United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
---------
Argued September 4, 1998 Decided October 27, 1998
No. 97-5110
United States of America,
Appellee
v.
Marcus E. Haynes,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00466)
Deanne E. Maynard, appointed by the court, argued the
cause as amicus curiae for appellant. With her on the briefs
were Ian Heath Gershengorn and Ann M. Kappler.
Daria J. Zane, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Wilma A. Lewis,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attor-
ney.
Before: Williams, Henderson and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Marcus Haynes took out federal-
ly insured student loans and failed to pay them back. The
government sued to recover about $11,000 in unpaid principal
and about $7,000 in then-accrued interest. The government
prevailed, ultimately securing a judgment that with interest
and expenses amounted to about $24,000. Haynes filed two
successive motions for reconsideration, claiming that Con-
gress's repeal of a prior statute of limitations imposed such a
special hardship on him that, under a dictum in United States
v. Hodges, 999 F.2d 341, 342 (8th Cir. 1993), the repeal would
be unconstitutional as applied to him. The district court
denied both motions. The principal issue on appeal is wheth-
er Haynes's appeal from the denial of the last motion is time-
barred.
The district court denied the last motion for reconsidera-
tion on November 5, 1996. Haynes filed his notice of appeal
April 21, 1997. If the court's denial of the motion was enough
to start the 60-day clock running on the time to appeal, see
Fed. R. App. P. 4(a)(1); 28 U.S.C. s 2107(b) (both providing
60 days to appeal in a civil case in which the United States is
a party), plainly the appeal was out of time. But Rule 58 of
the Federal Rules of Civil Procedure requires that every
"judgment shall be set forth on a separate document." If
Rule 58 governs the denial of a motion for reconsideration,
and if the district court's order does not satisfy the separate
document requirement, the appeal is not time-barred. We
find that Rule 58 does apply and that the court's order does
not satisfy it; accordingly we reach the merits of the appeal.
We save discussion of the underlying facts for later, as they
have no bearing on the main issue, that of our jurisdiction.
* * *
Rule 58 provides in pertinent part that "[e]very judgment
shall be set forth on a separate document" and that "[a]
judgment is effective only when so set forth." Fed. R. Civ. P.
58. According to the Advisory Committee Notes, the judg-
ment must be "set out on a separate document--distinct from
any opinion or memorandum--which provides the basis for
the entry of judgment." Notes of Advisory Committee on
Rules, 1963 Amendment, following Fed. R. Civ. P. 58.
The sole purpose of Rule 58's separate document require-
ment was to clarify when the time for an appeal begins to
run. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 (1978).
It was added in 1963 to prevent uncertainty "over what
actions ... would constitute an entry of judgment, and occa-
sional grief to litigants as a result of this uncertainty."
United States v. Indrelunas, 411 U.S. 216, 220 (1973). In
Indrelunas, the Court held that Rule 58 was a " 'mechanical
change' that must be mechanically applied in order to avoid
new uncertainties as to the date on which a judgment is
entered." 411 U.S. at 222.
The rules seem to compel the view that Rule 58 governs
the denial of Haynes's motion for reconsideration. It sets out
prerequisites for "judgments." The Rules in turn define
"judgment" as including "[a] decree and any order from
which an appeal lies." Fed. R. Civ. P. 54. Here, the order in
question was the denial of a motion for reconsideration under
Rule 60(b), and the government does not dispute the amicus's
contention that an appeal lies from a denial of a Rule 60(b)
motion. See Browder v. Director, Illinois Dep't of Correc-
tions, 434 U.S. 257, 263 n.7 (1978) ("A timely appeal may be
taken under Fed. R. App. Proc. 4(a) from a ruling on a Rule
60(b) motion"). It follows that the denial constitutes a "judg-
ment" within the meaning of the rules. See Derrington-Bey
v. District of Columbia Dep't of Corrections, 39 F.3d 1224,
1226 (D.C. Cir. 1994) ("An order denying such a motion
[under Rule 60(b)] is itself a 'judgment' under Fed. R. Civ. P.
54(a): the term 'judgment' as used in the rules 'includes a
decree and any order from which the appeal lies.' ").
The government argues that despite the language of the
rules there are policy reasons why denial of a Rule 60(b)
motion should be treated differently from more conventional
judgments. There is no need to apply the "separate docu-
ment" requirement, it says, because by the time a court
denies a Rule 60(b) motion, a final judgment has already been
entered. Besides, the government argues, the application of
the separate document requirement to post-judgment motions
provides a boon for tardy appellants.
