Ueckert v. Guerra

Case: 22-40263 Document: 00516371600 Page: 1 Date Filed: 06/27/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 27, 2022

No. 22-40263 Lyle W. Cayce

Clerk

William F. Ueckert, Jr.,

Plaintiff—Appellee,

versus

Juan G. Guerra,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:18-CV-302

Before Smith, Higginson, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

There is at least one exception to the maxim “no news is good news.”

When a lawyer has an outstanding motion but hasn’t heard from the court

for a long time, prudence would advise double-checking to make sure the

motion is still pending. No news may mean that the court already ruled on

the motion, and the time to appeal is ticking away.

Unfortunately, that is not what Appellant Juan G. Guerra did. During

a hearing the court ruled from the bench, denying Guerra’s motion for

summary judgment. Two days later the court issued a minute entry

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No. 22-40263

memorializing its ruling. Guerra seems to have believed that this was not the

court’s last word, and that a written order was forthcoming. But it wasn’t.

The court’s bench ruling was its final decision on the motion. The rules of

civil procedure give would-be appellants a generous 180-day window to

appeal judgments that were not set forth on a “separate document.” But

Guerra blew past that deadline, filing his notice of appeal 412 days after the

order was entered on the docket. Because this appeal is untimely, we grant

Appellee’s motion to dismiss this appeal.

I

William F. Ueckert, Jr. was an engineer for the City of Pharr, Texas.

He alleges that his superiors asked him to sign a document certifying that all

rights-of-way for a project had been properly acquired by the city. But

Ueckert believed this wasn’t true and repeatedly refused to sign the

document. One day his superiors called him into a meeting and “chastised”

him for not signing. He again refused and was fired that same day. Ueckert

sued the City and two of his superiors, Juan Guerra and Ed Wyle. He alleges

that the defendants violated his First Amendment rights when they fired him

for refusing to sign the document.

Guerra moved for summary judgment, arguing that the case against

him should be dismissed because he was entitled to qualified immunity. The

district court held a hearing on the motion on March 2, 2021. During that

hearing, Judge Hinojosa denied Guerra’s motion from the bench. A minute

entry memorializing the district court’s oral order was entered on the docket

on March 4, 2021, but no written order or other document was attached.

On March 28, 2022, the district court notified the parties that jury

selection would occur on June 21, 2022. Guerra filed a notice of appeal on

April 20, 2022—412 days after the district court’s order was entered on the

docket.

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II

Ueckhart contends we lack jurisdiction because this appeal is

untimely. The district court ruled on Guerra’s motion for summary

judgment on March 2, 2021, so Ueckhart reasons that Guerra had 30 days

from that date to file a notice of appeal. Guerra responds that the district

court’s oral ruling was not appealable, and that he is only appealing now

because the case is about to go to trial. He says he is appealing not the district

court’s March 2, 2021 order from the bench, but the district court’s refusal

to rule. As Guerra correctly notes, we held in Helton v. Clements that

defendants may immediately appeal a district court’s refusal to rule on a

qualified-immunity defense under the collateral order doctrine. 1

Guerra’s brief makes three separate arguments. First, he asserts that

the district court never ruled on his motion at all because it only ruled orally,

which can never constitute an appealable “final order.” Second, he argues

that any appeal would have been premature because the district court’s

judgment did not comply with Federal Rule of Civil Procedure 58’s

“separate document requirement.” 2 Third, he says the timeline for appeal

never started because the clerk did not comply with Federal Rule of Civil

Procedure 79(a).

Guerra is wrong on all counts. A bench ruling can be effective without

a written order and does trigger appeal deadlines if it is final—which this

ruling was. While Guerra is right that the district court’s bench ruling did not

comply with Rule 58’s “separate document” requirement, that neither

prevented him from appealing nor gave him infinite time to appeal. Finally,

Guerra is wrong that the clerk failed to comply with Rule 79(a).

1

787 F.2d 1016, 1017 (5th Cir. 1986); see also Backe v. LeBlanc, 691 F.3d 645, 648

(5th Cir. 2012).

