Mergentime Corp. v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 1998 Decided February 16, 1999

No. 97-7138

Mergentime Corporation, et al.,

Appellants/Cross-Appellees

v.

Washington Metropolitan Area Transit Authority, et al.,

Appellees/Cross-Appellants

Consolidated with

No. 97-7139

No. 97-7140

Appeals from the United States District Court

for the District of Columbia

(No. 89cv01055)

Philip Allen Lacovara argued the cause for appellant/
cross-appellee Mergentime Corporation. With him on the
briefs were Gary A. Orseck and Mark S. Davies.

Richard K. Willard argued the cause for appellant/cross-
appellee Perini Corporation. With him on the briefs were
Stephen A. Fennell, Brian J. Leske and John R. Keys, Jr.
Robert S. Fischler entered an appearance.

W. Stanfield Johnson argued the cause for appellees/cross-
appellants. With him on the briefs were George D. Rutting-
er, Gerard J. Stief, Robert J. Kniaz and Robert L. Polk.

Before: Henderson, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: This case requires us to interpret
Federal Rule of Civil Procedure 63, which applies when a
district judge becomes unable to proceed and is replaced by a
successor judge. The original judge in this case presided
over a 45-day bench trial, during which the parties presented
more than 50 witnesses and introduced more than 4,000
exhibits. Because the original judge became terminally ill
after the close of evidence and could only make partial
findings of fact and conclusions of law before he died, the
successor judge faced two discrete tasks: adjudicating post-
trial motions challenging the original judge's findings and
conclusions, and making findings and conclusions of his own
regarding the unresolved issues. Stating that he would not
"second guess" the original judge's findings and conclusions,
the successor judge refused to consider the parties' post-trial
motions. Then, without allowing the parties to recall wit-
nesses, the successor judge made further findings and conclu-
sions from the record. Because we hold that the successor
judge's refusal to adjudicate post-trial motions and to consid-
er recalling witnesses violated Rule 63, we reverse.

I

In 1985, the Washington Metropolitan Area Transit Au-
thority awarded a $50.9 million contract to build the Shaw
Street station and associated tunnels on Metro's Green Line

to a joint venture consisting of two construction companies,
Mergentime Corporation and Perini Corporation, appellants
in this case. WMATA soon awarded the joint venture a
second contract to build the Green Line's U Street station
and associated tunnels for $44.3 million. The contracts, which
contained standard provisions governing contract modifica-
tion, default termination, and dispute resolution, called for the
completion of the Shaw Street work by March 1989 and the U
Street work by August 1989.

From the outset, both projects experienced unexpected
difficulties that caused substantial delays and cost overruns.
For example, the Department of Public Works rejected the
contractors' request to close Rhode Island Avenue (as
WMATA's bid invitation had specified). This required signifi-
cant changes in utility relocation plans that were important to
the early stages of construction of the Shaw Street station.
The contractors also encountered unanticipated soil conditions
as they tunneled north from the Shaw Street station, requir-
ing the use of time-consuming and expensive grouting tech-
niques to stabilize the soil.

Invoking the "changes" clause of the contracts, the contrac-
tors submitted claims for equitable adjustments to the con-
tract price seeking compensation for expenses resulting from
these unforeseen problems. WMATA paid some of these
claims, but slowly. By early 1988, the contractors were
running a deficit of over $8.6 million on the Shaw Street
project alone. To make matters worse, the contractors dis-
solved their joint venture at the end of 1987, though they did
not immediately inform WMATA. Mergentime bought out
Perini's interest for $1.5 million. This capital outlay, coupled
with the fact that Perini was no longer making capital contri-
butions to the project, worsened Mergentime's financial
straits.

In April 1989, the contractors sued WMATA in the United
States District Court for the District of Columbia, alleging
that WMATA's failure to pay their claims for additional work
constituted a breach of the Shaw Street contract. They
sought $18.5 million in damages and a declaration that they

had no obligation to continue working. In the meantime,
work on the two projects slowed significantly. By the follow-
ing summer, Mergentime had drastically reduced its work-
force, falling weeks if not months behind schedule.

