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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2004 Decided July 16, 2004
No. 03-7074
FRANK SUMMERS, ET AL.,
APPELLEES
v.
HOWARD UNIVERSITY,
APPELLANT
Consolidated with
03–7096
Appeals from the United States District Court
for the District of Columbia
(No. 98cv02692)
Ronald A. Lindsay argued the cause for appellant. With
him on the briefs was Peter Chatilovicz.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Kathleen A. Dolan argued the cause and filed the brief for
appellees.
Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: This case arises out of a wage
dispute between Howard University and its campus security
personnel. Current and former Howard security officers
filed a complaint in the United States District Court for the
District of Columbia alleging that the University had failed to
compensate them for work performed during their meal
breaks and before and after their scheduled shifts. Howard
and the plaintiffs ultimately entered into a settlement agree-
ment, and a magistrate judge issued a consent decree enforc-
ing that agreement.
After entering into the settlement, Howard learned that
the plaintiffs had previously filed a complaint in the Superior
Court of the District of Columbia arising out of the same
facts, and that they had failed to advise Howard of that
second suit. Following this discovery, Howard moved to
vacate the consent decree and underlying settlement agree-
ment. The magistrate denied Howard’s motion and subse-
quently issued orders adopting the damages and fees calcula-
tions made by a special master who had been appointed
pursuant to the agreement. The Superior Court complaint
was later dismissed.
Howard now appeals from, inter alia, the denial of its
motion to vacate and the adoption of the special master’s
calculations. We conclude that the magistrate judge did not
abuse his discretion with respect to the former and that there
was no clear error with respect to the latter.
I
The plaintiffs’ original district court complaint, filed No-
vember 3, 1998, alleged that Howard had failed to pay them
for work performed during their meal breaks, in violation of
the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et
seq., and in breach of the collective bargaining agreement
3
(CBA) between Howard and the plaintiffs’ union. The com-
plaint was amended in May 1999 to add additional claims
under the FLSA and the CBA for work performed by the
plaintiffs without compensation both before and after their
scheduled shifts, and was amended again in May 2001 to add
a claim under the D.C. Minimum Wage Act, D.C. Code § 32–
1001 et seq., for Howard’s failure to compensate the plaintiffs
for the same work alleged in the original and amended
complaints. Hereinafter, we refer to this amended action as
Summers I.1
In March 1999, Howard submitted the following interroga-
tory — denominated Interrogatory 14 — to the plaintiffs:
State whether plaintiffs have ever filed a civil, adminis-
trative or other complaint or charge. For each such
complaint or charge describe the facts, the date of the
complaint or charge, where it was filed, the persons or
entities against whom you filed or asserted a claim, and
the outcome of the matter.
Def. Howard Univ.’s First Set of Interrogs. to Pls. at 8 (App.
25). Of the 69 plaintiffs who responded, the majority an-
swered that they had not filed any complaints or charges at
all; several responded by reporting grievances or court ac-
tions unrelated to the instant litigation; a small group re-
ferred Howard back to its own records; and a few objected
on grounds of relevance and provided no answer. Appellant’s
Br. at 6; see also App. 27–39 (sample responses).
Howard moved to dismiss the complaint or, alternatively,
for partial summary judgment. On December 22, 2000, the
district judge granted judgment for Howard on the CBA
claims, finding that the employees had failed to exhaust
grievance and arbitration procedures required by the CBA.
Summers v. Howard Univ., No. 98–2692, Mem. Op. & Order
at 7 (D.D.C. Dec. 22, 2000) [hereinafter Dec. 2000 Mem. Op.].
At the same time, the court denied the plaintiffs’ motion for
1 Our descriptions of the plaintiffs’ FLSA claims, as well as of the
setoff claimed by Howard and discussed in Part III, are simplified
for ease of presentation.
4
summary judgment on the FLSA claims. Id. at 8. In May
2001, the parties consented to refer the case to a magistrate
judge for all purposes, pursuant to 28 U.S.C. § 636(c)(1).
On June 14, 2001, the plaintiffs filed a second complaint
against Howard for failing to compensate them for work
performed during meal breaks and before and after their
shifts. Plaintiffs filed this complaint, which we hereinafter
refer to as Summers II, in the Superior Court of the District
of Columbia. The complaint alleged a breach of the CBA, a
claim facially identical to one the U.S. District Court had
dismissed in December 2000, and also alleged that Howard’s
failure to compensate the plaintiffs violated the University’s
employee handbook and thus constituted a breach of contract.
