Fulcher Harris v. Rivera Cruz

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1630

                             JOHN FULCHER HARRIS, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                           HON. HECTOR RIVERA CRUZ, ET AL.,

                                Defendants, Appellees.

                                      __________

                                 JOANNA DIMARCO ZAPPA

                                Plaintiff, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                        Torruella and Boudin, Circuit Judges.
                                              ______________

                                 ____________________

            Arturo Aponte Pares for appellant.
            ___________________
            Reina  Colon  De  Rodriguez,  Acting  Deputy  Solicitor   General,
            ___________________________
        Department of Justice,  with whom Carlos  Lugo Fiol, Acting  Solicitor
                                          _________________
        General, was on brief for defendants. 

____________________
                                    March 29, 1994
                                 ____________________

BOUDIN,  Circuit  Judge.   This  case  presents a  novel
                          ______________

            dispute  in  which  jurisdictional  and  merits   issues  are

            entangled  with a  question  of decree  interpretation.   The

            course of the litigation, which must be traced in some detail

            in order to  understand the issues, may  also be unique.   We

            certainly hope  so and  regret that this  litigation, already

            prolonged by the parties' antics, requires one more round.

                                          I.

                 In  April 1988, Joanna  Dimarco Zappa ("Dimarco") joined

            as co-plaintiff in a pending civil lawsuit brought by another

            individual against members of the Real Estate Examining Board

            in  Puerto  Rico  ("the  Board").1   The  Board  had  awarded

            Dimarco a  failing grade in the examination  given on October

            31,  1987, for a real  estate broker license  in Puerto Rico.

            Dimarco  contended that  the  examination had  been given  in

            English  and Spanish and that the Board had followed a policy

            of   making  the   English   version,  which   Dimarco  took,

            substantially more difficult than the Spanish version.

                 The suit was  brought under  42 U.S.C.    1983, and  the

            complaint  (generously construed)  asserted that  the Board's

            policy  and action  violated constitutional  guarantees.   At

            least  by  implication, Dimarco  sought injunctive  relief to

____________________

                 1Neither of the  parties named in the  caption remain in
            this case.   The original  plaintiff, John Harris,  is not  a
            party to this appeal.  Similarly, the first  named defendant,
            Hector Rivera  Cruz, the Secretary of  Justice, was dismissed
            from the suit.

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compel  issuance of  the  license, and  she expressly  sought

            damages including compensation for  lost income in the amount

            of  $100,000 per year.   The complaint also  alleged that the

            Board proposed  to give future examinations  only in Spanish,

            and Dimarco sought an  injunction to require that it  also be

            given in English.

                 After  a hearing  in July  1988, the  district  court in

            March  1989  issued a  preliminary  injunction  requiring the

            Board  to continue  to offer  the examination in  English, as

            well as Spanish,  and to  assure that the  two versions  were

            equivalent.  Harris v.  Rivera Cruz, 710 F. Supp.  29 (D.P.R.
                         ______     ___________

            1989).  The  Board appealed,  a cross appeal  was filed,  and

            both appeals were later withdrawn.  The Board made  repeated,

            and sometimes frivolous, efforts to have the case dismissed.

                 In August  1989, after a pretrial  conference and waiver

            of jury trial  by both sides, the court ordered both sides to

            submit briefs and evidence concerning each plaintiff's actual

            performance  on  the  October  31, 1987,  examination.    The

            plaintiffs  complied  in  September  1989.    Their  analysis

            purported to  show which questions differed  significantly in

            English and  Spanish and how  the plaintiffs' own  grades had

            been  lowered by  mathematical errors;  specifically, certain

            true-false questions had been answered differently by the two

            plaintiffs  but  both  answers  had been  graded  as  wrongly
                             ____

            answered.  The Board submitted no analysis or rebuttal.

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Then on March  19, 1990, the  parties attended a  status

            conference.   On  March 22,  1990, the  court entered  a one-

            paragraph "status  conference order" that  concluded with the

            following   sentence:  "The  parties  have  agreed  that  the

            examination  will be  given  in English,  and  that the  only

            remaining issue is whether  the plaintiffs passed this exam."

            Nothing  in the order refers  to Dimarco's damage  claim.  No

            transcript  of the  conference has  been supplied,  and quite

            possibly no reporter was present.