In an effort to rejuvenate the projects, the contractors and
WMATA entered into a written agreement in August 1989,
which, recognizing that most of the completion dates in the
original contracts had passed, established revised "milestone"
completion dates of September 1 and December 15, 1990 for
Shaw Street and U Street, respectively. The contractors
promised to use their "best efforts" to complete the projects
by those dates in exchange for WMATA's promise to pay the
contractors $4.4 million against their outstanding reimburse-
ment claims and to use its "best efforts" to settle the remain-
der of those claims as promptly as possible. WMATA also
agreed to relinquish any right to terminate the contract for
default based on events that had occurred prior to the
agreement. In return, the contractors agreed not to stop
working based on prior events, including WMATA's failure to
process their reimbursement claims. Apart from the recipro-
cal waivers of the right to terminate, the agreement expressly
disclaimed any intent by the parties to relinquish their claims
in the pending lawsuit, which the parties asked the district
court to hold in abeyance.

Mergentime resumed work in September. It progressed
satisfactorily for a few months, but by December work had
once again slowed substantially. Mergentime complained to
WMATA that because of its cash flow problems it would be
unable to complete the work unless WMATA processed its
outstanding reimbursement claims. In response, WMATA
gave Mergentime an advance of $1 million in December 1989,
and another advance of $1.6 million in February 1990. Al-
though these advances briefly revitalized Mergentime's prog-
ress, each burst of energy was short-lived. By the spring of
1990, Mergentime had all but ceased working at both sites.

Asserting that the September and December 1990 mile-
stone dates were no longer attainable, WMATA issued "show
cause" letters to the contractors. (By then WMATA knew

that the contractors had dissolved their joint venture, but it
was not entirely clear whether Perini, which remains a party
to this litigation, retained its obligations under the original
contracts.) Responding to the show cause letters and con-
tinuing to insist that further progress hinged on the settle-
ment of outstanding claims, Mergentime demanded an addi-
tional $7.9 million as a condition of returning to work.
WMATA terminated the contracts for default on May 11,
1990.

Reviving their dormant lawsuit, the contractors added
claims for breach of the U Street contract, breach of the
August 1989 agreement, and wrongful termination. WMATA
counterclaimed to recover so-called "excess reprocurement
costs"--expenses incurred in hiring other contractors to com-
plete the work covered by the contracts. During a 45-day
bench trial, the parties presented over 50 witnesses and
submitted over 4,000 exhibits.

Following the close of evidence, the district judge devel-
oped a terminal illness. As the illness worsened, he contin-
ued to work heroically, issuing a 251-page opinion containing
partial findings of fact and conclusions of law in July 1993.
Observing that "[t]his case is about how not to build a subway
system," the judge held that WMATA justifiably terminated
the contracts for default and was entitled to $16.5 million in
excess reprocurement costs, that the contractors' Shaw
Street reimbursement claims had "substantial, if not com-
plete, merit," and that the contractors had failed to establish
their entitlement to prove those claims with the beneficial
"total cost" accounting method. Mergentime Corp. v.
WMATA, No. 89-1055, at 1, 242, 247, 249 (D.D.C. July 30,
1993) ("July 1993 Order"). The judge said that he was unable
to quantify the contractors' entitlement to reimbursement for
its Shaw Street claims or to draw any conclusions regarding
the merits of the contractors' U Street claims. See id. at
248-49. The judge died two days later.

After the case was reassigned to a successor judge, the
contractors filed motions to amend the original judge's find-
ings under Federal Rule of Civil Procedure 52 and for a new

trial under Rule 59. WMATA filed a motion to correct
"inadvertent omissions" in the original judge's damages calcu-
lations. The parties also filed briefs suggesting procedures
for resolving the issues left open by the original judge.