The plaintiffs did not serve Howard with this complaint and
took steps to ensure that the University would not receive
notice of the lawsuit through the usual Superior Court proce-
dures. In addition, the plaintiffs did not supplement their
1999 responses to Interrogatory 14 to account for the filing of
Summers II.
On December 11, 2001, Howard and the plaintiffs reached a
settlement in Summers I. Howard agreed to pay the FLSA
claims in full, the amount of the payment (including back pay
and liquidated damages) to be resolved by a court-appointed
special master ‘‘pursuant to Rule 53 of the Federal Rules of
Civil Procedure.’’ Settlement Agreement at 1 (App. 72).
Howard also agreed to pay reasonable attorneys’ fees as
determined by the special master. The settlement agreement
provided that its terms would be embodied in a consent
decree and entered by the court. On February 8, 2002, the
magistrate judge issued an order (‘‘consent decree’’) that
referenced the terms of the Summers I settlement agree-
ment, appointed a special master to make the findings re-
quired by that agreement, and directed Howard to pay the
special master’s fees and costs pursuant to Rule 53(a). Sum-
mers v. Howard Univ., No. 98–2692, Order (D.D.C. Feb. 8,
2002).
Two weeks later, Howard moved to vacate the consent
decree and the underlying agreement, pursuant to Federal
5
Rule of Civil Procedure 60(b)(3), for fraud, misrepresentation,
and/or misconduct on the part of the plaintiffs in failing to
inform Howard of the filing of Summers II — which Howard
had learned of by happenstance in early January 2002. The
magistrate denied the motion, finding that Howard had
‘‘failed to meet its burden of proving fraud or misrepresenta-
tion on the part of Plaintiffs’’ and that Howard had suffered
no prejudice. Summers v. Howard Univ., No. 98–2692,
Mem. Op. & Order at 6 (D.D.C. May 20, 2002) [hereinafter
May 2002 Mem. Op.]. Howard filed an interlocutory appeal
of the magistrate’s denial with this court, which we dismissed
for lack of appellate jurisdiction. Summers v. Howard Univ.,
No. 02–7069, 2003 WL 21186051 (D.C. Cir. May 16, 2003).
Meanwhile, proceedings to enforce the consent decree
moved forward. The special master issued his Back Wage
Report on January 6, 2003, and his Fees and Costs Report on
February 19. On May 7, 2003, after hearing oral argument
on Howard’s objections to the Back Wage Report, the magis-
trate adopted that Report and directed Howard to pay back
wages and liquidated damages in the amount of $318,080.99.
Summers v. Howard Univ., No. 98–2692, Mem. Op. & Order
(D.D.C. May 7, 2003) [hereinafter Wage Report Op.]. There-
after, the magistrate also adopted the special master’s Fees
and Costs Report, and directed Howard to pay attorneys’ fees
and costs in the amount of $220,906.00. Summers v. Howard
Univ., No. 98–2692, Mem. & Op. (D.D.C. June 16, 2003).
Howard now appeals from the magistrate’s order denying
the University’s motion to vacate the consent decree (and the
underlying settlement agreement), as well as from his order
adopting the findings of the special master.2 We address
these appeals in Parts II and III below.
2 In addition, Howard appeals an August 2001 order of the
magistrate judge, which denied Howard’s motion for partial sum-
mary judgment on the plaintiffs’ FLSA meal-break claim. Sum-
mers v. Howard Univ., No. 98–2692, Mem. Order at 2–3 (D.D.C.
Aug. 1, 2001). This is one of the claims that Howard subsequently
settled in December 2001 and as to which the magistrate entered
the consent decree in February 2002. Because the merits of that
6
II
We begin with the magistrate’s order denying Howard’s
motion to vacate the consent decree pursuant to Federal Rule
of Civil Procedure 60(b)(3). An appellate court may overturn
such an order only for abuse of discretion. See Computer
Prof’ls for Social Responsibility v. United States Secret Serv.,
72 F.3d 897, 903 (D.C. Cir. 1996); Twelve John Does v.
District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988).
Rule 60(b)(3) permits a court to relieve a party from a final
judgment because of ‘‘fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct
of an adverse party.’’ FED. R. CIV. P. 60(b)(3). Howard
argues that the plaintiffs’ conduct comes within the scope of
the rule, and that the magistrate abused his discretion in
denying Howard relief.