2

Fed. R. Civ. P. 58(a).

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A

We start with Guerra’s apparent belief that only written orders, and

not bench orders, have legal significance. While courts today generally rule

through written orders and judgments, they may choose to rule from the

bench. 3 In England, ruling from the bench “ex tempore,” or right after oral

arguments, was the primary way courts conducted business. 4 That remains

common practice in England to this day. 5 We inherited our system from

England, and in the colonies, courts likewise delivered their opinions orally. 6

Starting in the 17th century, some states required judges to write down at

least the more important opinions. 7 Written opinions have become the norm

even in courts where they are not required, 8 but federal courts at least have

3

See, e.g., Meza v. Livingston, 537 F.3d 364, 367 (5th Cir. 2008) (citing Workman v.

Jordan, 958 F.2d 332, 336 n.5 (10th Cir. 1992)); State v. Zahn, 562 N.W.2d 737, 740 (N.D.

1997) (“A court order can be oral.”).

4

See Ruggero J. Aldisert, The English Appellate Process: A Distant Second to Our

Own? Appellate Justice in England and the United States: A Comparative Analysis, 75

Judicature 48, 49 (1991).

5

See id.

6

See Erwin C. Surrency, Law Reports in the United States, 25 Am. J. Legal Hist.

48, 55–56 (1981).

7

See id. at 55–56.

8

See, e.g., United States Court of Appeals for the Eighth

Circuit, Internal Operating Procedures 22 (June 3, 2019),

https://ecf.ca8.uscourts.gov/newrules/coa/iops06-19update.pdf (“The court rarely rules

from the bench.”).

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not lost their power to rule from the bench. 9 That is what the district court

did here. 10

Nor is it impossible to appeal from a bench ruling. Our court has

allowed interlocutory appeals from oral rulings, 11 and so have other circuits.12

Two of those cases dealt with almost the exact issue here: an appeal from an

oral ruling denying a qualified-immunity defense. 13 The form of the ruling is

9

See, e.g., Meza, 537 F.3d at 367; Workman, 958 F.2d at 336 n.5; Orgain v. City of

Salisbury, 521 F. Supp. 2d 465, 485 (D. Md. 2007), aff’d in part, 305 F. App’x 90 (4th Cir.

2008) (“Courts routinely rule from the bench at the conclusion of hearings.”); Living Res.

v. Or. Arena Corp., 982 F. Supp. 698, 783–84 (D. Or. 1997) (notifying the parties that the

court would later rule from the bench).

10

For this reason, Helton is inapplicable. Helton dealt with a district court’s refusal

to rule on a qualified immunity defense. 787 F.2d at 1017. Not only has the district court

not refused to rule on Guerra’s defense of qualified immunity, in fact it did so.

11

In re United States Bureau of Prisons, 918 F.3d 431, 438 (5th Cir. 2019); United

States v. Sid-Mars Rest. & Lounge, Inc., 644 F.3d 270, 271–80 (5th Cir. 2011); United States

v. Gurney, 558 F.2d 1202, 1207 (5th Cir. 1977), abrogated on other grounds by Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589 (1978); see also Sid-Mars Rest. & Lounge, Inc., 644 F.3d at 283

(Dennis, J., dissenting) (reciting the procedural history of the case, noting that the appeal

was of an “oral order without any additional findings of fact or conclusions of law”). Cf.

Broad. Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 279 (5th Cir. 1987) (voluntary, oral

dismissal of claims was sufficiently final “even though there [was] no formal dismissal or

stipulation filed with the clerk” (quoting Oswalt v. Scripto, Inc., 616 F.2d 191, 194 (5th Cir.

1980))); Oswalt, 616 F.2d at 194 (same).

12

Spain v. Gallegos, 26 F.3d 439, 445 n.9 (3d Cir. 1994) (oral dismissal of claims was

final for purposes of § 1291); Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir.

1995); Cent. Milk Producers Coop. v. Sentry Food Stores, Inc., 573 F.2d 988, 990 (8th Cir.

