Diamond by Diamond v. McKenzie

• Decision Date: 20 August 1985
• Docket Number: No. 85-5205,85-5205
• Citation: 248 U.S.App.D.C. 169,770 F.2d 225
• Parties: , 3 Fed.R.Serv.3d 707 Daniel DIAMOND, by his mother Justine DIAMOND v. Floretta McKENZIE, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 225

770 F.2d 225

248 U.S.App.D.C. 169, 3 Fed.R.Serv.3d 707

Daniel DIAMOND, by his mother Justine DIAMOND v. Floretta McKENZIE, et al., Appellants.

No. 85-5205.

United States Court of Appeals District of Columbia Circuit.

Aug. 20, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-00241).

John H. Suda, Charles L. Reischel and Richard B. Nettler, Washington, D.C., were on appellants' response to show cause order.

Matthew B. Bogin and Beth Goodman, Washington, D.C., were on reply.

On Appellants' Response to Order to Show Cause

Before ROBINSON, Chief Judge and TAMM and STARR, Circuit Judges.

Opinion PER CURIAM.

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.

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. Sec. 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...