author: SCHALL, Circuit Judge.

text:
    Arthur PEREZ, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
    No. 95-3735.
    United States Court of Appeals, Federal Circuit.
    June 3, 1996.

      Arthur A. Perez, Redlands, California, submitted Pro Se.
    Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems Protection Board, Washington, D.C., submitted for respondent. With him on the brief were Mary L. Jennings, General Counsel and Martha B. Schneider, Assistant General Counsel.
    Before MAYER, SCHALL, and BRYSON, Circuit Judges.
   SCHALL, Circuit Judge.

Arthur Perez petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed for lack of jurisdiction his appeal of his removal from the United States Postal Service (“agency” or “Postal Service”). Perez v. United States Postal Serv., Docket No. SF-0752-95-0380-I-1. We affirm.

BACKGROUND

After Perez was removed from his letter carrier position, he appealed to the Board, stating that he had worked for the Postal Service since 1987 and had served approximately 22 years in the Armed Forces Reserves. The AJ notified Perez that the Board lacked jurisdiction over his appeal if he was not an “employee” under 5 U.S.C. § 7511 (1994), and he ordered Perez to submit evidence or argument in support of jurisdiction. For its part, the Postal Service moved to dismiss the appeal for lack of jurisdiction on the ground that Perez was not a preference eligible employee entitled to appeal his removal to the Board.

Perez presented evidence that he served on active military duty during Operation Desert Shield/Desert Storm from February 2, 1991, to May 2, 1991. Specifically, his certificate of discharge from active duty, Department of Defense Form 214 (“DoD Form 214”), showed that he served during that period. The Postal Service responded that this service did not entitle Perez to preference eligible status because he did not serve in the Desert Shield/Desert Storm combat area in southwest Asia. In support of its argument, the agency submitted a copy of Executive Order 12754, issued March 12, 1991, which established the Southwest Asia Service Medal for those who served during the relevant period “in Southwest Asia or in the surrounding contiguous waters or air space.” The agency also submitted the section of the Department of Defense Manual of Military Decorations and Awards that listed the geographic areas where an individual must have served to be awarded the medal.

In his decision, the AJ noted the testimony of Air Force personnel clerks to the effect that DoD Form 214 indicates whether an individual received a campaign badge for service in a campaign and that the campaign badge for Desert Shield/Desert Storm is the Southwest Asia Service Medal. According to the clerks, Perez’s DoD Form 214 showed that he did not receive the Southwest Asia Service Medal and that his service was not in the area required for award of the medal. The AJ also noted that Perez stated that his active duty during the Desert Shield/Desert Storm period was in Germany. Based on the record evidence, the AJ determined that Perez was not entitled to preference eligible status under 5 U.S.C. § 2108 (1994) — which meant that he was not an employee for purposes of 5 U.S.C. § 7511 — because he neither received the Southwest Asia Service Medal nor served in any of the specified countries in southwest Asia (e.g. Saudi Arabia, Kuwait, or Iraq) or in the contiguous waters or air space. The AJ therefore dismissed the appeal for lack of jurisdiction.

DISCUSSION

The jurisdiction of the Board is limited to those matters expressly entrusted to it by “law, rule, or regulation.” 5 U.S.C. § 7701(a) (1994). A petitioner bears the burden of establishing Board jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). As a non-supervisory employee of the Postal Service, Perez had to show that he was entitled to preference eligible status in order to appeal his removal to the Board. 5 U.S.C. § 7511(a)(l)(B)(ii). The definition of “preference eligible” for purposes of title 5 is found in 5 U.S.C. § 2108(8).

The question before the AJ on the jurisdictional issue was whether Perez came within the definition of preference eligible found in section 2108(3)(A), which for the purposes of this case incorporates the definition of veteran in section 2108(1)(A):

(1) “veteran” means an individual who—
(A) served on active duty in the armed forces during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1,1955; ...
and who has been separated from the armed forces under honorable conditions^]

Perez does not argue that the AJ’s decision lacks the support of substantial evidence. Rather, he contends that the AJ misinterpreted 5 U.S.C. § 2108(1)(A). Perez asserts that he comes within the statute’s definition of “veteran” because he served in the armed forces during a time when a campaign badge was authorized. That argument fails, however.

Section 2108(1)(A) addresses three types of active duty service that will grant an individual veteran status for purposes of title 5. Those three are service “during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955.” 5 U.S.C. § 2108(1)(A) (1994). We note that, in establishing these three types of active duty service, the statute utilizes two different prepositions, “during” and “in,” to define how broadly the preference is to be granted.

Thus, we must determine the distinction, if any, drawn in section 2108(1)(A) by the use of the different prepositions “during” and “in.” It is true that “in” can mean “during.” See Webster’s Third New International Dictionary 1139 (1986) (defining “in” as, inter alia, “during the course of’ or “during”). However, to construe “in” to mean “during” here would render superfluous the distinctions created by the terms of the statute (“active duty in the armed forces during a war [or] in a campaign or expedition for which a campaign badge has been authorized”) (emphasis added). As this court must construe a statute so as to give effect, if possible, to every clause and word, In re Nantucket, Inc., 677 F.2d 95, 98, 213 USPQ 889, 892 (CCPA 1982); Crawford v. United States, 179 Ct.Cl. 128, 376 F.2d 266, 272 (1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 781, 19 L.Ed.2d 831 (1968), we decline to hold that in section 2108(1)(A) Congress used “in” to mean “during.”

In section 2108(1)(A), “during” modifies two periods of time—“during a war” and “during the period beginning April 28, 1952, and ending July 1, 1955.” As used in section 2108(1)(A), however, “in” modifies “a campaign or expedition for which a campaign badge has been authorized.” The statute thus requires service “in” the campaign, rather than “during” the campaign or “at the time of’ the campaign. The limitation imposed by “in” is not just one of time, but also one of involvement or participation.

Therefore, in order to be accorded veteran status under section 2108(1)(A), only one condition is required when the country is at war—service during, or at the time of, the war. When the country is not at war, but the armed forces have conducted a campaign or expedition for which a campaign badge has been authorized, the statute requires more. It is not enough to be on active duty in the armed forces during, or at the time of, the campaign; the individual must have served in the campaign or expedition for which a campaign badge has been authorized.

Perez does not claim he is entitled to veteran status because he served on active duty during a war or from April 28, 1952 to July 1, 1955. Instead, he asserts that he “did serve on active duty during the time the campaign medal was authorized and thus should be given the Veterans preference’ even though he was not awarded the medal.” As just seen, however, it is not enough to have been on active duty during, or at the time of, a campaign or expedition for which a campaign badge has been authorized. Rather, the active duty must have been in the campaign or expedition. It is uneontested that Perez did not serve in a campaign or expedition. Perez, therefore, is not a veteran within the meaning of section 2108(1)(A). Because Perez does not qualify as a veteran under section 2108(1)(A), he is not a preference eligible under section 2108(3)(A). Since he is not a preference eligible, he is not an employee for purposes of 5 U.S.C. § 7511. The Board thus lacked jurisdiction to hear his appeal.

