within the meaning of Rule 4(a)(1)(B). This rule does not require that the government be a party at the time the final judgment is entered. Diaz v. Trust Territory, 876 F.2d 1401, 1404 (9th Cir. 1989); Rochester Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006, 1011-12 (8th Cir. 1984). The courts read this rule both literally and broadly. Generally speaking, if the federal government was involved in any facet of the case below before the final judgment — regardless of whether it participated or has an interest in the particular aspects raised on appeal — the 60-day period applies to all appeals by any party arising out of the matter. Lonberg v. Sanborn Theaters, 259 F.3d 1029, 1031-32 & n.4 (9th Cir. 2001); cf. id. (noting that a different standard might apply in the unique context of bankruptcy litigation). Although there are a few cases suggesting that the 60-day period might not apply if the government had its interests resolved early in the litigation and has no interest in the subject of the appeal (particularly if it is an interlocutory appeal), all authorities seem to agree that the 60-day period applies if the government was a named party, participated in the general action, and has an interest in the outcome of the appeal — even if the government is not a party to the appeal. E.g., Kalinsky v. McDonnell Douglas (In re Paris Air Crash), 578 F.2d 264, 265 (9th Cir. 1978) (per curiam); 16A Charles A. Wright et al., Federal Practice & Procedure § 3950.2, at 132 (3d ed. 1999); 5 Am. Jur. 2d Appellate Review § 287 (1995). See generally David A. Johns, Annotation, Construction of Provision in Rule 4(a) of Federal Rules of Appellate Procedure (Formerly Civil Procedure Rule 73(a)), Making an Exception as to Time for Filing Notice of Appeal from District Court to Court of Appeals in Civil Case “If the United States or an Officer or Agency Thereof is a Party,” 9 A.L.R. Fed. 611 (1971). Here, the EEOC was a named party, participated in the litigation over attorney's fees, and has a direct interest in the outcome of this appeal. Moreover, unlike Kalinsky and many other cases applying the 60-day period, the EEOC is a party to this appeal and has submitted a brief as appellee. In these circumstances, the EEOC must be deemed a party. Thus, Hesco had 60 days from the court's denial of fees in which to file its notice of appeal, which means that its appeal in No. 02-1318 is timely. If the EEOC was not a party and Hesco's notice is untimely, is Schwerdtfeger's notice timely? No. Schwerdtfeger's appeal of the Rule 59(e) decision and the denial of sanctions is untimely unless it falls within Fed. R. App. P. 4(a)(3) — which provides a 14-day extension for other parties to file their notices of appeal after one party has done so — because the notice was filed nearly 80 days after the relevant orders. If Hesco's underlying notice is not timely, it cannot be used as a basis for this 14-day extension. See Meza v. Wash. State Dep't of Soc. & Health Servs., 683 F.2d 314, 316 (9th Cir. 1982). But cf. Marlow v. Rollins Cotton Co. (In re Julien Co.), 146 F.3d 420, 423 (6th Cir. 1998) (holding that a notice of appeal filed by a party without standing to appeal is merely voidable, not void, and therefore triggered the 14-day extension). In addition, if the EEOC was not a party within the meaning of Rule 4(a)(1)(B), Schwerdtfeger's appeal with respect to the taxation of costs is untimely as well, because it was filed 34 days after the district court's order. Thus, the appeal in No. 02-1474 would not be timely as to any issue. On the other hand, if — as we believe — Hesco's appeal is timely, this Court must decide whether the 14-day extension applies to Schwerdtfeger's appeal of the Rule 59(e) decision. The EEOC has taken no position on this issue; the arguments on each side are set forth in Hesco's brief at pages 2-4 and Schwerdtfeger's brief at pages 1-2. Nonetheless, we call this Court's attention to Bridgestone/Firestone, Inc. v. Local Union No. 998, 4 F.3d 918, 924 (10th Cir. 1993) (holding that a cross-appeal from a collateral order denying sanctions is timely if filed within 14 days of the appeal of the merits), which arguably supports Schwerdtfeger's position on this issue. Although not cited by either party, this appears to be the only decision discussing the timeliness of a cross-appeal from a collateral order. We also note that regardless of how that issue is resolved, Schwerdtfeger's appeal with respect to the taxation of costs would be timely if the EEOC “is a party” to this case within the meaning of Rule 4(a)(1)(B), as explained above. If the EEOC was no longer a party, could Hesco seek attorney's fees from the EEOC? Not for anything that occurred when the EEOC was not a party. Generally, attorney's fees may not be awarded against a nonparty except as a sanction for abusing the judicial process — for example, by committing fraud on the court in filings submitted as a nonparty. See, e.g., 10 James W. Moore et al., Moore's Federal Practice 3d § 54.173[3] (1997) (“An amicus is not a party and may not be held liable . . . for attorneys' fees. An amicus participates in the judicial process, however, and should be required to abide by all provisions regulating that process.”); see also Molina v. El Paso Indep. Sch. Dist., 583 F.2d 213, 216 (5th Cir. 1978); Becker v. Blum, 487 F. Supp. 873, 874 (S.D.N.Y. 1980) (“This court has no power to assess an award [of attorney's fees] against non-parties.”). Since the EEOC was not a party to the underlying litigation after December 14, 1999, Hesco may not recover fees from the EEOC for this phase of the litigation. See Molina, 583 F.2d at 216. If Hesco is entitled to fees for this phase, it may collect them only from Schwerdtfeger. We believe that Hesco could seek fees from the EEOC for the pre-December 14 litigation — as set forth above, the EEOC remained a party to this litigation for that limited purpose under the district court's December 14 order — although as we have explained (EEOC br. at 30-34) Hesco has no statutory basis for this request, since it is not a prevailing party against the EEOC. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________ BENJAMIN N. GUTMAN Attorney CERTIFICATE OF SERVICE I certify that on November 25, 2002, I served copies of this supplemental memorandum by Federal Express to: Maureen S. Binetti Wilentz, Goldman & Spitzer 90 Woodbridge Center Drive Suite 900 Woodbridge, NJ 07905 Attorney for Intervenor-Appellee-Cross-Appellant David G. Uffelman Uffelman, Rodgers, Kleinle & Mets 165 Washington Street Morristown, NJ 07960 Attorney for Defendant-Appellant-Cross-Appellee ____________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7022 Washington, DC 20507 (202) 663-4728