1978); United States v. Bender, 221 F.3d 265, 267 (1st Cir. 2000) (considering interlocutory

appeal of oral order granting a motion to suppress testimony); see also Bender v. United

States, No. CIV.04-13-P-H, 2004 WL 2011449, at *2 n.3 (D. Me. Sept. 9, 2004) (discussing

the procedural history of the First Circuit’s opinion in United States v. Bender).

13

Workman, 958 F.2d at 336 n.5 (“Although the oral ruling may have lacked

procedural formality for purposes of appeal, we allow the appeal from this ruling because

there is no question as to its finality . . . .”); Kaluczky, 57 F.3d at 206; see also Meza, 537

F.3d at 367 (citing Workman favorably).

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immaterial. 14 What matters for § 1291 purposes is whether the court’s ruling

was a “final judgment.” 15

The test for finality is whether the district court intended that its order

be “effective immediately.” 16 Said another way, a court’s ruling is only

“final” if the judge “intends to have nothing further to do”—with the

motion (if an interlocutory appeal) or the case (if a conventional appeal). 17

To understand whether an order is final, we look chiefly to the language the

district court used. For example, we noted in Logue that a district court’s

memorandum saying that “‘[a] preliminary injunction will be issued’ . . . did

not reflect the district court’s intent that the opinion act as an operable

judgment.” 18 In contrast, a minute entry saying “Prel. Injunction is now

permanent under rule 65 of FRCP” was immediately appealable because it

“reflect[ed] the District Court’s intent that the order act as an operable

judgment.” 19

14

Indeed, allowing district court to shield its decisions from appellate review by

refusing to reduce orders to writing could create perverse incentives. See In re United States

Bureau of Prisons, 918 F.3d at 437 (“[A] lack of procedural formality does not shield a

district court's final decisions from appellate review under 28 U.S.C. § 1291.”).

15

See 28 U.S.C. § 1291.

16

In re United States Bureau of Prisons, 918 F.3d at 437; see also La. World Exposition,

Inc. v. Logue, 746 F.2d 1033, 1039 (5th Cir. 1984) (an order is final if the district court intend

that it “act as an operable judgment”).

17

State Nat. Bank of El Paso v. United States, 488 F.2d 890, 893 (5th Cir. 1974).

18

Logue, 746 F.2d at 1039 (emphasis in original) (quoting Beukema’s Pet. Co. v.

Admiral Pet. Co., 613 F.2d 626, 628 (6th Cir. 1979)).

19

Id.; see also State Nat. Bank of El Paso, 488 F.2d at 893 (noting that a decision is

“final” if “the district judge regards it as final”); 15B Edward H. Cooper, Fed.

Prac. & Proc. Juris. (Wright & Miller) § 3915 (2d ed.) (“The important

question is whether the district court in fact has concluded all the proceedings it intends to

take.”).

While we will discuss Rule 58 in more detail below, it is worth noting at the outset

that whether a court enters its “judgment” on a separate document is analytically distinct

from whether that judgment is final under § 1291. A Rule 58 judgment is neither necessary

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Here, the district court regarded its oral ruling as final. The parties

both characterize the court’s oral statement as having ruled on Guerra’s

motion from the bench, not merely a prediction about how the court would

rule sometime in the future. The minute entry memorializing the court’s oral

ruling used similarly definite language: It “denied . . . Defendant Juan G.

Guerra[’s] Motion for Summary Judgment as stated on the record.” And the

fact that the court never issued a written memorandum or opinion erased any

doubt that it intended its first word to be its last.

Guerra believes that our decision in Jones v. Celotex Corp. says that

neither a court’s bench ruling nor a minute entry on the docket is an

appealable order. 20 But Guerra’s reading of Jones is only partially right. He is

right that we said minute entries are not orders and cannot be appealed.