CONCLUSION

For the foregoing reasons, we affirm the decision of the Board dismissing Perez’s appeal for lack of jurisdiction.

AFFIRMED.

      . The May 24, 1995 initial decision of the administrative judge ("AJ") became the final decision of Board on June 28, 1995, as Perez did not file a petition for review with the Board.

      . Title 5 provides no definition of the term "war” as used in section 2108(1)(A). See 5 U.S.C. § 2101 (1994); See Brooks v. Office Personnel Management, 59 M.S.P.R. 207, 213-14 (1993). Article I, section 8, of the Constitution provides that “[tjhe Congress shall have Power ... To declare War.” Since 1917, Congress has declared war eight times, and each declaration was issued with respect to World War I or World War II. See 50 U.S.C. Appendix, note preceding section 1 (1988). Title 38 recognizes as a period of war "the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress.” 38 U.S.C. § 101(11) (1994).

      . Perez contends that he is entitled to preference eligible status because he received the Republic of Vietnam Gallantry Cross. Receipt of a campaign badge from the Republic of Vietnam does not qualify one as a veteran under section 2108(1)(A). The statute requires service in a campaign or expedition. It does not bestow veteran status upon those awarded a badge by a foreign country.
      Moreover, if Perez received the Republic of Vietnam medal, it would have been in connection with his service in the Air National Guard of California from 1968 to 1981. Service in the Air National Guard is not "service on active duty in the armed forces” within the meaning of section 2108(1). The term "armed forces” in title 5 does not include the Air National Guard. 5 U.S.C. § 2101(2); Jacaruso v. Department of the Army, 1 MSPB 360, 1 M.S.P.R. 373, 375 (1980).


source: Caselaw Access Project

author: MICHEL, Circuit Judge. PLAGER, Circuit Judge,

license: Public Domain

text:
    Donald C. NEWTON, Petitioner, v. DEPARTMENT OF The AIR FORCE, Respondent.
    No. 95-3293.
    United States Court of Appeals, Federal Circuit.
    June 4, 1996.
    Rehearing Denied June 28, 1996.
    Michael A Taylor, Taylor, Moore & Plater, Oklahoma City, Oklahoma, argued, for petitioner.
    Major David W. Claypool, AFLSA/JACL, Arlington, Virginia, argued for respondent. Timothy D. Wilson, Lt. Col., U.S.AF., Chief Civilian Personnel Branch, General Litigation Division, Air Force Legal Services Agency and Clarence P. Guillory, Captain, U.S.AF., Trial Attorney, Air Force Legal Services Agency, Arlington, Virginia, were on the brief, for respondent.
    Before MICHEL, PLAGER, and LOURIE, Circuit Judges.
   Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Circuit Judge PLAGER.

MICHEL, Circuit Judge.

Donald C. Newton appeals from the December 16, 1994 decision of the Merit Systems Protection Board (Board), No. DA-0752-94 — 0680-1-1, sustaining one of two of the Department of the Air Force’s (Air Force) charges against Newton and its decision to remove him. The Administrative Judge’s (AJ) initial decision became final when, on January 20, 1995, the time within which to file a petition for review by the full Board expired. The appeal was submitted for decision after oral argument on March 4, 1996. Because there can be no dispute that by his admitted acts Newton violated the Air Force regulation under which he was charged, and the Air Force’s choice of penalty does not exceed the bounds of its discretionary authority, we affirm.

BACKGROUND

Newton worked as an aircraft engine repair supervisor at Tinker Air Force Base in Oklahoma. He had worked at Tinker since April 1976, and as a supervisor since 1988.

It is undisputed that, on June 18,1994, the following occurred: Newton was supervising employees during an overtime shift in Building 3001 at Tinker. Guy Lewis, an African-American, was among the group that Newton was supervising. Following his return from lunch, Newton took two chemical mixing sticks, each approximately two inches tall and one inch wide, and used some wire to form them into the shape of a cross. He then placed the cross on a cart, sprayed the cross with alcohol, and lit it on fire in the work area where Lewis and others were working. As the cross burned, Newton called Lewis’ attention to it. Newton then put the fire out and returned to work.

On Monday, June 20, the incident was reported to supervisor Paul Thomas. Thomas questioned a number of employees about it and, later that day, placed Newton on non-duty pay status. The incident attracted local media coverage, both on television and in local papers.

By letter dated June 27, Thomas proposed Newton’s removal. Specifically, the proposal cited Newton’s “deliberate actions on 18 June 1994 that are considered racial toward a subordinate minority employee” and “reckless disregard on 18 June 1994 for the safety of personnel and the work environment.” The first charge was based expressly on Item 29 of Attachment 3, AFR 40-750 (July 23, 1982) (“Guide to Disciplinary Actions”). Item 29 proscribes invidiously discriminatory conduct in the workplace as follows:

29a: Discrimination based on race, color, religion, sex, national origin, age, or handicapping condition. Includes sexual harassment. Also includes making racial or ethnic slurs, or disseminating literature containing such slurs. Consider circumstances and the effect on the person(s) discriminated against, use of abusive language, violent treatment or insulting demeanor.
Penalty for First Offense: Reprimand to 5-Day Suspension.
29b: If the discrimination was deliberate. NOTE: If a supervisor or manager has engaged in an act of discrimination, a decision should be made as to whether he or she should be reassigned or changed to a lower grade to a position of a different character.
Penalty for First Offense: Reprimand or Removal.

On August 8, after considering Newton’s response to the proposed removal, Kenneth Breshears, the deciding official, removed Newton effective August 9. The removal decision makes clear that Breshears imposed the penalty of removal only after careful consideration of all the so-called “Douglas factors.”

Newton appealed his removal to the Board on August 26. Newton’s primary contention was that he had not discriminated against Lewis because he had not intended to do more than joke with him. On December 16, after conducting a hearing, the AJ issued his decision sustaining both the first of the agency’s two charges — that is, “engaging in deliberate racial actions toward a subordinate minority employee” — and the appropriateness of removal as a penalty. The AJ credited Newton’s contention that he meant only to joke with Lewis but nevertheless concluded that the elements of the charged offense had been proved:

I find that the charge that the appellant engaged in deliberate racial conduct towards a subordinate minority employee is actionable misconduct. I further find that the appellant, by placing the lighted cross in front of Lewis, did engage in deliberate racial conduct towards a subordinate minority employee, as charged. The appellant’s behavior in fashioning the cross, setting it afire, and showing it to Lewis was deliberate, rather than inadvertent conduct. The conduct was racially offensive: it is unnecessary to explore what a burning cross symbolizes to African-Americans. While the appellant may have intended at the time of the incident to merely joke with Lewis, I find that his intentions are not relevant to the misconduct as it is charged and, therefore, are not exculpatory. Accordingly, I conclude that the agency has proven the charge by a preponderance of the evidence.

