Goffer v. West Petition for a Writ of Certiorari

    No. 96- Hip I

I n  T h e

Supreme Court of tfje IMteb States?
O c t o b e r  T e r m , 1995

S h e r r y l  S. G o f f e r ,

v.
Petitioner,

T o g o  D. W e s t , J r ., S e c r e t a r y  o f  t h e  A r m y ,

Respondent.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Elaine R. J ones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
Paul K. Sonn
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

J anellM. Byrd 
(Counsel o f Record)
NAACP Legal Defense and 

Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

J ames E. Coleman, J r.
Duke University 

School of Law 
Towerview Road 

& Science Drive 
Durham, North Carolina 27707 
(919) 613-7057

Counsel for Petitioner

PRESS OF BYRON S. ADAMS ♦ WASHINGTON, D.C. ♦  1-800-347-8208



1

Q u e s t io n  P r e se n t e d

Did the court of appeals err in holding that the 
three-page "Memorandum and Order" issued by the trial 
court — that necessarily contained the court’s findings of fact 
and conclusions of law thereon as required by F e d . R. C iv . 
P. 52 — also satisfied F e d . R. Q v . P. 58, which requires that 
"[ejvery judgment shall be set forth on a separate document" 
and which this Court has repeatedly instructed "must be 
mechanically applied in order to avoid . . . uncertainties as 
to the date on which a judgment is entered?" United States 
v. Indrelunas, 411 U.S. 216, 222 (1973); see also Bankers 
Trust Co. v. Mallis, 435 U.S. 381, 386 (1978).



11

P a r t ie s

The parties in the proceedings below were:

Sherryl S. Goffer,

Plaintiff in the District Court, Plaintiff-Appellant in 
the Court of Appeals

Togo D. West, Jr., Secretary of the U.S. Army,

Defendant in the District Court, Defendant-Appellee 
in the Court of Appeals



Ill

T a b l e  o f  C o n ten ts

Question Presented ...................      i

P arties...............      ii

Table of Authorities.............   v

Opinions B elow .............................     1

Jurisdiction .................................   2

Legal Provision Involved................................................. 2

Statement of the Case .  .......................   2

A. Delay By the District Court ....................  3

B. Procedural Irregularities 
Attendant to the District 
Court’s Issuance of the Order
Disposing of this C ase...................  5

C. The Motion for Entry
of Judgm ent............................................  8

D. The Ruling Below......................  8



IV

Reasons for Granting the Writ ...................................... 9

I. The Decision Below Flatly 
Contradicts This Court’s 
Decisions in United States v.
Indrelunas and Bankers Trust
Co. v. Mallis .......................................... .. 9

II. The Decision Below Conflicts 
with Decisions of the Second,
Third, Fourth, Ninth, and Tenth
Circuit Courts of A ppeals............. .. 14

III. In Permitting the District 
Court’s Serious Procedural 
Errors to Deny Petitioner Her 
Right to Appellate Review, 
the Decision Below So 
Departs From the Accepted 
and Usual Course of Judicial 
Proceedings as to Call for 
Exercise of This Court’s
Supervisory Pow ers............... ................. 17

Conclusion . . .. 21



T a b le  o f  A u t h o r it ie s

Cases: Pages:

Allah v. Superior Court of Calif.,
871 F.2d 887 (9th Cir. 1989) ......................  15, 16

Axel Johnson, Inc. v. Arthur Anderson & Co.,
6 F.3d 78 (2d Cir. 1993)................................. 15

Bankers Trust Co. v. Mallis,
435 U.S. 381 (1978) . ........... ........................passim

Barber v. Whirlpool Corp.,
34 F.3d 1268 (4th Cir. 1994) ............. .......... .. . 15

Clough v. Rush,
959 F.2d 182 (10th Cir. 1992)......................  15, 16

Cooper v. Town of East Hampton,
83 F.3d 31 (2d Cir. 1996) .................. .................  15

Gregson & Assoc, v. Virgin Islands,
675 F.2d 589 (3d Cir. 1982)........................  15, 16

Hensley v. Eckerhart,
461 U.S. 424 (1983)............................................  17

Kanematsu-Gosho, Ltd. v. M/T Messiniaki Aigli,
805 F.2d 47 (2d Cir. 1986)............. ................. . 15

Paddock v. Morris,
783 F.2d 844 (9th Cir. 1986) . . . . . . . . . . .  15, 16

Shalala v. Schaefer,
509 U.S. 292 (1993)...........................................  18



Pages:

Spann v. Colonial Village, Inc.,
899 F.2d 24 (D.C. Cir.),
cert, denied, 498 U.S. 980 (1990) . ......... .............13

United States v. Indrelunas,
411 U.S. 216 (1973)........... .......... .......... .. . passim

Vernon v. Heckler,
811 F.2d 1274 (9th Cir. 1987) . . . . . . . . . . . . . .  15

Rules and Statutes: Pages:

Fed. R. App. P. 4 ............................... .......... . . .  6, 13, 18

Fed. R. Civ. P. 52 . ............................... ................... .. 1, 16

Fed. R. Civ. P. 5 8 ............................... .. passim

Fed. R. Civ. P. 77(d) ......... .. 6, 7, 17

Sup. Ct. R. 10(a) ................................................... .. 14, 20

Sup. Ct. R. 10(c) . ........................... ..........................  9, 14

Civil Service Reform Act,
5 U.S.C. § 1101 et seq. .................................. .. . 3, 5

5 U.S.C. § 7702(e)(1) ............................................... .. 3

Judicial Improvements Act of 1990,
28 U.S.C. §§ 471-82 ................ .......... .......... . . .  20

28 U.S.C. § 1254(1) .......................................... .. ......... .. 2

vi



Pages:

28 U.S.C. § 1331 . . ............... .................................. .. 3

28 U.S.C. § 1343  ................................... .. 3

Title VII, Civil Rights Act of 1964,
42 U.S.C. §§ 2000e-3a, 2000e-16 . .................. 3, 5

Other Authorities: Pages:

S. Rep. No. 416, 101st Cong., 2d Sess. (1990),
reprinted in 1990 U.S.C.C.A.N. 6802 ........... .. . 20

vu



In  T h e

Supreme Court of ti)e Umteb States?
O c t o b e r  T e r m , 1995 

No. 96-

Sh e r r y l  S. G o f f e r ,
Petitioner;

v.

T o g o  D. W e st , J r ., Se c r e t a r y  o f  t h e  A r m y ,
Respondent.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Sherryl S. Goffer, respectfully prays that 
a writ of certiorari issue to review the judgment of the Court 
of Appeals for the District of Columbia Circuit entered in 
this proceeding on June 24, 1996.

