Myers v. Gilman Paper Company Motion to Dismiss the Appeal and Brief in Support

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT '

NO. 75-2201

r I

ELMO V. MYERS, et al.,
Plaintiffs-Appellees,

-v-

GILMAN PAPER COMPANY, et al., 
Defendants-Appellants.

Appeal from the United States District Court 
for the Southern District of Georgia 

Savannah Division

MOTION OF PLAINTIFFS-APPELLANTS 
TO DISMISS THE APPEAL AND 
BRIEF IN SUPPORT THEREOF

Come now plaintiffs-appellees, pursuant to Rule 27, 
F.R.A.P., and move for dismissal of this appeal for lack 
of jurisdiction. As grounds therefor, plaintiffs show the 
following:



I

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Preliminary Statement
1/ 2/Five local unions and their three internationals- 

have filed notices of appeal from one of several interlocutory 
orders of the United States District Court for the Southern 
District of Georgia. The order from which these defendants 
seek to appeal is a non-final one, fixing only union liability 
for back pay, including the percentage share of back pay for 
which the unions are liable in this case arising under Title 
VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.
The ruling does not itself order any affirmative action

3/affecting the unions.- In an earlier order rendered more than 
thirty days prior to the filing of these notices of appeal, the 
court did order affirmative remedies which are at variance 
with certain provisions of the collective bargaining agreements 
between the defendant Company-appellee and defendant union- 
appellants. Those provisions became effective January 1, 1975.

1/ Locals 446, 453 and 958, United Paperworkers International 
Union; Local 1128, International Association of Machinists 
and Aerospace Workers; and Local 741, International 
Brotherhood of Electrical Workers.

2/
United Paperworkers International Union (UPIU), International 
Association of Machinists and Aerospace Workers (IAM), and 
International Brotherhood of Electrical Workers (IBEW).
The district court's order also established a time schedule 
for the plaintiffs to present a statement of back pay claims 
to the union and deferred setting a hearing on those claims.

3/

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The union notices of appeals are dated February 5, 1975, and 
February 12, 1975.

Background
This case of racial discrimination in employment is 

bottomed upon the familiar pattern of segregated hiring coupled 
with a discriminatory "job" seniority and line of progression 
system which have the effect of "locking" black workers into 
low paying, less desirable jobs at a paper mill. The appellants 
are all of the unions representing employees at Gilman's St.
Marys facility.

On August 30, 1974, the district court granted plain­
tiffs' and Company's joint Rule 23(e) motion for provisional 
approval of a consent decree settling the case as to those parties, 
and overruled the unions' objections to the proposed decree. *
On September 25, 1974, all of the defendant unions jointly filed 
notice of appeal. This appeal was withdrawn by a joint 
stipulation filed on December 4, 1974.

On November 11, 1974, after notice was sent to the class 
and the time for responding to the notice had expired, the 
court signed the consent decree. This decree contains

* The various documents filed which are referred to herein are 
noted on the docket sheet of the district court, a copy of 
which is attached hereto for the convenience of the Court.

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provisions which require affirmative remedies for class members
that conflict with certain provisions of the various collective
bargaining agreements between the defendant unions and the
Company. Paragraph XVI(A) of the decree states:

The provisions of this Decree shall supercede and 
replace any and all conflicting terms and 
provisions of the current labor agreements between 
the Company and the Defendant unions on January 1, 1975 ___

On November 19, 1974, the distirct court denied union 
motions to vacate its November 11 decree, stay trial proceedings, 
stay enforcement of the decree, amend the decree, and certify 
the case for appeal pursuant to Rule 54, F.R.Civ.P. On 
November 22, 1974, Local 1128, IAM and its International 
mailed a notice appealing from the court's November 19 orders 
as well as from the November 11 decree. On November 20, 1974, 
the three Paperworkers locals and their International filed 
notice of appeal from the distirct court's November 11 decree.
On December 9, 1974, IBEW filed notice of appeal from the 
November 11 decree as well as from the district court's 
October 14 order approving the proposed method for distribution 
of back pay.

On November 27, 1974, this Court denied the motion of the 
United Paperworkers International Unions to stay trial

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proceedings ana to stay enforcement of the November 11 decree.'
The case was tried on December 2-5, 1975. On January 

14, 1975, the district court rendered its decision and order 
finding the union defendants liable. The court apportioned 
union liability for back pay and set a timetable for the 
plaintiffs to present a statement of claims. Injunctive 
relief had been ordered previously under the terms of the
consent decree. Those provisions went into effect January 1, 
1975.

On February 5, 1975, the Electricians' and Machinists' 
locals and their International filed notices of appeal from 
the January 14 order.- Two days later, UPIU and its locals 
moved the district court, pursuant to rule 54, F.R.civ.P., 
to amend the January 14 order and to certify its appealability 
under 28 USC 1292(b). The district court denied the motion on 
the same day. Shortly thereafter, on February 12, 1975, these 
unions filed a joint notice of appeal.

4/

5/

Sam? 0rJer.t5e Machinists International's motion for stay was also denied.

