June 2, 2016
Mr. David J. Smith
Clerk of the Court
U.S. Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303
re: EEOC v. St. Joseph’s Hospital, Inc., Nos. 15-14551 & 15-14555
Dear Mr. Smith:
The Court has asked the parties to address whether the district court has entered a final judgment from which an appeal may be taken under 28 U.S.C. § 1291. For the following reasons, the district court’s order of August 12, 2015 (R.197), is a final judgment. Accordingly, this Court has appellate jurisdiction.
Statement of Facts
The EEOC sued St. Joseph’s Hospital under the Americans with Disabilities Act (“ADA”), alleging that the Hospital had failed to provide a reasonable accommodation for Leokadia Bryk’s disability and had illegally terminated her. R.1 Following a trial, the jury returned a verdict finding that the Hospital had failed to provide a reasonable accommodation but had acted in good faith. R.164 The court entered judgment in favor of the Hospital. R.173 The EEOC moved to alter the judgment to declare it, not the Hospital, the prevailing party. R.184 Once altered, the EEOC argued, the amended judgment would entitle the EEOC to back pay, injunctive relief, and reinstatement or front pay. Id. at 6.
The district court partly granted the EEOC’s motion. R.197 The court recognized that in light of the jury’s finding that the Hospital had failed to provide a reasonable accommodation, the EEOC, not the Hospital, was the prevailing party. Id. at 15. Nevertheless, the court held, the EEOC was not entitled to any of the relief that it sought. Id. at 15-18. The court first denied the EEOC’s request for injunctive relief, back pay, and front pay. Id. at 15-17. With respect to reinstatement, the court definitively rejected the EEOC’s request for “reinstatement outright,” holding that Bryk was entitled only to “an opportunity for reinstatement.” Id. at 17. The court instructed Bryk to identify and apply for vacant positions, and it instructed the Hospital to hire her “if a position is found for which she is equally or better qualified than other applicants.” Id. The court “permit[ted] the parties to define the specific parameters of this application process at mediation.” Id. The court directed the clerk to enter an amended judgment in favor of the EEOC, “separate[ly]” ordered the parties to mediate, and “reserve[d] jurisdiction of the equitable remedy of reinstatement.” Id. at 18. One month later, the mediator informed the court that the parties had reached an impasse. R.206. The court did not enter a subsequent order.
Argument
The District Court Entered a Final Judgment
Because It Denied the EEOC’s Request for Outright Reinstatement,
Thereby Resolving All Issues in the Case
A district court’s order is final “if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Martinez v. Carnival Corp., 744 F.3d 1240, 1243-44 (11th Cir. 2014) (citation omitted). This Court “looks to the practical effect of the district court’s order, not to its form.” Id. at 1244; see United States v. Alabama, 828 F.2d 1532, 1536 (11th Cir. 1987) (rejecting “overly literal view of what constitutes a final order”). Thus, a final judgment “does not necessarily mean the last order possible to be made in a case.” Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S. Ct. 308, 311 (1964); United States v. Alabama, 828 F.2d at 1536. “A question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or revise decisions embodied in the order.” Budnich v. Becton Dickinson & Co., 486 U.S. 196, 199, 108 S. Ct. 1717, 1720 (1988).
The district court’s amended judgment in the instant case satisfies this test. The order conclusively resolves all issues, including whether the EEOC is entitled to outright reinstatement. See Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S. Ct. 1502, 1513 (1962) (order has “indicia of finality” when it passes on every prayer for relief); Martinez, 744 F.3d at 1244 (order is final when district court has no additional issues to resolve). The EEOC, as the prevailing party, sought actual reinstatement, not an “opportunity for reinstatement.” The district court denied that request. It is this denial that the EEOC appeals. The outcome of mediation is irrelevant to this question. At issue is only whether reinstatement should have been subject to mediation at all or, as the EEOC requested, ordered outright. Postponing review would do nothing to promote the policy against piecemeal appeals because there will be nothing new or different to appeal at a later date. See United States v. Alabama, 828 F.2d at 1538 (where “the issues before the court are fixed . . . the present appeal is not premature”).