O pin io n s  Be lo w

The opinion of the United States Court of Appeals 
for the District of Columbia Circuit is unreported and is set 
out at pages la-2a of the Appendix hereto ("App."). The 
Memorandum and Order of the United States District Court 
for the District of Columbia disposing of petitioner’s claims 
is unreported and is set out at App. 5a-6a. The Decision



2

and Order of the United States District Court for the 
District of Columbia denying petitioner’s motion for a 
preliminary injunction is unreported and is set out at App. 
7a-lla. The Order of the United States District Court for 
the District of Columbia denying petitioner’s motion for 
entry of judgment is unreported and is set out at App. 3a-4a. 
The opinion of the United States Court of Appeals for the 
District of Columbia Circuit denying petitioner’s earlier 
motion for a writ of mandamus to the district court is 
unreported and is set out at App. 12a.

J u r is d ic t io n

The judgment of the Court of Appeals for the 
District of Columbia Circuit was entered on June 24, 1996. 
Jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1254(1).

L e g a l  P r o v isio n  I n v o lv e d

This case involves F e d . R. Civ . P. 58,1 which 
provides, in pertinent part:

Every judgment shall be set forth on a 
separate document. A judgment is effective 
only when so set forth and when entered as 
provided in Rule 79(a).

St a t e m e n t  o f  t h e  Ca se

This case is an employment discrimination suit 
brought against the Secretary of the Army by a civilian army 
employee terminated in her fifteenth year of service

1The complete text of Fed. R. Civ. P. 58 is set out at App, 13a.



3

following a history of "exceptional" employment evaluations 
and promotions. Plaintiff-petitioner, Sherryl Goffer, alleged 
violations of Title VII of the 1964 Civil Rights Act, 42 
U.S.C. § 2000e-16 and § 2000e-3a, and the Civil Service 
Reform Act ("CSRA"), 5 U.S.C. § 1101 et seq. Jurisdiction 
over this case in the district court was conferred by 28 
U.S.C. §§ 1331 and 1343. See 5 U.S.C. § 7702(e)(1).

This case has been marred by a series of troubling 
procedural irregularities in the district court that culminated 
in petitioner’s being wrongly denied her right to appeal after 
having waited approximately five years after the trial for the 
district court to render a decision.

A. Delay By the District Court

This petition brings before this Court a case that at 
one time ranked as the oldest pending case undecided after 
a bench trial in the United States District Court for the 
District of Columbia. The complaint was filed in that court 
on September 5, 1985. Dispositive cross-motions on the 
CSRA claims were submitted in August of 1987. A bench 
trial before Judge Thomas Penfield Jackson proceeded 
between September 8 and December 17, 1987. Upon 
completion of the trial, the district court expressed its desire 
to hear closing arguments from the parties, which it 
indicated would be scheduled at a later date. On March 29, 
1988, both parties submitted proposed findings of fact and 
conclusions of law on the Title VII claims. Thereafter, 
nothing happened.

Counsel for petitioner were puzzled both by the long 
delay and by the fact that the district court still had not 
scheduled closing arguments as it had stated it intended to 
do. In an effort to expedite resolution of the case, 
petitioner’s counsel took the following steps:



4

(1) Counsel made repeated periodic telephone 
inquiries to the district court to check on the status of the 
case.

(2) On May 17, 1990, petitioner’s counsel filed a 
motion requesting a status conference to discuss resolution 
of the case. The court held such a conference on July 18, 
1990, at which time it reiterated its desire to hear closing 
arguments before rendering a decision and stated that the 
court would schedule such arguments.2 However, no action 
or decision was forthcoming from the district court.

(3) On April 18, 1991, petitioner filed with the 
district court a Request for a Decision in the case. Despite 
subsequent telephone inquiries, no response came from the 
district court.

(4) On February 8, 1993 — approximately five 
years after the close of trial and nearly two years after 
petitioner’s Request for a Decision -  petitioner reluctantly 
sought appellate intervention. Petitioner filed a mandamus 
petition in the court of appeals, asking the higher court to 
direct the district court to render a decision within thirty 
days. On April 8, 1993, the court of appeals denied the 
mandamus petition, but encouraged the district court "to 
attend to the resolution of this case as promptly as feasible." 
App. 12a.

2The docket confirms that on July 18, 1990, the court indicated 
that it would schedule closing arguments.



5

B. Procedural Irregularities Attendant to the District
Courtis Issuance of the Order Disposing of this Case

Unbeknownst to petitioner and the court of appeals, 
prior to that court’s April 8, 1993 order encouraging the 
district court to act "promptly,” on February 23, 1993, the 
district court apparently had issued a three-page 
"Memorandum and Order" (App. 5a-6a) in which the court 
purported to assess the evidence presented in the case, made 
certain findings of fact and conclusions of law based on that 
evidence, and recited that judgment was entered for the 
defendant. In the order, the district court stated that it was 
incorporating by reference the findings and conclusions that 
it had set forth in an earlier order issued November 20, 
1985, in which it had denied a motion by petitioner for a 
preliminary injunction (App. 7a~lla). The order was 
surprisingly conclusory, resolving in just over two pages the 
numerous questions of fact and law presented in a five-day 
bench trial and the many complex issues raised in cross­
motions for summary judgment on the CSRA claim.3

Even more surprising, however, is the fact that the 
district court did not notify the court of appeals of its 
decision, although the petition for a writ of mandamus was 
still pending in that court. Nor did the district court notify 
the court of appeals after receipt of the April 8, 1993 order 
encouraging "promptf]" action. Such a notification also 
would have informed petitioner that the district court

3Illustrating the detailed nature of the factual and legal inquiries 
were the parties’ proposed findings of fact and conclusions of law on 
the Title VII claims that jointly exceeded 100 pages. Although the 
court’s order incorporated by reference its findings and conclusions 
from the 1985 preliminary injunction order, that earlier order, of 
course, did not consider the substantial evidence uncovered during 
discovery that was presented during the five-day bench trial.



6

believed that her time to file a notice of appeal had begun 
to run. Knowledge of the district court’s February' 23 ruling, 
even at that April date, would have permitted petitioner to 
safeguard her appellate rights. At that date, petitioner could 
still have filed a precautionary notice of appeal, for even if 
the February 23 order had constituted a valid entry of 
judgment — which it did not — under Fed. R. App. P. 4(a) 
petitioner would have had until April 24, 1993, to file a 
notice of appeal.

