Daniel Diamond, by His Mother Justine Diamond v. Floretta Mckenzie, et al., Appellants, 770 F.2d 225 (D.C. Cir. 1985)

Concurring opinion filed by Chief Judge ROBINSON.

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.

* 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 plaintiff's 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).

III

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.

SPOTTSWOOD W. ROBINSON, III, Chief Judge, concurring:

I agree with my colleagues that Rule 58's separate-document requirement bears vitally on the timeliness of post-judgment motions and appeals.¹  I also agree that noncompliance with that requirement can be waived, and thus that appellate jurisdiction is not necessarily emasculated.²  Each of these propositions has been fully confirmed by the Supreme Court,³  and their pertinence to the case at bar is obvious. So, if appellants' notice of appeal was timely, I would agree that appellees effectively waived their opportunity to seek dismissal of this appeal as premature.⁴ 

My preoccupation has been, rather, with the applicability of the separate-document provision to the District Court's December 1984 order. But for two sentences illuminating the case's procedural posture and three sentences summarizing generally the court's ultimate conclusions,⁵  the order would pose no Rule 58 problem at all. I thus wondered, in the beginning, whether those five recitals in a three-page instrument otherwise indisputably dispositional in nature were enough to preclude its acceptance as a separate document. Moreover, since the court stated therein that "this Order shall constitute the final order of the Court,"⁶  and explained that it would "file a Memorandum Opinion setting forth the reasons for its decision,"⁷  its effort to pass an appealable order is evident. For me at least, the order was not immediately classifiable either with those that clearly are intercepted by the separate-document rule⁸  or with those that clearly are not.⁹ 

The decided cases have not staked out a bright line dividing these two categories. Only by delving into the historical context and purpose of the separate-document stipulation have I gleaned enough insight to undertake a try in that direction.¹⁰  Having done so, I am prepared to join my colleagues in holding that the order in question did not comply with that rule, and accordingly that appellants' notice of appeal was timely.¹¹ 

* Prior to the advent of Rule 58's separate-document requirement, courts frequently were confronted by "the old, old question of when is a judgment a judgment."¹²  In those days, no particular form of words or form of writing was deemed necessary to rendition of a judgment.¹³  It is not surprising, then, that problems arose, especially when a judge's opinion or memorandum included language seemingly dispositional, and thus was readable as an authorization to the clerk to enter a judgment on the civil docket.¹⁴  The difficulty intensified when the opinion or memorandum arguably lacked an essential ingredient of a judgment, or when the judge later signed what appeared to be a formal judgment.¹⁵ 

The result was considerable uncertainty as to just what pronouncements amounted to a judgment,¹⁶  and correspondingly as to just what would activate post-judgment time periods,¹⁷  particularly those for motions¹⁸  and appeals.¹⁹  The problem was alleviated somewhat in 1958 when the Supreme Court declared that an opinion constituted a judgment when it "embodies the essential elements of a judgment for money and clearly evidences the judge's intention that it shall be his final act in the case."²⁰  Uncertainty continued to reign, however, for the judge's intention was itself a highly subjective criterion.²¹ 

It was in 1963 that Rule 58 was amended in an effort to remove all doubt.²²  Rejecting the judge's intention as the test, the rulemakers opted for a wholly pragmatic standard. "Every judgment," the amendment states, "shall be set forth on a separate document," and will become "effective only when so set forth and when entered as provided in Rule 79(a)."²³  The Advisory Committee explained that " [t]he amended rule eliminates ... 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."²⁴  This, the Supreme Court has acknowledged, was the wholesome purpose of the 1963 amendment,²⁵  and the Court has described its true character. The separate-document provision, the Court has said, is "a 'mechanical change' that must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered;"²⁶  " [t]echnical application of the separate-judgment requirement," the Court has emphasized, "is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought."²⁷  In sum, the judge's intention as the criterion has thus been completely displaced by a "mechanical" test, to be given "mechanical," "technical" operation.