“Even prior to the added requirement of Rule 58, [a] minute entry alone

could not stand as a final judgment of the district court. ‘Courts render

judgment; clerks only enter them on court records.’” 21 But we did not reach

the question of whether bench rulings can be final for purposes of § 1291. 22

nor sufficient for a judgment to be final, though it is evidence of finality. See Bankers Tr. Co.

v. Mallis, 435 U.S. 381, 387 (1978) (per curiam) (“Even if a separate judgment is filed, the

courts of appeals must still determine whether the district court intended the judgment to

represent the final decision in the case.”); see also Sullivan v. Finkelstein, 496 U.S. 617, 628

n.7 (1990) (“It is true, as respondent maintains, that the District Court did not caption its

order as a ‘judgment,’ much less a ‘final judgment.’ The label used by the District Court

of course cannot control the order’s appealability in this case, any more than it could when

a district court labeled a nonappealable interlocutory order as a ‘final judgment.’”); Shalala

v. Schaefer, 509 U.S. 292, 303 (1993) (noting that “a formal ‘separate document’ of

judgment is not needed for an order of a district court to become appealable”); Eberhardt

v. O’Malley, 17 F.3d 1023, 1024 (7th Cir. 1994) (“A Rule 58 judgment order is evidence of

finality and hence of appealability under 28 U.S.C. § 1291, rather than a sine qua non of

finality.”).

20

857 F.2d 273, 274 (5th Cir. 1988) (per curiam).

21

Id. at 275.

22

See id. Had we reached the issue, we likely would have held that the bench ruling

was not final. The district court judge in Jones made it clear that he was not finished with

the case, advising “that he would provide his written opinion later.” Id. at 274. In contrast,

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And in the decades since it was decided, no decision has read Jones the way

Guerra does. To the contrary, we have repeatedly affirmed that bench ruling

can be final provided the district court intends that it be effective

immediately. 23 Here, the district court treated its bench ruling as final, so it

is final.

B

Guerra’s next argument is that even if the district court’s ruling were

final, any appeal would have been dismissed as premature because the ruling

did not comply with Rule 58. He is right that the district court’s oral ruling

did not comply with Rule 58’s requirement that every “judgment” be set out

in a separate order. 24 While most people think of a judgment as the order that

marks the effective conclusion of a case, Rule 54 defines “judgment” as “any

order from which an appeal lies.” 25 As a result, Rule 58 also applies to

interlocutory orders appealable under the collateral order doctrine. 26

But Guerra is wrong that noncompliance would have barred his

appeal. Federal Rule of Appellate Procedure 4 states that “[a] failure to set

forth a judgment or order on a separate document when required by Federal

Rule of Civil Procedure 58(a) does not affect the validity of an appeal from

here the district court never told the parties that a written opinion or order was

forthcoming.

23

See In re United States Bureau of Prisons, 918 F.3d 438; Sid-Mars Rest. & Lounge,

Inc., 644 F.3d at 271–80; Gurney, 558 F.2d at 1207.

24

Fed. R. Civ. P. 58.

25

Id. 54(a).

26

See Silver Star Enters., 19 F.3d at 1012 (“We need not decide whether those

rulings were final orders or appealable interlocutory orders because the separate document

requirement of Rule 58 applies equally to both kinds of decisions.”); Theriot v. ASW Well

Serv., Inc., 951 F.2d 84, 88 (5th Cir. 1992) (“Irrespective of whether the decision of the

district court . . . is otherwise appealable as a final order or as an interlocutory order . . . it

still must comply with Rules 58 and 79(a) before an appeal can be taken.”).

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that judgment or order.” 27 This change codified and extended the Supreme

Court’s earlier holding in Mallis, which held that parties could waive the

separate document requirement. 28 While Mallis partially sandpapered Rule

58’s sharp edges, the rule could still make it harder for appellants to appeal—

rather than easier, as the rule was created to do. Some courts read Mallis to

mean that both parties had to agree to waiver, while others held that the right

to have the judgment set forth in a separate document belonged to the

appellant alone. 29 If an appellee could refuse to waive the separate document

requirement, they could force appellants to return to the trial court and

observe the formality of asking the district court to set forth the judgment on

a separate document. 30 But the 2002 amendments to Rule 4 fixed that

problem. “The amendments [to Rule 4] clarify that the decision to waive the

entry of a separate document is for the appellant alone so that an appellee

27

Fed. R. App. P. 4(a)(7)(B).

