### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 28, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-12285

________________________ D. C. Docket No. 93-00685 CV-WDF UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee Cross-Appellant,
versus BOSQUE PUERTO CARRILLO, Def endant-C ross-Appellee , TERENCE JAMES ENNIS, RALF STEFAN JAECKEL, Defendant-Appe llants Cross-Appellees.

________________________ Appeals from the United States District Court for the Southern D istrict of Florida

_________________________ (March 28, 2003) Before EDMON

DSON, Chief Judge, BARKET T and COX, Cir

cuit Judges. PER CURIAM:1 Bosque owns and operates a teak tree plantation in Costa Rica. 2 In the absence of a co

ntrolling statute, di st rict court s have the discretion to award prejudgment interest t o prevaili ng litiga nts. In thi s case, the d istrict co urt’s order awards prejudgm

ent interest

to the plaintiff but do es not specify th e interest rate
or the date from which interest ac crues, and we m us t determ ine whether the order const itut es a final judgm ent under 28 U.S. C. § 1291. Because the calculation of prejudgment

interest in this case is not merel y a“ministerial” task, we conclude that the district court’s order

is not a final judgm

ent. Accordingly

, we dismiss t

his appeal for want of jurisdictio n.

I. BACKGROUND & PROCE DURAL HISTORY In 1993, the United States Securities and Exchange Commission (SEC) filed a complaint against Bosque Puerto Carrillo (“Bosque”), a Costa Rican corporation, and two former vice-presidents of Bosque, Ralf Stefan Jae c kel and Terence James Enni s, alleging that the def endants fraudulently

offered and sold unr

egis tere d securities to finance Bosque’ s operations 1 in violation of fed eral securities laws. The defendants allegedly prom oted unr egi stered Bosque secur ities by placing advertisement

s inthe complim

entary in-flig

ht magazines of

American A

irlines and Lacsa Airlines. Jaec

kel and Ennis

also allegedly a

rranged for favor

able articles about Bosque’s securities t o appear in the Lacsa Airli nes magazine.3

The defendantsfiled a

motion to dism

iss for lack of pers onal jurisdiction, and the district court granted the motio n. On appeal, this court concluded that the district court had personal juris diction with respec t to all defendants

and remanded the case for further proceedi

ngs. SEC v. Bosque P

uerto Carrillo , 115 F.3d 1540, 1548 (11th Cir. 1997). Following rem and, the defendants failed t o answer the SEC ’s complaint, and the district court granted the SEC’s motion for a default judgment. The district court entered a judgment ag ai nst Bosque, Jaeckel , and Ennis that enj oined the defendants from violating federal securities laws and declared them jointly and severally liable to pay $10 million as disgor

gement. The

district court also ordered the defendants to pay

prejudgment i

nterest inthe sum of $8,457,802.00 to the SEC. Bosque filed a motion un der Fed. R. Civ.

P. 60(b) to set aside the default judgment. The district

court granted the m

otion in part and denie

d the motion

in part; the court denied the m

otion to set aside the entry of default and denied the motion as to injunctive relief

, but granted the m

otion to set aside the j udgment for money damages (disgor

gement). Th

e court then held an e

videntiary hear

ing on damages. Duringthe eviden ti ary hearing, the SEC stated tha

t the proper me

thod for
c alculating

disgorgement is to determine the total amount that Bosque’s United Stat e s shareholders paid for their share s and subtrac t the total value of th ose shares at the time of their purchase.The SEC offer ed evidence to

support its position that, under4

this method, the de fendants should be orde red to disgorge $15,29 3,10 0.00
. Furtherm ore, t he SEC asked the court to award $16,0 23,788.45 in prejud

gment interest, which was calcul ated based on the IRS

underpayme

nt rate established in 26 U.S.C. § 6 621. In response, B osque argued that only the individual defenda