Following more than a year of inaction, the parties asked
the successor judge to schedule a status conference to discuss
the court's plan for proceeding. Instead of holding a status
conference, the successor judge issued an order summarily
denying all pending motions, explaining that he would not
reconsider any issues already decided by the original judge
because he was only "attempting to finish the case as [the
original judge] would have had he survived long enough."
Mergentime Corp. v. WMATA, No. 89-1055, at 4 (D.D.C.
Apr. 7, 1995) ("April 1995 Order"). The order also estab-
lished a two-round briefing schedule with respect to the open
issues, directing the parties to support their arguments by
citing to the existing record. See id. at 12-13. Briefing
occurred throughout the summer and fall of 1995. Two years
later, in July 1997, the successor judge issued his findings and
conclusions with respect to the remaining issues, awarding
the contractors $4.25 million on their outstanding claims.
Mergentime Corp. v. WMATA, No. 89-1055 (D.D.C. July 22,
1997) ("July 1997 Order"). He also ordered post-judgment
interest to run from the date of his July 1997 final judgment,
not from the original judge's July 1993 partial judgment.
Mergentime Corp. v. WMATA, No. 89-1055 (D.D.C. Sept. 18,
1997) ("September 1997 Order").

On appeal, the contractors claim that the procedure the
successor judge adopted for disposing of the post-trial mo-
tions and resolving the issues left open by the original judge's
death violated Federal Rule of Civil Procedure 63. On the
merits, they challenge many of the findings and conclusions of
both judges. Cross-appealing, WMATA claims that post-
judgment interest should run from the date of the original
judge's July 1993 judgment.

II

As originally adopted in 1937, Rule 63 provided:

If by reason of death, sickness, or other disability, a
judge before whom an action has been tried is unable to
perform the duties to be performed by the court ...
after verdict is returned or findings of fact and conclu-
sions of law are filed, then any other judge ... may
perform those duties; but if such other judge is satisfied
that he cannot perform those other duties because he did
not preside at the trial or for any other reason, he may in
his discretion grant a new trial.

According to this rule, if a judge became unable to proceed
after verdict or judgment, a successor judge could take over
and resolve post-trial motions without automatically having to
retry the case. The rule made no provision for a judge
becoming unable to proceed during a trial. Where an origi-
nal judge became unavailable at any point prior to return of a
verdict in a jury trial or the filing of findings of fact and
conclusions of law in a bench trial, courts interpreted Rule 63
to require complete retrial. See Whalen v. Ford Motor
Credit Co., 684 F.2d 272 (4th Cir. 1982) (en banc); Arrow-
Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977).

Because the growing length of federal trials increased the
likelihood that the inability of a judge to continue would
interrupt a trial before verdict or judgment, Rule 63 was
substantially broadened in 1991 to allow successor judges to
take over at any point after trial begins, thus creating a more
"efficient mechanism" for completing interrupted trials with-
out causing "unnecessary expense and delay." Fed. R. Civ. P.
63 advisory committee's note (1991 Amendment). However,
recognizing that "injustice ... may result if the substitute
judge proceeds despite unfamiliarity with the action," id.,
amended Rule 63 also imposes additional responsibilities on
successor judges. The rule now provides:

If a trial or hearing has been commenced and the
judge is unable to proceed, any other judge may proceed
with it upon certifying familiarity with the record and
determining that the proceedings in the case may be
completed without prejudice to the parties. In a hearing
or trial without a jury, the successor judge shall at the

request of a party recall any witness whose testimony is
material and disputed and who is available to testify
again without undue burden. The successor judge may
also recall any other witness.

Balancing efficiency and fairness, the new rule thus allows
successor judges to avoid retrial, but only to the extent they
ensure that they can stand in the shoes of the predecessor by
determining that "the case may be completed without preju-
dice to the parties."

In this case the successor judge served two distinct Rule 63
functions. The first, which flowed from the parties' post-trial
motions, called upon him to review the original judge's find-
ings and conclusions. In this sense, the successor judge
assumed the role that the original rule contemplated: taking
over "after ... findings of fact and conclusions of law are
filed." The second role arose from the original judge's inabil-
ity to make findings and conclusions regarding every issue.
This required the successor judge to assume the role specifi-
cally contemplated by amended Rule 63: taking over any
time after "a trial or hearing has been commenced."