(Emphasis added; record citations omitted). As the highlighted text makes clear, the AJ equated the term “deliberate” from Item 29b with the phrase “not inadvertent.”

Having sustained only one of the two charges against Newton, the AJ undertook an extended re-analysis of the propriety of removal as the penalty. Newton suggests at various points in his briefs on appeal that the penalty decision should be vacated because the AJ “fail[ed] to consider all of the relevant factors.” To read the AJ’s analysis is to know that this miseharacterization of the record is unavailing:

I first note that there are a number of mitigating factors in the appellant’s favor. The appellant has been Federally employed since April 14, 1976, with no prior disciplinary action. He has been a supervisor at the facility for approximately six years, and his work performance for that period has been above fully successful.
Further, it is undisputed that the appellant acted without malice and without a discriminatory intent when he lit the cross on fire. The testimony was uniform and credible that the appellant did not use racially provocative speech or treat his subordinates or others in a disparate manner based on their race. Further, it is unrebutted that the appellant and Lewis had a joking relationship, and that Lewis frequently employed racially charged language in that relationship. The appellant and co-worker Timothy Ray Moore testified that Lewis referred to the appellant as a “white hillbilly mother f — ker” or a “Elan mother f — ker,” and that Lewis told Moore, referencing the appellant, “I’ll bet that hillbilly mother f — ker is running the KKK.” The appellant testified, with corroboration from Moore, that Lewis’ racial remarks were unilateral, and that he did not respond in kind to Lewis.
Despite these mitigating factors, I find that the sustained charge of deliberate racial conduct merits the penalty imposed by the agency, and so disagree with the appellant’s arguments that the penalty was too severe. The appellant, as an experienced leader who supervised between 15 and 75 employees, was properly held to a high standard of conduct because he occupied a position of trust and authority. He knew through his training that he needed to be aware of discrimination in the workplace. Therefore, he was obliged to discipline employees for racially offensive conduct: not join them in it. Moreover, it must have been self-evident to the appellant that he was taking the joking to an extreme by lighting the cross on fire in front of Lewis.
The burning of a cross, for whatever reason, cannot be justified. It is not a quaint artifact of our nation’s past that can be perceived without emotion. It represents bigotry that our society has combat-ted for many years but that still exists today. The appellant himself noted in his testimony that, on the same day that the incident at the facility was reported on television, another cross burning was reported in Oklahoma.
The appellant’s engaging in such extremely serious misconduct affected not only his image as a supervisor, but involved the entire facility as well. The appellant acknowledged that there were other minority employees in the area at the time of the incident who could have seen the cross and not known that it was meant to be a joke. The deciding official stated that the public perceived the appellant’s actions as a racist threat; that the event was recounted in local print media and on television; and that the appellant created a potentially volatile situation that placed the facility’s reputation within the community at risk. I agree with his assessment that, despite the appellant’s abilities, his removal was in the best interests of the agency. Therefore, while the public’s perception of the cross burning is only one factor to be considered in determining the propriety of the agency’s penalty, I find it a critical and dispositive factor under the circumstances of this case.

(Footnote, case and record citations omitted). We reproduce the AJ’s decision at such length to demonstrate his sensitivity to the many factors in play.

Newton appeals from the AJ’s decision, contending that the charge, when properly understood, is not supported by substantial evidence. Specifically, Newton contends that (a) an act cannot be charged under Item 29b, which requires that it be “deliberate,” unless it is undertaken with a specific discriminatory intent, and (b) it is undisputed that he had no such intent. As Newton puts it, “[u]nder [Item 29b] the penalized action must be a ‘deliberate intentional act of discrimination’ .... [The] penalty should have been imposed under subsection 29a instead of 29b ... because [the] action was not intentional racial discrimination.” Regarding the Air Force’s decision to remove him, Newton contends that the AJ ought to have lightened the penalty in view of Newton’s undisputed lack of discriminatory intent and excellent service record.

Analysis

Item 29b, unlike 29a, by its express terms proscribes only “deliberate” discrimination. Again, Newton contends that his act was not culpably “deliberate” because he intended only to be funny, not to be hostile or discriminatory toward Lewis or others along racial lines. The government responds that “the patently offensive racial nature of the act, combined with the steps [Newton took to burn the cross], clearly reveal that [his] actions were deliberate.” Putting it another way, the government asserts that “[t]he Administrative Judge correctly found that Petitioner’s conduct was deliberate, not inadvertent, and that although Petitioner may have intended his conduct as a joke, his intentions are not relevant to the charge.” The government, like the AJ, equates “deliberate” with “not inadvertent.” We discern no error in the AJ’s construction given the facts of this case.

The drafters of Item 29b chose to proscribe “deliberate” discrimination, rather than, as Newton would have it, conduct undertaken with specific discriminatory intent. First, there is nothing about the term “deliberate,” considered by itself, that suggests that a specific intent element inheres in the prohibition of Item 29b. Second, considering Item 29 as a whole, nothing about the conduct that Item 29a proscribes suggests that the government’s construction of the term “deliberate” in Item 29b would make that provision redundant. For example, Item 29a forbids “disseminating literature containing such [racial or ethnic] slurs.” One might contend that it is impossible to disseminate such literature inadvertently; the argument, if accepted, would render Item 29b redundant and thus severely undermine the government’s equation of “deliberate” with “not inadvertent.” But the contention is unavailing, for it is not difficult to imagine an act of inadvertent dissemination. Consider the case where an employee brings magazines to work for placement in a general reading area and, unbeknownst to him, one or more of these magazines contains patently offensive racist editorials or cartoons. This conduct, while inadvertent, would certainly constitute the dissemination of racially charged material into the work environment, thereby violating the prohibition of Item 29a. Federal agencies have it well within their power to seek to prevent such inadvertent injuries to the workplace environment. See Carosella v. United States Postal Serv., 816 F.2d 638, 643 (Fed.Cir.1987) (“An employer is not required to tolerate the disruption and inefficiencies caused by a hostile workplace environment until the wrongdoer has so clearly violated the law that the victims are sure to prevail in a Title VII action.”).

An agency’s interest in disciplining racially charged conduct is all the greater when, as here, the conduct is deliberate rather than inadvertent. Newton does not suggest that he was ignorant of the racially charged meaning of a burning cross; indeed, such a suggestion would fly directly in the face of his claim to have intended to joke with Lewis in the same manner that Lewis joked with him. Moreover, as the AJ noted, no reasonable person even remotely aware of our nation’s history could fail to know the racist terrorism that a burning cross symbolizes. Newton’s removal for this patently racial and deliberate act vindicates the Air Force’s legitimate interest in maintaining an efficient operation. Any injury that Lewis may or may not have actually suffered is beside the point. The charge against Newton, correctly understood, has been proved beyond doubt.

