Hanson v. Town of Flower Mound

• Decision Date: 02 July 1982
• Docket Number: No. 81-2055,81-2055
• Citation: 679 F.2d 497
• Parties: Bruce HANSON and Irene C. Hanson, Plaintiffs-Appellants, v. TOWN OF FLOWER MOUND, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 497

679 F.2d 497

Bruce HANSON and Irene C. Hanson, Plaintiffs-Appellants, v. TOWN OF FLOWER MOUND, et al., Defendants-Appellees.

No. 81-2055

Summary Calendar.

United States Court of Appeals Fifth Circuit.

July 2, 1982.

Bruce Hanson, Irene Hanson, pro se.

Saner, Jack, Sallinger & Nichols, Robert E. Hager, Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before CLARK, Chief Judge, REAVLEY and RANDALL, Circuit Judges.

PER CURIAM:

Plaintiffs brought this pro se action for damages on the ground that the defendant Town of Flower Mound, which taxes them and interferes with their liberty, does not have a republican form of government. The district court dismissed for lack of jurisdiction sua sponte. See Fed.R.Civ.P. 12(h)(3). After dealing with a question concerning our own jurisdiction, we affirm.

I. Appellate Jurisdiction

We raise the question of our own jurisdiction sua sponte. The district court entered an order reciting "that this action is dismissed in its entirety with prejudice." Plaintiffs appeal from this order. Our examination of the record and the docket sheet indicates that a final judgment was never entered. See Fed.R.Civ.P. 58 ("Every judgment shall be set forth on a separate document.").

Under 28 U.S.C. § 1291, "(t)he courts of appeals ... have jurisdiction of appeals from all final decisions of the district courts of the United States" (emphasis added). By its terms, § 1291 does not require a "final judgment," nor does it incorporate any procedural rule.

Rule 4(a) of the Federal Rules of Appellate Procedure provides that the time to appeal in a civil case runs from "the date of the entry of the judgment or order appealed from" (emphasis added). In United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), the Supreme Court held that the time to appeal from a judgment under Rule 4 does not begin to run until the judgment has been entered as a separate document, as required by Rule 58 of the Federal Rules of Civil Procedure. Accordingly, the Court reversed the court of appeals' dismissal of an appeal. The Court rejected the court of appeals' holding that the appellant's time to appeal began to run on the day the jury returned its verdicts and the district court directed a docket entry reciting the words, "Enter judgment on the verdicts." The Court reasoned that the separate document rule "must be mechanically applied in order to avoid ... uncertainties as to the date on which a judgment is entered." Id. at 222, 93 S.Ct. at 1565.

Taking the Court's "mechanical application" language perhaps too literally, this court applied Indrelunas in a long line of decisions to dismiss appeals when no separate document had been entered by the district court. The reported decisions include State Nat'l Bank v. United States, 488 F.2d 890, 892-93 (5th Cir. 1974); Taylor v. Sterrett, 527 F.2d 856, 857-58 (5th Cir. 1976); Nunez v. Superior Oil Co., 535 F.2d 324 (5th Cir. 1976); Sassoon v. United States, 549 F.2d 983, 984 (5th Cir. 1977); Furr's Cafeterias, Inc. v. N.L.R.B., 566 F.2d 505 (5th Cir. 1978). Although there was some recognition in our opinions that there was a difference between requiring strict compliance with the rule to avoid unfair loss of the right to appeal and requiring strict compliance when the district court's decision is final under § 1291 and the decision has been appealed within the time limits set by Rule 4, see Sassoon v. United States, 549 F.2d at 984 (noting that Indrelunas "address(ed) rather different facts"), we were bound by our initial interpretation of Indrelunas to dismiss the appeals.

Our understanding of Indrelunas, however, was rejected by the Supreme Court in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). In Mallis, the Supreme Court held that the Second Circuit had properly assumed jurisdiction of an appeal from an order of dismissal under § 1291, even though no separate judgment had been entered, when the order "represent(ed) the final decision in the case" and the appellee did not object to the appeal. Id. at 387, 98 S.Ct. at 1121. "Under these circumstances," the Court held, "the parties should be deemed to have waived the separate-judgment requirement of Rule 58 ...." Id. at 388, 98 S.Ct. at 1121.

