IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________________________ Nos. 98-3935, 98-3986 98-3987, 98-3988 ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, GEORGE D. EDWARDS, et al., Intervening Plaintiffs - Appellants, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL NO. 120, et al., Defendants - Appellees. ____________________________________________________ On Appeal from the United States District Court for the Northern District of Ohio ____________________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR PANEL REHEARING ____________________________________________________ GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 INTRODUCTION In a decision dated December 15, 2000, a panel of this Court affirmed the district court's decision denying the motion of the intervening Plaintiffs, made pursuant to Fed.R.Civ.P. 59(e). See EEOC & Edwards, et al. v. United Ass'n of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local No. 120, 2000 WL 1839199 (6th Cir. Dec. 15, 2000). In that motion, the Intervenors requested the district court to award additional monetary relief. The Commission did not join in the Rule 59(e) motion but has an interest in preserving the prior findings of contempt in this case on the issues of discrimination and record-keeping and reporting. Those contempt findings were rendered in two separate orders, dated September 1, 1992, and subsumed within the original final judgment, dated December 22, 1992. The panel's decision leaves the status of these contempt findings unresolved. The panel decision says nothing about the prior finding of contempt on the underlying issue of discrimination, although its opinion might be read (improperly in our view) as having affirmed the setting aside of that contempt finding. With respect to the record-keeping and reporting issue, the decision remands the issue "for consideration before the district court, when it decides the pending issues of attorney fees and costs." 2000 WL 1839199, at *7. The panel needs to provide explicit clarification on the impact of the June 25th order on the prior contempt findings. Indeed, without such clarification, there is a serious question as to whether this Court has jurisdiction over this appeal. The prior contempt findings were part of the original final judgment, dated December 22, 1992. By filing a timely Rule 59(e) motion, the Intervenors arguably opened up those findings to modification by the district court. However, the district court's order of June 25, 1998, states only that the "Plaintiff-Intervenors' request for additional relief" is "denie[d]." (R.899 Opinion and order, pg. 33, Apx. pg. 144). The court did not enter a new or amended judgment altering the original final judgment of December 22, 1992. Under established legal principles, a court, for finality purposes, is required to enter a new or amended judgment when its ruling on a Rule 59 motion results in a change or modification in the original final judgment. To put the matter simply, either the June 25th order merely disposed of the Intervenors' bid for additional relief, in which case the prior contempt findings remain in place, or the June 25th order purported to set aside one or more of the prior contempt findings, in which case this Court lacks jurisdiction over the appeal (for want of a final judgment). The Commission believes that the better course is to interpret the June 25th order as merely denying the Intervenors' request for additional relief, thereby avoiding the dismissal of the appeal at this late stage. In any event, because of the potential jurisdictional implications of this issue, it is incumbent upon the Court to provide further clarification with respect to the impact of the June 25th order on the prior findings of contempt.<1> ARGUMENT THE COURT SHOULD CLARIFY THAT THE DISTRICT COURT'S ORDER OF JUNE 25, 1998, DENYING THE INTERVENORS' MOTION TO ALTER OR AMEND UNDER FED.R.CIV.P. 59(E), DID NOT VITIATE THE PRIOR FINDINGS OF CONTEMPT, AS EMBODIED IN THE ORIGINAL FINAL JUDGMENT OF DECEMBER 22, 1992. A. If The June 25th Order Vitiated The Prior Findings Of Contempt, There Is No Appellate Jurisdiction This case has a lengthy procedural history. Suffice it to say here that the Commission and the Intervenors filed separate motions, seeking to hold Local 120 in contempt for failing to adhere to the provisions of a 1972 consent decree. On September 1, 1992, the district court entered two orders, designated Memorandum and Order I and Memorandum and Order II. Memorandum and Order I made a finding of contempt with respect to the record-keeping and reporting provisions of the decree. (R.581 Memorandum and order I, Apx. 262). Memorandum and Order II made a finding of contempt with respect to the nondiscrimination provisions of the consent decree. (R.582 Memorandum and order II, Apx. 306). These contempt findings were merged into a final judgment, dated December 22, 1992, which imposed a contempt sanction of $200,000 for the violation of the nondiscrimination provisions of the consent decree. The Intervenors then filed a Rule 59(e) motion, seeking additional damages for the discrimination. The appeals in this case were taken from the district court's order of June 25, 1998, "den[ying] Plaintiff-Intervenors' request for additional relief." (R.899 Opinion and order, pg. 33, Apx. pg. 144). There is no doubt that the June 25th order rejected the Intervenors' request for additional relief. What is less clear is whether, in doing so, the order also undermined the prior findings of contempt. It is well-established that the filing of a timely Rule 59 motion renders the final judgment interlocutory. The judgment regains its finality only after the court disposes of the Rule 59 motion. The issue is what a court must do to re-trigger finality when it disposes of the Rule 59 motion in a way that alters the original final judgment. Must a court enter a new or amended judgment or does the disposition of