Finally, although we are not reviewing a Title VII claim, it is worth noting that our construction of the word “deliberate” in Item 29b is fully consistent with the “hostile work environment” ease law. In Rogers v. EEOC, the earliest circuit case to construe Title VII as covering such claims, the court recognized that “the thrust of Title VII’s proscriptions is aimed at the consequences or effects of an employment practice and not at the employer’s motivation.” 454 F.2d 234, 239 (5th Cir.1971) (emphasis added), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). The Supreme Court recently reaffirmed that conduct that poisons the workplace is actionable “so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive,” Harris v. Forklift Sys., Inc., 510 U.S. 17, -, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993), whether or not the abuser specifically intends that it should be so. The existence of specific discriminatory intent vel non is, in short, not an element of a “hostile work environment” claim. See, e.g., King v. Frazier, 77 F.3d 1361, 1363 (Fed.Cir.1996) (“[T]he arbitrator should have evaluated whether Mr. Frazier’s conduct created a hostile or abusive environment from the perspective of the one being harassed. Instead, it is apparent that he viewed the situation from Mr. Frazier’s perspective by introducing intent as an element of the offense. By so requiring, the arbitrator improperly borrowed the mens rea requirement from criminal law and interjected it into sexual harassment law.”); Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (“[I]t must be shown that ... the harassment was racial or stemmed from racial animus.”) (emphasis added), cert. denied, — U.S. -, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995); Ellison v. Brady, 924 F.2d 872, 880 (9th Cir.1991) (“Well-intentioned compliments by co-workers or supervisors can form the basis of a sexual harassment cause of action if a reasonable victim of the same sex as the plaintiff would consider the comments sufficiently severe or pervasive to alter a condition of employment and create an abusive working environment.”); Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981) (“Sexual stereotyping through discriminatory dress requirements may be benign in intent ... yet it violates Title VII.”); Vaughn v. Pool Offshore Co., 683 F.2d 922, 925 n. 3 (5th Cir.1982) (“The district court’s legal analysis improperly focused on the intent of those who created the environment. We specifically noted in Rogers that it is not necessary to show intent in a case challenging a discriminatory working environment.”). Thus, where employees can reasonably perceive the conduct in question to be hostile or abusive, the actor’s lack of specific discriminatory intent does not prevent his or her deliberate conduct from being actionable under Title VII.

As for the Air Force’s choice of penalty in the instant case, it is well-established that, on appeal, the AJ’s “affirmance of the agency’s choice of penalty will not be disturbed unless it is so harsh and inappropriate as to exceed the agency’s discretionary authority.” Carosella, 816 F.2d at 643; see also DeWitt v. Department of the Navy, 747 F.2d 1442, 1445 (Fed.Cir.1984) (“This court will not disturb the agency’s choice [of penalty] unless the severity of its action appears totally unwarranted in light of the relevant factors.”), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985). As shown above, the AJ sustained the decision to remove Newton only after careful and expressed consideration of all the relevant factors, concluding, correctly, that the Air Force has the broad discretion to remove supervisors for violations of Item 29b in the interests of the efficiency of its operations. The Air Force’s concerns over the severe nature of the offense, its effect on employees at Tinker, and the threat it posed to Tinker’s reputation, and thus its ability to operate, in the surrounding community are entirely legitimate. We cannot conclude that, in the circumstances of this case, the removal “appears totally unwarranted.” Id.

For the foregoing reasons, the AJ’s decision is

Affirmed.

PLAGER, Circuit Judge,

dissenting.

I respectfully dissent. The removal of Newton from federal employment cannot be sustained under the charge brought. Newton, a Caucasian, the supervisor in the aircraft engine repair unit, permitted an employee, Lewis, an African-American, to engage him in a highly inappropriate joking relationship. The joking relationship included the use by Lewis (but not by Newton) of racially charged language. Specifically, Lewis would address Newton as a “white hillbilly mother fucker,” and as a “Klan mother fucker,” and would comment openly to others, with reference to supervisor Newton, that “I’ll bet that hillbilly mother fucker is running the KKK.” Newton would not respond in kind, but at the same time did not take appropriate action to discipline Lewis for his improper behavior toward his supervisor; indeed, for whatever reasons, Newton seemed to condone if not encourage Lewis’ improper behavior.

The inevitable happened. Consistent with the joking relationship, Newton played the role of “Klan mother fucker” graphically, and pulled the stunt of burning in front of Lewis two popsicle-like chemical mixing sticks shaped in the form of a cross. It was not until several days later, perhaps after Lewis described the event to others, that Lewis decided he was offended and initiated a complaint.

The evidence is undisputed that Newton, in his eighteen years of federal service, including six years as a supervisor, had an unblemished record. He had been given training about the evils of discrimination in the workplace. There is not the slightest taint of prior racially-discriminatory conduct on his part. One cannot help but wonder if Newton suddenly, without explanation, appeared in front of a Black employee with a burning cross, would the Air Force have simply fired him without further thought, or might they have undertaken to determine whether he was having some kind of mental breakdown, or to seek some other explanation for such aberrant behavior.

Here there is an obvious explanation for his behavior. Newton permitted himself to be in an improper relationship with an employee, and in a misguided effort to participate in that relationship he acted in a highly inappropriate manner for a person in a supervisory position. The obvious response by the Air Force to this situation would have been to discipline Lewis for unacceptable behavior toward a supervisor, and to discipline Newton for failure to effectively supervise, perhaps removing him from his supervisory position.

The AJ, though recognizing the circumstances in which this burning of the sticks occurred, nevertheless upheld the dismissal of Newton on the charge brought by the Air Force of engaging in deliberate racial discrimination under Item 29b of the Air Force’s “Guide to Disciplinary Actions.” The preceding Item, Item 29a, describes various kinds of proscribed discriminatory conduct by an employee, including sexual harassment and making racial or ethnic slurs. The penalty provided for a first offense is reprimand to 5-day suspension. Item 29b implicitly incorporates the proscriptions in 29a, and applies if the discrimination was “deliberate.” Then the penalty may include removal.

The language of 29b creates a puzzle. If 29b requires “deliberate” discrimination, what kind of discriminatory conduct is proscribed by 29a? Presumably it must be non-deliberate, that is, accidental or unintentional conduct. But how does one engage in accidental discriminatory conduct? The Government, with the AJ’s acquiescence, solves this verbal dilemma by arguing that “deliberate” means “not inadvertent.” The panel majority sees no error in that construct. Indeed, to prove the point, the panel majority hypothesizes the case of an employee who brings a magazine into the workplace. The magazine, unbeknownst to the employee who has not read it, contains offensive material, perhaps an ethnic slur. The employee, we are advised, thereby violates the prohibition of Item 29a.

I cannot accept that proposition. I do not believe that is what the Air Force Guidelines are intended to say, and if it is, I do not believe this could possibly be upheld. Under that reading of the law, the mail clerk who works in the Pentagon and delivers to a subscriber’s office in the building, along with the other mail, a copy in the proverbial plain brown wrapper of a magazine containing a story using explicit “street” language, could be fired without delay. This not only defies common sense, but raises the most profound questions of Due Process and First Amendment liberties. See e.g. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (a person who knowingly wore to court a jacket that said on the back, “Fuck the Draft,” was Constitutionally protected from punishment). See also, Kent Greenawalt, Insults and Epithets: Are They Protected Speech ?, 42 Rutgers L.Rev. 287 (1990).

