Goffer v. West Brief for the Respondent

    No. 96-461

3fn tfje Supreme Court of tlje Uiuteb States
October Term , 1996

Sherryl S. Go f f e r , petitioner

v.

T ogo D. West, J r ., Secretary of the Army

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT

Seth P. Waxman 
Acting Solicitor General

Frank W. Hunger 
Assistant Attorney General

William Kanter 
John P. Schnitker 

Attorneys
Department of Justice 
Washington, D.C. 20530-0001 
(202) 5U-2217



QUESTION PRESENTED
Whether the district court’s February 23, 1993, 

Memorandum and Order constituted an effective 
judgment within the meaning of Fed. R. Civ. P. 58.

(I)



TABLE OF CONTENTS

Page
Opinions below ........ ........ ............................ .............. 1
Jurisdiction ........................... ........................ ........ .......  1
Statement ............................... ........ .............. ........ . 1
Argument .............................. ........................................  4
Conclusion .......................................................... ........... 8

TABLE OF AUTHORITIES
Cases:

Allah  v. Superior Court, 871 F.2d 887 (9th Cir.
1989) ......................................................................... 6

Axel Johnson, Inc. v. Arthur Anderse?i & Co.,
6 F.Sd 78 (2d Cir. 1993) ............. ......................... 8

Bankers Trust Co. v. Mallis, 435 U.S. 381
(1978) ................... ....... ........ ...... ............... ....... . 5,7

Barber v. Whirlpool Corp., 34 F.3d 1268 (4th
Cir. 1994) ............   6

Clough v. Rush, 959 F.2d 182 (10th Cir. 1992) .... 5, 6
Cooper v. Town of East Hampton, 83 F.Sd 31

(2d Cir. 1996) ........     6
Gregson & Assoc, v. Government of the Virgin 

Islands, 675 F.2d 589 (3d Cir. 1982) .................. 6
Kanematsu-Gosho, Ltd. v. MIT Messiniaki Aigli,

805 F.2d 47 (2d Cir. 1986).......... .................... ......  6
Lawrence v. Chater, 116 S. Ct. 604 (1996) ........... 7
Mariscal v. United States, 449 U.S. 405 (1981) .. 7
Paddack v. Morris, 783 F.2d 844 (9th Cir.

1986) ...........................         6
Seiscom Delta, Inc., In re, 857 F.2d 879

(5th Cir. 1988) .......................... ....... ...................... 7
Spann v. Colonial Village, Inc., 899 F.2d 24

(D.C. Cir. 1990) .................................................. . 6, 7
Stutson v. United States, 116 S. Ct. 600 

(1996) ....................................................... .............. . 7

(III)



IV

Cases—Continued: Page
United States v. Indrelunas, 411 U.S. 216

(1973) ............................... ,....................................... 5
Vernon v. Heckler, 811 F.2d 1274 (9th Cir.

1987) ....................... ........................ ........................  6
Statutes and rules:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq...............................................................    2

28 U.S.C. App., at 7824 ......... ...................................  5
Fed. R. Civ. P.:

Rule 54(a)............................   4
Rule 58 ................................. ........................  3, 4, 5, 6, 7
Rule 77(d) ...........................................................  3, 4
Rule 79(a).....................   4

Miscellaneous:
9 J. Moore, Moore’s Federal Practice (1970).........  5



In . tfj£ Suprem e Court of tlj? Hm teb
October Term , 1996

No. 96-461
Sherryl S. Go f f e r , petitioner

v.
T ogo D. West, J r ., Secretary of the Army

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW
The decision of the court of appeals (Pet. App. la-2a) 

is unreported. The decisions of the district court 
(Pet. App. 3a-lla) are also unreported.

JURISDICTION
The judgment of the court of appeals was entered on 

June 24, 1996. The petition for a writ of certiorari 
was filed on September 23, 1996 (a Monday). The ju­
risdiction of this Court is invoked under 28 U.S.C. 
1254(1).

STATEMENT
1. In 1985 petitioner, a civilian employee of the 

United States Army, filed suit against the Secretary 
of the Army, alleging that she had been dismissed in 
retaliation for her equal employment opportunity

(1)



2

activities, in violation of Title VII of the 1964 Civil 
Rights Act, 42 U.S.C. 2000e et seq. Petitioner also 
sought review of a decision of the Merit Systems Pro­
tection Board affirming her dismissal.

The district court denied petitioner’s request for 
immediate reinstatement (Pet. App. 7a-lla), and the 
parties engaged in discovery. A bench trial was 
conducted in September and December 1987, and the 
parties submitted proposed findings of fact and con­
clusions of law in March 1988. According to peti­
tioner (Pet. 3), the district court indicated at the 
close of trial that it intended to hear closing argu­
ments before rendering a decision.

As of May 1990, petitioner still had not received 
notice of any action by the district court. Her 
counsel then filed a request for a status conference, 
which was held on July 18, 1990, According to the 
docket entries,1 the parties at that time requested 
closing arguments and the district court indicated 
that arguments would be scheduled. However, the 
court neither set a date for arguments nor responded 
to petitioner’s later request, made in April 1991, for a 
decision in her case.