                 Nothing more  occurred until November  1990 when Dimarco

            filed a motion asking the court to enter judgment determining

            that  Dimarco had passed the  examination with a  score of 97

            points  out of 100.  The motion  argued that more than a year

            had passed  since Dimarco's  evidence had  been filed  and no

            rebuttal had been  offered by the  Board.  The Board  did not

            respond.   On April 23,  1991, the district  court entered an

            order determining that Dimarco had passed the examination and

            directing the Board to issue her a license.  The order stated

            that "because  both parties have previously  agreed that this

            was the only issue remaining in the case, [j]udgment shall be

            entered accordingly."

                 On the same  day, the court  entered a "Judgment"  which

            decreed  that   "[j]udgment  be  entered  in   favor  of  the

            plaintiffs  . . . as both of these plaintiffs have passed the

            realtor's examination"  and "ordered"  that  the Board  issue

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real estate broker's licenses to the plaintiffs.  Once again,

            there was  no reference to damages.  Nothing in the April 23,

            1991, order or the separate judgment stated that the judgment

            was  final as  to all claims  or that  the case  was formally

            complete.  However, on May 2, 1991, Dimarco's counsel filed a

            memorandum  seeking  costs, a  portion  of  which were  later

            awarded.

                 On  May 9, 1991,  the Board  filed a  motion purportedly

            under  Fed. R. Civ. P. 59(e) claiming that the injunction was

            improper because other requisites,  apart from passage of the

            examination,  had to be  satisfied before a  license could be

            granted.   The Board  also asserted  that plaintiffs  had not

            exhausted their  administrative remedies.   The  court denied

            the  motion  by  order filed  July  1,  1991;  it noted  that

            exhaustion was  not required in  section 1983 actions  and it

            observed again the  parties had earlier agreed that "the only

            remaining issue before the Court was the issue of whether the

            plaintiffs had passed this examination." 

                 Instead of issuing a license, the Board then filed a new

            appeal to  this court,  which was later  withdrawn.   Dimarco

            filed a motion to hold the Board in contempt.  The Board then

            issued  a license  to Dimarco  in August  1991 but  the Board

            noted on the face of  the license that it was given  by court

            order.  Dimarco filed a new contempt motion in February 1992.

            In  March 1992 the court ordered that an undefaced license be

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issued.    Once  again the  Board  did  nothing until,  after

            another contempt motion and  an order to show cause  from the

            court,  a clean  license  was finally  issued  to Dimarco  in

            August 1992.  

                 On January 5,  1993, Dimarco requested a  date for trial

            on the  issue of damages.   The court clerk set  a trial date

            but  the Board asked the court to reconsider, arguing that in

            the March  19, 1990,  status conference, "the  parties agreed

            that the examinations at issue in this case would be given in

            English and that  the only  remaining issue in  the case  was

            whether  the  plaintiffs  had  passed the  exams."    Dimarco

            responded opaquely  that damages had been  requested from the

            outset and  had never been adjudicated by the court.  After a

            status  conference, the  court on  May 12,  1993, entered  an

            order, which says in part:

                      The  Court  [in  the  May  11,   1993,  status
                 conference] clarified  with the parties  that since
                 Judgment  was  entered  in  this case  based  on  a
                 settlement   between   the  parties,   without  the
                 imposition of damages, and the plaintiffs failed to
                 appeal  the Judgment,  this  case is  closed.   The
                 plaintiffs'  attempt to  recover  damages  at  this
                 juncture in the litigation is extremely belated and
                 therefore unavailing.

                 Dimarco has  now appealed from  the May 12,  1993, order

            and requested that we reverse the district court and direct a

            trial on  damages.   Dimarco's brief, without  discussing the

            March  19, 1990,  conference,  argues that  her damage  claim

            cannot  have  been abandoned  since  Dimarco  was never  paid

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anything in settlement  and that such  a payment is  required

            under Puerto Rican  law in  order to compromise  a law  suit.

            Dimarco also asserts  that nothing shows that  the court ever

            consolidated the injunction and damage phases of the case.

                 In  response, the  Board  argues that  this court  lacks

            jurisdiction  over the appeal.2  Its theory is that the April

            23, 1991, order and judgment "finally decided the case"; that

            no appeal was lodged by Dimarco until two years later in June

            1993;  and that this  two year interval  is long  past the 30

            days allowed for appealing a final judgment.  Fed. R. App. P.

            4(a)(1).  Like Dimarco,  the Board's brief casts no  light on

            what  actually  happened  at   the  March  19,  1990,  status

            conference.

                                         II.

                 We  think  that   this  appeal   presents  two   related

            questions:  one  is whether  Dimarco  waived  or settled  her

            damage claim on  or about March  19, 1990;  and the other  is

            whether, even  if she retained  her damage claim  after March

            19, 1990, her rights  were cut off by  failing to appeal  the

            judgment entered on April  23, 1991.  We consider  the issues

            in that order.