According to the contractors, the successor judge violated
Rule 63 in three ways: by failing to consider post-trial
motions; by failing expressly to certify his familiarity with
the record; and by refusing to recall witnesses. Mindful of
the successor judge's two distinct roles in this case, we
consider each claim in turn.

Failure to Consider Post-trial Motions

We begin with the contractors' argument that the successor
judge violated Rule 63 by failing to reconsider the original
judge's findings pursuant to their Rule 52 and Rule 59
motions. According to WMATA, the successor judge did in
fact consider the contractors' post-trial motions, but simply
denied them. The record does not support WMATA's asser-
tion.

In his April 1995 Order, the successor judge said specifical-
ly that he would "not accept the parties' invitations to second-
guess the conclusions [the original judge] reached," and that
he would thus "deny all motions that seek to revisit issues
clearly decided by" the original judge. April 1995 Order at 2
& n.1. The successor judge cautioned the parties that any
"[a]rguments that attempt to second-guess [the original
judge's] Opinion or to open up issues that have already been
decided will not be considered." Id. at 3 (emphasis added).
Instead, the successor judge "accept[ed] the factual and credi-
bility determinations that [the original judge] made" and
urged the parties "to pursue any claim of error [with respect
to the original judge's findings] on appeal." Id. at 2, 3 n.3.
In a later order, the successor judge chastised the contractors
for attempting to relitigate the original judge's findings,
stating again: "To the extent that the parties are dissatisfied
with the [original judge's] rulings, an appeal [to the Court of
Appeals] is open to them. This Court will not sit as an
appellate court with respect to any of [the original judge's]
rulings." July 1997 Order at 6 n.2.

Despite these indications that the successor judge gave no
consideration to the contractors' post-trial motions, WMATA
insists that he actually did consider them, pointing to his
statement in the April 1995 Order that he had "examined the
extensive record in this case, including [the original judge's]
251 page opinion and all the filings that followed the reassign-
ment." April 1995 Order at 2. According to WMATA, the
fact that the successor judge said that he had examined the
record and the filings before he said that he was denying the
contractors' pending motions demonstrates that he fully con-
sidered the motions and then denied them on their merits.

We cannot tell what the successor judge meant when he
said that he had examined the "record." As WMATA con-
cedes, he could not have meant that he had examined the trial
exhibits; the parties had reclaimed them after the original
judge died. Indeed, without the trial exhibits, understanding
many of the contractors' arguments would have been impossi-
ble. For example, the contractors' Rule 52 motion contended
that the original judge erred in finding that they had pro-

duced absolutely no evidence to refute WMATA's claimed
excess reprocurement costs. According to the contractors,
the original judge overlooked the testimony of Dennis Ham-
mond, the reprocurement contractor's project manager, who
testified regarding his "cost compilation" document, a trial
exhibit that detailed reprocurement costs different from those
claimed by WMATA. We reviewed the transcript of Ham-
mond's testimony ourselves and found it totally incomprehen-
sible without simultaneously referring to the cost compilation
exhibit. We doubt that the successor judge could have
understood Hammond's testimony--and hence the contrac-
tors' reprocurement cost arguments--without also referring
to the exhibit. Since the successor judge did not have the
exhibit when he ruled on the post-trial motions, we think he
could not have considered those motions before denying them.

By refusing to consider the post-trial motions, the succes-
sor judge failed to comply with Rule 63. After all, the
original judge could not have refused to consider them.
Although district courts enjoy wide discretion to grant or
deny post-trial motions, see Hutchinson v. Stuckey, 952 F.2d
1418, 1420 (D.C. Cir. 1992), they cannot refuse to exercise
that discretion. See Charles A. Wright et al., Federal
Practice and Procedure s 2818, at 194 (2d ed. 1995) ("If the
trial judge has failed to exercise discretion at all, as when he
is under the mistaken apprehension that he has no power to
grant the relief sought, the appellate court can review that
decision and can order the judge to exercise his discretion.");
12 Moore's Federal Practice s 59.54[3] (Matthew Bender 3d
ed. 1998); cf. In re Green, 669 F.2d 779, 786 (D.C. Cir. 1981)
(district court violated in forma pauperis statute by refusing
to exercise discretion regarding whether to waive filing fee).
Since Rule 63 requires a successor judge to stand in the shoes
of the original judge, the successor judge in this case assumed
the original judge's obligation to exercise his discretion with
respect to the contractors' post-trial motions. It would be
unfair to "deny a litigant's right to try to persuade the court
that it has erred simply because the judge who rendered the
original decision is unavailable and cannot be called on to

reconsider the matter." 12 Moore's Federal Practice
s 63.05[1].