28

435 U.S. at 387; see also Fed. R. App. P. 4, advisory committee’s note to 2002

amendments (“New Rule 4(a)(7)(B) is intended both to codify the Supreme Court’s

holding in Mallis and to make clear that the decision whether to waive the requirement that

the judgment or order be set forth on a separate document is the appellant’s alone.”).

29

Compare Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691 (4th Cir.

1978) (noting that one requirement for Mallis to apply was that “the appellees ‘did not

object to the taking of the appeal in the absence of a separate judgment’” (quoting Mallis,

435 U.S. at 387–88)) and Theriot, 951 F.2d at 88 (appellee defeated appellate jurisdiction

by objecting to noncompliance with Rule 58) with Leonhard v. United States, 633 F.2d 599,

612 (2d Cir. 1980) (permitting appeal from order not complying with Rule 58 even though

the appellees objected) and Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of

Am., Loc. 249 v. W. Pa. Motor Carriers Ass’n, 660 F.2d 76, 80 (3d Cir. 1981) (same). Our

own opinions were equivocal. Compare Matter of Seiscom Delta, Inc., 857 F.2d 279, 282–83

(5th Cir. 1988) (for Mallis to apply, “the party that would have benefited from a strict

application of [R]ule 58—presumably, in most cases, the appellant—must be shown to

have” waived Rule 58) with id. at 284 (“this decision does not change the law when the

appellee does object to the failure to enter the judgment as a separate document” (emphasis

added) (quoting Hanson v. Town of Flower Mound, 679 F.2d 497, 502 (5th Cir. 1982))). More

than a decade later, we held that an appellee could defeat appellate jurisdiction by objecting

even though Rule 58 was created for the appellant’s benefit. Theriot, 951 F.2d at 88.

30

See, e.g., Silver Star Enters., Inc., 19 F.3d at 1013.

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cannot object and require the appellant to go back to district court to get a

final judgment entered.” 31 What this means for Guerra is simple: The lack of

a separate document did not prevent him from appealing immediately.

True, Guerra did not have to waive the separate document

requirement. Appellants can choose to wait until the judgment is entered on

a separate document before noticing their appeal. But they can only wait for

180 days 32—not eternity. 33 Rule 4 says that even if the judgment is not

entered on a separate document, judgment is deemed entered 150 days after

the “entry of the judgment or order in the civil docket.” 34 Parties then have

another 30 days to file a notice of appeal. 35 The rules also let parties file a

notice of appeal before the judgment is entered. 36 In sum, then, parties have

a 180-day window to file a notice of appeal if the district court neglected to

enter the judgment in a separate document. 37 That 180-day window may be

extended even further on motion to the district court. 38

Guerra’s notice of appeal was filed well outside of even this generous

180-day window. And we cannot forgive this lapse because timeliness is

31

Peng v. Mei Chin Penghu, 335 F.3d 970, 975 n.4 (9th Cir. 2003).

32

See Burnley v. City of San Antonio, 470 F.3d 189, 196 (5th Cir. 2006).

33

Before Rule 4(a) was amended in 2002 to introduce the 150-day cap, the time to

file an appeal was infinite if the district court failed to enter judgment on a separate

document. See, e.g., Abdulwali v. Wash. Metro. Area Transit Auth., 315 F.3d 302, 303–04 &

n.1 (D.C. Cir. 2003).

34

Fed. R. App. P. 4(a)(7)(A)(ii).

35

Id. 4(a)(1)(A).

36

Id. 4(b)(2).

37

See Burnley, 470 F.3d at 196 (where district court failed to comply with Rule 58

but the clerk entered judgment on the docket per Rule 79(a), the appellant had 180 days to

file a notice of appeal).