nt s , Jaeckel and Ennis, should be li able for disgorgem ent because an orde

r of disgorgement

against Bosque

w ould harm the com

pany’s curre

nt shareholders; the SEC countered that

the company sha

red in the proceeds f

rom the fraudu

lent sale of unregisteredsecurities and ther efore should be liabl

e for disgorge

ment. In an apparent attemp t to cont est their liability for securities fr

aud, Jaeckel and E

nnis arguedthat they had litt

le experience in de

velopingand

obtaining investm

ent for this type of business. The district court entered judgment on March 27, 2002. In its order, the court concluded that Bosque was not l iable for disgorgement. The court held that Jaeckel and Ennis were jointly and severally liable for disgorg ement in the amount of $1.7 million, the amount of money that was “unaccounted

for” in a 1995 a udit. No tably, the district court awarded “$1.7 million dollar s pl us interest ” and “retain[ ed] juris diction

to determine the

amount of the int

erest.” (R.4- 166 at 7 (emphasi s added).) Jaeckel and Enn is appealed the orde r, and the SEC filed a cross -appeal.5 II. ISSUES ON APPEAL The parties raise seve

ral issues on appeal,

but prior to oral argument this court
sua spont e raise d another issue for the parties’ consideration: whether the district court’s March 27, 2002, order – which appea rs to conte mplate an awa rd of prejudg ment

interest – constitutes a final judgment for the purposes of 28 U.S.C. § 1291? We asked the parties to addr ess this issue at oral argument and to file supplemental briefs on this i ssue follo wing oral argum ent. After car

eful consideration of the parties’ arguments and their supplemental briefs, we conclude that the district court’s March 27 , 2002, order is not a final judgm

ent for the purposes of 28 U.S.C. § 1291. Because we

lack appellate j urisdiction, we do n ot reach the me

rits of the issues raised by the par ties on appeal. III. STANDARD OF REVIEW As acourt of limite

d jurisdiction, w

e must evaluate

our appellate

jurisdiction
sua sponte even if the p arties have not chal lenged it. S ee Rinaldo v . Corbett , 256 F.3d 1276, 1278 (11th Cir. 2001); Rembert v. Apfel , 213 F.3d 1331, 1333 (11th Cir. 2000). IV. CONTENTIONS OF THE PARTIES The parties agree that the district court’s Mar ch 27, 200 2, order awardi ng “$1.7 mill ion dollars plus intere st” contemplate s an award of prej udgment – not6

postjudgment

– interest. In its s

upplemental brief, the SEC argues that the district court’ s f ailure to calculat

e the amount of p

rejudgment in

terest does not aff

ect the finality of the judgmen

t because the calcul

ation of prejudgm

ent interest

in this case is a ministerial

task. During the evidentiary hearing, the SEC asked the district court to em ploy t he IRS underpay

ment rate esta

blished in 26 U.S.C . § 6621 to calculate prejudgment

interest. Bosque did not challenge the SEC’s pro po sed method for calculating

prejudgment i

nterest, and

th e defendants did not of fer an alternativ

e method of calculation. Because the only proposed method fo r cal culating prejudgment

int erest was provided in the SEC’s Prejudgment Interest Repo rt, the SEC contends that prejudgm

ent interest “c

an be computed m

echanically by

plugging the disgorge ment

amount ($1.7 m

illion) into the prej udgment interes t formula that th e [SEC] s upplied to the district cou rt during the remedies tri al in this case.” (SEC Supp. Let ter Br. at 5.) Bosque, Jaeckel, and Ennis agree tha

t only one me

thod for calculating

prejud gment interest

was proposed to the court and that no objec tions
were made by any p arty, and therefore only a ministerial calculation of pre

judgment interest is necessar y. V. DISCUSSION As an initial matter, we agree with the parties tha t the court’s Mar

ch 27, 2002,
o rderawa rds prejudgme nt interest, not postj udgment interes t, to the SEC. T

he7

prevailing

party in this case, the S EC, is statutorily entitled to postjudgm

ent interest under28 U.S.C. § 1961. T he di strict court does not have any discre tion to deny or modify th e terms up on which the SEC may receive postjudgment interest under § 1961; section 1961(a) establishes the applicable interest rat e and instruct s that interest shall be calculated fro

m the date

of the entry of

the judgment. 28 U.S.C. § 1961(a). If we were to read “ $1.7 million dolla rs plus interest” to

