Richmond v. Chater

• Decision Date: 16 August 1996
• Docket Number: No. 95-3461,95-3461
• Parties: , Unempl.Ins.Rep. (CCH) P 15605B Jerry RICHMOND, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 263

94 F.3d 263

51 Soc.Sec.Rep.Ser. 563, Unempl.Ins.Rep. (CCH) P 15605B

Jerry RICHMOND, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,

Defendant-Appellee.

No. 95-3461.

United States Court of Appeals, Seventh Circuit.

Argued April 24, 1996.

Decided Aug. 16, 1996.

Frederick J. Daley (argued), Chicago, IL, for Jerry Richmond.

Barry Rand Elden, Chief of Appeals, Office of the U.S. Atty., Crim. Appellate Div., Chicago, IL, Kelly Rausch Larson (argued), Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, IL, for Shirley S. Chater.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

Jerry Richmond appeals from the rejection by the district court of his challenge to the Social Security Administration's denial of disability benefits. The only question that warrants consideration in a published opinion is whether we can reach the merits of Richmond's appeal. We cannot if the district court lacked jurisdiction.

When Richmond's application for disability benefits was first considered by the Social Security Administration back in 1986, the administrative law judge found that he was not disabled and the Appeals Council affirmed. Richmond sought judicial review in a federal district court in this circuit, pursuant to 42 U.S.C. § 405(g), which authorizes the disappointed claimant to seek judicial review by filing a "civil action" in the appropriate district court. The court held that the administrative law judge had erred by failing to determine whether Richmond had knowingly waived his right to counsel, and that the absence of a lawyer had prevented him from making the necessary factual record in support of his claim. The court ordered that the case be sent back to the agency but did not purport to enter a final judgment; all the order accompanying the court's opinion states is that the court "remands" the case to the agency.

On remand, the waiver of counsel was rectified but Richmond was again found, by a different administrative law judge, not to be disabled. Rather than institute a new civil action in the district court to challenge this decision, which would have required filing a new complaint, Fed.R.Civ. P. 3, Richmond asked the district judge who had remanded the previous denial to reinstate his old case, which the judge did. Later, when Richmond's lawyer sought fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for the services he had rendered in the judicial proceeding that had culminated in the order of remand, he asked the judge to convert that order into a final judgment. The parties refer to this as a "Rule 58 judgment." Rule 58 of the civil rules requires, so far as bears on this case, that "every judgment shall be set forth on a separate document." The rule's reference to "judgment" is to final judgments, and the term "Rule 58 judgment" is shorthand for a judgment that is final and that is set forth on a document separate from the court's opinion. The minute order remanding Richmond's case was a document separate from the opinion, but used only the term "remand," and a remand order, as we are about to see, is not necessarily final.

Richmond's lawyer wanted the court to enter a document that would be unmistakably a Rule 58 judgment in order to make his fee petition unarguably timely. Such a petition must be filed within 30 days after the expiration of the 60-day period allowed for appealing from the final judgment in the action in which the fees are sought. 28 U.S.C. §§ 2412(d)(1)(B), (2)(G); Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993); Kolman v. Shalala, 39 F.3d 173, 175-76 (7th Cir.1994). Richmond was worried that if he waited until the end of the entire case the petition for fees would be too late because the action in which the fees were being sought would have been long over, while if he filed the petition before the entry of a formal final judgment in that action the petition would be premature. Whether fees can be sought before entry of a final judgment is actually an unresolved question. Melkonyan v. Sullivan, 501 U.S. 89, 103, 111 S.Ct. 2157, 2165-66, 115 L.Ed.2d 78 (1991); Damato v. Sullivan, 945 F.2d 982, 987 (7th Cir.1991). A dictum in Cummings v. Sullivan, 950 F.2d 492, 495 n. 4 (7th Cir.1991), suggests that they can be, but the drift in the other circuits is against the suggestion. See, e.g., Goatcher v. Chater, 57 F.3d 980, 981-82 (10th Cir.1995); United States v. 27.09 Acres of Land, 1 F.3d 107, 111 (2d Cir.1993). Even if the other circuits are correct, and fees cannot be requested before a final judgment is entered, the absence of what we are calling (following the conventional usage) a "Rule 58 judgment" would not be fatal. The entry of a Rule 58 judgment is not a prerequisite to finality; it is merely evidence that the district court is done with the case, making its decision final and therefore appealable under 28 U.S.C. § 1291 ("final decisions"). Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam); Otis v. City of Chicago, 29 F.3d 1159, 1165 (7th Cir.1994) (en banc); LaMotte v. Roundy's Inc., 27 F.3d 314, 315 n. 2 (7th Cir.1994); Eberhardt v. O'Malley, 17 F.3d 1023, 1024 (7th Cir.1994). The Supreme Court has so held with specific reference to remands to the Social Security Administration. Shalala v. Schaefer, supra, 509 U.S. at 302, 113 S.Ct. at 2632. Still, it was natural enough for Richmond's lawyer to fear that unless an order formalizing the finality of the order of remand was entered, he might not be able to get any fees for his successful effort in getting the original denial of benefits set aside. One cannot be too careful in taking precautions against finding oneself jurisdictionally barred from obtaining judicial relief.

