UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1630
JOHN FULCHER HARRIS, ET AL.,
Plaintiffs, Appellees,
v.
HON. HECTOR RIVERA CRUZ, ET AL.,
Defendants, Appellees.
JOANNA DIMARCO ZAPPA
Plaintiff, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Boudin, Circuit Judges.
Arturo Aponte Pares for appellant.
Reina Colon De Rodriguez, Acting Deputy Solicitor General,
Department of Justice, with whom Carlos Lugo Fiol, Acting Solicitor
General, was on brief for defendants.
March 29, 1994
BOUDIN, Circuit Judge. This case presents a novel
dispute in which jurisdictional and merits issues are
entangled with a question of decree interpretation. The
course of the litigation, which must be traced in some detail
in order to understand the issues, may also be unique. We
certainly hope so and regret that this litigation, already
prolonged by the parties' antics, requires one more round.
I.
In April 1988, Joanna Dimarco Zappa ("Dimarco") joined
as co-plaintiff in a pending civil lawsuit brought by another
individual against members of the Real Estate Examining Board
in Puerto Rico ("the Board").1 The Board had awarded
Dimarco a failing grade in the examination given on October
31, 1987, for a real estate broker license in Puerto Rico.
Dimarco contended that the examination had been given in
English and Spanish and that the Board had followed a policy
of making the English version, which Dimarco took,
substantially more difficult than the Spanish version.
The suit was brought under 42 U.S.C. 1983, and the
complaint (generously construed) asserted that the Board's
policy and action violated constitutional guarantees. At
least by implication, Dimarco sought injunctive relief to
1Neither of the parties named in the caption remain in
this case. The original plaintiff, John Harris, is not a
party to this appeal. Similarly, the first named defendant,
Hector Rivera Cruz, the Secretary of Justice, was dismissed
from the suit.
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compel issuance of the license, and she expressly sought
damages including compensation for lost income in the amount
of $100,000 per year. The complaint also alleged that the
Board proposed to give future examinations only in Spanish,
and Dimarco sought an injunction to require that it also be
given in English.
After a hearing in July 1988, the district court in
March 1989 issued a preliminary injunction requiring the
Board to continue to offer the examination in English, as
well as Spanish, and to assure that the two versions were
equivalent. Harris v. Rivera Cruz, 710 F. Supp. 29 (D.P.R.
1989). The Board appealed, a cross appeal was filed, and
both appeals were later withdrawn. The Board made repeated,
and sometimes frivolous, efforts to have the case dismissed.
In August 1989, after a pretrial conference and waiver
of jury trial by both sides, the court ordered both sides to
submit briefs and evidence concerning each plaintiff's actual
performance on the October 31, 1987, examination. The
plaintiffs complied in September 1989. Their analysis
purported to show which questions differed significantly in
English and Spanish and how the plaintiffs' own grades had
been lowered by mathematical errors; specifically, certain
true-false questions had been answered differently by the two
plaintiffs but both answers had been graded as wrongly
answered. The Board submitted no analysis or rebuttal.
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Then on March 19, 1990, the parties attended a status
conference. On March 22, 1990, the court entered a one-
paragraph "status conference order" that concluded with the
following sentence: "The parties have agreed that the
examination will be given in English, and that the only
remaining issue is whether the plaintiffs passed this exam."
Nothing in the order refers to Dimarco's damage claim. No
transcript of the conference has been supplied, and quite
possibly no reporter was present.
Nothing more occurred until November 1990 when Dimarco
filed a motion asking the court to enter judgment determining
that Dimarco had passed the examination with a score of 97
points out of 100. The motion argued that more than a year
had passed since Dimarco's evidence had been filed and no
rebuttal had been offered by the Board. The Board did not
respond. On April 23, 1991, the district court entered an
order determining that Dimarco had passed the examination and
directing the Board to issue her a license. The order stated
that "because both parties have previously agreed that this
was the only issue remaining in the case, [j]udgment shall be
entered accordingly."
On the same day, the court entered a "Judgment" which
decreed that "[j]udgment be entered in favor of the
plaintiffs . . . as both of these plaintiffs have passed the
realtor's examination" and "ordered" that the Board issue
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real estate broker's licenses to the plaintiffs. Once again,
there was no reference to damages. Nothing in the April 23,
1991, order or the separate judgment stated that the judgment
was final as to all claims or that the case was formally
complete. However, on May 2, 1991, Dimarco's counsel filed a
memorandum seeking costs, a portion of which were later
awarded.
On May 9, 1991, the Board filed a motion purportedly
under Fed. R. Civ. P. 59(e) claiming that the injunction was
improper because other requisites, apart from passage of the
examination, had to be satisfied before a license could be
granted. The Board also asserted that plaintiffs had not
exhausted their administrative remedies. The court denied
the motion by order filed July 1, 1991; it noted that
exhaustion was not required in section 1983 actions and it
observed again the parties had earlier agreed that "the only
remaining issue before the Court was the issue of whether the
plaintiffs had passed this examination."