These objections do not come within a country mile of the
sort of incoherence or inconsistency in the literal language of
the rules that under United States v. Ron Pair Enterp., Inc.,
489 U.S. 235, 240-41 (1989), would allow a court to go beyond
the rules' plain meaning. As an appealable event, denial of a
Rule 60(b) motion generates, so far as we can see, no less risk
of party confusion than does issuance of a garden-variety suit-
terminating order, so the separate document requirement is
as clarifying in the one context as in the other. And insofar
as the requirement may be a boon to sluggish litigants, again
we see no greater risk from 60(b) denials than from orders
within Rule 58's indisputable core.
The government cites Bankers Trust, 435 U.S. at 386-87,
for the proposition that the separate document requirement
of Rule 58 is not an essential prerequisite and can be inter-
preted using a common sense approach. But in Bankers
Trust the issue was whether the absence of a separate
document rendered an appeal premature, so that a court of
appeals would have to remand to the district court for entry
of a separate document before it could take jurisdiction of the
appeal. Id. Saying that Rule 58 was to be " 'interpreted to
prevent loss of the right of appeal, not to facilitate loss,' " id.
at 386 (quoting 9 J. Moore, Federal Practice p 110.08[2] at
119-90 (1970)), the Court rejected the idea that any such
remand was necessary--at least where, as here, appellee has
raised no objection to the appeal's superficial prematurity.
"Wheels would spin for no practical purpose." 435 U.S. at
385. See also Shalala v. Schaefer, 509 U.S. 292, 302-03
(1993)(holding that although a "separate document" is not
needed for an order to become appealable, one is needed to
render an appeal untimely). Indeed, our opinion in Pack v.
Burns Int'l Security Serv., 130 F.3d 1071 (D.C. Cir. 1997),
ruled that even over appellee's objection there was no need
for such a pointless exercise. Id. at 1073.
The government also cites several decisions from other
circuits for the proposition that a separate document is not
always required when a court denies a post-judgment motion.
See Baker v. Mercedes Benz of N. Am., 114 F.3d 57, 59-61
(5th Cir. 1997); Chambers v. Am. Trans Air, Inc., 990 F.2d
317, 318 (7th Cir. 1993); Ellison v. Conoco, Inc., 950 F.2d
1196, 1200 (5th Cir. 1992); Wikoff v. Vanderveld, 897 F.2d
232, 236 (7th Cir. 1990). In fact, in none of these cases did a
court use an "exception" to Rule 58 to defeat appellate
jurisdiction; indeed, in all cases the court found the appeals
salvageable. In Baker there was no separate judgment for
the grant of summary judgment; the losing party moved for
entry of judgment in a separate document, the trial court
denied the motion, and the appellate court reversed with
instructions to enter it. Why this was necessary in light of
Bankers Trust is not clear to us, but the case is not a holding
exempting dispositions of post-judgment motions from Rule
58. In Chambers the court read prior Seventh Circuit cases
as saying that Rule 58 did not govern denial of Rule 59 post-
trial motions,1 but observed that the First Circuit in Fiore v.
Washington County Community Mental Health Ctr., 960
F.2d 229 (1st Cir. 1992) (en banc), reached the contrary
conclusion "after careful examination of the issue." The court
then saved the appeal on the ground that the initial district
court ruling was only tentative. Ellison was primarily an
application of Rules 4(a)(2) and 4(a)(4) of the Federal Rules of
Appellate Procedure as they stood prior to amendment in
1993; ultimately the court saved the appeal by finding Rule
4(a)(2) applicable. And in Wikoff the court simply applied
Bankers Trust's appeal-saving principle.
We note also that all these decisions involved motions that,
under Fed. R. App. P. 4(a)(4) in both its pre- and post-1993
guises, tolled the time to appeal an original judgment. The
1979-93 version of that rule suggested that orders disposing
of the covered motions were not appealable as such, indepen-
dent of appeals from the original judgment. See Stone v.
INS, 514 U.S. 386, 403 (1995). This raised a question wheth-
__________
1 Charles v. Daley, 799 F.2d 343, 346-47 (7th Cir. 1986), indeed
says just that, but the statement appears to be dictum, as the case
involved orders amending the prior judgment, and the court ruled
that such an order did not start the clock running until entered on a
separate document. Id.
er such orders qualified as "final judgments" under Rule 58.
Cf. Chambers, 990 F.2d at 318 (saying that an order denying
a Rule 59 motion does not qualify as final judgment). Al-
though we reach no holding on the independent appealability
of dispositions of tolling motions under Rule 4(a)(4), we note
that the current version of the rule provides explicitly for
appeal of an order amending or altering the original judg-
ment. In any event, although we share the amicus's doubt
that disposition of Rule 4(a)(4) tolling motions should be
exempt from Rule 58, that issue may be left for another day.