the Rule 59(e) motion, by its own terms, provide the requisite finality? The prevailing view is that a court is required to enter a new or amended judgment when the disposition of the Rule 59(e) motion results in some substantive change in the original final judgment. The lead authority is Charles v. Daley, 799 F.2d 343 (7th Cir. 1986). In Charles, a party filed a motion to alter or amend, pursuant to Rule 59(e). The district court issued an order that had the effect of altering the terms of the final judgment. The court, however, did not enter a new or amended judgment. The court of appeals, per Judge Easterbrook, ruled that the district court's order was not appealable as a final judgment. The court stated that an order disposing of a Rule 59(e) motion provides the requisite finality "when the judge denies a request to alter the judgment, for then the original judgment remains in effect." Id. at 347. When, however, the original final judgment has been altered in some fashion, there is no appealable judgment until a new or amended judgment is "set forth on a separate sheet of paper." Id. Accord Wikoff v. Vanderveld, 897 F.2d 232, 235-37 (7th Cir. 1990); RR Village Ass'n, Inc. v. Denver Sewer Co., 826 F.2d 1197, 1200-01 (2d Cir. 1987); cf. Hollywood v. City of Santa Maria, 886 F.2d 1228, 1230-33 (9th Cir. 1989) (no requirement of a separate entry of judgment where a court merely denies a Rule 59 motion without altering the original final judgment). This Court addressed this very issue in Stern v. Shouldice, 706 F.2d 742 (6th Cir. 1983). In that case, the district court entered an amended judgment awarding pre-judgment interest to the plaintiff. The amended judgment was prompted by the filing of a timely Rule 59(e) motion. This Court held that, where a court alters the original final judgment in response to a Rule 59(e) motion, there is no appealable order until the court enters a new or amended judgment reflecting the change in the original final judgment. Id. at 746-47. It is the entry of the new or amended judgment that triggers the period for filing an appeal and vests the court of appeals with jurisdiction. Id.; see also Futernick v. Sumpter Township, 207 F.3d 305, 310 n.4 (6th Cir. 2000) (where court amends judgment in response to Rule 59(e) motion, no appealable order until court enters amended judgment). Stern dictates the correct analysis in this case. In ruling on the Rule 59(e) motion, the district court did not enter a new or amended judgment, reflecting any change in the prior contempt findings as embodied in the original final judgment of December 22, 1992. The court merely entered an order denying the Rule 59(e) motion. Because the court did not enter a new or amended judgment, the June 25th order provided the requisite finality only if it did nothing more than dispose of the Rule 59(e) motion, thus re- triggering the original final judgment. If the June 25th order is read as having vitiated the prior findings of contempt, there is no jurisdiction in this Court. Judged in this light, the panel's decision to remand the "the issue of whether the Union had violated the record-keeping and reporting requirements of the consent decree" cannot be sustained. 2000 WL 1839199, at *7. By remanding this issue to the district court, the decision implies that the June 25th order may have "vitiate[d] all prior orders of the district court." Id. Yet, if the June 25th order had that effect, the order was not final. The panel's remand is self-defeating. No remand is necessary unless the June 25th order can be read as vitiating the prior contempt finding; but if the June 25th order did so, there is no appellate jurisdiction. It is not enough to say that the district court can offer its own interpretation of the June 25th order on remand. This Court must decide its own jurisdiction. To decide its own jurisdiction, this Court must adopt some interpretation of the June 25th order vis a vis the prior findings of contempt. Either there is jurisdiction in this Court, because the June 25th order merely denied the Intervenors' bid for additional relief, or there is no jurisdiction, because the district court, while altering the judgment of December 22, 1992, failed to enter a new or amended judgment, as required to provide the requisite finality. B. The Proper Reading Of The June 25th Order Is That It Merely Denied The Intervenors' Bid For Additional Relief In our view, the proper course of action is for the Court to rule that the June 25th order merely denied the Intervenors' request for additional relief under Rule 59(e), leaving intact the prior findings of contempt. The original final judgment in this case was entered by Judge Thomas. The June 25th order was issued by a successor judge, Judge Gwin. Judge Gwin was well aware of the prior contempt findings made by Judge Thomas. If Judge Gwin had wanted to set aside the prior findings of contempt, he would have taken the simple step of entering a new or amended judgment, reflecting some change in the original judgment. No such new or amended judgment appears in the record. Indeed, even in the body of his June 25th order, Judge Gwin concludes only that the Intervenors could not demonstrate "entitlement to further relief." (R.899 Opinion and order, pg. 7, Apx. pg. 118). There is no explicit statement that the prior contempt findings are no longer in effect. The most plausible reading of the June 25th order is that the order disposed of the Intervenors' Rule 59(e) motion without altering the original final judgment and its findings of contempt. We recognize that, in disposing of the Rule 59(e) motion, Judge Gwin specifically ruled that the "earlier finding of a pattern or practice of discrimination is clearly erroneous and would work a manifest injustice." (R.899 Opinion and order, pg. 32, Apx. pg. 143). However, that ruling is not incompatible with the prior contempt findings. Plainly, Judge Gwin's ruling at the Rule 59(e) stage had no impact on