The case was subject to further peculiar treatment; in 
particular, the highly irregular manner in which the district 
court clerk entered the Memorandum and Order reflected 
violations of the Federal Rules of Civil Procedure and was 
inconsistent with elementary notions of fairness:

(1) First, it appears that the district court never 
mailed copies of the order to petitioner’s counsel. As a result, 
it was not until more than two years later on June 5, 1995, 
that petitioner’s counsel, in the course of obtaining a copy 
of the docket for the purpose of attaching it to a second 
mandamus petition, learned that an order had been issued 
purportedly disposing of the case.4 Although Fed. R. Civ. 
P. 77(d) requires the clerk to mail copies of all orders or 
judgments to the parties in the case,5 neither of petitioner’s

4During the intervening period, petitioner’s counsel attempted to 
check the status of the case by calling the clerk’s office. However, 
counsel was informed that such inquiries could no longer be made by 
telephone and that parties could check the docket only by use of a 
certain computer program (which counsel did not have) or by a 
physical examination of the docket at the clerk’s office.

5 Immediately upon the entry of an order or judgment the 
clerk shall serve a notice of the entry by m ail. . . upon each



7

two counsel of record ever received any notice of the court’s 
decision. The apparent failure of the court to mail a copy 
of the order to petitioner’s counsel is confirmed by the 
district court docket, which contains no notation indicating 
that the order had been mailed, as is required by 
Rule 77(d).6

(2) The district court also evidently failed to 
transmit the order to the court of appeals, for the court of 
appeals ruled on petitioner’s then-pending mandamus 
petition six weeks after the district court’s ruling, clearly 
demonstrating no knowledge that the district court had 
already ruled. Nor did the government take any steps to 
bring to the attention of the court of appeals (either before

party . . . , and shall make a note in the docket of the 
mailing.

Fed. R. Civ. P. 77(d).

6In opposing petitioner’s motion for entry of judgment, 
respondent asserted that the U.S. Attorney’s Office had received a 
copy of the February 23 Memorandum and Order within a week of 
its issuance, and that the document bore a handwritten "(N)" at the 
bottom corner of the first page, which indicated that the clerk had 
sent notice of its entry to the parties. In denying petitioner’s motion 
for entry of a judgment in conformity with Fed . R. Crv. P. 58, the 
district court stated, apparently based upon the same notation, that 
"the February 23, 1993 judgment indicates that notice of entry of 
judgment was sent to the parties counsel" (App. 3a). However, the 
docket contains no indication that notice of entry of the February 23 
order was sent to the parties, as Rule 77(d) requires, see supra note 5. 
Indeed, other than orders actually transcribed by a court reporter 
during court proceedings, the docket entry for every other order in 
the case except this one bears a typewritten "(N)," confirming such 
mailing in accordance with the Rule. (A copy of the docket has been 
lodged with the Clerk of this Court.)



8

or after it issued its decision) the district court ruling which 
had, in effect, rendered the mandamus petition moot.

(3) Finally, and most importantly for the purposes 
of this petition, the district court failed to comply with 
Rule 58’s strict requirement that every court opinion 
disposing of a case be accompanied by a separate document 
setting forth the judgment in the case. The "Memorandum 
and Order" included a cursory discussion of the facts and the 
applicable law, concluding with a single sentence purporting 
to enter judgment for defendant (App. 5a-6a). However, the 
order was not accompanied by a separate document setting 
forth the judgment as required by Rule 58.

C. The Motion for Entry o f Judgment

As noted above, on June 5,1995, petitioner’s counsel, 
in the course of preparing to file a second mandamus 
petition, obtained an updated copy of the docket and 
learned for the first time of the district court’s February 23, 
1993 Memorandum and Order. Upon obtaining a copy of 
that Memorandum and Order from the clerk’s office, 
counsel learned that the district court had failed to comply 
with Rule 58’s separate judgment requirement. Petitioner 
immediately filed on June 6, 1995, a motion requesting the 
district court to remedy that error by entering a separate 
judgment as required by Rule 58. The district court denied 
that motion on July 24, 1995 (App. 3a-4a), and petitioner 
appealed that ruling to the court of appeals.

D. The Ruling Below

The court of appeals affirmed the district court’s 
denial of the motion for entry of a separate judgment in a 
cursory opinion holding that the district court’s 
Memorandum and Order entered two years earlier had



9

satisfied the requirements of Rule 58, and that a separate 
judgment document was therefore not needed (App. la). 
This petition for writ of certiorari followed.

Reasons for Granting the Writ 

I
The Decision Below Flatly Contradicts 
This Court’s Decisions in United States v. 
INDRELUNAS AND BANKERS TRUST CO. V.

Mallis

Since the amendment of F e d . R. C iv . P. 58 in 1963 
to include the separate judgment rule, this Court has 
repeatedly stressed the importance of the requirement. 
Although the Court has recognized one narrowly 
circumscribed exception to the rule, that exception clearly 
does not apply here. The decision below conflicts with the 
unequivocal teaching of this Court and should be corrected 
through a grant of certiorari. See Sup. Ct. R. 10(c).

In United States v. Indrelunas, 411 U.S. 216 (1973), 
this Court explained the purpose and meaning of the 
Rule 58 separate document requirement:

Rule 58 was substantially amended in 
1963 to remove uncertainties as to when a 
judgment is entered . . . .

The reason for the "separate 
document" provision is clear from the notes of 
the advisory committee of the 1963 
amendment. See Notes of Advisory 
Committee following F e d . R u l e  C iv . P. 58, 
reported in 28 U.S.C. Prior to 1963, there 
was considerable uncertainty over what



10

actions of the District Court would constitute 
an entry of judgment, and occasional grief to 
litigants as a result of this uncertainty. See, 
e.g., United States v. F. & M. Schaefer Brewing 
Co., 356 U.S. 227 (1958). To eliminate these 
uncertainties, which spawned protracted 
litigation over a technical procedural matter,
Rule 58 was amended to require that a 
judgment was to be effective only when set 
forth on a separate document.

Professor Moore makes the following 
cogent observation with respect to the 
purpose of the separate-document provision 
of the rule:

"This represents a mechanical 
change that would be subject 
to criticism for its formalism 
were it not for the fact that 
something like this was needed 
to make certain when a 
judgment becomes effective, 
which has a most important 
bearing, inter alia, on the time 
for appeal and the making of 
post-judgment motions that go 
to the finality of the judgment 
for purposes of appeal." 6A J.
M o o r e , F e d e r a l  P r a c t ic e  
1F 58.04 [4.-2], at 58-161 (1972).

Indrelunas, 411 U.S. at 119-21. In light of this purpose, this 
Court concluded that "[Rule 58] 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 (emphasis added).