Instead of issuing a license, the Board then filed a new
appeal to this court, which was later withdrawn. Dimarco
filed a motion to hold the Board in contempt. The Board then
issued a license to Dimarco in August 1991 but the Board
noted on the face of the license that it was given by court
order. Dimarco filed a new contempt motion in February 1992.
In March 1992 the court ordered that an undefaced license be
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issued. Once again the Board did nothing until, after
another contempt motion and an order to show cause from the
court, a clean license was finally issued to Dimarco in
August 1992.
On January 5, 1993, Dimarco requested a date for trial
on the issue of damages. The court clerk set a trial date
but the Board asked the court to reconsider, arguing that in
the March 19, 1990, status conference, "the parties agreed
that the examinations at issue in this case would be given in
English and that the only remaining issue in the case was
whether the plaintiffs had passed the exams." Dimarco
responded opaquely that damages had been requested from the
outset and had never been adjudicated by the court. After a
status conference, the court on May 12, 1993, entered an
order, which says in part:
The Court [in the May 11, 1993, status
conference] clarified with the parties that since
Judgment was entered in this case based on a
settlement between the parties, without the
imposition of damages, and the plaintiffs failed to
appeal the Judgment, this case is closed. The
plaintiffs' attempt to recover damages at this
juncture in the litigation is extremely belated and
therefore unavailing.
Dimarco has now appealed from the May 12, 1993, order
and requested that we reverse the district court and direct a
trial on damages. Dimarco's brief, without discussing the
March 19, 1990, conference, argues that her damage claim
cannot have been abandoned since Dimarco was never paid
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anything in settlement and that such a payment is required
under Puerto Rican law in order to compromise a law suit.
Dimarco also asserts that nothing shows that the court ever
consolidated the injunction and damage phases of the case.
In response, the Board argues that this court lacks
jurisdiction over the appeal.2 Its theory is that the April
23, 1991, order and judgment "finally decided the case"; that
no appeal was lodged by Dimarco until two years later in June
1993; and that this two year interval is long past the 30
days allowed for appealing a final judgment. Fed. R. App. P.
4(a)(1). Like Dimarco, the Board's brief casts no light on
what actually happened at the March 19, 1990, status
conference.
II.
We think that this appeal presents two related
questions: one is whether Dimarco waived or settled her
damage claim on or about March 19, 1990; and the other is
whether, even if she retained her damage claim after March
19, 1990, her rights were cut off by failing to appeal the
judgment entered on April 23, 1991. We consider the issues
in that order.
2We clearly have jurisdiction to review the May 12,
1993, order inasmuch as it is itself final (no further
proceedings being contemplated), and an appeal from it was
filed within the prescribed period. But we agree with the
Board that, if the April 25, 1991, order were itself a final
disposition of the entire case, it would be too late now to
resurrect the damage claim. This issue is addressed below.
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1. On this record it is not possible to tell for
certain whether Dimarco's claim for damages was settled or
waived on March 19, 1990, but it is possible to say with
assurance that the record does not demonstrate such a
settlement or waiver. One might expect that, if a plaintiff
had agreed to forego a damage claim set forth in the
complaint, this would be embodied in a stipulation or
evidenced by a transcript statement of counsel. No such
document or transcript reference has been supplied or cited
to us by the Board.3 Indeed, in this instance we are not
even offered any plausible reason why Dimarco might have
wished to surrender her damage claim on March 19, 1990.
The statement in the March 22, 1990, order that "the
only remaining issue is whether the plaintiffs passed this
exam" is quite ambiguous. It was made at a time when the
focus of the litigation was on injunctive relief. Both the
existence and the amount of damages could not even begin to
be determined until the court decided whether the license had
been wrongfully denied and when it should be issued. That
3Dimarco asserts that the claim could not have been
relinquished under Puerto Rico law since there was no
payment. Whatever Puerto Rico law may say about out of court
settlements, every litigator knows that--in the course of
conferences with the judge as a case moves toward trial--
complaints are narrowed by agreement and claims are abandoned
without any payment. The question is whether that happened
here.
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order itself does not speak of waiver or settlement of the
damage claim.
In its May 12, 1993, order, the district court refers--
seemingly for the first time--to an earlier "settlement
between the parties, without the imposition of damages."
This language may be nothing more than the district court's
gloss on its earlier March 22, 1990, order. But even if it
is treated as a factual finding that Dimarco did settle her
damage claim on March 19, 1990, the "finding" cannot resolve
this case. Such a finding would still have to rest upon some
evidence, and on this record we have no evidence of a
settlement.
Finally, in an ordinary case the failure to pursue a
damage claim for two years after the definitive injunction--
here, from April 23, 1991, to January 5, 1993--might be some
evidence of an earlier waiver or settlement or even support a
dismissal for non-prosecution. Here, however, instead of
complying with the injunction, the Board improperly delayed
issuance of an adequate license until August 1992. That
Dimarco waited four more months before asking for a trial
date does not count for much in a five-year-old case.
