Daniel Diamond, by His Mother Justine Diamond v. Floretta McKenzie

770 F.2d 225, 248 U.S. App. D.C. 169, 3 Fed. R. Serv. 3d 707, 1985 U.S. App. LEXIS 21280

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 20, 1985
• Docket: 85-5205
• Status: Published

Opinions

PER CURIAM:

This case presents recurring issues on the applicability and operation of Rule 58, Fed.R.Civ.P. That provision of the Federal Rules requires that every judgment, in order to enjoy legal effect, be set forth on a “separate document.” We hold that Rule 58’s mechanical test, as elucidated by the United States Supreme Court, was not satisfied by the District Court’s order in this case. We further hold that the present appeal is timely, and we therefore discharge the order to show cause previously entered sua sponte by the court. We set forth our reasoning and conclusions on this procedural question inasmuch as the issues raised in this matter are recurring and are important for the sound and orderly administration of justice in this District.

I

To sketch briefly the background which spawned the question at hand, plaintiffs are Daniel Diamond, a teenaged severely learning disabled and emotionally disturbed child, and Justine Diamond, his mother. In January 1984, plaintiffs filed a complaint in the United States District Court charging that the District of Columbia Board of Education and various D.C. officials had violated plaintiffs’ rights under several federal statutes and the United States Constitution. These charges stemmed from defendants’ alleged failure to place Daniel in a residential educational facility appropriate to his needs.

Defendants subsequently moved to dismiss or, in the alternative, for summary judgment. On December 21, 1984, the District Court filed an order which is the pivotal document for our analysis. See Diamond v. McKenzie, No. 84-0241 (D.D.C.Dec. 21, 1984) (order). That order did several things: first, it dismissed all claims under the Civil Rights Act of 1871, the Rehabilitation Act of 1973, and the Fifth Amendment; second, it dismissed the District of Columbia Board of Education as a party; and third, it ordered defendants to place Daniel at the Vanguard School, a residential placement in Florida, and directed the District of Columbia Public Schools to pay for that placement and to reimburse Ms. Diamond for any previous tuition payments. The order stated that “[t]he Court will file a Memorandum Opinion setting forth the reasons for its decision.” Id. at 2. It also stated that “this Order shall constitute the final order of the Court.” Id. at 3. The order did still more; it set forth in brief fashion the court’s reasoning and provided several citations to legal authorities.

On January 7, 1985, defendants moved under Rule 60(b)(6), Fed.R.Civ.P., for relief from the order. The defendants requested that their responsibility for payment for Daniel’s far-away placement commence only after issuance of the anticipated memorandum opinion. Motion for Relief from the Order of December 21, 1984 at 2, Diamond v. McKenzie, No. 84-0241 (D.D.C.January 7, 1985). Defendants represented that they would have filed a notice of appeal in order to stay the money judgment, but that “[a] decision cannot be reached regarding an appeal ... until the facts upon which the order is based are filed.” Id. at 1. The District Court did not rule on this motion.

On January 23, 1985, one month after its initial order, the District Court filed its memorandum opinion, which set forth both findings of fact and conclusions of law. Diamond v. McKenzie, 602 F.Supp. 632, 633 (D.D.C.1985) (“This Memorandum Opinion constitutes the Court’s ruling on the motion to dismiss and the Court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.”).

On January 31, 1985, the defendants filed their notice of appeal. This notice referred to both “the January 23, 1985 Memorandum Opinion and December 21, 1984 order----” Notice of Appeal, Diamond v. McKenzie, No. 84-0241 (D.D.C. January 31, 1985). On February 27, 1985, this court (Robinson, C.J.) issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction.¹ The issue raised by that order and discussed in the response and reply thereto is now before the court.

II

In civil actions where the United States is not a party, a notice of appeal must be filed within thirty days after the date of entry of the judgment or order under appeal. 28 U.S.C. § 2107; Fed.R. App.P. 4(a)(1). The question in this case is when the time for appeal begins to run. The answer is to be found in Fed.R.Civ.P. 58(2), which provides: “Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).”² The requirement in Fed.R.Civ.P. 79(a), in turn, is simply that the clerk of the District Court make an entry on the civil docket of the date of the judgment showing “the substance of each order or judgment of the court____” Thus, two procedural requirements exist for entry of a judgment, which triggers the running of the time for appeal: first, a statement of the judgment on a separate document, and second, the entry of the judgment by the clerk on the civil docket.³ The initial issue in this case concerns the first requirement, whether a separate document set forth the judgment in this case.⁴