Quoting from our decision in Thompson v. Sawyer,
WMATA argues that a successor judge's Rule 63 obligation
"does not encompass relitigation of all issues decided by the
predecessor judge." 678 F.2d 257, 270 (D.C. Cir. 1982). The
issue in Thompson, however, was whether the successor
judge erred in refusing to overturn a decision that the
original judge made years before he died. The plaintiffs thus
had ample opportunity to convince the original judge that he
had erred. In this case, the contractors had no such opportu-
nity because the original judge died two days after issuing his
order. As Thompson put it, a successor judge's "reconsidera-
tion of errors may be especially appropriate where the prede-
cessor judge cannot perform the task himself." Id.; see also
United States Gypsum Co. v. Schiavo Bros., 668 F.2d 172, 176
(3d Cir. 1981) (a successor judge is empowered to reconsider
legal issues "to the same extent that his or her predecessor
could have").

The circumstances of this case made careful consideration
of the post-trial motions particularly important for two rea-
sons. First, although the original judge struggled to resolve
as much of this complex case as possible before his death, it
would be unrealistic to assume that he made no mistakes in
his 251-page opinion. Indeed, WMATA itself filed a post-
trial motion seeking to correct what it called "inadvertent
omissions" in that opinion. And at oral argument, WMATA
conceded that the original judge made at least one mistake to
the contractors' detriment: He found that by signing the
August 1989 agreement the contractors waived their breach
of contract claim arising from WMATA's allegedly unreason-
able delays in processing their claims. This finding was
erroneous because in the August 1989 agreement the contrac-
tors waived only their right to terminate performance be-
cause of the alleged breach, not their right to sue for breach.
The contractors argued this point in their post-trial motion,
but the successor judge never considered it.

The second reason for carefully considering the post-trial
motions relates to the successor judge's dual role. More than
merely assuming the validity of the original judge's findings,
the successor judge relied on those findings in making addi-
tional findings of his own with respect to the issues left
unresolved by the original judge. For example, the original
judge found that the adverse impact caused by the disapprov-
al of the contractors' plan for controlling traffic on Rhode
Island Avenue ceased by November 6, 1986. See July 1993
Order at 222. The contractors specifically challenged this
finding in their post-trial motion. Without considering their
challenge, the successor judge then limited the contractors'
damages on their Rhode Island Avenue claim to those in-
curred before November 6, expressly relying on the original
judge's previous finding regarding the Rhode Island Avenue
closure. See July 1997 Order at 10-11. In other words, the
validity of the successor judge's own findings regarding the
unresolved issues depends in part on whether the original
judge's findings were valid--a question the successor judge
was asked to consider, but never did.

Failure to Certify Familiarity with the Record

In January 1995, by which time the successor judge still
had not established a schedule for resolving the open issues,
the contractors sent him a letter reminding him of Rule 63's
requirement that he "certify[ ] familiarity with the record"
and suggesting that before he did anything he should retrieve
the trial exhibits and certify his familiarity with them. In
response, the successor judge issued the April 1995 Order,
which identified the outstanding issues and scheduled two
rounds of briefing. The order instructed the parties that
their briefs should "highlight specific pages in the transcript,
specific exhibits, and specific pages in [the original judge's
opinion] that support their particular arguments." April 1995
Order at 3. "This type of detailed support," the successor
judge said, would "ensure that [he was] as prepared as
possible to rule on the remaining issues without prejudice to
either party," id., and would be "adequate to allow [him] to

meet the standard established for successor judges" in Rule
63. Id. at 3 n.2.