2. Although we cannot find a waiver or settlement on
this record, the possibility remains that Dimarco lost her
unsettled, unwaived damage claim because of the judgment
entered on April 23, 1991, granting a permanent injunction.
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If that judgment constituted a final judgment disposing of
the entire case, then the failure of Dimarco to pursue an
appeal within the prescribed 30-day period would end the
case. Fed. R. App. P. 4(a)(1). Such a final judgment might
still be reopened by post-judgment motion; but the most
familiar grounds (e.g., excusable neglect) require a motion
within one year of the judgment. Fed. R. Civ. P. 60(b).
For purposes of "terminat[ing] the action" and starting
the appeal clock on the entire case, a judgment is not final
if it "adjudicates fewer than all the claims" asserted by a
party. Fed. R. Civ. P. 54(b). We have already seen that in
this case the judgment did not actually adjudicate all of
Dimarco's claims since, so far as the record reveals, Dimarco
still retained in April 1991 a damage claim that had not been
waived or settled or tried. Thus sub specie aeternitatis
there was on April 23, 1991, an appealable judgment (because
of the injunction) but not a final judgment.4
In our view, the Board could still rely upon the
judgment as final if it had at least purported to be final.
Thus, if the April 23, 1991, judgment had explicitly
terminated the entire case, we would treat that judgment as
4The terminology can be confusing because a judgment may
be appealable at once even though not "final" within the
meaning of Rule 54(b). See, e.g., 28 U.S.C. 1292(a)(1)
(injunctions). Yet because such situations are exceptions,
it is commonplace to use the phrase "final judgment" as a
synonym for "appealable judgment," even though the concepts
are not identical.
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final, so far as a later attack upon it or attempt to undo it
is concerned. The point is that a judgment purporting to be
final moves the case toward repose. If errors remain, the
proper course for an aggrieved litigant is to appeal, and to
do so within the time allowed.
Yet in this instance the April 23, 1991, judgment does
not on its face say anything to indicate either that it was
resolving the damage claim or that it intended to terminate
the entire case. A judgment unambiguous on its face is
construed as a writing without resort to extrinsic evidence;
given doubt, resort may be had to other orders or other
evidence ascertainable from the record.5 In this case, the
April 23, 1991, order accompanying the judgment refers to the
finding that Dimarco had passed the exam as "the only issue
remaining in the case." The quoted statement should have
alerted a careful lawyer to the possibility that the
accompanying judgment--although not labeled "final"--was
intended to dispose of all claims.
But if resort to the accompanying order helps the Board,
the record in other respects assists Dimarco. The damage
claim had been asserted and never resolved. Nor was it ripe
for resolution in April 1991 since no license had issued and
thus there was no end point for calculating any damages that
5E.g., Security Mutual Cas. Co. v. Century Cas. Co., 621
F.2d 1062 (10th Cir. 1980); Eaton v. Courtaulds of North
America, 578 F.2d 87 (5th Cir. 1978).
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might be due. All of the attention of the parties to that
point had been centered upon injunctive relief of two
different types, and only injunctive relief was mentioned in
the judgment. The same judgment could have been entered even
if the court intended to start a trial on damages the
following day. We think, therefore, that a measure of
uncertainty remains.
There is no precise formula for construing judgments.
But we are reluctant to construe a judgment ambiguous on its
face as a final judgment where it could plausibly be read as
non-final, where extrinsic evidence does not wholly resolve
the uncertainty, and where reading it as final could unfairly
forfeit the rights of a party. Here the facts already
described leave us in doubt whether the judgment can fairly
be construed as final; there is a patent risk of unfairness
to Dimarco; and the Board is not unfairly prejudiced by
reading the judgment to leave standing any damage claim that
Dimarco did not previously waive or settle.
III.
It remains to consider the course to be followed on
remand. For reasons already explained, this record does not
establish that Dimarco has waived or settled her damage
claim. Still, in view of the failure of anyone to disclose
on appeal what happened on March 19, 1990, we think that
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justice requires that we not foreclose the Board on remand
from offering evidence, if it has any, to establish that
Dimarco did specifically waive or settle her damage claim at
the March 19, 1990, conference. The Board bears the burden
ofproving sucha waiver orsettlement. Cf. Fed. R.Civ. P. 8(c).
When we speak of the Board offering evidence, we are
referring to any new evidence that shows that Dimarco on or
about March 19, 1990, settled the damage claim or expressed
an intention to waive it. If the Board does have any
evidence to offer, obviously Dimarco may respond to it, and
the district court can then make findings to resolve the
issue. If no evidence is offered by the Board, then the
court should proceed with the damage claim. Whether the
defendants are liable for damages is, of course, a matter on
which we express no views.
The order of May 12, 1993, is vacated as to Dimarco and
the case is remanded for further proceedings consistent with
this opinion.
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