The magistrate judge denied Howard’s motion on the
ground that the University had failed to prove either fraud or
affirmative misrepresentation. Although Howard disputes
that conclusion, it correctly notes that Rule 60(b)(3) provides
a third ground for vacatur that the magistrate failed to
consider — namely, ‘‘other misconduct of an adverse party.’’
See Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.
1988) (holding that, for the term ‘‘misconduct’’ to ‘‘have
meaning in the Rule 60(b)(3) context, it must differ from both
‘fraud’ and ‘misrepresentation’ ’’). And it contends that the
plaintiffs’ failure to supplement their interrogatory responses
to disclose the existence of Summers II, coupled with their
affirmative efforts to prevent notice of the suit from being
given in Superior Court, constituted such misconduct.
claim cannot be reexamined unless the consent decree is vacated,
and because we decline to vacate that decree for the reasons set
forth in Part II, we deny this aspect of Howard’s appeal without
further discussion. Cf. Ciralsky v. CIA, 355 F.3d 661, 673 (D.C.
Cir. 2004). Similarly, Howard also appeals the magistrate’s order
adopting the special master’s Fees and Costs Report — not on its
merits, but because it is ‘‘predicated’’ on the December 2001 settle-
ment agreement that Howard contends should be vacated. Appel-
lant’s Br. at 43–44. Our refusal to vacate that agreement likewise
dooms this aspect of Howard’s appeal.
7
We agree. As several circuits have held, ‘‘[f]ailure to
disclose or produce materials requested in discovery can
constitute ‘misconduct’ within the purview of’’ Rule 60(b)(3).
Anderson, 862 F.2d at 923.3 Plaintiffs’ explanation for failing
to supplement4 is that they believed Summers II was ‘‘not
relevant’’ to Summers I. Oral Arg. Tr. at 23 (D.C. Cir. May 8,
2003) (App. 220). At best, however, this would have justified
a relevance objection to the interrogatory; it did not justify
complete silence.
Moreover, the plaintiffs engaged in repeated, affirmative
efforts to keep the filing of Summers II a secret from
Howard, efforts that included failing to serve the University
with the complaint, requesting repeated extensions of time for
service while representing that an extension was unopposed,
and omitting Howard’s name from the list of parties to be
served with orders by the court. The plaintiffs concede that
these acts were intentional. Their only ‘‘excuse’’ is that they
wanted to keep Howard from learning of Summers II, so that
they could exhaust their administrative remedies before How-
ard could move to dismiss for failure to exhaust — the
strategy the University had used successfully in Summers I.
Oral Arg. Tr. at 21–22 (D.C. Cir. May 8, 2003); Motions Hr’g
Tr. at 11 (D.D.C. Apr. 26, 2002). This, of course, is no excuse
at all.
Misconduct alone, however, is not sufficient to justify the
setting aside of a final judgment. Under Rule 60(b), a court
must balance the interest in justice with the interest in
protecting the finality of judgments. See Schultz, 24 F.3d at
3 See Cummings v. General Motors Corp., 365 F.3d 944, 955 (10th
Cir. 2004); Abrahamsen v. Trans–State Express, Inc., 92 F.3d 425,
428 (6th Cir. 1996); Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir.
1994); Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983);
Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978).
4 See FED. R. CIV. P. 26(e) (‘‘A party who has TTT responded to a
request for discovery TTT is under a duty to supplement or correct
the TTT response to include information thereafter acquired TTT (2)
TTT if the party learns that the response is in some material respect
incomplete or incorrectTTTT’’); see also Rozier, 573 F.2d at 1342 &
n.10.
8
630; Anderson, 862 F.2d at 926; Randall v. Merrill Lynch,
820 F.2d 1317, 1321 (D.C. Cir. 1987). That balance is effectu-
ated in part by the requirement that the victim of misconduct
(or of fraud or misrepresentation) demonstrate actual preju-
dice. See Anderson, 862 F.2d at 924 (holding that, ‘‘as with
other defects in the course of litigation,’’ misconduct, ‘‘to
warrant relief, must have been harmful — it must have
‘affect[ed] the substantial rights’ of the movant’’ (quoting FED.