award postjudgment

interest, the court’s refer

ences to “inter

est” would

be rendered superfluous because, by virtue of the statute, the SEC is alread y entitled to such int erest. See Student Loan Mk tg
. Ass’n v. Lipman , 4 5 F.3d 173, 176 (7th Cir. 1995) (concluding that a district court order awarding postjudgm

ent interest would

be “potentially

confusing” because t

he reference to postjudgment interest would be “ whol ly superfluous”). Mor eover, the district court heard testimony re gardin g the propriety of awarding prejud

gment interest and the calculation o f such in ter est, and we d ecline to h old that t he court’s reference to “intere st” awardspostjudgment int erest to the SEC –

when such a decision is not within the cour t’s discretion

in l ight of § 1961(a) – whi le simultaneously

denying the SEC ’s request for pr ejudgment inte

rest sub silentio
. See id. at 177. Finally, we note that the cou rt originally awarded the SEC over $8 million in prejudgment i

nterest when the c ourt ent ered it s default judgm ent against the defendants, and

in doing so, the court e

vinced its willingnes s to award preju dgment8

interest in this case. Thus,

it is clear that the

court’s March 27 , 2002, order awar ds prejudgment

interest to the SEC, and

we must now consider whether the order is an appealable final j udgment. As a general rule (subjec t to exc eptions not implicated by this case), federal courts of appeals have ju

risdiction toreview only “final decisions” of lower federal courts. 28 U.S.C. § 12 91. A final decision “ends th e litigation on the m

erits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States , 324 U.S. 229, 233, 65 S. Ct. 631, 633- 34 (1945). Although the “final judgment rule”
serves many purpose s, one of its central objectives is to ens ure that this court doe s not
en gage in piecemeal appellate revi ew. See Constr. Aggrega tes, Ltd. v. F orest Commodities Corp. , 147 F.3d 1334, 1336 (11th Cir. 1998). If a party seeks t

o appeal
a district court order that does not co ns titute a “fina l decision” under § 1291 (and does not fall within an ex

ception to the final j udgment rule), we must dism

iss the case for lack of appellate jur isdiction. The final judgmen

t rule does not requir

e district courts to

calculate the

precise amount of damages in every

case, however.This is true even though it might appear t hat the district court st

ill has something l

eft to do that goes bey

ond executing t

h e judgment. For instance, in Turner v. O rr , 759 F.2d 817 (11th Cir. 1985 ), we acknowled ged tha t when the district c ourt awarded back

pay, the court ’s failure to9

calculate the precis e amount of ba ck pay did no t affect the finality of t he court’s judgme nt. Id. at 820. On the contrary, we concluded that the calculation that was required to determine th

e amount of bac

k pay was “

purely mini sterial in

nature” and required only “a simple arithmetic c alculation.” Id. Under

these circumstances, we concluded that the court’s f ailure to conduct the

min isterial ac t of calculating the amount of back pay did not pr

event the court’s

order from

constituting an appeal

able final decision un der § 1291. Id. Although an award of prej udgment interest differs in substance from an award of back pay, the calculat ion of an a ward of prejudgment interest may be j ust as susceptible

to a simple, m

inisterial arithm

etic calculation. The minister ial task of calculating

prejudgment i

nterest can be acc

omplis hed if the judgme

nt amount, the prejudgment

interest rate, a

nd the date from

which prejudgm

ent interest accr

ues have been established. See Kosnoski v. Howley , 33 F.3d 376, 379 (4t h Cir. 1994). If these three components have b een established, th e court’s failur

e to calculate the p

recis e amount of prejudgment interest does not preven t the court ’s order from c onstituting
a final judgmen

t under § 1291
. See id. Ho wever, if the j udgment amo unt, the prejudgment

interest ra te, or

the date from which prejudgm ent interest accr

ues is unclear, the calculation of pre judgment inter

est is no longer a m

inisterial act and t

he court’s order is not final. See Commercial Union Ins. v. Seven Provinces Ins. Co .,10