We note in this connection that Fed. R. App. P. 4(a)(7)
provides that judgments or orders are deemed entered under
Rule 4 only when entered in compliance with Fed. R. Civ. P.
58. See Baker, 114 F.3d at 60 n.12.
In concluding that Rule 58 governs the disposition of Rule
60(b) post-judgment motions, we of course ally ourselves with
the First Circuit's decision in Fiore. We cannot, however,
join its ruling that despite Rule 58 a party loses his right to
appeal if he does not file his notice within three months of a
district court's last order in a case. Id. at 236. In Pack v.
Burns Int'l Security Serv., 130 F.3d at 1073, we noted this
approach but declined to adopt it in a case involving an order
dismissing a case. Here the Fiore rule would be fatal to
Haynes's appeal, so we must either reject our dictum in Pack
or turn it into holding. Finding no linguistic basis for the
three-month limitation, we hold that no such limit applies.
We next consider whether the district court's three-page
"Memorandum Opinion & Order" denying the Rule 60(b)
motion nevertheless qualifies as a separate document under
Rule 58. In Diamond by Diamond v. McKenzie, 770 F.2d
225 (D.C. Cir. 1985) (per curiam), we held that an order that
"set forth a decision in the sense of providing the basis, albeit
briefly, of the court's reasoning, along with citation to legal
authorities," did not satisfy the separate-document require-
ment. Id. at 229-30. Here the Memorandum Opinion &
Order included an extensive recitation of the procedural
history of this case, a related bankruptcy case, as well as the
district court's reasoning in denying the motion, including
citation to cases and statutes in support of the disposition. In
light of Diamond by Diamond, we think it understandable
that the government found itself speechless when invited at
oral argument to explain how, if Rule 58 applied, the Memo-
randum Opinion & Order could be thought to qualify.
Finally, amicus diligently reminds us that the appeal is
technically premature, since no separate document was ever
filed under Rule 58. Since remanding to the "district court to
require entry of a conforming judgment would serve no
practical purpose," Pack, 130 F.3d at 1073, we assume juris-
diction over this appeal and thus at last reach the merits.
* * *
After the district court granted summary judgment, the
United States began garnishing Haynes's wages. On March
25, 1996 Haynes filed a voluntary petition for bankruptcy
under Chapter 7, and on October 7, 1996 the bankruptcy
court issued an order of discharge. In May and August 1996
Haynes filed motions for reconsideration of the district
court's initial judgment. He urged that the action against
him was barred by the statute of limitations, claiming, under
the theory suggested in dictum in United States v. Hodges,
999 F.2d at 342, that the retroactive application of that
statute's repeal would cause him special hardship, and thus
would be unconstitutional as applied to him. In dismissing
the second motion to reconsider on November 5, 1996, the
district court reasoned that it was mooted by the intervening
discharge in bankruptcy, which encompassed Haynes's stu-
dent loan debts.
But while the discharge in bankruptcy relieved Haynes of
his remaining obligations to the government, it is not so clear
that it mooted his claim to return of money he had already
paid in partial satisfaction of the initial judgment. The
government here argues that that claim too is mooted, be-
cause any interest that Haynes had in the money became the
property of the bankruptcy estate on the filing of his petition,
citing 11 U.S.C. s 541. Amicus answers that under 11
U.S.C. s 554(c), property scheduled under s 521(1) of the
bankruptcy code "not otherwise administered at the time of
the closing of a case is abandoned to the debtor," so that the
claim still lives.
The district court did not consider whether Haynes's resti-
tution claim (assuming it had some possible merit) survived,
and as the briefing on the point has been somewhat fragmen-
tary we do not resolve the mootness issue, but remand for the
district court's consideration. A district court's decision to
deny a Rule 60(b) motion is ordinarily reviewable for abuse of
discretion, Browder v. Director, Department of Corrections,
434 U.S. 257, 263 n.7 (1978), but where the discretion has not
been exercised we do not see how we can affirm the court's
denial of the motion unless convinced that any alternative
would have been an abuse of discretion. Assuming that
Haynes may be able to show that his restitution claim is not
moot, and assuming that, if the district court had allowed
further proceedings, Haynes might conceivably have shown
the sort of special hardship alluded to in Hodges, we do not
think we can now say that any alternative disposition would
have been an abuse of discretion. Accordingly, we remand to
the district court for the exercise of its discretion. We
emphasize that in doing so we are taking no position on the
as-yet unaddressed mootness issue, and are not suggesting
that we are aware of any evidence currently in the record
that would support a finding that repeal of the statute of
limitations would be unconstitutional as to Haynes.
So ordered.