R. CIV. P. 61)). This is often worded as a requirement that
the movant show that the misconduct ‘‘foreclosed full and fair
preparation or presentation of its case.’’ Id. at 923.5
Howard contends that the plaintiffs’ failure to advise it of
the filing of Summers II in advance of the settlement preju-
diced the University by depriving it of ‘‘the benefit of its
bargain — resolution of all then-extant claims.’’ Reply Br. at
4. The implication of this contention is that, had Howard
known of Summers II, it would have insisted that the Sum-
mers I settlement agreement include a provision resolving
Summers II as well. Despite this, the magistrate judge
concluded that Howard was not prejudiced because, at the
time of the settlement, Howard knew that the union had filed
an administrative grievance under the CBA that raised issues
similar to those in Summers II. May 2002 Mem. Op. at 5.
Presumably the magistrate’s inference is that, armed with
knowledge of that grievance, Howard should (or could) have
included a global settlement provision resolving all present
and future related claims. We share the magistrate’s mystifi-
cation as to why Howard did not insist on such a provision.
See id. at 5–6. But we agree with the University that,
because the CBA grievance differed in certain substantive
and remedial respects from the Superior Court lawsuit,
knowledge of the former did not necessarily eliminate the
potential for prejudice arising from the latter.
5 See Anderson, 862 F.2d at 923–24 (collecting cases); see also
Cummings, 365 F.3d at 955; Sellers v. Mineta, 350 F.3d 706, 715
(8th Cir. 2003); Tobel v. City of Hammond, 94 F.3d 360, 362 (7th
Cir. 1996); Schultz, 24 F.3d at 630; GAF Corp. v. Transamerica
Ins. Co., 665 F.2d 364, 371 (D.C. Cir. 1981).
9
Nonetheless, we conclude that the plaintiffs’ failure to
inform Howard of the existence of Summers II did not result
in prejudice to the defendant. Howard concedes that, once it
learned of the complaint, it regarded the suit as meritless
because the plaintiffs had again failed to exhaust their admin-
istrative remedies. Oral Arg. Tape at 9:55 (D.C. Cir. March
15, 2004). The subsequent history of Summers II proved
Howard right. The University removed the case to federal
court, and, with the consent of both parties, the complaint
was referred to the same magistrate who was presiding over
Summers I. Howard then moved to dismiss for failure to
exhaust. On June 17, 2003, noting that the plaintiffs had not
even filed a response to Howard’s motion and that there had
been no additional activity in the case, the magistrate dis-
missed the action. Summers v. Howard Univ., No. 02–239,
Order (D.D.C. June 17, 2003). Hence, despite the plaintiffs’
failure to advise Howard of the filing of Summers II, the
University fully achieved its aim of resolving all ‘‘then-extant
claims.’’
In its reply brief, Howard insists that it was at least
prejudiced by the litigation expenses it incurred in obtaining
the dismissal of Summers II. We do not doubt that Howard
did incur some costs, although the University does not quanti-
fy them and the fact that its motion to dismiss was unopposed
suggests that the costs could not have been great. But as we
pointed out during Howard’s last visit to this court, the
University had a considerably more direct way of recouping
those costs than overturning the settlement: ‘‘Any costs and
fees incurred because of plaintiffs’ alleged misconduct and
violation of the discovery rules,’’ we said, ‘‘can be redressed
through an appropriate motion for sanctions under Federal
Rule of Civil Procedure 37(c)(1).’’ Summers, 2003 WL
21186051, at *1. But despite our suggestion, Howard did not
request fees or sanctions in its motion to dismiss Summers
II. And while Howard did request sanctions in its motion to
vacate the consent decree, the magistrate expressly deferred
consideration of that portion of Howard’s motion, May 2002
Mem. Op. at 1 n.1, and Howard failed to pursue the matter
further, Oral Arg. Tape at 5:18 (D.C. Cir. Mar. 15, 2004).
10
Under these circumstances, the Rule 60(b) balance tilts deci-
sively in favor of preserving the finality of the judgment.
We conclude that Howard did not suffer prejudice suffi-
cient to justify vacating the consent decree. Although the
magistrate judge reached the same conclusion, because our
analysis is not quite the same as his was, we ordinarily would
remand rather than affirm in order to give him the opportuni-
ty to exercise his discretion in light of the considerations we
have outlined. See United States v. Haynes, 158 F.3d 1327,
1331–32 (D.C. Cir. 1998). In this case, however, the absence
of sufficient prejudice is so plain that a grant of Howard’s
Rule 60(b)(3) motion would constitute an abuse of discretion.
Under such circumstances, a remand would be inappropriate,
and we therefore affirm the magistrate’s denial of Howard’s
motion to vacate the judgment. See Al–Fayed v. CIA, 254
F.3d 300, 309 n.10 (D.C. Cir. 2001); Haynes, 158 F.3d at 1331.