While Mallis thus permits us to take jurisdiction, it does not require us to do so. ¹ Mallis makes it clear that we do not lack power to hear appeals from orders disposing of the entire litigation when the appellee does not invoke the separate document requirement; but there remains the question whether this court should adhere to its rule and refuse to exercise jurisdiction whenever the parties have attempted to bring an appeal without obtaining entry of a final judgment. ²

Thus, we are confronted with a question of stare decisis. ³ It is the firm rule of this circuit that a panel cannot disregard precedent absent an "overriding" Supreme Court decision. See Washington v. Watkins, 655 F.2d 1346, 1354 n.10 (5th Cir. 1981) (collecting cases). We find no post-Mallis decision of this court squarely holding that Mallis is "overriding." ⁴

Although Mallis does not require us to modify our rule, we nevertheless conclude that it is an overriding change in the law. Our adoption of the separate document rule was based entirely on the theory that Indrelunas required the rule. See State Nat'l Bank v. United States, 488 F.2d at 892-93; Taylor v. Sterrett, 527 F.2d at 856-57. According to Mallis, however, Indrelunas does not require the rule when the appellee fails to object. Our decisions did not rest on any policy concern independent of Indrelunas ; to the contrary, our few independent expressions of policy concerns indicated dissatisfaction with a literal, mechanical application of the rule. See Taylor v. Sterrett, 527 F.2d at 858 ("such action on our part does not appear to accomplish any meritorious result ..., creating only delay"); Sassoon v. United States, 549 F.2d at 985 (suggesting that an exception might be made "in a proper case" and citing the authorities eventually relied on by the Supreme Court in Mallis, 435 U.S. at 386-87, 98 S.Ct. at 1121).

We conclude that we are free to hold that we may take jurisdiction of an appeal from a "final decision" under § 1291, even though no separate judgment has been entered, when the parties fail to raise the issue. ⁵

In so holding, we wish to stress three points. First, Indrelunas is still the law. See Mallis, 435 U.S. at 386 & n.7, 98 S.Ct. at 1120-21 & n.7. If an appellant files his notice of appeal from a final judgment within the prescribed time after the entry of the judgment as a separate document, his appeal cannot be defeated by the argument that his time to appeal began to run from the entry of some earlier decision, opinion, or order. ⁶

Second, this decision does not change the law when the appellee does object to the failure to enter the judgment as a separate document. ⁷

Third, it remains the better practice to have the judgment entered as a separate document. See Turner v. Air Transp. Lodge 1894, 585 F.2d 1180, 1182 (2d Cir. 1978) (remanding when the finality of the district court's decision was unclear). If an appellant realizes that a final judgment has not been entered, or that there may be some doubt about it, he should take steps to obtain the entry of a certain final judgment, and then file a new notice of appeal. See, e.g., Calmaquip Eng'r W. Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 635-36 (5th Cir. 1981).

Since neither party to this appeal has raised the failure to obtain entry of the judgment as a separate document, we have jurisdiction and we proceed to the merits.

II. A Republican Form of Government

Plaintiffs allege that the government of the Town of Flower Mound is a nullity because all power is reposed in the "Town Council," which plaintiffs allege is a legislature. Plaintiffs argue that this claim presents a federal question under 28 U.S.C. § 1331 by virtue of the Guaranty Clause of the United States Constitution, which provides: "The United States shall guarantee to every State in this Union a Republican Form of Government ...." U.S.Const. art. IV, § 4. Even if the Guaranty Clause has any application to a municipal government, the question whether a government is a nullity because its form violates the Clause is a nonjusticiable political question. Luther v. Borden, 48 U.S. (7 How.) 1, 42, 12 L.Ed. 581, 599 (1849); see Baker v. Carr, 369 U.S. 186, 218-26, 82 S.Ct. 691, 710-14, 7 L.Ed.2d 663 (1962). ⁸

Plaintiffs also argue that the question whether the Town is organized in violation of the Texas Constitution ⁹ presents a federal question because the treaty by which Texas became part of the Union conditioned the state's entry on the United States' approval of its constitution. Thus, plaintiffs argue, the Texas Constitution is federal law. We decline the plaintiffs' invitation to transform most state law into federal law. ¹⁰ Congress has conditioned the entry of virtually every state since the original 13 on its approval of the state's constitution. "A Constitution thus supervised by Congress would, after all, be a Constitution of a state .... Its force would be that of a state Constitution, and not that of an act of Congress." Coyle v. Smith, 221 U.S. 559, 568, 31 S.Ct. 688, 690, 55 L.Ed. 853 (1911). That Texas was the only state admitted by treaty is irrelevant; a treaty is a law to be given the same force and effect as any other law. See Whitney v. Robertson, 124 U.S. 190, 193-94, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888). ¹¹

Finally, plaintiffs contend that they presented a federal question in their claim that they were illegally arrested. The district court rejected this argument twice, first implicitly in its opinion and order dismissing the suit, and then expressly in its order denying plaintiffs' motion to amend the order. The district...