Furthermore, plain English stands in the way of the Government’s effort to re-interpret the meaning of “deliberate.” Black’s Law Dictionary defines the adjective “deliberate” as “[w]ell advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional.” Black’s Law Dictionary 426 (6th ed. 1990). Webster’s, likewise defines “deliberate” as “characterized by or resulting from slow careful thorough calculation and consideration of effects and consequences: not hasty, rash, or thoughtless.” Webster’s Third Int’l Dictionary, Unabridged 596 (1968). However inappropriate the various interactions between Lewis and Newton were, and however salted with racially charged language, the facts leave no doubt that neither was engaged in “deliberate racial discrimination” toward the other. To misapply the prohibition against racial discrimination in the workplace to a case involving a breakdown in supervisory authority, but in which no racial discrimination as such is involved, is to demean the importance of the prohibition, just as describing non-comparable events as a “holocaust” denigrates from the meaning and significance of that term.

Nor is the charge here that of a violation of Title VII, with its concept of a hostile work environment. Whether Newton, or Lewis for that matter, could be successfully prosecuted for a violation of that Act is not before us.

The AJ in his opinion made clear what was really at stake in this case. The Air Force was sorely embarrassed by the media attention given to this event, and decided that removal of Newton on discrimination grounds would placate its critics. As the AJ put it, “while the public’s perception of the cross burning is only one factor to be considered in determining the propriety of the agency’s penalty, I find it a critical and dis-positive factor under the circumstances of this case.” (My emphasis.)

One can abhor a deliberate act of cross-burning and all that it connotes, without condoning a misapplication of the law. The judicial decision whether there was such an act, and whether there was a violation of law, cannot be influenced by public notoriety or even by public demand for retribution. Being perceived as politically-eorrect may be an appropriate goal for political institutions, and it may be that the Air Force considers itself a political institution. Courts are not political institutions, and it is our responsibility to apply the law as it is written. However poorly Newton may have behaved as a supervisor, on the undisputed facts of the case he did not engage in an act of “deliberate racial discrimination” against Lewis, by any understood meaning of that term. The contrary decision by the Board, upholding the Agency, is without substantial evidence in the record to support it, and is contrary to law. I would reverse the decision of the Board.

      . The work area where the incident occurred contained flammable paint.

      . Newton also contends that he was actually charged under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l), for creating of a "hostile work environment,” and that "the agency did not present sufficient evidence that [he] created a hostile work environment from the single incident.” The government responds, quite correctly, that the notice of proposed removal clearly charged Newton under Item 29b, not Title VII. Whether Lewis could prevail against the Air Force on a Title VII claim arising out of Newton’s conduct is thus simply irrelevant to whether the charge against Newton can be sustained.

      . It is interesting to note that the Air Force Guidelines admonish the reviewing officer to consider, even in the case of 'deliberate' discrimination by a supervisor, "whether [the offending supervisor] should be reassigned or changed to a lower grade to a position of a different character." Item 29b NOTE.

      . Item 29a refers to "Discrimination based on ... sex."


author: NIES, Senior Circuit Judge.

text:
    KRAFT, INC., Plaintiff-Appellant, v. The UNITED STATES, Defendant/Cross-Appellant.
    Nos. 94-5163, 95-5007.
    United States Court of Appeals, Federal Circuit.
    June 5, 1996.

      James L. Malone, III, McDermott, Will & Emory, Chicago, Illinois, argued, for plaintiff-appellant. With him on the brief, were Don S. Hamack, William L. Goldman and Wade S. Leathers.
    David Gustafson, Attorney, Department of Justice, Washington, D.C., argued, for defendant/cross-appellant. With him on the brief, were Loretta C. Argrett, Assistant Attorney General, Gary R. Allen and Kenneth L. Greene, Attorneys.
    Before PLAGER, Circuit Judge, COWEN and NIES, Senior Circuit Judges.

       Judge Nies assumed Senior status on November 1, 1995.

   NIES, Senior Circuit Judge.

This case raises a jurisdictional question respecting the timeliness of the appeals. Kraft, Inc., seeks to appeal and the government to cross-appeal the merits of a judgment of the United States Court of Federal Claims which granted part of Kraft’s tax refund claims for the years 1972 and 1976 and denied any refund for claims made for the five other years in suit. We conclude that Kraft’s motion for reconsideration filed April 8, 1994, did not toll the 60-day period in which to appeal a corrected judgment entered on March 31, 1994. Thus, Kraft’s appeal, filed September 26,1994, is untimely, and the government’s cross-appeal filed thereafter is also untimely. Both appeals are dismissed for lack of jurisdiction.

I.

Background

Kraft brought suit against the government seeking a tax refund for each of the years 1972 through 1978, based, inter alia, on asserted abandonment loss deductions for dairy-related intangible assets. On January 28, 1994, the trial court issued its decision granting in part Kraft’s abandonment loss deductions claims for 1972 and 1976 and denying all other relief. The trial court entered judgment on January 31, 1994, awarding Kraft $4,291,281 for the years 1972 and 1976 and dismissing its claims for 1973,1974, 1975, 1977, and 1978 (the “January judgment”). On February 7, 1994, the government filed a motion asking the court to reconsider, withdraw, and modify its opinion to correct certain mathematical errors in the amount of the awards. The government argued that the January judgment reflected two “noncontroversial,” “clerical,” and “mechanical” errors in the court’s calculations. Kraft, in its response to the government’s motion, conceded that the trial court made the two asserted errors and joined with the government in filing a stipulation specifying the correct amounts for the allowed claims.

On March 30,1994, the trial court accepted the parties’ stipulation. To complete the correction, the court vacated the January judgment and directed the clerk to enter a revised judgment for the lesser amounts. On March 31,1994, the clerk entered the court’s order and also entered a corrected judgment (the “March judgment”). No other change was made in the January judgment or opinion. On April 8,1994, Kraft served a motion for reconsideration and amendment of the March judgment, seeking reversal of the court’s denial of its claims for abandonment loss deductions in 1977 and for additional deductions in 1972 and 1976. On August 1, 1994, the trial court issued an order denying Kraft’s motion. Kraft filed a notice of appeal on September 26,1994. In this appeal, Kraft seeks a reversal of the denial of all of its asserted losses in 1972,1976, and 1977 and a remand for reconsideration of its asserted losses in other years, principally because of the alleged imposition of an improper burden of proof. The government filed a notice of cross-appeal on October 7, 1994, seeking to overturn the refunds which were granted. Neither challenges the changed amount of the award set out in the March judgment. At oral argument, this court, sua sponte, raised the question of whether Kraft’s motion of April 8,1994, for reconsideration tolled the appeal period. The court cited the cases of Moody v. Pepsi-Cola Metropolitan Bottling Co., 915 F.2d 201 (6th Cir.1990), and Dixie Sand and Gravel Co. v. Tennessee Valley Authority, 631 F.2d 73 (5th Cir.1980), as representative of cases where a motion to reconsider a revised judgment did not toll the running of the time for appeal. Supplemental briefs on this issue were submitted, both of which argue in favor of this court’s jurisdiction.

