Pack v. Burns International Security Service

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed December 9, 1997

No. 97-7102

Michael Lawrence Pack,

Appellant

v.

Burns International Security Service,

Appellee

Appeal from the United States District Court

for the District of Columbia

---------

On Motion to Dismiss

Michael Lawrence Pack, pro se, for appellant.

Paul R. Pearson was on the motion to dismiss, for appellee.

Before: Wald, Silberman, and Randolph, Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: This case poses the question whether the
court has jurisdiction over an appeal which would have been
untimely had the underlying judgment been entered in accor-
dance with Federal Rule of Civil Procedure 58. Because the
strictures of Rule 58 were not complied with, however, we do
have jurisdiction over this appeal, and so deny the motion to
dismiss. Michael Lawrence Pack filed a pro se complaint
stemming from a September 1995 encounter at Union Station
with Amtrak guards and employees of the Burns Internation-
al Security Service ("Burns"). Burns filed a motion to dis-
miss the complaint for failure to state a claim upon which
relief could be granted. When Pack failed to file a timely
response to the motion, the district court issued an order
directing him to respond by a date certain.

Two weeks prior to the deadline, Pack filed an opposition to
the dismissal motion. Apparently unaware of Pack's filing,
the district court subsequently entered an order stating that
the motion to dismiss would be treated as conceded and
granted. The district court's order provided several grounds
for dismissal, and directed that the case be "dismissed with
prejudice from the docket of this court." No separate judg-
ment in compliance with Fed. R. Civ. P. 58 was entered.
Forty-eight days later, Pack filed a notice of appeal. The
notice bears a hand-written notation from the district court
judge stating: "Let this be filed." Burns has now filed a
motion to dismiss the appeal, arguing that the notice of
appeal was untimely and the district court judge's notation
was ineffective to extend Pack's appeal time in the absence of
a motion requesting an extension.

Rule 58 requires that every judgment be set forth on a
separate document. The Supreme Court has held that this
rule must be "mechanically applied." See United States v.
Indrelunas, 411 U.S. 216, 222 (1973). Because the district
court's order failed to comply with Rule 58, Pack's notice of
appeal cannot be considered late. See Baker v. Mercedes
Benz of North America, 114 F.3d 57 (5th Cir. 1997) (right to
appeal cannot be foreclosed by failure to file a notice of
appeal when no Rule 58 separate document judgment has
been entered). An appellant may, therefore, safely wait until

a conforming judgment has been entered and file an appeal at
that time. See Shalala v. Schaefer, 509 U.S. 292 (1993).

The more difficult question is whether the court lacks
jurisdiction over Pack's appeal on the grounds that it is
premature, because no judgment in accordance with Rule 58
has been entered. In certain circumstances, parties can
waive Rule 58's requirements and an appellate court can
exercise jurisdiction over an appeal even though no judgment
conforming to Rule 58 has been entered. See Bankers Trust
Co. v. Mallis, 435 U.S. 381 (1978); Diamond by Diamond v.
McKenzie, 770 F.2d 225 (D.C. Cir. 1985) (waiver rule an-
nounced in Mallis applies where district court intended to
enter a final judgment, judgment was entered on docket, and
no objection to absence of Rule 58 order was made).

This circuit has not heretofore found a waiver of Rule 58's
requirements when an appellant failed to note a timely appeal
from the district court's nonconforming judgment. Some of
our sister circuits have held that where a timely notice of
appeal was not filed, the court must decline to hear the merits
of the appeal. See Baker, 114 F.3d at 61 (5th Cir. 1997) (court
must decline to address merits of appeal where no timely
notice of appeal is filed); Armstrong v. Ahitow, 36 F.3d 574
(7th Cir. 1994) (appeal filed more than one year after entry of
nonconforming judgment dismissed as premature). See also
Hughes v. Halifax County School Board, 823 F.2d 832 (4th
Cir. 1987) (district court's denial of motion to enter judgment
reversed; court notes that Rule 58 requirements not waived
because no timely appeal filed and appellant sought district
court entry of conforming Rule 58 judgment).

Other circuits, however, have reasoned that the Supreme
Court's rationale in Mallis supports the exercise of jurisdic-
tion over a challenge to an order which does not comply with
Rule 58 but was clearly intended to be final, notwithstanding
the appellant's failure to note a timely appeal. In Mallis, the
Court noted that the separate document rule is aimed at
achieving certainty as to time limits for appeal. If the district
court's error in not entering its judgment on a separate

document was inadvertent, only delay would result from
requiring the court of appeals to dismiss the appeal. "Upon
dismissal, the district court would simply file and enter the
separate judgment, from which a timely appeal would then be
taken. Wheels would spin for no practical purpose." Id., 435
U.S. at 385. See Clough v. Rush, 959 F.2d 182 (10th Cir. 1992)
(court exercised jurisdiction over appeal, notwithstanding dis-
trict court's failure to enter a separate judgment, because
remand would waste judicial resources); McCalden v. Cali-
fornia Library Ass'n, 955 F.2d 1214 (9th Cir. 1990) (notice of
appeal filed three months after nonconforming judgment
would have become final not untimely; court exercised juris-
diction without requiring remand).

The First Circuit has adopted a compromise approach.
Apparently out of concern that inadvertent failure to enter a
Rule 58 judgment would provide an undeserved boon to tardy
appellants, the First Circuit has promulgated procedures
governing appeals taken from judgments which do not comply
with the requirements of Rule 58. See Fiore v. Washington
County Community Mental Health Ctr., 960 F.2d 229 (1st Cir.
1992). These procedures permit the court to exercise juris-
diction over appeals which are filed less than three months
after entry of the nonconforming judgment, but disallows, on
timeliness grounds, appeals filed after the passage of more
than three months. Id., 960 F.2d at 238-39.

Ultimately, we agree with those courts which have found
the rationale behind the Supreme Court's discussion in Mallis
to require the exercise of jurisdiction over an appeal from a
nonconforming judgment notwithstanding an appellant's fail-
ure to file a notice of appeal within the applicable period
following entry of the judgment. In light of the district
court's failure to enter a Rule 58 judgment, and because
remand to the district court to require entry of a conforming
judgment would serve no practical purpose, we assume juris-
diction over Pack's appeal and deny Burns' motion to dismiss.

So ordered.