____________________

                 2We  clearly have  jurisdiction  to review  the May  12,
            1993,  order  inasmuch  as it  is  itself  final  (no further
            proceedings being  contemplated), and  an appeal from  it was
            filed  within the prescribed period.   But we  agree with the
            Board that, if the April 25, 1991, order were itself  a final
            disposition of the entire  case, it would be too  late now to
            resurrect the damage claim.  This issue is addressed below.

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1.   On  this  record it  is  not possible  to tell  for

            certain whether  Dimarco's claim  for damages was  settled or

            waived on  March 19,  1990, but  it is  possible to  say with

            assurance  that  the  record  does  not  demonstrate  such  a

            settlement  or waiver.  One might expect that, if a plaintiff

            had  agreed to  forego  a  damage  claim  set  forth  in  the

            complaint,  this  would  be  embodied  in  a  stipulation  or

            evidenced by  a  transcript statement  of counsel.   No  such

            document or  transcript reference has been  supplied or cited

            to us by  the Board.3   Indeed, in this  instance we are  not

            even  offered any  plausible  reason why  Dimarco might  have

            wished to surrender her damage claim on March 19, 1990.  

                 The  statement in  the March 22,  1990, order  that "the

            only remaining  issue is  whether the plaintiffs  passed this

            exam" is  quite ambiguous.   It was made  at a time  when the

            focus of the litigation  was on injunctive relief.   Both the

            existence and the amount  of damages could not even  begin to

            be determined until the court decided whether the license had

            been  wrongfully denied and when  it should be  issued.  That

____________________

                 3Dimarco  asserts that  the  claim could  not have  been
            relinquished  under  Puerto  Rico  law  since  there  was  no
            payment.  Whatever Puerto Rico law may say about out of court
            settlements,  every litigator  knows that--in  the  course of
            conferences with the  judge as  a case  moves toward  trial--
            complaints are narrowed by agreement and claims are abandoned
            without any payment.   The question is whether  that happened
            here.

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order  itself does not speak  of waiver or  settlement of the

            damage claim.  

                 In its May 12, 1993,  order, the district court refers--

            seemingly for  the  first  time--to  an  earlier  "settlement

            between  the  parties,  without the  imposition  of damages."

            This  language may be nothing more  than the district court's

            gloss  on its earlier March 22, 1990,  order.  But even if it

            is treated as a  factual finding that Dimarco did  settle her

            damage claim  on March 19, 1990, the "finding" cannot resolve

            this case.  Such a finding would still have to rest upon some

            evidence,  and  on  this record  we  have  no  evidence of  a
                                                       __

            settlement. 

                 Finally,  in an  ordinary case the  failure to  pursue a

            damage claim for two  years after the definitive injunction--

            here,  from April 23, 1991, to January 5, 1993--might be some

            evidence of an earlier waiver or settlement or even support a

            dismissal  for non-prosecution.    Here, however,  instead of

            complying with the  injunction, the Board  improperly delayed

            issuance  of  an adequate  license until  August 1992.   That

            Dimarco waited  four more  months before asking  for a  trial

            date does not count for much in a five-year-old case.

                 2.   Although we cannot  find a waiver  or settlement on

            this record,  the possibility  remains that Dimarco  lost her

            unsettled,  unwaived damage  claim  because of  the  judgment

            entered on  April 23, 1991, granting  a permanent injunction.

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If that  judgment constituted  a final judgment  disposing of

            the entire case,  then the  failure of Dimarco  to pursue  an

            appeal  within the  prescribed  30-day period  would end  the

            case.  Fed. R. App. P. 4(a)(1).  Such a  final judgment might

            still  be  reopened by  post-judgment  motion;  but the  most

            familiar grounds  (e.g., excusable neglect) require  a motion
                               ____

            within one year of the judgment.  Fed. R. Civ. P. 60(b).

                 For purposes of "terminat[ing] the  action" and starting

            the appeal clock on the entire case, a  judgment is not final

            if it "adjudicates fewer  than all the claims" asserted  by a

            party.  Fed. R. Civ. P. 54(b).   We have already seen that in

            this case  the judgment  did not  actually adjudicate  all of

            Dimarco's claims since, so far as the record reveals, Dimarco

            still retained in April 1991 a damage claim that had not been

            waived or  settled or tried.   Thus  sub specie  aeternitatis

            there was on  April 23, 1991, an appealable judgment (because

            of the injunction) but not a final judgment.4 

                 In  our view,  the  Board  could  still  rely  upon  the

            judgment  as final if it had at  least purported to be final.
                                                   _________

            Thus,  if  the  April   23,  1991,  judgment  had  explicitly

            terminated the entire  case, we would treat  that judgment as

____________________

                 4The terminology can be confusing because a judgment may
            be appealable  at once  even though  not  "final" within  the
            meaning of Rule  54(b).   See, e.g., 28  U.S.C.    1292(a)(1)
                                      ___  ____
            (injunctions).   Yet because  such situations are exceptions,
            it is commonplace  to use  the phrase "final  judgment" as  a
            synonym for  "appealable judgment," even  though the concepts
            are not identical.