11

Five years later in Bankers Trust Co. v. Mallis, 435 
U.S. 381 (1978), this Court clarified further the meaning and 
application of Rule 58. Cases had arisen repeatedly in 
which the parties had regarded as final — and attempted to 
appeal from -- a district court ruling that, while disposing of 
all claims, did not set forth the judgment in a separate 
document as required by Rule 58. In such cases, strict 
enforcement of Rule 58 would be wasteful as it would 
require dismissal of what often was a fully-briefed appeal, 
only for the district court to go through the formality of 
entering a separate judgment, at which point the appellate 
process would begin anew. In Mallis, the Court, while 
stressing the critical importance of the separate judgment 
rule, sensibly held that in certain very limited circumstances 
the requirement might be waived. Where both parties are 
prepared to go forward with an appeal, notwithstanding the 
lack of a separate judgment, and where no part)' would be 
prejudiced, "parties to an appeal may waive the separate 
judgment requirement of Rule 58." Mallis, 435 U.S. at 387. 
The Court explained:

The separate-document requirement was thus 
intended to avoid the inequities that were 
inherent when a party appealed from a 
document or docket entry that appeared to be 
a final judgment of the district court only to 
have the appellate court announce later that 
an earlier document or entry had been the 
judgment and dismiss the appeal as untimely.
The 1963 amendment to Rule 58 made clear 
that a party need not file a notice of appeal 
until a separate judgment has been filed and 
entered. See United States v. Indrelunas, 411 
U.S. 216, 220-222 (1973). Certainty as to 
timeliness, however, is not advanced by 
holding that appellate jurisdiction does not



12

exist absent a separate judgment. If, by error, 
a separate judgment is not filed before a 
party appeals, nothing but delay would flow 
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.

Mallis, 435 U.S. at 385. The Court continued:

The need for certainty as to the timeliness of 
an appeal, however, should not prevent the 
parties from waiving the separate-judgment 
requirement where one has accidentally not 
been entered. As Professor Moore notes, if 
the only obstacle to appellate review is the 
failure of the District Court to set forth its 
judgment on a separate document, "there 
would appear to be no point in obliging the 
appellant to undergo the formality of 
obtaining a formal judgment." 9 J. M o o r e , 
F e d e r a l  P r a c t ic e  H 110.08 [2], p. 120 n. 7 
(1970). "[I]t must be remembered that the 
rule is designed to simplify and make certain 
the matter of appealability. It is not designed 
as a trap for the inexperienced."

Mallis, 435 U.S. at 386. However, still quoting Professor 
Moore, the Court concluded this discussion with the 
significant warning that "[Rule 58] should be interpreted to 
prevent loss of the right of appeal, not to facilitate loss." Id. 
(quoting 9 J. MOORE, FEDERAL PRACTICE 11 110.08[2], p.120 
n.7 (1970)) (emphasis added).



13

In holding that the district court’s order satisfied 
Rule 58 in this case even though the judgment was not set 
forth in a separate document, the court below has created a 
new exception to Rule 58 that negates its purpose. The 
court of appeals’ summary ruling, which contains no analysis 
whatsoever, justifies its holding with a bare citation to Spann 
v. Colonial Village, Inc., 899 F.2d 24, 32 (D.C. Cir.), cert, 
denied, 498 U.S. 980 (1990). However, Spann arose in a very 
different posture from this case and in no way supports the 
instant ruling. Spann was a routine application of the waiver 
rule outlined by this Court in Mallis: it involved a timely- 
filed and fully briefed appeal in a case where no separate 
judgment had been entered. Spann was thus a case where 
waiving the Rule 58 requirement would avoid an 
unnecessary remand and would not result in either party 
losing its right to appeal. See Spann, 899 F.2d at 32 
(following Mallis).

Unlike Spann, this case does not fall into the 
category of cases where the strict Rule 58 requirement may 
be waived under Mallis. Here, if Rule 58 is not 
"mechanically applied," Mallis, 435 U.S. at 386, petitioner 
will lose her right to appeal after unfairly being forced to 
wait for years to have her case decided. This result would 
be particularly unfair in view of the fact that petitioner was 
not able take the precautionary step of filing a provisional 
notice of appeal from the defective 1993 Memorandum and 
Order, since her counsel never received it.

The court of appeals’ unexplained new exception to 
Rule 58 not only construes the rule so as unfairly to deny 
petitioner her right of appeal but, if permitted to stand, will 
pose a grave risk to the appellate rights of all litigants by 
destroying the predictability established by Rule 58. 
Safeguarding litigants’ appellate rights depends on the 
existence of and adherence to universally recognized "bright-



14

line" standards for determining when a final judgment has 
been entered, thus triggering F e d . R. A p p . P. 4 ’s deadlines 
for filing an appeal. Before 1963, confusion as to when a 
judgment was final had caused litigants unfairly to lose their 
rights of appeal. Responding to this serious problem, the 
drafters of the 1963 amendments to Rule 58 settled on the 
"mechanical" separate judgment requirement as a solution. 
Tolerating the court of appeals’ ad hoc creation of a new 
exception will gut the Rule 58 amendments, giving rise once 
again to the wasteful and unfair uncertainty that prevailed 
before 1963. This would be particularly egregious in this 
case where petitioner had to mount a five-year effort to get 
the district court to decide her case.

In light of this Court’s stern injunction that 
"[Rule 58] should be interpreted to prevent loss of the right 
of appeal, not to facilitate loss," Mallis, 435 U.S. at 386 
(quoting 9 J. M o o r e , F e d e r a l  P r a c t ic e  H 110.08[2], p.120 
n.7 (1970)) (emphasis added), the court of appeals’ 
dangerously misguided doctrinal innovation stands in 
contravention of binding precedent of this Court and, under 
Su p . Ct . R. 10(c), should be corrected through exercise of 
the certiorari power.

