UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6070
BILLY G. ASEMANI,
Plaintiff - Appellant,
v.
THE GOVERNMENT OF ISLAMIC REPUBLIC OF IRAN; THE SUPREME LEADER
OF THE ISLAMIC REVOLUTION KHAMENEI; THE ISLAMIC REVOLUTIONARY
COURT; THE MINISTRY OF INTELLIGENCE AND SECURITY; THE COUNSEL
OF GUARDIANS; THE MINISTRY OF ISLAMIC CULTURE AND GUIDANCE;
THE ISLAMIC REVOLUTIONARY GUARDS; ALI FALLAHIAN-KHUZESTANI,
Head of the Revolutionary Guard Corps; HOGGATOL-ISLAM NAYERRI,
Chief Judge of the Islamic Revolutionary Court,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cv-00693-CMH-BRP)
Submitted: October 1, 2008 Decided: November 6, 2008
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Billy G. Asemani, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Asemani, an Iranian native who is currently
detained in a Maryland correctional institution, filed a complaint
in federal district court pursuant to the Antiterrorism Act (“ATA”)
alleging various Iranian government officials detained and tortured
him in violation of 18 U.S.C. § 2333 (2000). Finding that Asemani
repeatedly failed to demonstrate he was a national under the ATA in
numerous previous civil actions, the district court dismissed
Asemani’s action with prejudice as malicious pursuant to 28 U.S.C.
§ 1915A(b)(1) (2000). The district court issued a memorandum
opinion and order to this effect on August 3, 2007 (“August 2007
order”), but no separate document reflecting the judgment was
entered on its docket.
In October 2007, Asemani wrote the district court
inquiring about the status of his notice of appeal, which he
claimed he presented to prison officials in a timely manner. In
subsequent filings, Asemani further expressed his intention to
appeal the August 2007 order. The district court denied the motion
in November 2007 (“November 2007 order”), finding a timely notice
of appeal was not filed with the court and, to the extent Asemani’s
correspondence could be construed as a motion to reopen the appeal
period, the court denied the motion because Asemani’s letter
confirmed he received the underlying order. Asemani filed a timely
notice of appeal from the November 2007 order.
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We begin by addressing the timeliness of Asemani’s appeal
from the August 2007 order. In a civil action in which the United
States or an officer or agency of the federal government is not a
party, the notice of appeal must be filed within thirty days after
entry of the judgment or order appealed. Fed. R. App. P.
4(a)(1)(A). Entry of judgment occurs when the judgment is set
forth in a document separate from the district court’s memorandum
opinion and the document is entered on the district court’s docket.
Fed. R. App. P. 4(a)(1), 4(a)(7); Fed. R. Civ. P. 58(a), (b);
Wilson v. Murray, 806 F.2d 1232, 1234 (4th Cir. 1986) (discussing
the separate document requirement). When Rule 58 requires that a
judgment or order be set forth in a separate document, but no
separate document was issued, the judgment is deemed entered — and
the thirty-day time period to file a notice of appeal starts to run
— upon expiration of 150 days after the date of entry of the
court’s decision on the civil docket. See Freudensprung v.
Offshore Tech. Servs., Inc., 379 F.3d 327, 335 (10th Cir. 2004).
Here, there was no separate entry of judgment. Because
the August 2007 order contained the court’s reasoning, it does not
qualify as a separate document for purposes of Rule 58. See, e.g.,
Hughes v. Halifax County Sch. Bd., 823 F.2d 832, 835 (4th Cir.
1987). Accordingly, the appeal period from the August 2007
decision did not begin to run until 150 days after the entry of
that decision on the district court’s docket. See Fed. R. App. P.
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4(a)(7)(ii). We find that Asemani adequately stated his intention
to appeal the August 2007 order within this time period, and an
appeal from that order therefore would not be untimely.
Having found that Asemani did not surrender his right to
appeal the August 2007 decision on timeliness grounds, we must now
determine the most productive manner in which to proceed. In his
informal brief, Asemani contends that he presently challenges only
the propriety of the November 2007 order on appeal, and not the
district court’s disposition of the underlying claims in the August
2007 opinion. Asemani’s preference does not suit the needs of
judicial economy. Vacating the district court’s November 2007
order and remanding the case for further proceedings would be
futile, because the district court already addressed the merits of
Asemani’s claim in its August 2007 dismissal order. Furthermore,
additional briefing on whether Asemani has standing to proceed
under the ATA is not required. Recently, we addressed the precise
issue and concluded that Asemani failed to demonstrate he was a
national of the United States under the ATA. See Asemani v. Gov’t
of Islamic Rep. of Iran, No. 07-7431, 2008 WL 1960867 (4th Cir.
May 6, 2008) (unpublished).
Accordingly, we affirm the district court’s August 2007
order and dismiss as moot Asemani’s appeal from the court’s
November 2007 order. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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