Kimberley Owen v. Harris County Texas

Filing

10-20063

Kimberley Owen v. Harris County Texas

Doc. 0

Case: 09-20479

Document: 00511220744

Page: 1

Date Filed: 08/31/2010

REVISED AUGUST 31, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

N o . 09-20479 N o . 10-20063

FILED
August 26, 2010 Lyle W. Cayce Clerk

K I M B E R L E Y OWEN, P la in t if f -A p p e lle e , versu s H A R R I S COUNTY, TEXAS, D e fe n d a n t -A p p e lla n t .

A p p e a ls from the United States District Court fo r the Southern District of Texas

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. P E R CURIAM:

K im b e r ly Owen sued Harris County under title VII of the Civil Rights Act o f 1964, claiming sex discrimination, sexual harassment, and retaliation. Some o f the claims were disposed of on summary judgment. A jury decided that Owen had not been sexually harassed by Constable

Dockets.Justia.com

Case: 09-20479

Document: 00511220744

Page: 2

Date Filed: 08/31/2010

No. 09-20479 N o . 10-20063 C h e e k but was sexually harassed by Captain Thurman and that the county did n o t terminate Owen on account of her sex. The jury awarded Owen $253,000 in b a c k p a y and compensatory damages. The district court reduced the award and e n te r e d judgment for $235,000. The county appeals the judgment and, if it prev a ils on appeal, seeks reversal of the award of attorney's fees. It also moves for r e fu n d of a filing fee that it claims it should not have been assessed for filing an a m e n d e d notice of appeal.

I. W e have read the briefs and pertinent portions of the record and have rev ie w e d the applicable law. After hearing oral argument, we conclude there is no r e v e r s ib le error. The evidence of sexual harassment was more than sufficient t o sustain the verdict, and given the particular procedural posture of the case, t h e r e was no reversible error in the manner and substance of the submission to t h e jury.

II. T h e county's notice of appeal was filed July 17, 2009, and, by its terms, " a p p e a ls . . . the Final Judgment entered in this action on June 17, 2009, as well a s the Order entered June 17, 2009 denying Harris County's motion for Judgm e n t as a Matter of Law and Motion to Set Aside the Jury Verdict and/or Motion t o Modify the Damage Award." The county paid the customary fee of $455 for t h e notice of appeal. On August 27, 2009, the district court entered an order " t h a t Defendant's Motion for Judgment as a Matter of Law . . . is DENIED." On S e p t e m b e r 25, 2009, the county filed its "Amended Notice of Appeal," in which it restated the above-quoted language from its initial notice of appeal and added t h e following:

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Case: 09-20479

Document: 00511220744

Page: 3

Date Filed: 08/31/2010

No. 09-20479 N o . 10-20063 H a r r is County amends its Notice of Appeal of July 17, 2009 to n o te that it also appeals . . . the . . . denial of its Motion for Judgm e n t as a Matter of Law or, Alternately, to Modify the Judgment. The district court denied this motion on August 27, 2009. T h e clerk of the district court, on advice from the clerk of the Fifth Circuit, req u ir e d the county to pay a second fee of $455 for filing the amended notice of app e a l. The county paid to avoid dismissal of the appeal. R u le 4(a)(4)(B)(iii) of the Federal Rules of Appellate Procedure states that " [ n ]o additional fee is required to file an amended notice" of appeal. That une q u iv o c a l language must be read in the context of the remainder of rule 4(a)(4): (4 ) Effect of a Motion on a Notice of Appeal. (A) If a party timely files in the district court any of the following m o t io n s . . ., the time to file an appeal runs for all parties from the e n tr y of the order disposing of the last such remaining motion: (i) for judgment under Rule 50(b); (ii) to amend or make additional factual findings und e r Rule 52(b), whether or not granting the motion w o u ld alter the judgment; (iii) for attorney's fees under Rule 54 if the district c o u r t extends the time to appeal under Rule 58; (iv) to alter or amend the judgment under Rule 59; (v) for a new trial under Rule 59; (vi) for relief under Rule 60 if the motion is filed no la t e r than 28 days after the judgment is entered. (B)(i) . . . (ii) A party intending to challenge an order disposing o f any motion listed in Rule 4(a)(4)(A), or a judgment's

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Case: 09-20479

Document: 00511220744

Page: 4

Date Filed: 08/31/2010

No. 09-20479 N o . 10-20063 a lt e r a t io n or amendment upon such a motion, must file a notice of appeal, or an amended notice of appealSSin c o m p lia n c e with Rule 3(c)SSwithin the time prescribed b y this Rule measured from the entry of the order disp o s in g of the last such remaining motion. (iii) No additional fee is required to file an amended n o tic e . T h e question is whether the prohibition of an additional fee applies only t o the six types of motions listed in rule 4(a)(4)(A). If the exemption from fee is s o limited, the further question in this case is whether the amended notice of app e a l, referring to the denial of the "Motion for Judgment as a Matter of Law or, A lt e r n a t iv e ly , to Modify the Judgment," should be read as fitting within the desig n a t io n of rule 4(a)(4)(A)(iv), a motion "to alter or amend the judgment under R u le 59." T h is court has considered the issue at hand only once. In United States v . $16,540.00 in U.S. Currency, No. 01-10238, 273 F.3d 1094 (table), 2001 U.S. A p p . LEXIS 22650 (5th Cir. Aug. 30, 2001) (per curiam) (unpublished), the pro s e appellant was assessed a filing fee for his amended notice of appeal, which a p p e a le d the denial of his post-judgment motions for new trial and relief from ju d g m e n t . Without distinguishing among the various types of post-judgment m o t io n s , we held that [t]he assessment of two fees was error. Rule 4(a)(4)(B)(ii) . . . req u ir e s a party intending to appeal a denial of a post-judgment mot io n to file a notice of appeal or an amended notice of appeal, but [r u le ] 4(a)(4)(B)(iii) provides that "[n]o additional fee is required to file an amended notice." [The appellant] has only one appeal, and s h o u ld have been assessed only one filing fee." I d . at *2. We could decide this matter by construing the county's motion to "modify" 4

Case: 09-20479

Document: 00511220744

Page: 5

Date Filed: 08/31/2010

No. 09-20479 N o . 10-20063 t h e judgment as tantamount to a motion "to alter or amend the judgment under Rule 59," thus avoiding the question whether the dispensation for additional fees a p p lie s only to appeals filed after rulings on the sorts of motions listed in rule 4 (a )(4 ) ( A ) orSSmore broadlySSto all amended notices of appeal. That basis for d e c is io n is untidy, however, because it leaves to clerk's office personnel the task o f divining whether the wording of a particular amended notice of appeal fits one o f the six categories of motions listed in rule 4(a)(4)(A). More significantly, alt h o u g h the placement of the prohibition within rule 4(a)(4) is curious, the absolu t e and plain language of the subsectionSS"[n]o additional fee is required to file a n amended notice" of appealSSis both compelling and difficult to avoid. W e conclude, therefore, that no fee can be required for any amended notice o f appeal, irrespective of whether it pertains to a post-judgment motion. "[T]he d is t r ic t court is instructed to refund any portion of that fee which has already b e e n paid." $16,540.00 in U.S. Currency, 2001 U.S. App. LEXIS 22650, at *2. The judgment on the merits is AFFIRMED. The motion for return of the filing fe e is GRANTED. This matter is REMANDED for refund of the filing fee for the a m e n d e d notice of appeal and for any further proceedings that may be approp r ia te .

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