The contractors now argue that the successor judge violat-
ed Rule 63 because he never expressly certified his familiarity
with the record before resolving the outstanding issues. This
argument implicates the two distinct Rule 63 roles the succes-
sor judge performed in this case. See Perini Br. at 26 (the
successor judge's "failure to certify, before either ruling on
[the contractors'] motion for reconsideration or adjudicating
the open issues, violate[d] Rule 63").

We need not consider whether the successor judge erred in
refusing to certify familiarity with the record with respect to
his first role (deciding the contractors' post-trial motions); as
we have concluded, he failed to consider those motions. See
supra at 10-12. We therefore turn to the contractors' argu-
ment that the successor judge should have certified his
familiarity with the record before ruling on the open issues.

We begin with a few basics. First, successor judges need
only certify their familiarity with those portions of the record
that relate to the issues before them. See Canseco v. United
States, 97 F.3d 1224, 1227 (9th Cir. 1996) ("To certify her
familiarity with the record, the successor district judge will
have to read and consider all relevant portions of the rec-
ord."); see also Moore's Federal Practice s 63.04[3]. Sec-
ond, the extent of the certification obligation depends upon
the nature of the successor judge's role in a given case. A
successor judge who inherits a jury trial before the close of
evidence must become familiar with the entire record in order
to have the context necessary to rule on evidentiary objec-
tions based on relevance. By comparison, a successor judge
who inherits a case after the entry of verdict or judgment and
who must consider only a narrow post-trial motion--such as
one challenging the sufficiency of the evidence regarding a
single factual finding--need only review the portion of the
record relevant to that particular issue.

In this case, the contractors do not challenge the proce-
dures by which the successor judge determined which por-
tions of the record were relevant to the open issues, and for
good reason: Faced with a record containing 4,000 exhibits

and thousands of pages of trial transcript, the successor judge
wisely entrusted the parties to guide him through the massive
record and point him to the material relevant to their argu-
ments. Far from an abdication of his Rule 63 duties, this
procedure made perfect sense.

Rather than claiming that the successor judge gathered the
wrong material, the contractors argue that due to the lack of
express certification we cannot know whether he reviewed the
material he did gather. We think this argument elevates
form over substance. Although the successor judge nowhere
actually stated that he had reviewed the voluminous appendi-
ces of exhibits and transcript excerpts that the parties sub-
mitted along with their open issues briefs, we have no doubt
that he did. After all, he told the parties that he needed
these record excerpts to "satisfy the mandate of Rule 63."
April 1995 Order at 3 n.2. The successor judge obviously
required this exercise to ensure that the parties directed him
to each item in the record relevant to the outstanding issues.
We simply do not believe that he then proceeded to ignore
these materials in the process of making his findings and
conclusions.

To be sure, express certification would have been prefera-
ble, for it would have avoided this issue. We find no error
here, however, because the procedure the successor judge
ordered together with the language he used demonstrate that
he complied with Rule 63's basic requirement: that a succes-
sor judge become familiar with relevant portions of the
record.

Failure to Recall Witnesses

In their opening district court brief regarding the outstand-
ing issues, the contractors emphasized Rule 63's requirement
that "[i]n a hearing or trial without a jury, the successor
judge shall at the request of a party recall any witness whose
testimony is material and disputed and who is available to
testify again without undue burden." Their brief stated:

[We] question[ ] whether the issues such as those can-
vassed [in] the [April] 1995 Order can be determined

fairly and reliably by a review of the transcript passages
and exhibits cited in the parties' briefs....

... [A]ssuredly some open issues will turn on credibili-
ty determinations, for example, disputes about relative
responsibility for changes and delays, damage computa-
tions, and adjustments.... In this brief, [we] rel[y] on
testimony and exhibits in evidence. If WMATA chal-
lenges their reliability or credibility, [we] request[ ] that
appropriate witnesses be recalled.

In their reply brief, filed after WMATA submitted its opening
brief identifying the testimony it believed supported its posi-
tions on the unresolved issues, the contractors once again
argued that the successor judge would have to recall certain
of WMATA's witnesses. As an example, they pointed to
WMATA's damages expert, who they claimed had "self-
destruct[ed] on cross-examination." The contractors offered
to submit a complete list of other such witnesses after
WMATA submitted its surreply, but the successor judge
never afforded the contractors an opportunity to do so before
issuing his July 1997 order deciding the remaining issues.