The Machinists notice also sought to appeal from " all 
earlier orders and judgments of the District Court!"’ 1

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-lO 1 lowing table summarizes tne orders, notices of appeal
and withdrawal of appeals that have occurred to date in this

£/case:
Date and Description of Date of Notice Date

Appellant Order Appealed From of Appeal Withdrawn
All Union 
Defendants 8/30/74 - Grant of pro­

visional approval of 
Consent Decree.

9/25/74 12/4/74

Paperworkers 11/11/74 - Approval of 11/20/74Locals 453, 
446, & 958 & 
UPIU

Consent Decree.

Machinist 11/11/74 - Approval of 11/22/74Local 1128 Consent Decree & 11/19/& IAM 74 - Denial of motion 
for stay of (1) trial 
proceedings and (2) 
enforcement of Decree.

IBEW 11/11/74 - Approval of 
Consent Decree. 12/9/74

1/3/75

1/3/75

1/17/75

Electricians 1/14/75 - Order holding 2/5/75 
Local 741 unions liable for back

pay.
IBEW 1/14/75 - Order holding 2/5/75

unions liable for back pay.
Machinists 1/14/75 - Order holding
Local 1128 & unions liable for back IAM pay.

2/5/75

Paperworkers 1/14/75 - Order holding 
Locals 453, unions liable for back 446 & 958 pay.
& UPIU

2/12/75

The various motions to certify orders as appealable under Rule 54 are not included in this table.

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APPEAL FROM AMY RULING OF THE DISTRICT COURT 
EXCEPT THE JANUARY 14, 1975 ORDER IS UNTIMELY.

Rule 4, F.R.A.P., states:
in a civil case ... in which an appeal is pen- 
fitted by law as of right from a district 
court to a court of appeals, the notice of aopeal 
required by Rule 3 shall be filed with the clerk 
°f the district court within 30 days of the date 
of the entry of the judgment or order appealed 
from ••• [emphasis added.]

requirement of timely filing is mandatory and
jurisdictional. See United States v. Robinson, 361 U.S.
220, 224 (1960). As appears from the above table, the only
notices of appeal in this case that have not been withdrawn
voluntarily by the unions are those dated February 5 and 12, 1975.
These notices are timely with respect to the district court's
January 14, 1975 order only.

THE DISTRICT COURT'S JANUARY 14, 1975 RULINGS 
ARE NOT FINAL WITHIN THE MEANING OF 28 U.S C *T 1291. ~ ~ ~  "  ------------------ --------

28 U.S.C. § 1291 permits the taking of appeals from 
final decisions only. This rule is intended to prevent 
piecemeal disposal of litigation. See Cobbledick v. United 
States, 309 U.S. 323, 324-325 (1940). The district court's 
January 14, 1975 decision is anything but final with respect 
to the issues it addresses. Insofar as finality under 
§ 1291 is concerned, the January 14, 1975 order is much like 
a granting of summary judgment without a determination of the 
amount of damages. In such cases, as in this case, the 
district court's decision is not final until there has been a

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right uunm
28 U.S.C. § I292 (a\ r-,̂J2(a) permits appeals as of rioht * 

interlocutory order- " . ght fr°m

or dissolving injunctions or n f u s l ^ T  m°difyln9'

simply fixeq nn.:_ i- r 1975 order
union liability and orders the plaintiffs to

spare and present their back pay claims.
Section 1292(a) is not intended to serve a. 

departing from the strong policy of di # VShi°le *°r
appeals. See Half d-=ouraging piecemeal
349 „ ,3-8 U.S. 176 (1966). it is ~

••— — -  - — ' r ; ~
locutory orders of serious, perhaps irreoa^able
Id. at p 181- oh irreparable consequence.
-  . P - 1S1- ^ ^ i ^ - ^ r a n k e l ,  36? p _2d

' ; ir- l966) and!?3££2t, 385 U.S. 23 (1966) 2£-S
Permit revival of the right f "0t to
of the district aPP6al fr°m S°"e Sarlier °rderS t r i c t  court now time-barred see 9 „
Practice , 110.20(2, The a - t • ° 8* Tile district court-'c t =
order merely fired the liability of the a p p e l l l T f o r  ' J T

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- y  It. reaffirmance of its earner decision approving the 
consent decree provides no basis for appeal under s 1292(a)

^ e a l  from earlier decisions of the district co.t
affecting provisions of collective k - • •, . bargaining agreements to

r  parwes is  -  » « - * •  * — 1 -cm

Co gJ Z T °  15 n0t mandat0ry' SeS Yi£l2l_Talking Machine
105 F .3d 6S3 ,3d Cir. l O ^ T ^

8 U.s. 611; Bingham Pump Co v rvh,---2-----— P Q> v> Awards, 118 F.2d 338
(9th Cir. 1941), cert, denied 314 U.s. 556; and National Syrup

2l5 P.2d 52? (6th cir_

pendants will have ample opportune to raise on appeal
a issues, including guestions that w i n  no doubt arise during

emaimng phases of this case, when the case is finally

POSed°f- S£e ^ ^ - C Q ^ ^ o r t h w e s t e r n
95 F . 2d 703 (8th ~

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