II
The Decision Below Conflicts with 
Decisions of the Second, Third, Fourth,
Ninth, and Tenth Circuit Courts of 

Appeals

Not only is the ruling of the Court of Appeals for the 
District of Columbia Circuit in this case unfaithful to this 
Court’s teaching in Indrelunas and Mallis, but the decision 
conflicts with rulings of at least five other federal courts of 
appeals. See Su p . Ct. R. 10(a). The Courts of Appeals for 
the Second, Third, Fourth, Ninth, and Tenth Circuits have



15

all held that an order that disposes of a case and that 
contains a discussion of the legal analysis supporting the 
ruling cannot satisfy the separate judgment requirement of 
Rule 58. See Cooper v. Town of East Hampton, 83 F.3d 31, 
34 (2d Cir. 1996) (order containing discussion of reasons for 
decision directing entry of judgment cannot satisfy separate 
judgment requirement); Gregson & Assoc, v. Virgin Islands, 
675 F.2d 589, 591-93 & n.l (3d Cir. 1982) (document 
containing legal analysis and setting out judgment on final 
page does not satisfy separate document requirement); 
Barber v. Whirlpool Corp., 34 F.3d 1268, 1274-75 (4th Cir. 
1994) (order containing findings of fact and conclusions of 
law with last page containing order of dismissal cannot 
satisfy separate judgment requirement); Allah v. Superior 
Court of Calif, 871 F.2d 887, 890 (9th Cir. 1989) (opinions 
containing legal analysis cannot satisfy separate judgment 
requirement); Vernon v. Heckler, 811 F.2d 1274, 1276 (9th 
Cir. 1987) (same); Paddock v. Morris, 783 F.2d 844, 846 (9th 
Cir. 1986) (same); Clough v. Rush, 959 F.2d 182, 185 (10th 
Cir. 1992) (orders can contain "neither a discussion of the 
court’s reasoning nor any dispositive legal analysis" if they 
are to qualify as separate judgments). Indeed, the Court of 
Appeals for the Second Circuit has gone even further and 
imposed the additional requirement that a document that is 
not clearly labeled as a "Judgment" can never satisfy the 
separate judgment requirement of Rule 58. See Cooper v. 
Town of East Hampton, 83 F.3d 31, 34 (2d Cir. 1996); Axel 
Johnson, Inc. v. Arthur Anderson & Co., 6 F.3d 78, 84 (2d 
Cir. 1993); Kanematsu-Gosho, Ltd. v. MIT Messiniaki Aigli, 
805 F.2d 47, 49 (2d Cir. 1986).

This case law from other circuits conflicts importantly 
with the ruling of the Court of Appeals for the District of 
Columbia Circuit in this case. Here, the district court’s 
opinion, while surprisingly conclusory given the very 
significant amount of evidence presented at trial, nonetheless



16

set forth findings of fact and conclusions of law supporting 
the court’s ruling for defendant on all claims. See App. Sa­
ha. As the district court explicitly recognized, this document 
necessarily constituted the court’s findings of fact and 
conclusions of law, as required by F e d . R. C iv . P. 52(a) 
following a bench trial. See App. 5a. In deeming that such 
a document also constitutes the separate judgment required 
by Rule 58, the court below has both created a significant 
split with the legal standard prevailing in the five other 
circuits noted above, and has also created new confusion 
regarding the critical issue of when a ruling constitutes a 
separate -- and hence final — judgment.

These other circuits have frequently faced 
circumstances such as this, where a district court has issued 
an order purporting to combine both legal analysis and a 
judgment in the same document, and where the losing party 
did not take the extra precautionary step of filing a notice of 
appeal from that defective order. In such cases, because 
failure to enforce the separate judgment requirement would 
result in the appeal being time-barred, the courts have 
uniformly refused to waive the separate judgment 
requirement, thus preserving the opportunity for appeal. See 
Gregson & Assoc., 675 F.2d at 591-93 (3d Cir.) (Rule 58 not 
waived so as to preserve opportunity to appeal); Allah, 871 
F.2d at 890 (9th Cir.) (same); Paddock, 783 F.2d at 846 (9th 
Cir.) (same); Clough, 959 F.2d at 185 (10th Cir.) (same).



17

The law and practice of these circuits stands in direct 
conflict with the holding of the District of Columbia Circuit 
in this case,7 thus making certiorari review appropriate.

I l l
I n P erm ittin g  th e  D istr ic t  C o urt’s 
Seriou s P rocedural  E rrors to  D eny 
P etitio n er  H er  R ig h t  to  Appella te  
R eview , th e  Decisio n  Below  So D eparts 
F r o m  the  Accepted  and Usual Co urse  o f  
J udicial P roceed in gs as to  Call fo r  
E x ercise  o f  Th is  Co urt’s Supervisory  

P owers

A serious error occurred in this case when neither of 
petitioner’s counsel of record were notified of the district 
court’s Memorandum and Order disposing of the case, after 
petitioner had been forced to wait approximately five years 
for a ruling. This error could easily have resulted in 
petitioner losing her right to appeal, for Rule 77(d) 
establishes the harsh rule that "[ljack of notice of the entry 
[of an order or judgment] by the clerk does not affect the 
time to appeal" as specified under FED. R. APP. P. 4(a). As 
petitioner did not learn of the order until two years after it 
was entered, the deadline for appealing -  here, sixty days

7While the decision by the court of appeals in this matter was 
entered summarily and withheld from publication, this does not lessen 
the conflict between the rule applied by the court below and that 
applied in similar circumstances by the courts of appeals of five other 
circuits; Rule 58 contains no exception for unreported decisions. See, 
e.g., Hensley v. Eckerhart, 461 U.S. 424, 428, 432 & n.5 (1983) (Court 
granted certiorari from unreported summary affirmance "to clarify the 
proper relationship of the results obtained to an award of attorney’s 
fees" under 42 U.S.C. § 1988, noting "varying standards" applied by 
the courts of appeals to the question).



18

under F e d . R. A p p . P. 4(a) -  would have long since run 
had the district court’s 1993 order otherwise been in 
conformity with the applicable rules.8 However -- and 
fortunately for petitioner — the deadline for pursuing an 
appeal did not begin to run because the district court, 
erroneously, failed to enter a separate judgment as required 
by Rule 58.

That additional error should have meant that the 
grave injustice to petitioner -  losing her right to appeal — 
would be avoided. Under Rule 58, the time for filing the 
notice of appeal does not begin to run until the required 
separate judgment is entered. Shalala v. Schaefer, 509 U.S. 
292, 302-03 (1993). However, the district court and the 
court of appeals denied petitioner’s right to appellate review 
by carving out a new exception to the Rule 58 separate 
judgment rule, one that negates the very purpose of the rule. 
As a result of this unprecedented exception -  for which the 
cursory lower court opinions offer no coherent justification 
(App. la; App. 3a) — the courts below held that judgment in

Petitioner never had the opportunity to file a precautionary 
notice of appeal. When the district court issued its Memorandum 
and Order, petitioner had a petition for a writ of mandamus pending 
in the court of appeals, requesting that court to direct the district 
court to decide the case. The court of appeals decided the pending 
matter nearly two months after the district court disposed of the case. 
In its order, the court of appeals refused to direct the district court 
to act, but encouraged that court to decide the case promptly. Since 
neither petitioner nor the court of appeals was aware of the district 
court’s Memorandum and Order, there was no reason to expect that 
the district court’s response to the court of appeals’ ruling had 
already occurred. Petitioner therefore had no reason to review the 
docket to determine whether the district court had taken any action 
that predated the court of appeals ruling. Nor did the continued 
delay put petitioner on notice, since the district court already had 
delayed acting in the case for five years.