the prior finding of contempt, rooted in the record-keeping and reporting provisions of the consent decree. This point was discussed at some length in the Commission's opening brief in this Court, and we will not belabor it here. See EEOC Br. at 20-30. The bottom line is this: the finding of contempt on record-keeping and reporting did not turn on the existence of any discrimination by Local 120; it turned on the Union's abject failure to maintain the records required under the consent decree. Nothing in the June 25th order called into question Judge Thomas' finding that Local 120 violated the consent decree by failing to maintain "in machine readable form its members' out-of- work registrations and work referrals so that such data can be retrieved as to an individual member." (R.581 Memorandum and order I, pg. 26, Apx. pg. 287). The interplay between the June 25th order and the prior contempt finding on the issue of discrimination is more complicated. At first blush, it might appear that, by declaring the prior finding of a pattern or practice of discrimination to be "clearly erroneous," the June 25th order, by necessity, vitiated the prior finding of contempt on the discrimination issue. But that is not the case. Judge Gwin revisited the pattern or practice finding because the finding had "significant evidentiary consequences" under the Supreme Court's decision in International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). (R.899 Opinion and order, pgs. 7-10, Apx. pgs. 118-21) (noting that, under Teamsters, such a finding shifts the burden of proof to the employer on the issue of individualized relief). Indeed, in their Rule 59(e) motion, the Intervenors expressly invoked the Teamsters framework in arguing that they should have been given the opportunity "to prove entitlement to additional individualized relief in the form of lost earnings and pension credits." (R.649 Memorandum and order, pg. 3, Apx. pg. 101). Conceivably, the evidence may have been sufficient to sustain a finding of discrimination, for purposes of imposing a coercive fine for civil contempt, but not sufficient, as "pattern or practice" evidence, to justify the type of individualized relief contemplated under the Teamsters paradigm. This possibility, in fact, was acknowledged by Judge Thomas, who, in ordering additional Rule 59 proceedings, questioned "whether the present state of the record would warrant the application herein of the Teamsters holding," while reiterating his view that the evidence was sufficient to carry the Intervenors' burden "at the liability stage" of the contempt proceeding. (R.649 Memorandum and order, pg. 9, Apx. pg. 107). In ruling upon the Rule 59 motion, Judge Gwin may have held nothing more than this -- that a finding of a pattern or practice of discrimination could not be sustained to the extent that finding was the fulcrum for obtaining additional individualized relief. Under that view of Judge Gwin's order, the coercive fine of $200,000 remained in place and became final upon the disposition of the Rule 59 motion. In its opinion, the panel made no mention of the possible impact of the June 25th order on the prior contempt finding on discrimination. The section of the opinion entitled "Contempt" deals only with the record-keeping and reporting issue. See 2000 WL 1839199, at *7. There were, however, two separate findings of contempt, one on the issue of discrimination and one on the issue of record-keeping and reporting. The panel may have assumed that the contempt finding on discrimination was necessarily set aside by the June 25th order; thus, by affirming the June 25th order, the panel affirmed the setting aside of that contempt finding. This assumption, however, is misplaced for the reasons discussed above. Again, this is not simply an issue of interpreting the June 25th order, an issue that might be sent back to the district court for resolution. The issue goes directly to the jurisdiction of this Court. This Court needs to offer a definitive interpretation of the June 25th order. The proper interpretation is one that preserves the original final judgment of December 22, 1992, and, thus, the jurisdiction of this Court.<2> CONCLUSION The Court should grant the Commission's petition for panel rehearing and revise its decision of December 15, 2000, to clarify that the order of June 25, 1998, merely denied additional relief to the Intervenors, leaving intact the contempt findings embodied in the original final judgment of December 22, 1992. Respectfully Submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 January 26, 2001 (202) 663-4059 ********************************************************************************** <> <1> Because this issue implicates the jurisdiction of this Court, the issue may be raised and addressed for the first time at the rehearing stage. The Commission notes, however, that the Commission did in fact raise this point in its opening brief in this Court. See EEOC Br. at pp. 24-26. <2> It is not unfair to Local 120 to treat the June 25th order as leaving intact the prior findings of contempt. At the very least, Local 120 was on notice that the June 25th order might be construed as merely denying the Intervenors’ request for additional relief, thus leaving in place the prior contempt findings. To protect its interests on that issue, Local 120 could have taken a timely appeal from the June 25th order. Instead, Local 120 filed an untimely appeal, more than 60 days after that order, which this Court dismissed. By leaving the meaning of the June 25th order up in the air, this Court gives Local 120 a second bite at the apple, a bite that is almost certain to lead to yet another round of appeals in this Court. By clarifying that the June 25th had no impact on the prior contempt findings, this Court hastens an end to these protracted contempt proceedings without causing any injustice to Local 120, which was delinquent in filing its notice of appeal.