# Mickey Downie David Wheat v. City of Middleburg Heights, Richard P. Siegel Thomas Schneider

> Court of Appeals for the Sixth Circuit · August 23, 2002 · 301 F.3d 688

URL: https://www.frixlaw.com/law-library/cases/9495315

## Case

- **Full name:** Mickey DOWNIE; David Wheat, Plaintiffs-Appellants, v. CITY OF MIDDLEBURG HEIGHTS, Et Al., Defendants, Richard P. Siegel; Thomas Schneider, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 23, 2002
- **Citations:** 301 F.3d 688; 53 Fed. R. Serv. 3d 456; 2002 U.S. App. LEXIS 17527; 2002 WL 1941161
- **Precedential status:** Published
- **Opinion:** Concurrence by Stafford
- **Judges:** Siler, Moore, Stafford
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495315

## How later opinions describe it (automated extraction)

- holding that the Privacy Act displaces Bivens for claims involving the creation, maintenance, and dissemination of false records by federal agency employees
- affirming district court’s dismissal of Bivens claim based on disclosure of information “because the Privacy Act is a comprehensive legislative scheme that provides a meaningful remedy for the kind of wrong [plaintiff] alleges that he suffered”
- finding Privacy Act is a “comprehensive legislative scheme” that precludes additional Bivens remedies
- noting that an existing comprehensive legislative scheme that provides a meaningful remedy is a special factor counseling hesitation in implying a Bivens cause of action