II.

Timeliness Under Rule 4 of the Federal Rules of Appellate Procedure (FRAP)

The time for appeal is “mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) . Accord Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 2407-08, 101 L.Ed.2d 285 (1988); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982); Maxus Energy Corp. v. United States, 31 F.3d 1135, 1139 n. 9 (Fed.Cir.1994). The parties, of course, cannot confer jurisdiction on an appellate court by their agreement or consent. Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91 (3rd Cir.1995). Thus, the issue of jurisdiction must be addressed. Dixie Sand, 631 F.2d at 74 (court must question timeliness of the appeal sua sponte).

Under FRAP Rule 4(a)(1) and 28 U.S.C. § 2107 (1988), the time for appeal from the judgment in an action in which the United States is a party is 60 days calculated from the date of entry of the final judgment. FRAP 4(a)(4) provides for a tolling and restarting of the time for appeal where a party makes certain motions, including either a timely Rule 59 motion to alter or amend a judgment or a Rule 60 motion for a correction filed within ten days of the judgment. Maxus, 31 F.3d at 1139. The Rules of the Court of Federal Claims (RCFC) similarly provide that a motion to alter or amend the judgment under its Rule 59(d), which is comparable to Fed.R.Civ.P. 59(e), “shall be filed not later than 10 days after entry of the judgment.” The rules specifically provide that this ten-day period in which to file a time-tolling motion may not be extended. Fed.R.Civ.P. 6/RCFC 6; Parker v. Board of Public Utilities of Kansas City, Kansas, 77 F.3d 1289 (10th Cir.1996) (Rule 59 motion filed 13 days after entry of judgment did not toll time for appeal even though within 10 days of notice of judgment.); cf. Carlisle v. United States, — U.S. -, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (district court has no jurisdiction to grant a post-verdict motion for judgment of acquittal filed one day outside of nonextendable time limit). Where a timely motion under Rule 59 is filed, the 60-day appeal period begins to run anew from the date of entry of the court’s order disposing of such motion. If the motion is denied, the finality of the original judgment is reactivated for purposes of appeal, but no second round of tolling motions is permitted. Charles v. Daley, 799 F.2d 343, 348 (7th Cir.1986). If the motion is granted, an appeal is taken from the new judgment. Id. The parties argue that the entry of a new judgment not only started a new appeal period but also provided a new ten-day period for Rule 59, and presumably other, tolling motions against the second judgment.

III.

Issue

The question is whether Kraft’s motion tolled the time to appeal beyond 60 days from the March judgment. For reasons set out more fully below, we agree with all other circuits that have addressed the issue that a motion to reconsider a revised judgment tolls the time for appeal only in instances where the second judgment presents a new significant adverse ruling against the movant which the movant has had no previous opportunity to challenge.

IV.

To prevent delay in the resolution of disputes, the Federal Rules place severe time limitations on the time for appeals from a final judgment of a district court and restrict the power of both the district courts and the courts of appeals to extend the appeal period. District courts have only limited authority to provide additional time (Fed.R.App.P. 4(a)(5), (6)), and circuit courts have no authority at all to grant extensions. Because of the dignity afforded a final judgment, the circumstances under which a party may seek to have a district court alter its final judgment are also restricted. Under the common law, a district court had power over its final judgments until the end of the “term” of the court during which the judgment was entered. Zimmern v. United States, 298 U.S. 167, 169-70, 56 S.Ct. 706, 706-07, 80 L.Ed. 1118 (1936). However, under current rules, Rule 59 motions to alter or amend a judgment, or other types of motions specified in FRAP 4(a) which toll the time for appeal, must be filed within ten days of entry of the judgment and the time for tolling motions may not be extended. Successive motions periods, which would encourage piecemeal attack on a judgment and delay appeals, are not authorized. Charles v. Northeast Independent School District, 884 F.2d 869, 871 (5th Cir.1989) (“[PJarties generally get only one bite at the rule 59(e) apple for the purpose of tolling the time for bringing an appeal.”). Once a district court has denied timely filed tolling motions, the litigants must appeal if they wish to further challenge a judgment, except for the special circumstances recognized in Rule 60(b).

How have these rules been interpreted where the district court grants a timely Rule 59 motion, amends its first judgment and enters a second modified judgment? FRAP 4(a) provides that the time to appeal runs anew from the disposition of the tolling motion whether granted or denied. However, when the original judgment is substantially changed, the appeal time runs from the date of the entry of the second judgment in accordance with Rule 58. Charles, 799 F.2d at 347, 348. The parties here argue that the new judgment also provides a new ten-day period in which tolling motions are permitted, even solely on grounds that could have been asserted during the first ten-day period for such motions. The rules do not cover this situation specifically. However, all precedent sets forth a much more limited view of the effect of a second judgment on the availability of a second period for the filing of tolling motions.

A.

No Supreme Court precedent has been found directly on point. However, in Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952), the Court considered the comparable issue of the timeliness of a petition for certiorari to invoke its own jurisdiction, holding that the Commission’s petition, which challenged one part of a judgment, was untimely. While the petition was timely if measured from a revised judgment of the Court of Appeals, made at the request of petitioner, the revision therein had not been contested and was not a motion seeking relief from the judgment but rather one seeking inclusion of a specific affirmance related to parts of the dispute not involved in the petition. In dismissing the petition as untimely, the Court stated:

While it may be true that the Court of Appeals had the power to supersede the judgment of July 5 with a new one, it is also true as that court itself has recognized, that the time within which a losing party must seek review cannot be enlarged just because the lower court in its discretion thinks it should be enlarged. Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.
The judgment of September 18, which petitioner now seeks to have us review, does not meet this test. It reiterated, without change, everything which had been decided on July 5. Since the one controversy between the parties related only to the matters which had been adjudicated on July 5, we cannot ascribe any significance, as far as timeliness is concerned, to the later judgment.
[LJitigation must at some definite point be brought to an end. It is a principle reflected in the statutes which limit our appellate jurisdiction to those cases where review is sought within a prescribed period. Those statutes are not to be applied so as to permit a tolling of their time limitations because some event occurred in the lower court after judgment was rendered which is of no import to the matters to be dealt with on review.

Id. at 211-213, 73 S.Ct. at 248-50 (footnotes omitted).

In Charles v. Daley, supra, a district court amended a final judgment to clarify that certain intervenors were liable as defendants for attorney fees. One intervenor thereby made liable then filed a motion to amend the revised judgment. This motion was denied. The question was whether appellant had made a timely Rule 59 motion to toll the time for appeal of the revised judgment. In ruling that the appeal was timely, Judge Easterbrook explained:

The time limit would be a joke if parties could continually file new motions, preventing the judgment from becoming final. The 10 days runs from the initial judgment, so later motions are not timely. Yet the purpose of Rule 59 is to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings. See United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976). The purpose of the rule suggests that when a court alters its judgment, A person AGGRIEVED BY THE ALTERATION MAY ASK FOR correction. A successive motion directed to the same judgment is ineffectual, but when there is a new judgment — an alteration independently sufficient to restart the time for appeal — there is also a new period in which to file a motion under Rule 59. [Emphasis added.]