19

the case was validly entered back when the district court 
issued its 1993 order,9 and any appeal by petitioner was 
accordingly time-barred.

As explained above, this new exception conflicts with 
the clear and repeated teaching of this Court, and creates a

9The court of appeals, in its very short decision, termed 
"troubling" the fact that petitioner’s counsel did not learn of the 
district court’s 1993 ruling until 1995 (App. la). The court criticized 
counsel for not having visited the courthouse and examined the 
district court docket during the period between 1993 and 1995. (It 
was on such a trip in 1995 that petitioner’s counsel learned of the 
1993 order.) This criticism is unfair for several reasons. First, 
because the district court had told counsel explicitly in 1990 that it 
still intended to schedule closing arguments, counsel reasonably 
believed that no dispositive order would be entered until after such 
arguments. Second, during the first several years after the close of 
trial, while petitioner was awaiting action by the court, her counsel 
did, in an abundance of caution, regularly check for activity in the 
case by telephoning the district court clerk’s office. However, as 
previously noted, the clerk’s office later stopped allowing telephone 
inquiries, requiring instead that litigants either physically inspect the 
docket at the courthouse, or else use a computer program that 
counsel did not have, in order to monitor case activity. Finally, as 
noted, at the time the district court purported to enter judgment, 
petitioner had a petition pending in the court of appeals asking that 
court to order the district court to act. The court of appeals did not 
dispose of that petition until almost two months after the district 
court’s Memorandum and Order was issued. Petitioner respectfully 
suggests that in a case where the district court had still not ruled five 
years after the close of trial — and where the court had indicated that 
it would not rule until closing arguments had been held — it is 
unreasonable to expect that counsel should have visited the 
courthouse daily or weekly as a precaution against the off chance that 
the court might unexpectedly rule -  and then fail to mail copies of 
the order to both lawyers who had appeared on petitioner’s behalf, or 
to the court of appeals where a petition for a writ of mandamus was 
pending.



20

conflict with the law of at least five circuits. If left 
uncorrected, it will operate in this case to deny petitioner 
her basic and important right to appellate review — after she 
waited more than five years for a ruling. Such wholesale 
denial of a litigant’s right to appeal defies basic notions of 
fair play and seriously undermines litigants’ confidence in 
the federal courts.10 As such, the decision below so departs 
from the accepted and usual course of judicial proceedings 
as to call for review on certiorari in the exercise of this 
Court’s supervisory powers, as authorized by Su p . Ct . 
R. 10(a).

10The extreme delay and inattention in processing this case likely 
contributed to its irregular treatment, resulting in the unusual denial 
of a party’s cherished right of appeal. Injury of this type, unless 
corrected, should be added to the list of problems caused by delays 
in the federal judiciary, which Congress recently sought to remedy in 
the Judicial Improvements Act of 1990, 28 U.S.C. §§ 471-82. 
Congress found cost and delay in the administration of justice posed 
serious problems, id. § 471, note, and concluded that high costs and 
long delays had left the "time honored promise" of "just, speedy, and 
inexpensive resolution of civil disputes" out of reach of many citizens. 
S. Rep. No. 416, 101st Cong., 2d Sess. 1 (1990), reprinted in 1990 
U.S.C.C.A.N. 6802, 6804.



21

C o n c lu sio n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

Respectfully submitted,

E l a in e  R . J o n es  
D ir e c t o r -C o u n se l

T h e o d o r e  M. Sh a w  
N o r m a n  J. Ch a c h k in  
Ch a r l e s  St e p h e n  R a lst o n  
P a u l  K. So n n
NAACP L e g a l  D e f e n s e  a nd  

E d u c a t io n a l  F u n d , I n c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

J a n e l l  M. B y r d  
(Counsel o f Record)
NAACP L e g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c . 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

J a m es  E . C o l e m a n , J r .
D u k e  U n iv e r sit y  

Sc h o o l  o f  L aw  
Towerview Road 

& Science Drive 
Durham, North Carolina 27707 
(919) 613-7057

Counsel for Petitioner



Appendix



l a

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

No. 95-5259 
Filed June 24, 1996

Sherryl S. Goffer,
Appellant

v.

Togo D. West, Jr., Secretary of the Army,
Appellee

BEFORE: Wald, Williams, and Tatel, Circuit Judges

ORDER

Upon consideration of the motion for summary 
affirmance and the opposition thereto, and the motion for 
summary reversal, it is

ORDERED that the motion for summary affirmance 
of the order filed July 24, 1995 be granted. The district 
court’s February 23, 1993, order complied with the 
requirements of Fed. R. Civ. P. 58 and 79(a). See Spann v. 
Colonial Village, Inc., 899 F.2d 24, 32 (D.C. Cir. 1990). The 
court notes that appellant’s failure to learn of the entry of 
the order (through an examination of the district court 
docket) until June 1995 is troubling. The merits of the 
parties’ positions are so clear as to warrant summary action. 
See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 
(D.C. Cir. 1987) (per curiam); Walker v. Washington, 627 
F.2d 541, 545 (D.C. Cir.) (per curiam), cert, denied, 449 U.S. 
994 (1980). It is

FURTHER ORDERED that the motion for 
summary reversal be denied.



2a

The Clerk is directed to withhold issuance of the 
mandate herein until seven days after disposition of any 
timely petition for rehearing. See D.C. Cir. Rule 41.

Per Curiam



3a

U N IT E D  S T A T E S  D IS T R IC T  C O U R T
F O R  T H E  D IS T R IC T  O F  C O L U M B IA

F ile d  Ju ly  24, 1995

SHERRYL S. GOFFER, 
Plaintiff, 
v.

TOGO D. WEST, JR., 
Secretary of the Army,

Defendant.

Civil Action No. 85-2827 TPJ

ORDER

UPON CONSIDERATION of Plaintiffs Motion for 
Entry of Judgment, defendant’s opposition thereto, and the 
entire record herein, and

UPON FURTHER CONSIDERATION that, 
contrary to plaintiffs assertion, the court’s February 23, 
1993, Memorandum and Order was entered on the Court’s 
docket consistent with Fe d . R. Civ . P. 79(a), and

UPON FURTHER CONSIDERATION that, 
contrary to plaintiffs assertion, the Court’s February 23, 
1993, Memorandum and Order complies with the separate- 
document requirement of Fed. R. Civ. P. 58, and

UPON FURTHER CONSIDERATION that the 
February 23,1993, judgment indicates that notice of entry of 
judgment was sent to the parties counsel consistent with 
Fe d . R. Q v . P. 77(d), and that even if plaintiffs counsel did 
not receive a copy, Rule 77(d) explicitly states that "[l]ack of 
notice of the entry by the clerk does not affect the time to 
appeal or relieve or authorize the court to relieve a party for 
failure to appeal within the time allowed, . . ."