In cases where all of the plaintiffs claims are denied or where the judgment to be entered on a verdict or court decision is for money only, the separate-document requirement is met by the clerk simply setting forth the judgment.⁵ The Appendix of Forms to the Federal Rules provides examples of forms for the entry of judgment in such cases. Fed.R.Civ.P., Appendix of Forms, Forms 31 & 32. Where more than a monetary judgment is granted, Rule 58 contemplates that the District Court “shall promptly approve the form of the judgment” but, again, on a separate document.⁶ Since, as we have seen, more than a monetary award was granted in this case, this second procedure was the appropriate course to follow.

We are guided in our analysis of the facts at hand by the Supreme Court’s decision in United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam), where the Court commented on the provisions and operation of Fed.R.Civ.P. 58. In that case, a jury had determined that two officers of a company were not liable for an alleged willful failure to pay withholding taxes due by the company and that, to the contrary, the officers were due a refund for their partial payment on the corporate assessments. Id. at 218, 93 S.Ct. at 1563. The verdict did not determine the amount due the corporate officers. Id. at 219, 93 S.Ct. at 1563. Nor did the District Court file a separate document embodying the judgment. Instead, the District Court clerk merely made the following entry on the civil docket: “Enter judgment on the verdicts. Jury discharged.” Some twenty-three months after the verdicts, the Government moved for, and was granted, formal entry of judgments. The Government then filed a notice of appeal as to both corporate officers. Id. The court of appeals held that the notice of appeal was untimely because, even though no separate document had previously been prepared, the Rule 58 requirement did not apply to judgments described in clause 1 of the Rule. The Supreme Court reversed, holding that the appeal was not untimely, inasmuch as the separate-document requirement did in fact apply and was not satisfied by the original verdict and docket entry. Id. at 221, 93 S.Ct. at 1564. The Court emphasized that the purpose of the separate-document requirement was “to remove uncertainties as to when a judgment is entered____” Id. at 219, 93 S.Ct. at 1563. For purposes of maintaining certainty as to when the time for appeal begins to run, the Court announced, the Rule “must be mechanically applied.” Id. at 222, 93 S.Ct. at 1565.⁷

In the case before us, appellees do not contend that a separate document within the meaning of Rule 58 was ever set forth in this case. Indeed, they state flatly that “there still has been no separate judgment filed [by the District Court].” Reply to Appellants’ Response to Show Cause Order at 3, Diamond v. McKenzie, No. 85-5205 (D.C. Mar. 21, 1985). Rather, they argue that the December 21, 1984 order was final in its effect, that the District Court intended it to be final, and that this intent is evidenced by the District Court’s statement that “this Order shall constitute the final order of the Court.” See id. (quoting District Court order). Appellees’ approach, however, directly contravenes the requirement that Rule 58 be mechanically applied.

Even if appellees did not concede that no separate document was entered in this case, we would be convinced by the unique course of the District Court proceedings and the contents of the order and subsequent memorandum opinion that Rule 58 has not been satisfied. At the outset, we conclude that the mere fact that the December 21, 1984 order stated that it constituted “the final order of the Court” does not resolve the Rule 58 problem.⁸ The question whether an order is a final order is separate from the question whether a separate document setting forth the judgment has been properly entered. We further observe at the outset that, although not critical to our determination, the form of the December 21, 1984 order does not conform to the model forms provided in the Federal Rules.⁹ Most critically, the District Court’s order did more than render judgment; to the contrary, it set forth a decision in the sense of providing the basis, albeit briefly, of the court’s reasoning, along with citations to legal authorities.¹⁰ What is more, the subsequently issued Memorandum Opinion strongly suggests that the earlier order was not intended to start the time for appeal running, for, by its own terms, that decision states that “[t]his Memorandum Opinion constitutes the Court’s ruling on the motion to dismiss .... ” Diamond v. McKenzie, 602 F.Supp. 632, 633 n. 2 (D.D.C.1985). This action further suggests that the December 21, 1984 “order” was in fact a “decision” of the court, as opposed to a judgment within the meaning of Rule 58. See Communications Workers of America v. United Telephone Co. of Ohio, 491 F.2d 207, 208 (6th Cir.1974) (distinguishing “decisions” from “judgments”).