Other circuits have taken the same position that it is not too great a stretch of FRAP 4(a) to permit a second round of Rule 59 motions by the party adversely affected by a judgment which has been changed significantly. The Sixth Circuit in Moody, 915 F.2d at 206, similarly ruled that a motion to reconsider an order revising a judgment does not toll the time to appeal “unless a grant of [an] earlier post-trial motion effectively results in a new judgment and the motion to reconsider is filed by the adversely affected party requesting reinstatement of the original judgment,” citing York v. Tate, 858 F.2d 322, 326 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989).

The time to appeal in Dixie Sand, 631 F.2d 73, was not tolled by a motion for reconsideration of an amended judgment where the second judgment did not rest on a new ground but on one of the two original grounds. The Fifth Circuit opined:

Were we to hold that appellant’s motion for reconsideration of the amended judgment terminated the running of the time for filing notice of appeal, a party aggrieved by a judgment resting on several grounds could extend the time for appeal virtually indefinitely by filing successive motions for reconsideration challenging each of the grounds seriatim.

Id. at 75.

In contrast, that court held that a motion for reconsideration tolled the time to appeal the second judgment entered in Harrell v. Dixon Bay Transportation Co., 718 F.2d 123 (5th Cir.1983), which had reduced the amount awarded to the appellant. The court reasoned that the appellant was adversely affected by the change in amount and concluded that the time to file his notice of appeal was “postponed while the district court considered his single, timely motion to alter or amend the only adverse judgment ever rendered against him in this ease.” Id. at 129 (emphasis added).

Adopting the above Harrell ruling, the Eleventh Circuit in Wright v. Preferred Research, Inc., 891 F.2d 886 (11th Cir.1990), held that a Rule 59 motion filed after the entry of a second judgment which reduced the amount of damages tolled the time for its appeal. Appellant’s motion did not merely reiterate grounds of a prior motion or seek reconsideration of an amended judgment that did not enlarge rights under the prior judgment. Appellant’s motion “represented the first attack on what was, in substance, a new and greatly reduced judgment.” Id. at 889.

It would unnecessarily extend this opinion to review the case law further. Neither party has cited any contrary authority. Indeed, the parties rely principally on some of the above cases to support their position that their appeals here are timely.

We must disagree. All substantive issues were fully determined in the January judgment. The March judgment simply reiterates the parts of the January judgment denying Kraft’s claims for 1973-1975, 1977, and 1978. With respect to the parts of the January judgment allowing Kraft’s claims for 1972 and 1976, the March judgment did change the amounts of the awards but only to correct an inadvertency in their calculation. Under Rule 4(a), the motion for this change, even though in the nature of a Rule 60(a) correction, was made within ten days of the entry of the January judgment and, thus, under current FRAP 4(a), tolled Che time for appeal. Maxus, 31 F.3d at 1139-40. However, the entry of a new judgment disposing of a tolling motion, does not, as the above cases hold, provide a new period for tolling motions under Rule 4(a) against the revised judgment in all cases or for all purposes. The March judgment was neither the first adverse judgment against Kraft nor did that judgment take away from Kraft the substantive rights afforded by the January judgment. The trial court did not reconsider a substantive matter and rule, for the first time, against Kraft on any issue. True, the March judgment decreased the monetary awards, but Kraft acknowledged that they were erroneous. The court simply entered the parties’ stipulated correction. Under these circumstances, a reopening of a period for tolling motions against the merits of the January judgment would be tantamount to an extension of the time set forth in Rule 59 for filing such motions and would violate Rule 6 prohibiting such extensions.

The issues we are asked to review on appeal were wholly unaffected by the revision in the March judgment. While a change in the amount of an award may be a significantly more adverse ruling, it was not in this case. Moreover, Kraft’s April 8 motion was not directed to the changed amount, indeed, could not be, in view of Kraft’s stipulation to the change of judgment. As stated in Minneapolis-Honeywell Regulator Co., supra:

Those statutes [prescribing time periods for appeal] are not to be applied so as to permit a tolling of their time limitations because some event occurred in the lower court after judgment was rendered which is of no import to the matters to be dealt with on review.

344 U.S. at 213, 73 S.Ct. at 249-50.

B.

The parties make several arguments apart from their reliance on the entry of the March judgment. Kraft argues, inter alia, that its motion is specifically authorized by Rule 4(a) which states:

If any party makes a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Federal Rules óf Civil Procedure. [Emphasis added.]

Kraft maintains that its motion delayed the time for appeal as “the last such motion outstanding” within the meaning of FRAP 4(a).

This argument by Kraft clearly depends on misreading FRAP 4(a)(4). Rule 59 provides an opportunity for either or both parties to file a motion for reconsideration or amendment of an adverse judgment (or other time tolling motion) but only within ten days of its entry. As provided in FRAP 4(a), the time for appeal runs from “the entry of the order disposing of the last such [timely] motion outstanding.” The rule clearly contemplates concurrent motions being filed within ten days asserting any and all of the grounds allowed under FRAP 4(a) within that time period. The time for a party’s own motion seeking alteration of a judgment is not changed by his opponent’s filing a similar motion. While FRAP 4(a) stops and restarts the 60-day period for appeal upon certain timely motions, nothing in FRAP 4(a) provides for tolling the 10-day period for a litigant’s own Rule 59 motion against an entered judgment until a ruling on an opponent’s motion is made. For the provision of FRAP 4(a) respecting tolling until disposition of “the last such motion outstanding” to become operative, more than one motion must be made within the ten-day period against the same judgment. Kraft’s argument based on this language of FRAP 4(a) is rejected.

Kraft also asserts that, while it would be an abuse of Rule 4(a) and Rule 59 to permit the government to file another tolling motion attacking the merits of the January judgment, Kraft itself is not similarly precluded because it had not previously filed a Rule 59 motion. However, the issue is not abuse of process but timeliness of Kraft’s Rule 59 motion. Nothing in the rules suggests that a second period for a Rule 59 motion is allowed a party simply because that party has not previously made such a motion which could and should have been made earlier. In rejecting a similar argument, the court in Charles stated this “is a distinction without difference.... The ability to file a new motion under Rule 59 comes from the fact that an altered judgment is a ‘new judgment’ with new periods of time, and not from the identity of the party filing the paper.” Charles, 799 F.2d at 348.