38

See Fed. R. App. P. 4(a)(5).

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jurisdictional. 39 This makes good sense. Rule 4’s committee notes make clear

that the separate document requirement was not meant to give would-be

appellants infinite amounts of time to file their notice of appeal. While it is

not uncommon for a month or two to pass without hearing from the court,

“150 days of inactivity . . . clearly signals to litigants that the court is done.” 40

While Guerra might have been excused for believing that a written order was

forthcoming for a time, as month after month stretched on the law required

that he find out whether the court still had his motion under advisement. 41

He could have done this informally through a letter or phone call to the court,

or through a formal Rule 58(d) motion. 42 But he did not, and his notice of

appeal was untimely.

C

Guerra raises one last argument. He notes that Rule 4(a) says it is not

enough for the judgment to be set forth on a separate document or for 150

days to have passed. A judgment will also not be deemed entered unless “the

judgment or order is entered in the civil docket under Federal Rule of Civil

Procedure 79(a).” 43 Guerra argues that an oral ruling cannot satisfy Rule

39

Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 264 (1978) (noting that

the “30-day time limit is ‘mandatory and jurisdictional’” (quoting United States v.

Robinson, 361 U.S. 220, 229 (1960))); Matter of Eichelberger, 943 F.2d 536, 540 (5th Cir.

1991) (same).

40

Fed. R. App. P. 4, advisory committee’s note to 2002 amendments.

41

See 16A Catherine T. Struve, Fed. Prac. & Proc. Juris.

(Wright & Miller) § 3950.2 (5th ed.) (“The Rules’ 150-day cap makes eminent good

sense. . . . When a judge neglects to enter a judgment on a separate document, the parties

may be confused about the judge’s intentions. However, if the judge does nothing further

in the case for 150 days, then it ordinarily should occur to even the most inattentive of

appellate counsel that it is time either to seek clarification from the judge or to file an

appeal.”).

42

See Fed. R. Civ. P. 58(d) (“A party may request that judgment be set out in

a separate document as required by Rule 58(a).”).

43

Fed. R. App. P. 4(a)(7)(A)(ii).

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79(a) because there was no “copy” of the court’s order, and that as a result

Rule 4(a)’s 30-day window to appeal was never triggered.

But Rule 79(a) does not require the clerk to keep a copy of the order.

The copy requirement Guerra refers to appears in Rule 79(b). 44 This is

important because Rule 4(a) only requires compliance with Rule 79(a) to start

the clock on a litigant’s time to appeal—not 79(b). So even if Guerra is right

that bench rulings put clerks in a bind because they cannot save a “copy” of

the order, that conundrum is one we can save for another day because it is

immaterial to whether Guerra’s time to appeal under Rule 4(a) expired.

III

While the amendments to Rules 54 and 58 have fixed many problems

that existed for conventional appeals, they continue to cause mischief for

interlocutory appeals. It is anomalous that parties will generally have 180 days

to file an interlocutory appeal. 45 What is worse, this seems to have been an

accident because Rule 58 was not intended to apply to interlocutory appeals

at all. Rule 58 was enacted to resolve the question of when a “judgment,”

meaning an order that marked the end of the case (excepting minor

housekeeping items like attorney’s fees) became effective. 46 But Rule 54 now

defines judgment much more expansively to include “any order from which

44

See Fed. R. Civ. P. 79(b) (“The clerk must keep a copy of every final

judgment and appealable order . . . .”).

45

Parties may have even longer if they file a motion for an extension of time. See

Fed. R. App. P. 4(a)(5).

46

See Ludgood v. Apex Marine Corp. Ship Mgmt., 311 F.3d 364, 368 (5th Cir. 2002)

(giving the conventional definition of a “final judgment” as one that “conclusively

determines the rights of the parties to the litigation and leaves nothing for the court to do

but execute the order or resolve collateral issues” (citations omitted)); see also Escamilla v.

Santos, 591 F.2d 1086, 1088 (5th Cir. 1979) (same).