The judge entered the formal final judgment as requested (that is, he converted his order of remand to a Rule 58 judgment) and at the same time granted the petition for fees. The Social Security Administration then pointed out that by entering a final judgment the judge had terminated the case in which the remand order had been issued, so that to invoke the court's jurisdiction in order to challenge the decision on remand Richmond would have to file a new complaint. To avoid the necessity for this, both parties asked the district judge to vacate (under Fed.R.Civ.P. 60(b)) both the final judgment and the award of fees, so that the case could be reinstated or reactivated in the district court. (Why the lawyer was willing to forgo an immediate receipt of attorney's fees in order to avoid the $120 fee for filing a complaint is unclear.) The Social Security Administration improperly agreed not to contest the court's jurisdiction over the reinstated or reactivated case. Jurisdiction cannot be stipulated, Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134-35 (7th Cir.1996), and lawyers violate their duty as officers of the court when they agree to suppress their doubts about the court's jurisdiction. Aves By and Through Aves v. Shah, 997 F.2d 762, 767 (10th Cir.1993); In re Disciplinary Action Against Mooney, 841 F.2d 1003, 1006 (9th Cir.1988) (per curiam), overruled on other grounds in Partington v. Gedan, 923 F.2d 686, 688 (9th Cir.1991) (en banc) (per curiam).

If, after the decision on remand, Richmond had to file a new complaint in order to confer jurisdiction on the district court to review the Social Security Administration's decision on remand, that court had no jurisdiction and we must vacate its decision affirming the Social Security Administration, because no new complaint was ever filed. Whether Richmond had to file a new complaint depends on whether the district court, when it remanded the case to the agency, nevertheless retained jurisdiction. For we assume that Richmond's motion to reinstate the case could not be treated as a complaint. Although mislabeling is not fatal, Schlesinger v. Councilman, 420 U.S. 738, 742 n. 5, 95 S.Ct. 1300, 1305 n. 5, 43 L.Ed.2d 591 (1975); McNeil v. United States, 964 F.2d 647, 649 (7th Cir.1992), aff'd. on other grounds, 508 U.S. 106, 110 n. 5, 113 n. 9, 113 S.Ct. 1980, 1982-83 n. 5, 1984 n. 9, 124 L.Ed.2d 21 (1993); Pearson v. Gatto, 933 F.2d 521, 527 (7th Cir.1991); Hadden v. Rumsey Products, Inc., 196 F.2d 92, 95 (2d Cir.1952), the motion to reinstate did not comply with the requirements of federal law for filing a complaint in the district court. It did not state the basis of the district court's jurisdiction, did not ask for any relief (though perhaps this was implicit), and was not accompanied by the payment of the $120 fee. 28 U.S.C. § 1914(a); Fed.R.Civ.P. 8(a)(1)(3); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n. 4, 104 S.Ct. 1723, 1725 n. 4, 80 L.Ed.2d 196 (1984) (per curiam); Shannon v. Shannon, 965 F.2d 542, 552 (7th Cir.1992); Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir.1993); Bryant v. U.S. Dept. of Agriculture, 967 F.2d 501, 503 (11th Cir.1992). Nor does Richmond claim that the defendant has waived compliance with these requirements (assuming they are waivable). McNeil v. United States, supra, 964 F.2d at 649.

The proper office of motions to reinstate needs to be clarified. The only certain difference between dismissing a suit without prejudice and dismissing it with leave to reinstate it is that reinstatement does not require the payment of a filing fee, as filing a new complaint after the dismissal of one's suit would. Adams v. Lever Bros. Co., 874 F.2d 393, 395 (7th Cir.1989). Whether reinstatement must be sought before the expiration of the statute of limitations to keep the case alive, as would be required if a new complaint were filed (unless, possibly, the earlier complaint had been dismissed with leave to refile, see Wilson v....