Patterson v. Crabb, 89-2373
| Decision Date | 18 June 1990 |
| Docket Number | No. 89-2373,89-2373 |
| Citation | 904 F.2d 1179 |
| Parties | , 60 Ed. Law Rep. 1107 In the Matter of Dean PATTERSON, Petitioner, v. Barbara B. CRABB, Chief Judge of the United States District Court for the Western District of Wisconsin, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patrick J. Fiedler, U.S. Atty., Madison, Wis., for respondent.
Allen D. Reuter, Clifford & Relles, Madison, Wis., John S. Williamson, Jr., Herrling & Swain, Appleton, Wis., for petitioner.
Before CUMMINGS, CUDAHY and POSNER, Circuit Judges.
We are asked to issue a writ of mandamus in unusual circumstances. On August 3, 1988, this panel dismissed Dean Patterson's appeal from the dismissal, on immunity grounds, of a civil rights damages claim arising out of his discharge from a tenured teaching position at a state university. The ground of our action was the absence of a final judgment order required by Rule 58 of the Federal Rules of Civil Procedure. Patterson v. Portch, 853 F.2d 1399, 1402-04 (7th Cir.1988). In fact, there was such an order; we had overlooked it. Neither party brought the oversight to our attention. Ten months later, Patterson's counsel moved the district judge to enter a final judgment. She refused on the appealing ground that she had entered a final judgment--we had overlooked it. Patterson argues improbably that our erroneous decision established the law of the case--made falsity truth--and therefore required the district judge to enter another judgment.
Patterson's lawyer should have brought the oversight to our attention by filing a petition for rehearing, so that we could have withdrawn our opinion and proceeded to the decision of his appeal. But Patterson was at the time pursuing an alternative administrative remedy for his discharge and may not have felt an urgent need to engage this court in the esoterica of finality. It was only when the administrative path ended in failure that he asked the district court, consistently with our erroneous opinion, to enter a final judgment. Had his adversary wished to accelerate the finality of the proceeding, he could himself have asked the district judge to act; he did not.
It is tempting to suppose that the district judge should have entered the redundant judgment sought by Patterson, lest Patterson, partly through his counsel's fault in failing to apprise us of our error but mainly through our fault in making the error in the first place, lose his right to appeal from the dismissal of his civil rights claim. If his adversary had been prejudiced by the delay, it would be a different case; but no prejudice is alleged here. The objection to the suggested course is that the entry of a redundant judgment for the sole purpose of allowing a party to appeal after the deadline for taking an appeal had run would wreak havoc with the intricate structure of deadlines for appeals. Fed.R.App.P. 4(a)(1), (5); Fed.R.Civ.P. 77(d); Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 230-34 (7th Cir.1990). But here of course the appeal was taken in time.
We need not...
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