217 F.3d 33, 37 (1st Cir. 2000) (concludingthat an order that r etains jurisdictio

n to calculate prejudgment i

nterest without dete

rmining the date

from which pr

ejudgment interest accrues is not a final decision under § 1291). There is no dispute that the court established the

judgment am

ount in this case: $1.7 million. The

central inquiry

is whet her the court’s or der embodies a prejudgment

interest rate and indicates the time period for accrual. The court’s order makes three referenc es to “interest.” On two occasions,

the court indicates that it

has awarded “$1.7 million dollars plus interest.” (R.4-166 at 7 .) Atthe end of t he court’s order, the cour

t stat es: “The Cour

t retains jurisdic

tion to determine

the amount of interest and to consider moti

ons for fees and costs.” (

Id. ) It is clear that

the language of the order is absolute

ly silent regar

ding the prejudgme

nt interest rate a nd th e time period for accrual, a

ndthe parties do not

argue that the order, by its terms, establishes these c rucial compone

nts that would render

the calculation of p

rejudgment in

terest
a ministerial task. As a consequence, the calculation of prejudgment i

nterest is not a mere ministerial task based on the court’s March 27, 200 2, order. In an attempt to persuade this court that the district court’s order is nonetheless an appealable final decision, the parties contend that the orde r implicitly

adopts the2 The SEC’s prop osal emplo ys the method f or calculat ing interest set forth in 26 U.S.C. § 6621. The SEC asked the court to calculate prejudgment interest from May 1, 1993 ( the first day of the first month aft

er the SEC filed its

complaint), to January 31, 2002 (the last day of the month preceding the hearing on damages). (R.4-165 Ex. 2 at 1.) 11 calculation

metho d pr oposed by the SEC. 2 We reject this argument because we dec line to hold that the court’ s silence regarding the method of ca

lculation is tantamount

to its adoption of the S EC’s pro posed method. W hile the court m

ight very well have intended t

o adopt t he IRS underpay

ment rate and t

he time period proposed by the SEC, w

e do not believe, based on the circumstances of this case, that such a conclusion is com pelled by the re

cord. If, at a l

ater date, the pa

rties were to ask the court to accom

plish th e purportedly m inisterial task of c alculating prejudgment

interest, we bel

ieve th at the court coul d deviate f rom the SEC’s proposed method – by a

pplying a different inter

est rate, by

employ ing a d iffer ent ti me period for accrual, or

both – witho ut dep artin g from t he ter ms of its March 27, 2002 , order. And if the

district court wer

e to deviate from

the SEC’s propos ed method one
or both parties may

wish to appeal the court’s decision and contend that the court has abused its discretion. See Indus. Risk I nsurers v. M.A.N. Gutehoffnungshütte GmbH , 141 F.3d 1434, 1447 (11th Cir. 1998) (noting that the decision to grant pre judgment interest, as well as the rat

e at which in terest is a warded, are wi thin the d istrict co urt’s discretion and are reviewed on appeal for an abuse of discretion). This would result12

in precisely

the type of piec emeal appella te review that the

final judgmen

t rule seeks to avoid. And in this case, t he prospect of

piecemeal ap

pellate review is

particularly strikingbecause the judgment a mount is significa

nt ($1.7 million) , the time period for accrual ma y be of great dur ation (the violations o ccurred as early as 1987 and th e SEC seeks prejudgm

ent interest from

May 1, 1993), and, as a

consequence, the total amount of prejudgme

nt interest could be substantial a

ndmight exceed the

amount of disgorgement

(as it did under the SEC’s proposal presented at the evidentiary heari ng). A ccord ingl y, the t erms upon which prejudgment interest is awarded may prove to be just as im

portant to the partie s as the decis ion setting the amount of disgorgement

that initially pr

ompte d both the defendants’ a ppeal and the SEC’ s crossappeal. VI. CONCLUSION We ho ld that the district court’s order of M arch 27, 2002, is not

a fin a l judgment under 28 U.S.C. § 1291 bec ause it a wards prejudgm

ent interest without specifying

the prejudgme

nt interest rate or

the date from which interest ac crues. Accordingly, we dismiss this a ppeal for want of appel late jurisdiction. APPEAL DISMISSED FOR WANT OF JURISDICTION.