The contractors now argue that the successor judge should
have recalled WMATA's damages expert as well as other
witnesses before resolving the open issues. WMATA, relying
on the Ninth Circuit's decision in Canseco, supra, responds
that recalling witnesses is not always necessary because
sometimes successor judges can evaluate witness credibility
from the record. See 97 F.3d at 1227 ("In the event the
sufficiency of the evidence depends upon the credibility of a
witness whose credibility is in question, and that credibility
cannot be determined from the record, the successor judge
will have to recall the witness...."). The successor judge in
Canseco, however, was only called upon to review her prede-
cessor's findings. Here the successor judge made fresh
findings of his own. While Rule 63 allows successor judges to
make findings of fact based on evidence heard by a predeces-
sor judge, the 1991 advisory committee note makes clear that
this practice is appropriate only "in limited circumstances,"
such as when a witness has become unavailable or when the

particular testimony is undisputed or immaterial. A succes-
sor judge, according to the advisory committee note, would
"risk error to determine the credibility of a witness not seen
or heard who is available to be recalled." Thus, whatever
latitude successor judges may have to determine credibility
from the record in the context of reviewing an original judge's
findings, we hold that in the context of making new findings
the plain language of Rule 63 controls: If a party so requests,
the successor judge "shall ... recall any witness whose
testimony is material and disputed and who is available to
testify again without undue burden."

We thus agree with the contractors that the successor
judge failed to comply with Rule 63. Nothing in the record
indicates that the successor judge determined that WMATA's
damages expert was unavailable or that his testimony was
immaterial or undisputed--the only permissible reasons for
not recalling witnesses when making fresh findings. More-
over, the successor judge never afforded the contractors an
opportunity to suggest which additional witnesses they
wished to recall.

III

This brings us to the question of relief. Because this case
has lingered in this post-trial posture for more than five
years, and because the contractors' challenges to the original
judge's findings and conclusions are fully briefed, we could
address the merits ourselves were the successor judge's
failure to consider the parties' post-trial motions the only
error in this case. See Wharf v. Burlington N. R.R. Co., 60
F.3d 631, 637 (9th Cir. 1995) ("Where the trial court has
erroneously failed to exercise its discretion, we may either
remand or, if the record is sufficiently developed, decide the
issue ourselves.").

But the successor judge's failure to consider recalling wit-
nesses before making his own findings has left a gap that an
appellate court cannot fill. Although we could give the
contractors an opportunity (through supplemental briefing) to
list the witnesses they wish to recall, we think that Rule 63's
witness recall calculus is best performed by the judge ulti-

mately responsible for fashioning findings based on the evi-
dence. Moreover, given the sheer number of witnesses in
this case and the stringent recall requirements imposed by
Rule 63 when making new findings, we think it virtually
inevitable that remand would be necessary to allow the
successor judge to hear new testimony.

Unable to resolve this case once and for all, we vacate the
April 1995 and July 1997 Orders and remand for the succes-
sor judge to proceed in accordance with Rule 63. To step in
the shoes of the original judge as the rule requires, the
successor judge first must consider the parties' post-trial
motions to the same extent an original judge would have.
Once he disposes of those motions, the successor judge should
turn to the task of making findings and conclusions regarding
the unresolved issues, giving appropriate consideration to
whether witnesses must be recalled.

We realize this remand will impose substantial burdens on
a district judge who has already expended enormous amounts
of time and energy on this case. But the requirements of
Rule 63 and the principles of fairness inherent in them
require no less.

IV

We turn finally to WMATA's cross-appeal, in which it
challenges the successor judge's determination that post-
judgment interest runs from the date of his July 1997 judg-
ment, not from the original judge's July 1993 judgment.
Even though we have vacated the July 1997 judgment, we
address this issue now because it is fully briefed and because
it will almost certainly arise again once the successor judge
issues a new order resolving the open issues.