Even though the District Court may well have intended the December 21, 1984 order to be the final order in the case, the question is not beyond dispute, in light of the considerations we have just reviewed. It is precisely this kind of uncertainty about whether the District Court intended to enter a final order that warrants the mechanical application of Rule 58.¹¹ By mechanically applying this rule, as the Supreme Court has taught us to do, a court may avoid speculation as to whether an appellant should or should not have known that the time for appeal had begun to run. See C.I.T. Financial Service v. Yeomans, 710 F.2d 416, 417 n. 5 (7th Cir.1983) (indicating that Rule 58 is intended to give notice to losing party); Gregson & Associates Architects v. Government of the Virgin Islands, 675 F.2d 589, 592-93 (3d Cir-1982) (holding that, even where appellant had actual notice that order was final, Rule 58 must be mechanically applied).

Ill

If taken literally, Rule 58 would require that this appeal be dismissed because no separate document was filed, and thus no final order existed from which an appeal could be taken. Indeed, appellees maintain that the logical consequence of no separate document having been entered is that the instant appeal is “premature.” But this reasoning is incomplete, in light of the Supreme Court’s teaching in this area. In Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), the Supreme Court considered whether failure of the District Court to set forth a judgment in a separate document automatically deprived an appellate court of jurisdiction. The Court held that appellate jurisdiction existed, despite the District Court’s failure to comply with the Rule. Id. at 383, 98 S.Ct. at 1119. Observing that the “sole purpose” of Rule 58 was to clarify when the time for an appeal begins to run, id. at 384, 98 S.Ct. at 1119, the Court concluded that certainty as to timeliness “is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment.” Id. at 385, 98 S.Ct. at 1120. The Court held, quoting Professor Moore’s treatise, that the rule “should be interpreted to prevent the loss of the right of appeal, not to facilitate loss.” Id. at 386, 98 S.Ct. at 1120 (citation omitted). On the facts of the case presented there, the Court found that the parties should be deemed to have waived the separate-document requirement of Rule 58 and that jurisdiction appropriately lay. Id. at 388, 98 S.Ct. at 1121. Among the factors present, the Court observed, were the following: (1) the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case; (2) a judgment of dismissal was recorded in the clerk’s docket; and (3) the appellee did not object to the taking of the appeal in the absence of a separate document embodying the judgment. Id. at 387-88, 98 S.Ct. at 1121-22.

Applying these factors to the instant case, we are persuaded that dismissal of this appeal would not be appropriate. First, the December 21, 1984 order, when taken together with the January 13, 1985 memorandum opinion, clearly evidences the District Court’s intention to render a final decision. These two documents fully embody the court’s disposition of the case. Measured from the date of the memorandum opinion, moreover, this appeal is timely. This view comports with the Mallis instruction that Rule 58 should be interpreted to prevent the loss of the right of appeal.¹² Second, the judgment in this case was entered in the clerk’s civil docket. The notation on the December 21, 1984 order recites the substance of the disposition in the case. Third, appellees effectively do not object to the taking of an appeal in the absence of a separate document embodying the judgment; it was this court, not the appellees, which raised the issue in the first instance. More importantly, the substance of appellees’ position on this show cause order is that the appeal is untimely, without more. See, e.g., Scola v. Boat Frances, R., Inc., 618 F.2d 147, 151 (1st Cir.1980) (where appellee objected to appeal as untimely but not as premature, court takes jurisdiction over appeal despite lack of separate document); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691 (4th Cir.1978) (same). In addition, appellees make no assertion that the lack of a separate document has in any way prejudiced them.

For the foregoing reasons, it is ORDERED by the court that the order to show cause why the appeal should not be dismissed for lack of jurisdiction is discharged.

It is so ordered.

1 . The appeal in this case was timely if measured from the date of the opinion, but not if measured from the date of the order. 28 U.S.C. § 2107 provides in pertinent part:

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.

Fed.R.App.P. 4(a)(1) provides:

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 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from____

2 . Fed.R.Civ.P. 58 provides in full:

Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.

3 . Fed.R.App.P. 4(a)(6) summarizes these requirements: “A judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.”

4 . If the December 21, 1984 order is viewed as the relevant document, there is no question as to whether the clerk properly entered the order.

5 . Fed.R.Civ.P. 58(1) provides:

[U]pon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court.

For a further explanation of this procedure, see 6A Moore’s Federal Practice (¶ 58.04[4.~2] at 58-46 (1984) (describing procedure).