As a final matter, Kraft makes the argument that it was misled by the clerk’s office of the Court of Federal Claims. Kraft states it was told sometime in early May that if it filed an appeal while its motion was pending, the appeal would have been rejected as premature. In Harris Truck Lines v. Cherry Meat Packers, 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), the Supreme Court recognized that active misrepresentation by a court may effect an extension of the time to appeal. The circumstances here do not similarly warrant application of that holding. Prior to amendment of Rule 4(a) in 1993, a premature appeal was wholly ineffective. However, at the time of the alleged misrepresentation by the clerk’s office in this case, a premature notice of appeal could not be “rejected.” As amended, Rule 4(a) is unequivocal that a notice of appeal may be filed during the pendency of a time-tolling motion and becomes effective upon the court’s ruling on the motion. Thus, counsel’s alleged reliance on the alleged statement that its notice of appeal would be “rejected” was not warranted. A simple reading of Rule 4(a) by experienced counsel would have made it readily apparent that the alleged use of the word “rejected” was inapt or imprecise. A premature notice is not immediately effective but it is not subject to “rejection” in the sense of being a nullity. We do not find counsel’s explanation compelling that its failure to file a timely notice of appeal can be blamed on the clerk’s office. Counsel’s delay in filing a notice of appeal must be attributable to its own misreading of FRAP 4 and RCFC Rule 59.

V.

Conclusion

Having considered the above and all arguments of the parties, this court concludes that this court has no jurisdiction over Kraft’s appeal. In sum, Kraft’s April 8,1994, motion did not extend the appeal period beyond 60 days calculated from the trial court’s order and judgment entered March 31,1994. Therefore, Kraft’s notice of appeal had to be filed no later than May 31, 1994 (adding a day for the May 30 holiday). Kraft’s notice filed September 26, 1994, is untimely and its appeal is dismissed. The government’s cross-appeal, being dependent on Kraft’s appeal (FRAP 4(a)(3)), is also dismissed.

YI.

Costs

Each party to bear its own costs.

DISMISSED.

APPENDIX

Federal Rules of Civil Procedure

Rule 6. Time

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them.

Rule 59. New Trials; Amendment of Judgments

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

Rule 60. Relief from Judgment or Order

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Rules of the Court of Federal Claims

Rule 6. Time

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time at its discretion (1) order the period enlarged if request therefor is made by motion showing good cause before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52(b), 59(b) and (d), 60(b) and 77.4, except to the extent and under conditions stated in them.....

Rule 59. New Trials; Rehearings; Amendment of Judgments; Reconsideration

(d) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be filed not later than 10 days after entry of the judgment.

Rule 60. Relief from Judgment or Order

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

      . Claims were also made to certain investment tax credits on television films. Kraft has not pursued these claims, and we need not refer to them further herein.

      . The court had miscalculated the refund as the entire amount of the deduction whereas the refunds required application of the tax rate to that amount. The court also had based its award on more than the amount claimed for one loss.

      . Unless noted otherwise, all citations are to the 1994 version of the Rtdes.

      . FRAP Rule 4(a)(1) reads as follows:
      (a) Appeal in a Civil Case.—
      (1) Except as provided in paragraph (a)(4) of this Rule, in a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any parly within 60 days after such entry.....
      28 U.S.C. § 2107 reads as follows:
      § 2107. Time for appeal to court of appeals
      (a) Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.
      (b) In any such action, suit or proceeding in which the United States or an officer or agency thereof is a party, the time as to all parties shall be sixty days from such entry.

      .FRAP 4(a)(4) provides in pertinent part:
      If any party makes a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Federal Rules of Civil Procedure:
      (A) for judgment under Rule 50(b);
      (B) to amend or make additional findings of fact under Rule 52(b), whether or not granting the motion would alter the judgment;
      (C) to alter or amend the judgment under Rule 59;
      (D) for attorney’s fees under Rule 54 if a district court under Rule 58 extends the time for appeal;
      (E) for a new trial under Rule 59; or
      (F) for relief under Rule 60 if the motion is served [changed to "filed” in 1995] within 10 days after the entry of judgment.

      . For convenience, we refer to these trial court rules hereinafter simply as Rule 6 and Rule 59 without more specificity. The precedent interpreting the Federal Rules of Civil Procedure applies with equal force to the comparable Rules of the Court of Federal Claims. Patton v. Secretary of Dep't of Health & Human Services, 25 F.3d 1021, 1025 (Fed.Cir.1994). The pertinent parts of Fed.R. of Civ.P. 6, 59, and 60 and the RCFC counterparts are set out in the appendix to this opinion.

      . The York case held that where the district court alters its prior judgment, the federal rules do not prohibit a successive 59(e) motion to reinstate original judgment.

      . Cases, for example, relating to Rule 60(b), i.e., Felshina v. Schweiker, 707 F.2d 71 (2d Cir.1983), or to a district court’s entertainment of a petition for rehearing of an order of adjudication of bankruptcy, i.e., Bowman v. Lopereno, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177 (1940), offer little, if any, guidance here.

      . See Appendix for Rule 60(a).

      .The rule states that:
      A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until THE DATE OF ENTRY OF THE ORDER DISPOSING OF THE LAST such motion outstanding____ [Emphasis added.]
      Further, if notice of appeal is filed while a time-tolling motion is pending and a judgment is altered or amended as a result, Rule 4(a) specifically allows such notice to be amended.

      . While the clerk’s office does not support counsel’s allegation that its personnel stated Kraft's appeal would be "rejected," we need not consider this fact question. It is immaterial to our disposition here.

      . This is not to say that a misrepresentation by the clerk's office personnel and not by a judge would in any event fall under the exception. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 993, 103 L.Ed.2d 146 (1989) (assurance must be given by "judicial officer").


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. David W. SMITH, Appellant.
    Nos. 92-3220, 95-3100.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 2, 1996.
    Decided May 31, 1996.
    A.J. Kramer, Federal Public Defender and Neil H. Jaffee, Washington, DC, Assistant Federal Public Defender, were on the brief for appellant.
    Eric H. Holder, Jr., United States Attorney, John R. Fisher and Elizabeth Trosman, Washington, DC, Assistant United States Attorneys, were on the brief for appellee.
    Before: EDWARDS, Chief Judge, WALD and SILBERMAN, Circuit Judges.
   Opinion for the Court filed PER CURIAM.

PER CURIAM:

Contrary to the Government’s suggestion, the panel’s opinion in United States v. Smith, 77 F.3d 511 (D.C.Cir.1996), does not hold that a court may not consider the weight of the untainted evidence presented at trial when performing a materiality analysis pursuant to United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) and Kyles v. Whitley, — U.S. -, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Rather, the court did no more than determine that the Brady violation at issue here created “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles, — U.S. at -, 115 S.Ct. at 1565 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. (Opinion of Blackmun, J.)). In other words, because the members of the panel could not say that, absent the undisclosed evidence, defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence,” id. at 1566, the matter was reversed and remanded for a new trial.

In short, there is nothing in the panel opinion that intends to foreclose the court from considering the overall strength of the Government’s case in making decisions on materiality. The panel’s analysis follows directly from the applicable Supreme Court precedent, and there is no issue justifying rehearing. Therefore, the Government’s petition for rehearing is

Denied.