## Opinion text

STAFFORD, District Judge,
specially concurring.
The majority concludes in Part II that the district court’s certification satisfied the “express determination” and “express direction” requirements of Rule 54(b). Because I find such conclusion both problematic and unnecessary to the decision here, I write separately to explain why I think appellate jurisdiction exists in this case.
A.
Rule 54(b) states, in relevant part:
When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the *700 rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Fed.R.Civ.P. 54(b) (2002). The first sentence of the rule explains what a district court must do to enter a partial final judgment. Specifically, the court must make both an “express determination that there is no just reason for delay” and an “express direction for the entry of judgment.” Fed.R.Civ.P. 54(b). That the drafters intended two separate and distinct requirements is apparent not only from their use of different terminology — the words “determination” and “direction” — to describe the two requirements but also from their use of the word “express” to modify each of the two requirements. 1
The second sentence explains the effect of a district court’s failure to comply with the “determination” and “direction” requirements. Indeed, in the second sentence, the drafters underscored the importance of the “determination” and “direction” requirements by providing that any court order, however designated, that does not comply with both the “determination” and “direction” requirements “shall not terminate the action as to any of the claims or parties” and shall be subject to later revision. Fed.R.Civ.P. 54(b). Moreover, inclusion of the words “however designated” signals the drafters’ concern that the requirements not be circumvented.
By including the “express determination” and “express direction” requirements, the drafters of Rule 54(b) addressed “an overriding concern for certainty and for an express and unmistakable determination of finality in ambiguous multi-party and multi-claim situations.” FSLIC v. Tullos-Pierremont, 894 F.2d 1469 , 1475 (5th Cir.1990). As Professor Wright states: “[Rule 54(b) ] provides much-needed certainty in determining when a final and appealable judgment has been entered .... [I]f [the court] does choose to enter such a final order, [the court] must do so in a definite, unmistakable manner.” 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2654 at 36 (3d ed.1998) (internal quotation omitted); see also In re Frederick Petroleum, 912 F.2d 850 , 853-854 (6th Cir.1990) (suggesting that Rule 54(b) “establishes a much-needed, bright-line test for determining finality, providing certainty for litigants as to whether their appeals are final”). Without strict compliance with the rule’s technical requirements, litigants may be left to wonder whether and when the clock starts to run for an appeal of a partial judgment.
That a district court complies with the technical requirements of Rule 54(b) does not necessarily mean that an appeal of a certified partial judgment is proper. By its own terms, Rule 54(b) applies only to actions involving either multiple parties or multiple claims. Accordingly, an appellate court must examine not only a district court’s compliance with the rule’s “express *701 determination” and “express direction” requirements; it must also look behind the district court’s certification order to determine whether, substantively, the question certified for appeal satisfies the multiple claims/multiple parties prerequisite.
B.
In this case, on September 12, 2000, the district court entered an order granting Siegel’s and Schneider’s motion to dismiss. J.A. at 39. That same date, the district court signed what is entitled a “Judgment Entry” in favor of Siegel and Schneider, and that “Judgment Entry” was entered on the docket. 2 Because the court did not, at that time, expressly determine that there was no just reason to delay an appeal, the “Judgment Entry” did not “terminate the action as to any of the claims or parties, and the order or other form of decision [wa]s subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed.R.Civ.P. 54(b). In effect, the “Judgment Entry” was a nullity.
On October 18, 2000, presumably recognizing that the district court’s “Judgment Entry” did not terminate the action as to Siegel and Schneider and that it did not start the appeal clock running, Downie filed a Rule 54(b) motion for permission to file an immediate appeal. On December 11, 2000, the district court entered an order granting Downie’s Rule 54(b) motion, gave its reasons for finding that there was no just cause for delay, but did not expressly direct entry of judgment. J.A. at 298. Downie filed his notice of appeal on January 9, 2001. J.A. at 46.
Whether or not the district court satisfied the technical requirements of Rule 54(b), in particular the requirement of an “express direction for the entry of judgment,” appellate jurisdiction properly rests in this court. Clearly, the case involves multiple parties. Just as clearly, the district court wholly resolved the action as to two of those parties — Siegel and Schneider — when it granted their motion to dismiss. Substantively, therefore, the district court had a proper basis for certifying an immediate appeal. Downie, moreover, assumed that the time for appeal began to run when the district court granted his Rule 54(b) motion, and he filed a timely notice of appeal accordingly. Under these circumstances, even if the district court failed to comply with the technical requirements of Rule 54(b), no purpose would be served by sending the case back to the district court for a “proper” certification. 3
C.
Even though jurisdiction lies in this court whether or not the district court satisfied the technical requirements of Rule 54(b), the majority decides that, in fact, the district court’s September 12th “Judgment Entry”, combined with its December 11th order expressly determining that there was no just reason for delay, satisfied those requirements. The majority thus decides that the required “express determination that there is no just reason for delay” and the required “express di *702 rection for the entry of judgment” need not be included in the same court order but can, instead, be parsed from two separate documents entered months apart. Because I think the majority’s decision could undermine the certainty which is the very aim of Rule 54(b), 4 I would not make such a decision where, as in this case, the decision is unnecessary to a finding of jurisdiction.
Moreover, I question the majority’s reliance on a sentence taken from General Acquisition, Inc. v. GenCorp., Inc., 23 F.3d 1022, 1026, 1027 (6th Cir.1994). In that case, this court considered whether the “judgment” certified for appeal — a judgment on the damages element, but not the liability element, of the plaintiffs case — ultimately disposed of a separable claim. On review, this court determined that the district court was “powerless” to certify its order regarding damages. Because the plaintiffs allegations concerned a single aggregate of operative facts, the circuit court found that separable claims were not present even though the plaintiff asserted three different legal theories and asked for two different types of damages. The appellate court accordingly dismissed the appeal and remanded the case to the district court for further proceedings.
The court in General Acquisition did not address the aspect of a Rule 54(b) issue that is before this court: that is, whether the district court complied with the rule’s technical requirements. Presumably, the district court’s certification in General Acquisition contained the required “express determination” and “express direction” components. Nonetheless, in the context of the separable claim issue, the General Acquisition court wrote: “The first step in certification, entry of partial final judgment, is satisfied where some decision made by the district court ultimately disposes of one or more but fewer than all of the claims or parties in a multi-claim/multi-party action.” Gen. Acquisition, 23 F.3d at 1026-1027 .
Here, in the context of an “express direction” issue, not in the context of separable claims issue, the majority quotes the above sentence in General Acquisition, suggesting that the “express direction” component of Rule 54(b) is satisfied when “some decision made by the district court ultimately disposes of one or more but fewer than all of the claims or parties.” Supra p. 692 (emphasis supplied by majority). In my opinion, the majority has taken the language from General Acquisition out of context and, by doing so, has undermined Rule 54(b)’s direction that “any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties” if the district court has failed to comply with either the “express direction” or “express determination” component of Rule 54(b).
. Black's Law Dictionary defines "express” as "[c]learly and unmistakably communicated.” Black's Law Dictionary 601 (7th ed.1999). Other dictionaries give substantially similar definitions. See, e.g., Webster's Third New International Dictionary 803 (1993) (defining "express” as "directly and distinctly stated or expressed rather than implied or left to inference ... definite, clear, explicit, unmistakable”); The Merriam Webster Dictionaiy 182 (1995) (defining "express” as "explicit; exact, precise ... specific”).
. The district court's "Judgment Entry” was not included in the appendix to this case.
. Like Rule 54(b), Rule 58 addresses a concern for an express and unmistakable determination of finality; yet the United States Supreme Court has said that an appellate court should insist on technical application of Rule 58 only when technical application of the rule would prevent the loss of a litigant's right to appeal due to confusion. Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 , 98 S.Ct. 1117 , 55 L.Ed.2d 357 (1978). In contrast, compliance with the technicalities of Rule 58 is unnecessary when the parties have assumed that the time for appeal has begun to run and have behaved accordingly. Id.
. In this case, for example, Downie might have wondered whether a "judgment” that was a nullity when entered could later serve as the express entry of judgment triggering the time for appeal under Rule 54(b). Had he assumed that the "Judgment Entry,” which was ineffective when entered in September, could not be resurrected as a valid entry of judgment in December, he might have delayed filing his appeal, waiting for entry of another judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495315. Public record. Not legal advice.