4a

ACCORDINGLY, it is by the Court this 21st day of 
July, 1995, hereby

ORDERED, that plaintiffs motion for entry of 
judgment should be and hereby is DENIED.

s/s ___________________ _
UNITED STATES DISTRICT JUDGE

SUSAN A. NELLOR 
Assistant United States Attorney 
555 4th Street, N.W.
Room 4116
Washington, D.C. 20001

JAMES E. COLEMAN, ESQUIRE 
Wilmer, Cutler & Pickering 
2445 M Street, N.W.
Washington, D.C. 20037-1420

JANELL M. BYRD, ESQUIRE 
NAACP Legal Defense 

& Educational Fund, Inc.
1275 K Street, N.W.
Washington, D.C. 20005



5a

U N IT E D  S T A T E S  D IS T R IC T  C O U R T
F O R  T H E  D IS T R IC T  O F  C O L U M B IA

F ile d  Feb . 23, 1993

SHERRYL S. GOFFER,
Plaintiff,
v. Civil Action No. 85-2827

JOHN O. MARSH, JR.,
Secretary of the Army,

Defendant.

MEMORANDUM AND ORDER

Two matters remain for resolution by the Court in 
this case: (1) findings and conclusions pursuant to Fe d . R. 
Civ . P. 52(a), following non-jury trial in September, 1987, 
upon plaintiffs Title VII claim that she was first demoted 
and later dismissed from federal service in the Department 
of the Army in retaliation for her EEO activity: and (2) a 
decision upon dispositive cross-motions to reverse or affirm 
a decision of the MSPB affirming plaintiffs demotion and 
dismissal in August, 1986.

The Court incorporates its findings and conclusions 
set forth in its Decision and Order of November 20, 1985, 
denying plaintiffs motion for a preliminary injunction. 
There the Court found that no discriminatory or retaliatory 
animus has been shown on the part of defendants in 
reassigning — and in the process demoting — the plaintiff as 
part of a major intra-departmental reorganization within the 
Department of the Army. Similarly, the court finds that no 
such animus permeated her termination from federal service.

The court credits in full the testimony of Delbert 
Spurlock, former general counsel of the Army, who, as a 
newly appointed Assistant Secretary of the Army in August,



6a

1983, instituted the reorganization to, inter alia, enhance the 
Army’s discharge of its EEO responsibilities, as it ultimately 
did, although the reorganization entailed the abolition of 
plaintiffs position. The Court also credits in full the 
testimony of Delores Symons, under whose supervision the 
plaintiff came after the reorganization. According to 
Symons, plaintiffs performance in her capacity as an EEO 
case analyst was markedly deficient, and did not improve 
despite concerted efforts made by Symons and others to that 
end. The Court finds that plaintiff was justifiably terminated 
for cause from federal service in October, 1985, and that no 
employment decision by any of her superiors was ever taken 
during her term of service on the basis of her race or sex, or 
in retaliation for any EEO activity she had undertaken, 
either on her own behalf or generally in the court of her 
duties.

Having so found, the Court also concludes as well 
that the decisions of the MSPB of March 7, 1986, and 
August 12,1986, affirming plaintiffs separation from federal 
service are supported by substantial evidence, are not 
arbitrary or capricious, and are in all respects in accordance 
with law, i. e,, the Civil Service Reform Act, as upholding a 
legitimate exercise of managerial discretion.

For the foregoing reasons, therefore, it is this 23rd 
day of February, 1993,

ORDERED, that judgment is entered in favor of 
defendant Secretary of the Department of the Army on the 
amended complaint of Sherryl S. Goffer, in its entirety, and 
the complaint is dismissed with prejudice.

s/s ______
Thomas Penfield Jackson 
U.S. District Judge



7a

SHERRYL S. GOFFER,
Plaintiff,
v. Civil Action No. 85-2827

JOHN O. MARSH, JR.
Secretary of the Army,

Defendant.

U N IT E D  S T A T E S  D IS T R IC T  C O U R T
F O R  T H E  D IS T R IC T  O F  C O L U M B IA

F ile d  N ov. 20, 1985

ORDER

This Title VII employment discrimination case, 
brought on race, sex, and reprisal grounds, is presently 
before the Court on plaintiffs motion for preliminary 
injunction, her earlier application for a TRO having been 
denied.1 She asks that defendant Secretary of Army be 
ordered to reinstate her pendente life in the Grade 15 EEO 
position she once held in the office of an Assistant Secretary 
prior to her demotion pursuant to a reorganization of the 
secretariat begun in October, 1983, and her subsequent 
termination in the fall of 1985 from government service 
altogether. The merits of her claim are, therefore, now at 
issue only insofar as they bear upon the familiar four 
elements of a meritorious claim for preliminary injunctive 
relief:

1) That without such relief, plaintiff will suffer 
irreparable injury, having no adequate remedy otherwise;

M ore precisely, defendant has moved to "deny" the motion for 
a preliminary injunction, on analogy to Fed . R. Civ . P. 41(b), at the 
close of plaintiffs evidence. Defendant was permitted to call one 
witness, already present in court, to preserve his testimony in the 
event the motion to deny were denied.



8a

2) That plaintiff appears substantially likely to 
prevail on the merits at trial;

3) That the equities balance in plaintiffs favor, 
or at lease not against her; and

4) That it is in the public interest to grant the 
relief requested.2

The Court finds from the evidence that plaintiff has 
satisfied, at best, only the third and fourth of the necessary 
elements for the relief she seeks; in other words, had she 
been able to establish irreparable injury and a likelihood of 
success on the merits, it would be neither inequitable, nor 
contrary to the public interest, to order a restoration of the 
status quo ante while the matter is litigated to a conclusion.