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an appeal lies,” which had the side-effect of causing Rule 58 to apply to

interlocutory appeals. 47

The advisory committee to the rules of civil procedure is aware of this

strange result. It recommended that courts simply “disregard” the plain

meaning of the rules as applied to interlocutory orders:

In theory . . . the separate document requirement continues to

apply to an interlocutory order that is appealable as a final

decision under collateral-order doctrine. Appealability under

collateral-order doctrine should not be complicated by failure

to enter the order as a judgment on a separate document—

there is little reason to force trial judges to speculate about the

potential appealability of every order. . . . Drastic surgery on

Rules 54(a) and 58 would be required to address this and

related issues, however, and it is better to leave this conundrum

to the pragmatic disregard that seems its present fate.” 48

But for better or worse, courts have not met this conundrum with

“pragmatic disregard.” We have instead applied the separate order

requirement to interlocutory appeals because that is what the plain meaning

of the rules requires. 49 But that is unsatisfactory. Appellants now have an

enormous 180-day window to file interlocutory appeals unless the district

court engages in time-wasting paper-pushing, entering separate

“judgments” containing their holdings on every interlocutory motion that

might be susceptible to appeal. It is unlikely that the pragmatic drafters of the

rules of procedure intended this unpragmatic result.

47

Fed. R. Civ. P. 54(a).

48

Id. 58, advisory committee’s note to 2002 amendment; see also 11 Mary Kay

Kane, Wright & Miller, Fed. Prac. & Proc. Civ. (Wright & Miller)

§ 2782 & n.14 (3d ed.) (noting that “Rule 58 [was] designed . . . [for a] specific and limited

purpose,” and it makes little sense to apply it to interlocutory appeals).

49

See United States v. Indrelunas, 411 U.S. 216, 222 (1973) (the separate document

requirement is “a ‘mechanical change’ that must be mechanically applied in order to avoid

new uncertainties”).

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This practical problem is not the only issue caused by the strange

interplay between Rules 4(a), 54(a), 58, and 79. Rule 54(a)’s definition of

“judgment” as “any order from which an appeal lies” also renders parts of

Rules 4 and 79 surplusage. Rule 4 gives parties 30 days to appeal after entry

of the “judgment or order appealed from.” 50 The language “or order” was

almost certainly intended to refer to appealable interlocutory orders. But

again, Rule 54(a) says that all appealable orders are “judgment[s].” As a

result, the language “or order” could be stricken from Rule 4 without

changing its legal effect. The same problem surfaces in Rule 79(b), which

commands the clerk to “keep a copy of every final judgment and appealable

order.” 51 Again, because Rule 54(a) says all appealable orders are

“judgments,” the language “and appealable order” is unnecessary. Perhaps

“[d]rastic surgery” on one or more of these rules is exactly what is

required. 52

IV

The motion to dismiss the appeal for lack of jurisdiction is

GRANTED.

50

Fed. R. App. P. 4(a)(1)(A). In fact, the unnecessary language “or order” is

found 22 times in Rule 4. See also id. 4(a)(1)(B), 4(a)(1)(B)(iv), 4(a)(2) (used twice),

4(a)(4)(B)(i), 4(a)(6)(A), 4(a)(6)(B), 4(a)(7)(A), 4(a)(7)(A)(i), 4(a)(7)(A)(ii) (used three

times), 4(a)(7)(B) (used twice), 4(b)(1)(A)(i), 4(b)(1)(B)(i), 4(b)(2) (used twice),

4(b)(3)(B), 4(b)(6), 4(c)(3).

51

Fed. R. Civ. P. 79(b).

52

Id. 58, advisory committee’s note to 2002 amendment; see also Bradley Scott

Shannon, Action Is an Action Is an Action Is an Action, 77 Wash. L. Rev. 65, 161–64 (2002)

(noting the problems caused by the interplay of Rules 54(a) and 58 and suggesting that Rule

58 be limited to “final orders,” not “judgments,” thereby freeing interlocutory orders

from the separate document requirement).

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