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final, so far as a later attack upon it or attempt to undo it

            is concerned.   The point is that a judgment purporting to be

            final  moves the case toward  repose.  If  errors remain, the

            proper  course for an aggrieved litigant is to appeal, and to

            do so within the time allowed.

                 Yet  in this instance the April  23, 1991, judgment does

            not on its  face say anything to indicate  either that it was

            resolving the damage claim or  that it intended to  terminate

            the  entire  case.   A judgment  unambiguous  on its  face is

            construed as a writing  without resort to extrinsic evidence;

            given  doubt,  resort may  be had  to  other orders  or other

            evidence ascertainable from  the record.5  In  this case, the

            April 23, 1991, order accompanying the judgment refers to the

            finding that Dimarco had  passed the exam as "the  only issue

            remaining in  the case."   The quoted  statement should  have

            alerted  a  careful  lawyer   to  the  possibility  that  the

            accompanying  judgment--although   not  labeled  "final"--was

            intended to dispose of all claims.

                 But if resort to the accompanying order helps the Board,

            the record  in other  respects assists Dimarco.   The  damage

            claim  had been asserted and never resolved.  Nor was it ripe

            for  resolution in April 1991 since no license had issued and

            thus  there was no end point for calculating any damages that

____________________

                 5E.g., Security Mutual Cas. Co. v. Century Cas. Co., 621
                  ____  _______________________     _______________
            F.2d  1062 (10th  Cir. 1980);  Eaton  v. Courtaulds  of North
                                           _____     ____________________
            America, 578 F.2d 87 (5th Cir. 1978).
            _______

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might be  due.  All of  the attention of the  parties to that

            point  had  been  centered  upon  injunctive  relief  of  two

            different types, and only  injunctive relief was mentioned in

            the judgment.  The same judgment could have been entered even

            if  the  court  intended to  start  a  trial  on damages  the

            following day.    We  think,  therefore, that  a  measure  of

            uncertainty remains.

                 There is no  precise formula  for construing  judgments.

            But  we are reluctant to construe a judgment ambiguous on its

            face  as a final judgment where it could plausibly be read as

            non-final, where extrinsic  evidence does not  wholly resolve

            the uncertainty, and where reading it as final could unfairly

            forfeit  the rights  of  a party.    Here the  facts  already

            described leave us  in doubt whether the  judgment can fairly

            be construed as final;  there is a patent risk  of unfairness

            to  Dimarco;  and the  Board  is not  unfairly  prejudiced by

            reading the judgment to leave standing any  damage claim that

            Dimarco did not previously waive or settle.

III.

                 It  remains to  consider the  course to  be followed  on

            remand.  For reasons already explained, this record does  not

            establish  that  Dimarco has  waived  or  settled her  damage

            claim.  Still, in view  of the failure of anyone  to disclose

            on  appeal what  happened on  March 19,  1990, we  think that

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justice requires that  we not foreclose  the Board on  remand

            from  offering evidence,  if it  has  any, to  establish that

            Dimarco did specifically waive or  settle her damage claim at

            the March 19, 1990,  conference.  The Board bears  the burden

            ofproving sucha waiver orsettlement. Cf. Fed. R.Civ. P. 8(c).
                                                 __

                 When we  speak of the  Board offering  evidence, we  are

            referring to any new  evidence that shows that Dimarco  on or
                             ___

            about March 19, 1990, settled  the damage claim or  expressed

            an intention  to  waive it.    If  the Board  does  have  any

            evidence to offer, obviously  Dimarco may respond to  it, and

            the  district court  can then  make  findings to  resolve the

            issue.   If no evidence  is offered  by the  Board, then  the

            court should  proceed with  the  damage claim.   Whether  the

            defendants  are liable for damages is, of course, a matter on

            which we express no views.

                 The order of  May 12, 1993, is vacated as to Dimarco and
                                                _______

            the case is remanded  for further proceedings consistent with
                        ________

            this opinion.

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