In a precedent binding on this Court, the Fifth Circuit found a judgment to be final under similar facts. In Morales v. Turman, 535 F.2d 864 (5th Cir. 1976), rev’d on other grounds, 430 U.S. 322, 97 S. Ct. 1189 (1977), the district court held that the defendants had violated the constitutional rights of incarcerated minors and ordered the parties to submit a comprehensive plan for injunctive relief. The court established minimum requirements for the injunction and left it for the parties to flesh out the details. The Fifth Circuit found that the underlying order was final although the parties had not yet submitted their plan. Id. at 867 n.6. “In circumstances such as these,” the Court held, “the requirement of finality must be given a practical construction.” Id. Noting that the district court’s minimum standards were not “mere guidelines subject to further negotiation by the parties,” the Court held that the district court’s order was a final decision subject to appeal under 28 U.S.C. § 1291. Id.
As in Morales, the district court’s decision in the instant case contemplated further action by the parties but only within the framework already established by court order. In Morales, the parties had to abide by the court’s minimum standards for injunctive relief. Here, the parties had to mediate regarding reinstatement, and the Hospital had to reinstate Bryk “if a position is found for which she is equally or better qualified than other applicants.” R.197 at 17. Mediation might or might not result in reinstatement (in fact, it did not), but the propriety of leaving the decision to mediation was no longer in question. Nor was the propriety of requiring Bryk to be “equally or better qualified than other applicants,” which, as the EEOC has argued on appeal, is inconsistent with the ADA. See Opening Br. at 45-51 (ADA requires reassignment to a vacant position for which Bryk is qualified regardless of qualifications of other applicants). The court had made its decision and the parties had to comply. As the Morales Court explained, “[t]he fact that the lower court has instructed the parties to arrange the details of implementing its decision does not imply that the underlying determination . . . [is] not appealable.” 535 F.2d at 867 n.6.
This conclusion is not altered by the court’s express reservation of jurisdiction over reinstatement. Having ordered the parties to mediate, the district court needed to retain jurisdiction to ensure that they followed through. Had one or both parties failed to mediate in good faith, the district court could have imposed sanctions. See Procaps S.A. v. Pantheon, Inc., No. 12-24356, 2015 WL 3539737, at *1 (S.D. Fla. June 4, 2015) (“a trial court can sanction a party for violations of objective mediation requirements”); Pitts v. Francis, No. 07-169, 2007 WL 4482168, at *9 (N.D. Fla. Dec. 19, 2007) (“A reasonable sanction for a party who fails to participate in mediation as required by court order is to require that party to ‘go back and do it again.’”); Lockheed Martin Corp. v. Boeing Co., No. 03-796, 2003 WL 22962782, at *12 (M.D. Fla. Oct. 21, 2003) (“The Court will impose sanctions upon lead counsel and parties who do not attend and participate in good faith in the mediation conference.”).
In its order for supplemental briefing, this Court invited the parties to consider Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 742-46, 96 S. Ct. 1202, 1205-07 (1976), and State Treasurer of Michigan v. Barry, 168 F.3d 8, 13 n.8 (11th Cir. 1999). Both of those cases held that the appeals in question involved non-final orders. Both cases, however, involved appeals from partial summary judgment –orders that are, by their very nature, interlocutory. Stillman v. Travelers Ins. Co., 88 F.3d 911, 914 (11th Cir. 1996). Those orders stand in stark contrast to the post-trial order at issue here.
Under the governing “pragmatic approach” to finality, see Brown Shoe Co., 370 U.S. at 306, 82 S. Ct. at 1513, the district court’s order is a final judgment. The district court ruled on all disputed issues, leaving nothing for it to decide. The fact that the court reserved jurisdiction over reinstatement while the parties engaged in court-ordered mediation shows only that the court intended to supervise the mediation, not that its order denying the EEOC’s request for outright reinstatement was, itself, non-final.
Sincerely,
P. DAVID LOPEZ
General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
MARGO PAVE
Assistant General Counsel
/s/ Gail S. Coleman
Attorney
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