The original judge entered judgment in favor of WMATA
for $16.5 million in July 1993. Nearly four years later, in
July 1997, the successor judge resolved the open issues and
entered judgment in the contractors' favor for $4.25 million.
To perfect their appeal, the contractors posted a bond in the
amount of $13.2 million, which they calculated by netting the
two judgments and adding interest from the date of the

second judgment through January 31, 1999. Objecting to the
amount of the bond, WMATA argued that under 28 U.S.C.
s 1961 (1994)--providing that post-judgment interest "shall
be calculated from the date of the entry of the judgment"--
interest should run from the date of the first judgment, not
the second.

Relying on this court's opinion in Hooks v. Washington
Sheraton Corp., 642 F.2d 614 (D.C. Cir. 1980), the successor
judge ruled that calculation of post-judgment interest from
the date of the second judgment was proper. We agree.
Hooks held that section 1961 requires post-judgment interest
to be calculated from the date the district court enters final
judgment under Federal Rule of Civil Procedure 54(b). See
id. at 618. To be sure, Hooks involved the difference be-
tween a final Rule 54(b) judgment and a clerk-entered judg-
ment under Rule 58(1), while this case involves the difference
between a final Rule 54(b) judgment and an interim judg-
ment. Even if this distinction means that Hooks does not
directly control here, we think that its finality principle best
resolves the post-judgment interest question on the facts of
this case. The original judge entered partial judgment in
1993 only because he knew he was unable to resolve all
issues. Had he lived, he would have had no reason to enter
judgment for WMATA until he ruled on all of the parties'
claims. The original judge's decision to address WMATA's
claims before turning to the contractors' claims was simply
fortuitous, particularly given that WMATA is a counterclaim-
ant. Under these circumstances, allowing post-judgment in-
terest to run from the date of the original judge's order would
be unfair.

WMATA argues that the Supreme Court's post-Hooks
opinion in Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U.S. 827 (1990), requires the opposite result. In Bonjor-
no, after a jury returned a verdict in the plaintiff's favor, the
district court entered judgment on August 22, 1979. Citing
insufficient evidence, the district court subsequently vacated
that judgment. A jury returned a second verdict in the
plaintiff's favor on December 2, 1981, and the district court
entered judgment on that verdict on December 4, 1981.

The Supreme Court granted certiorari on two questions
relevant here: First, under 28 U.S.C. s 1961, is interest
calculated from the date of the jury verdict (December 2) or
the date that the court subsequently entered judgment on
that verdict (December 4)? Second, is interest calculated
from the date of a legally insufficient judgment (1979) or the
subsequent correct judgment (1981)? See id. at 834. The
Court answered the first question by holding that post-
judgment interest runs from the date of the judgment en-
tered upon a verdict, not the date of the verdict itself. See id.
at 835. With respect to the second question, the Court held
that interest should not be calculated from the date of a
judgment later determined to be unsupported by the evi-
dence, stating that post-judgment interest includes "the time
between the ascertainment of the damage and the payment
by the defendant." Id. at 835-36 (internal quotation omitted).
Relying on this language, WMATA argues that interest
should run from the date the original judge first entered
judgment in its favor because it was on that date that he
"ascertained" its damages.

WMATA misreads Bonjorno. Not only does the "ascer-
tainment" language have little to do with the invalid judgment
passage in which it appears, but WMATA neglects to mention
that the Court quoted that language from Poleto v. Consoli-
dated Rail Corp., 826 F.2d 1270 (3d Cir. 1987), a case that it
expressly rejected in answering the first question by holding
that interest runs from the date of the judgment, not the date
of jury ascertainment. See Bonjorno, 494 U.S. at 834. While
we cannot explain Bonjorno's internal inconsistency, we are
certain that nothing in it requires interest in this case to run
from the date of the original judge's decision. At most,
Bonjorno holds that "judgment" means judgment, not verdict,
and that "judgment" means valid judgment, not invalid judg-
ment. Our holding that on the facts of this case interest runs
from the second, final judgment comports with both princi-
ples.

So ordered.