6 . Professor Moore suggests that the District Court, rather than the clerk himself, should settle the form of the judgment, and that the clerk should simply enter the judgment. See 6A Moore's Federal Practice ¶ 58.04(4.-2] at 58-46, 58-47 (describing procedure).

7 . This court has not had occasion to address the procedure contemplated by Fed.R.Civ.P, 58. Other courts of appeals, however, have squarely held that every judgment from which an appeal is taken must be set forth in a separate document, and that an appeal is not untimely when no such document is filed. See, e.g., Townsend v. Lucas, 745 F.2d 933, 934 (5th Cir.1984); Gregson & Assocs. Architects v. Gov’t of the Virgin Islands, 675 F.2d 589, 593 (3d Cir.1982); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689 (4th Cir.1978). We agree with these holdings, as they are entirely in keeping with the Supreme Court’s Indrelunas decision.

8 . See Furr’s Cafeteria, Inc. v. NLRB, 566 F.2d 505, 506 (5th Cir.1978). Otherwise, it seems to us that Rule 58 could become meaningless if its requirements were so easily evaded.

9 . The order in this case differs from that contemplated by Forms 31 and 32 in the Appendix of Forms to the Federal Rules of Civil Procedure in at least two significant respects. First, the December 21, 1984 order is entitled "order” rather than "judgment,” as contemplated by Forms 31 and 32. Second, the December 21, 1984 order contains citation of authority and at least preliminary explanations of the court’s reasoning, whereas Forms 31 and 32 embody only the judgment to be entered. The significance of these two facts is apparent. By labeling a separate document as a "judgment,” the District Court may clearly signify its intent to finally dispose of a case. Similarly, by eliminating any reference to the court’s rationale or authority, the court avoids any possibility of creating a combined memorandum opinion and order. See Notes of Advisory Committee on Rules, 1963 Amendment, following Fed.R.Civ.P. 58 ("The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document — distinct from any opinion or memorandum — which provides the basis for the entry of judgment.”).

While we do not intend to suggest that the model form of judgment is the only means of complying with Rule 58, adherence to the format set forth in the Appendix of Forms would be of considerable assistance in eliminating uncertainty as to the nature of the District Court’s action. See 6A Moore’s, Federal Practice ([ 58.-04[4. — 2] at 58-47 (1984) (“[I]t is advisable to follow Form 32 ‘Judgment on Decision by the Court’ to the extent feasible.”).

10 . Rule 58 was designed to remove the uncertainty caused when district courts combined opinions with apparently dispositive words. See Notes of Advisory Committee on Rules, 1963 Amendment, following Fed.R.Civ. 58. Certainly, in some instances, an order may be identified as a judgment even though it contains citation to legal authority. See, e.g., Weinberger v. United States, 559 F.2d 401, 402 (5th Cir.1977) (holding that a single citation in an order of dismissal did not violate Rule 58, but noting that "a very little more would have rendered the order vulnerable to appellant’s attack.”); Hamilton v. Nakai, 453 F.2d 152, 155 (9th Cir.), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972) (holding that one-sentence explanation in order did not violate Rule 58). Yet, at some point, the inclusion of legal reasoning and authority makes an order into a combined decision and order. The district court’s citation of authority, along with its express statement that the court "finds as a fact and concludes as a matter of law that Daniel requires a residential placement, and further that Vanguard School in Lake Wales, Florida constitutes an appropriate program and placement,” Diamond v. McKenzie, No. 84-0241 (D.D.C. Dec. 21, 1984) (order) passed that point.

11 . If appellees wanted to ensure that the District Court had effectively expressed its intent to enter a final order and to trigger the time for appeal, they were by no means remediless; to the contrary, they could have moved for entry of a separate document setting forth the judgment. See, e.g., Hanson v. Town of Flower Mound, 679 F.2d 497, 502 (5th Cir. 1982) (suggesting that better practice is for parties to request entry of separate document); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689 (4th Cir.1978) (noting that appellee can avoid questions as to compliance with separate-document requirement by requesting entry of document).

12 . Compare Townsend v. Lucas, 745 F.2d 933, 934 (5th Cir.1984) (holding that, where appeal would be untimely even if separate document were entered, appeal should be dismissed for lack of separate document, so that entry of separate document may permit new appeal) with United States v. Dean, 519 F.2d 624-26 (6th Cir.1975) (holding that, where appeal is timely if measured from date of entry of separate document, appeal should not be dismissed despite lack of separate document when appeal was initially filed).