II

While Rule 58 is explicit in its demand that a judgment be set forth "on a separate document," neither that rule nor any other undertakes to prescribe the precise form the document should take, nor is the caselaw very helpful on that score. An historical concomitant of the separate-document, however, affords meaningful guidance in this connection.

Simultaneously with the 1963 amendment of Rule 58 to incorporate that requirement, two specimens of a judgment were added to the appendix of official civil forms.²⁸  One is a model of a judgment on a jury verdict,²⁹  and the other is a sample of a judgment on a decision by the court.³⁰  The 1963 Advisory Committee expressly referred readers of Rule 58 to these forms,³¹  and declared that they are "illustrative of the judgment to be entered."³²  I find compelling the inference that the 1963 amendment to Rule 58 calls for a document substantially similar to those exhibited in the new official forms.

Additionally, the 1963 Advisory Committee noted that " [t]he rules contemplate a simple judgment promptly entered."³³  Simplicity is indeed the hallmark of the official specimens. Each confines itself (a) to a recital that the issues have been tried and resolved--in the one instance by a jury, and in the other by the judge--and (b) a direction for action in conformity to the jury's verdict or the judge's decision. Unlike the District Court's December 1984 order, neither form alludes to any case history, factfinding or any legal reasoning; rather, each specimen is as free of extrinsic matter as can be. These forms, we are told, are intended not only to assure compliance with the rules, but also to "indicate the simplicity and brevity of statement which the rules contemplate."³⁴ 

These considerations lead me to conclude that involvement with Rule 58's separate-document rule can be avoided only by adhering closely to the official judgment forms. But while complete fidelity to those forms is the safest course,³⁵  it seems clear that trivial departures must be tolerated in the name of common sense. Thus, it has been held that an order does not lose its character as a separate document simply because it includes a one-sentence explanation of what the order is all about,³⁶  or a recital that a magistrate's report and recommendation are being adopted.³⁷  The same result has been reached with respect to an order merely adding a citation to a reported case;³⁸  Rule 58, the court said, is to be applied " [m]echanically" but not "mindlessly."³⁹  On the other hand, orders combining the court's directives with its statement of factual findings or legal conclusions plainly cannot pass muster as separate documents.⁴⁰ 

Where, then, is the line of demarcation? I believe it is to be drawn at the point of substantial conformity to the official forms. These forms, adopted contemporaneously with and cross-referenced to the prescription of a separate-document, designedly are beacons to the type of judgment required. Equally importantly, the very purpose of the separate-document rule was elimination of uncertainty as to when the time periods for post-judgment motions and appeals begin to run.⁴¹  Since uncertainty of that sort is bound to increase as the departure from the forms becomes more serious, substantial conformity would seem to be the only acceptable outer limit.III

So measured, there is no separate-document order in the case at bar. In the first of its two written pronouncements, labeled an "order," the District Court referred to the procedural context,⁴²  summarized the court's major legal conclusions⁴³  and set forth its several directives.⁴⁴  While the court declared that the document would constitute its final order,⁴⁵  and stated that it would later file a memorandum opinion articulating its reasons,⁴⁶  the order is too far a cry from the "simple judgment" envisioned by the rules⁴⁷  and illustrated by the official form usable in nonjury cases.⁴⁸  Indeed, to countenance the order as a separate document within the contemplation of Rule 58 is to open wide the door for a return to the state of uncertainty and confusion that the 1963 amendment was designed to eliminate.⁴⁹  And the court's second writing, styled a "memorandum opinion" and elaborating on the court's logic,⁵⁰  does not even purport to be an order. Not only did the court note that " [a]n appropriate order consistent with this Memorandum Opinion has issued,"⁵¹  but the document itself lacks both the appearance and the essential elements of a judgment.⁵² 

It is clear enough to me that what the District Court had in mind was a final judgment with its opinion to follow, but, to repeat, its intention is no longer the standard.⁵³  No matter how manifest a purpose to formulate an appealable order may be, it cannot override Rule 58's explicit exaction of a separate document.⁵⁴  For nonfulfillment of that demand, the period for appealing was never set into motion,⁵⁵  and appellants' notice of appeal must be honored.⁵⁶