Plaintiffs evidence, however, does not establish that 
she is at any greater risk of irreparable injury now than she 
was at the time her application for a TRO was denied, as to 
which the Court found her allegations of injury insufficient 
as a matter of law on the authority of Sampson v. Murray, 
415 U.S. 61 (1974). The additional items of injury she has 
proffered here, viz., her fear of losing custody of her

2The Court concludes that the two-day evidentiary hearing on 
plaintiffs motion — of which all but the final 17 minutes was devoted 
to the testimony of plaintiff herself and multiple "adverse" witnesses 
she called from the Department of the Army — afforded plaintiff the 
full and fair opportunity to which she was entitled to demonstrate the 
"pretextual" character of the reasons proffered by the witnesses she 
herself called for her demotion and discharge. See Mitchell v. 
Baldridge, 759 F.2d 80, 87-88 (D.C. Cir. 1985). Plaintiff does not 
contend that her presentation was unduly restricted, but, rather, that 
the defendant’s reasons must be deemed prima facie pretextual until 
they are further explained in its case-in-chief. The Court finds them 
to have been sufficiently explained in the course of plaintiff s case and 
in need of no elaboration.



9a

daughter if unable to support her, and her apprehensions for 
the future of EEO enforcement generally throughout the 
Department of the Army if others are discouraged by her 
example, are both purely speculative at this stage, and 
neither is of a nature substantially more compelling than 
those the Supreme Court rejected in Sampson v. Murray?

Insofar as the likelihood of her ultimate success on 
the merits is concerned, plaintiff has offered absolutely no 
direct evidence that any of the actions taken by Army 
officials which adversely affected her were improperly 
motivated by her race or sex, or that her dismissal was an 
act of retaliation against her either for her assertion that her 
demotion was so motivated, or for her earlier EEO activism. 
If race, sex, or activism had played any part, it would have 
to be inferred entirely from the circumstances alone that 
plaintiff is black, female, and an activist; that her 
termination occurred subsequent to her EEO complaint; and 
that the explanation of the adverse witnesses for their 
conduct towards her is unworthy of credence.

Whether she was treated fairly or not, however, there 
is no other evidence to show that those explanations were 
"pretextual" for unlawful discrimination or retaliation 
originating in considerations of race or sex, or activism, 
assuming they were "pretextual’ at all — which the Court 
expressly does not find -- and it is at least an equally 
permissible inference from this record that the Army 
officials were unfavorably disposed towards Ms. Goffer, 
because they found her to be a contentious and self-centered 
person, unwilling or unable to defer to authority, and more 3

3The latter is, moreover, convincingly refuted by the testimony of 
defendant’s only witness that the reorganization of which plaintiff 
complains — and the officials she has accused of discrimination — 
have significantly advanced the cause of EEO as perceived by Army 
EEO officials in the field.



10a

concerned with her own status and perquisites than the 
efficient and harmonious operation of her office.4

The Court does expressly find that Mr. Spurlock’s 
stated purposes in implementing the reorganization were not 
pretextual at all. They had a rational basis unconnected in 
any way with a desire to manipulate the EEO program other 
than to increase its efficiency. And as to its impact on Ms. 
Goffer specifically, her race and sex genuinely made his 
decision to go forward with it more difficult. Rather than 
seeking to excuse to discriminate against her, or to punish 
her for her past EEO activities, Mr. Spurlock actually sought 
ways to ameliorate its impact upon her.

The court also expressly credits the testimony of Ms. 
Symons and Mr. Matthews as to their subjective reasons for 
the actions taken by them which ultimately lead to plaintiffs 
termination from federal service. It makes no finding with 
respect to whether any of them were objectively justified, 
since it is unnecessaiy to do so, having found that the 
reasons given had nothing whatsoever to do with plaintiffs 
race, sex, or her prior administrative complaint that they 
were.

For the foregoing reasons, therefore, it is, this 20th 
day of November, 1985,

ORDERED, that plaintiffs motion for a preliminary 
injunction is denied; and it is

4In this respect the Court contrasts her attitude toward the 
reorganization with that of Ms. Symons who, although also opposed 
to it, nevertheless acceded to it gracefully once her objections had 
been registered.



11a

FURTHER ORDERED, that the proceedings 
thereon are made a part of the record on the trial pursuant 
to Fe d . R. Civ . P. 65(a)(2); and it is

FURTHER ORDERED, that this case is scheduled 
for a status conference at 9:30 a.m. on January 6, 1986, if 
the case still remains before this court.

s/s _____________ _
Thomas Penfield Jackson 
U.S. District Judge



12a

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

No. 93-5025 
Filed April 8, 1993

In re: Sheriyl S. Goffer
Petitioner,

BEFORE: Wald, Ruth B. Ginsburg and Sentelle, 
Circuit Judges

ORDER

Upon consideration of the petition for writ of 
mandamus, it is

ORDERED that the petition be denied. Mandamus 
is an extraordinary and drastic remedy, Kerr v. United States 
District Court, 426 U.S. 394, 402 (1967), justified only by 
"exceptional circumstances amounting to a judicial 
‘usurpation of power.’" Gulfstream Aerospace Corp. v. 
Mayacamas Corp., 485 U.S. 271, 289 (1988) (citations 
omitted). The district court’s delay, although prolonged, 
does not yet warrant the extreme measure petitioner seeks. 
See Cartier v. Secretary of State, 506 F.2d 191,199 (D.C. Cir. 
1974), cert, denied, 421 U.S. 947 (1975). We encourage the 
district court, however, to attend to the resolution of this 
case as promptly as feasible. Should the court fail to do so, 
we will entertain a renewed petition.

Per Curiam



13a

Federal Rules of Civil Procedure 
Rule 58. Entry of Judgment

Subject to the provisions of Rule 54(b): (1) upon a 
general verdict of a jury, or upon a decision by the court 
that a party shall recover only a sum certain or costs or that 
all relief shall be denied, the clerk, unless the court 
otherwise orders, shall forthwith prepare, sign, and enter the 
judgment without awaiting any direction by the court; 
(2) upon a decision by the court granting other relief, or 
upon a special verdict or a general verdict accompanied by 
answers to interrogatories, the court shall promptly approve 
the form of the judgment, and the clerk shall thereupon 
enter it. Every judgment shall be set forth on a separate 
document. A judgment is effective only when so set forth 
and when entered as provided in Rule 79(a). Entry of the 
judgment shall not be delayed, nor the time for appeal 
extended, in order to tax costs or award fees, except that, 
when a timely motion for attorneys’ fees is made under 
Rule 54(d)(2), the court, before a notice of appeal has been 
filed and has become effective, may order that the motion 
have the same effect under Rule 4(a)(4) of the Federal 
Rules of Appellate Procedure as a timely motion under 
Rule 59. Attorneys shall not submit forms of judgment 
except upon direction of the court, and these directions shall 
not be given as a matter of course. (As amended Dec. 27, 
1946, eff. Mar. 19,1948; Jan. 21,1963, eff. July 1,1963; Apr. 
22, 1993; eff. Dec. 1, 1993.)