III
We turn next to Howard’s contention that the magistrate
judge erred in adopting the special master’s Back Wage
Report. At the time, the magistrate, sitting by consent as a
district court, was under a duty to review the special master’s
factual findings for clear error. See FED. R. CIV. P. 53(e)(2)
(2003); Wallace v. Skadden, Arps, Slate, Meagher & Flom,
LLP, 362 F.3d 810, 816–17 (D.C. Cir. 2004). We, in turn, also
review a special master’s findings, to the extent they were
adopted by a district court (in this case, by a magistrate
judge), for clear error. Berger v. Iron Workers Reinforced
Rodmen, Local 201, 170 F.3d 1111, 1119 (D.C. Cir. 1999); see
Fed. R. Civ. P. 52(a).6 We review conclusions of law de
6 We note that in 2003, Rule 53 was amended to provide de novo
review of a special master’s factfindings by the district court. See
FED. R. CIV. P. 53(g)(3) (2004) & advisory committee’s note to 2003
amendments. Those changes did not take effect until December 1,
2003, several months after the magistrate’s adoption of the Wage
Report. Neither side disputes that the former version of Rule 53
was applicable here, or that the standard for our review is clear
error.
11
novo. Cuddy v. Carmen, 762 F.2d 119, 123 (D.C. Cir. 1985).
The special master awarded the plaintiffs $318,080.99 in
back wages and liquidated damages. Howard’s appeal cen-
ters on a provision of the settlement agreement that entitled
the University to a setoff for certain premium pay that was
paid to plaintiffs for hours they worked in excess of eight in
any given day. To determine the amount of the setoff, the
special master examined a random sample of 20% of the
payroll data for each plaintiff from June 1998 to July 1999.
Wage Report Op. at 10. The master found that the setoff
applied only rarely, affecting total back pay by at most 1–2%.
Id. Moreover, the master found that any such setoff was
itself generally offset by overtime Howard owed the plaintiffs
for weeks in which, although they were scheduled to work 38
or 39 hours, their work before and after scheduled shifts and
during meal breaks brought their weekly total to more than
40 hours. Id. at 7, 10. Because the result was a ‘‘wash,’’ the
master concluded that recalculation of the data to include a
setoff would not materially affect the result, and hence was
unwarranted. Id. at 11 (quoting April 1, 2003 Letter from
Special Master to Def.’s Counsel).
The magistrate held that the special master’s findings were
not clearly erroneous, and we agree. Howard argues that, by
the terms of the settlement agreement, the special master
was obligated to calculate the total amount of the available
setoff by examining 100% of the payroll data — rather than
by extrapolating from a smaller sample. But there was
nothing in the agreement that specified the manner in which
the master had to calculate the setoff, and there was nothing
unreasonable in his decision to use a random sample of the
data to determine whether a setoff would be material. Nor
was there anything facially unreasonable about sampling 20%
of the data.
Moreover, despite Howard’s claim that a review of 100% of
the payroll data was required and would yield a materially
different result from that produced by the special master’s
20% study, Howard never conducted such a review or offered
12
one into evidence. Although the University had an opportu-
nity to do so between the time the master filed the Back
Wage Report on January 6, 2003, and the time the magistrate
held a hearing on Howard’s objections to the Report on
March 20, 2003,7 it never conducted the full review that it said
was required. Instead, the University countered with its own
sampling study, examining 100% of the payroll data — but for
only 16 out of the total of 71 employees during the June 1998
to July 1999 period.
Howard offers nothing to support the proposition that its
sampling methodology was statistically preferable to that
used by the special master. Nor was there anything clearly
erroneous about the special master’s conclusion that any
setoff would constitute at most a ‘‘de minimus’’ proportion of
the damages award — a result confirmed by Howard’s own
study, which yielded a total setoff for the 16 employees it
examined of only $2306.08. See Wage Report Op. at 11–12.
In the absence of evidence that a full review would yield a
contrary conclusion, we cannot say that the special master’s
determination of back wages and liquidated damages was
clearly erroneous.
IV
For the foregoing reasons, the orders of the magistrate
judge, sitting by consent as a district judge for all purposes,
are
Affirmed.
7 Indeed, the magistrate found that Howard was on notice that
the special master did not intend to include a setoff as early as July
15, 2002, the date the special master asked the parties to comment
on his preliminary review of the issue. Wage Report Op. at 14.