Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perez v. Cucci

argued: January 25, 1991.

ABAD PEREZ, APPELLEE
v.
ANTHONY CUCCI, AS MAYOR OF JERSEY CITY AND INDIVIDUALLY; THE CITY OF JERSEY CITY; GLEN CUNNINGHAM, IN HIS OFFICIAL CAPACITIES AND INDIVIDUALLY; JAIME VAZQUEZ, AS CITY COUNCILMAN AND INDIVIDUALLY; THE JERSEY CITY POLICE DEPARTMENT; WALTER ADAMS, AS DIRECTOR OF POLICE AND INDIVIDUALLY; JOHN FRITZ, AS CHIEF OF POLICE AND INDIVIDUALLY; FRANK VICTOR, AS DEPUTY CHIEF OF POLICE AND INDIVIDUALLY; LIEUTENANT HEALY, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; JERSEY CITY POLICE OFFICERS BENEVOLENT ASSOCIATION; AND BENJAMIN LOPEZ, AS CITY BUSINESS ADMINISTRATOR AND INDIVIDUALLY; AND FRANK LORENZO; AND JUAN PEREZ, CITY OF JERSEY CITY, APPELLANT



On Appeal from the United States District Court for the District of New Jersey; D.C. Civil Action No. 86-3595.

Becker and Hutchinson, Circuit Judges, and Atkins, District Judge.*fn*

Author: Atkins

Opinion OF THE COURT

ATKINS, Senior District Judge

Defendant/appellant City of Jersey City ("City") appeals the district court's denial of its Rule 60(a)*fn1 Motion to Correct an Order Implementing Amended Judgment in favor of plaintiff/appellee Abad Perez ("Perez").*fn2 The City contends that the part of the order it sought to strike -- an award of backpay for a period following Perez' retirement from the City Police Department ("JCPD") -- was not reflected in the amended judgment or supported by the record. Having thoroughly reviewed the record and finding no support for the challenged award, we agree that the court's denial of the City's motion to strike the award was an abuse of discretion.*fn3 Accordingly, the district court's denial of the City's Rule 60(a) Motion to Correct the Order Implementing Amended Judgment will be REVERSED. In addition, that portion of the order providing for backpay for the period of time following Perez' June 1, 1988 retirement from the JCPD will be STRICKEN.

A. BACKGROUND

The facts relevant to the present appeal can be briefly stated.*fn4 Plaintiff/appellee Perez joined the JCPD as a patrolman on October 12, 1979, and was promoted to the position of detective on October 11, 1982. He later became president of the Hispanic Law Enforcement Society of Hudson County. During the City's 1985 mayoral campaign, Perez openly and actively supported the candidacy of then-Mayor Gerald McCann. In the June 1985 election, McCann was defeated by Anthony Cucci, a defendant in the underlying lawsuit.*fn5 On July 1, 1985, the very day that Cucci was sworn in as the new City Mayor, Perez was demoted to the rank of patrolman. Perez v. Cucci, 725 F. Supp. 209, 215-21 (D.N.J. 1989), aff'd, 898 F.2d 139 (3d Cir. 1990).

Shortly after his demotion, the JCPD granted Perez' request for a leave of absence so he could work for the Los Angeles Police Department ("LAPD") to determine whether he would return or retire from the JCPD. In July 1986, after working for the LAPD for approximately one year, Perez returned to the JCPD. In September 1986, Perez filed the underlying lawsuit against the City alleging, in relevant part, that his July 1, 1985 demotion violated his constitutional rights to freedom of association. The lawsuit also generally alleged that the defendants' acts and omissions caused him loss of self-esteem, public ridicule and embarrassment, humiliation, mental anguish, and pain and suffering.*fn6 Despite having filed the lawsuit, Perez remained at the JCPD until March 1, 1988, when he began a paid sick leave, which he continued until June 1, 1988, when he retired from the JCPD. Id. at 226-27.

Following a bench trial, on May 2, 1989 the district court found, in relevant part, that Perez' July 1, 1985 demotion from detective to patrolman violated his first, fifth and fourteenth amendment rights. See id. at 231-58. However, the court found that defendants' acts and omissions did not cause Perez loss of self-esteem, public ridicule and embarrassment, humiliation, mental anguish, and pain and suffering because the unconstitutional demotion preceded plaintiff's seeking psychological care by approximately two years and also because there existed independent causes of stress, such as family problems and plaintiff's studying for the bar examination. Id. at 227 n.19.

On July 20, 1989 the court entered an amended judgment which, in relevant part, ordered the City to pay plaintiff $4,298.05 as compensatory relief and backpay, calculated as the difference between the rate of pay Perez received as patrolman and the rate of pay he would have received as detective, from the date of his demotion (July 1, 1985) to the date of his resignation (June 1, 1988), excluding the time he worked for the LAPD. The amended judgment also ordered plaintiff's reinstatement to the position he held in the police department "at the level and with the commensurate seniority and benefits to which he would have been entitled at the time of his resignation."*fn7 Appendix ("App.") 100-01 (amended judgment) (emphasis added); see also Perez, 725 F. Supp. at 222-23 n.13 (calculating amount of backpay due).

After reinstating Perez, the City appealed from the amended judgment on a ground unrelated to the present inquiry. On February 23, 1990, the Third Circuit Court of Appeals affirmed the district court. See Perez v. Cucci, 898 F.2d 139 (3d Cir. 1990). On April 30, 1990, pursuant to Local Rule 25 of the District Court for the District of New Jersey, an unopposed proposed Order Implementing Judgment prepared by Perez was approved by the court and entered on the docket.*fn8 In addition to ordering the City to pay plaintiff his costs and fees and the $4,298.05 in compensatory relief and backpay for the period between his demotion and his leaving the department, the order directed the following: "the City shall accord plaintiff commensurate seniority and all the benefits which he would have been entitled at the time of his resignation, including, without limitation, (a) appropriate credit for pension payments from June 1, 1988, the date of his "resignation," through May 8, 1989, the date of his reinstatement, and (b) backpay at the appropriate payscale for Detective for the period of time from June 1, 1988 through May 8, 1989, plus interest, as required by law. App. 109-10 (order implementing judgment) (emphasis added).

On May 10, 1990, the City filed the Rule 60(a) motion to strike from the order implementing judgment as a clerical error the underlined material, which was not reflected in the amended judgment (the order sought to implement). Compare App. 101 at para. 9 (amended judgment) (providing for reinstatement "at the level and with the commensurate seniority and benefits to which he would have been entitled at the time of his resignation") with id. 109-10 (order implementing judgment) (providing for same but adding above underlined language). On June 28, 1990, the district court heard oral argument on the motion. Apparently construing its July 20, 1989 amended judgment as supporting a finding that Perez had been forced to retire, see App. 120-21 (transcript of oral opinion on motion to correct order) (stating that Perez "should be given the benefits of the salary he would have received had he not been forced to retire"), the court ruled that the award of backpay for the period following the "retirement" was appropriate to make Perez "whole" and denied the motion to correct the order implementing judgment, see App. 121-22. The present appeal followed.

B. SUMMARY OF CONTENTIONS

The City argues that the inclusion of backpay for the period following Perez' 1988 departure from the police force was erroneous because the issue of wrongful, or constructive, discharge was not tried before the court or supported by the evidence adduced at trial. All of the evidence at trial went, instead, to the issue of whether plaintiff's 1985 demotion was motivated by his exercise of his first amendment rights. Perez has been unable to point to any evidence in the record supporting the additional backpay ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.