On February 9, 1993, petitioner filed a petition for a 
writ of mandamus with the court of appeals, request­
ing that the district court be directed to render a 
decision. Pet. 4. On April 8, 1993, the court of appeals 
denied the petition; the court, however, encouraged 
the district court to “attend resolution of this case as 
promptly as feasible” and indicated that it would 
entertain a renewed petition should the district court 
fail to follow that directive. Pet. App. 12a.

1 Petitioner has lodged a copy of the docket with the Clerk 
of the Court. Pet. 7 n.6.



3

2. While petitioner’s mandamus petition was pend­
ing, the district court entered a “Memorandum and 
Order” in the case. Pet. App. 5a-6a. The court found 
in favor of the defendants on both claims, directed that 
“judgment [be] entered in favor of [the] defendant,” 
and dismissed the complaint with prejudice. Id. at 6a. 
The opinion was filed and entered on the docket on 
February 23, 1993, and a copy was received by the 
U.S. Attorney’s Office within a week of its entry on 
the docket. Pet. 7 n.6. Petitioner claims, however, 
that a copy of the decision was neither sent to, nor 
received by, her counsel.2

On June 5, 1995, petitioners counsel obtained a copy 
of the docket in connection with preparing a second 
mandamus petition for the court of appeals. Upon 
learning of the February 23d Memorandum and Order, 
petitioner’s counsel filed with the district court a 
motion for entry of judgment under Fed. R. Civ. P. 58. 
Pet. 8.

The district court denied the motion, holding that 
its February 23, 1993, decision complied with Rule 58 
and had been properly entered on the docket, that 
notice of the entry had been sent to counsel, and that 
under Fed. R. Civ. P. 77(d) whether or not petitioner’s 
counsel received the notice was irrelevant. Pet. App. 
3a-4a.

3. The court of appeals summarily affirmed. Pet. 
App. la-2a. The court was “troubled” by the peti­
tioner’s “failure to learn of the entry of the order 
(through an examination of the district court docket)

2 Apparently, the court of appeals did not receive notice or 
a copy of the district court’s decision, since its April 8 opinion 
makes no mention of it and is premised upon a conclusion that 
no decision had yet been rendered by the district court.



4

until June 1995.” The court concluded that the 
district court’s February 23, 1993, order “complied 
with the requirements of Fed. R. Civ. P. 58 and 79(a).” 
Pet. App. la.

ARGUMENT
We agree with petitioner that the decision below is 

in error and that relief in these circumstances is 
warranted.

1. At various points, petitioner complains of the 
fact that her counsel did not receive notice of the 
district court’s February 23, 1993, decision. Pet. 5-8, 
17-19 & n.9. Whether or not notice was received, how­
ever, is irrelevant. As petitioner eventually concedes 
(Pet. 17), Fed. R. Civ. P. 77(d) specifically states that 
the “[Rack of notice of 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.” Thus, the alleged lack of notice of the 
district court’s decision cannot form a basis for relief 
in this matter.

2. We concede, however, that petitioner should be 
granted relief on another ground. Rule 58 of the 
Federal Rules of Civil Procedure requires that a 
judgment3 be “set forth on a separate document,” and 
it specifically states that a “judgment is effective 
only when so set forth” (emphasis added). The rule 
further provides that judgments must be entered in 
accordance with Fed. R. Civ. P. 79(a), which requires 
that all papers filed in an action be entered on the 
docket. The Court has held that these requirements 
“must be mechanically applied” to avoid “uncer-

3 The term “judgment” as defined in Rule 54(a), “includes 
a decree and any order from which an appeal lies.” Fed. R. 
Civ. P. 54(a).



5

taintfy] as to the date on which a judgment is 
entered.” United States v. Indrelunas, 411 U.S. 216, 
222 (1973). While the Court has also held that parties, 
through their actions, may waive these procedural 
mandates ̂ Bankers Trust Co. v. Mallis, 435 U.S. 381 
(1978), the Court has emphasized that these require­
ments “should be interpreted to prevent loss of the 
right of appeal, not to facilitate loss.” Id. at 386 
(quoting 9 J. Moore, Moore’s Federal Practice 
If 110.08[2], at 119-120 (1970)). Thus, because pre­
servation of the right to appeal lies at the heart of the 
rule’s mandate, the rule’s requirements must be 
viewed as mandatory when a party would be unfairly 
prejudiced by anything short of strict compliance. 
Accord Clough v. Rush, 959 F.2d 182, 185 (10th Cir. 
1992).

a. We do not believe that the February 23, 1993, 
decision satisfies the “separate document” require­
ment of Rule 58. As this Court explained in Bankers 
Trust Co., 435 U.S. at 385, the purpose of this re­
quirement was to eliminate any possible uncertainty 
that might arise when opinions or memoranda con­
taining some of the elements of a judgment—but not 
formally labelled as such—were entered on the 
docket. Accordingly, “[t]he amended rule eliminates 
these uncertainties by requiring that there be a judg­
ment set out on a separate document—distinct from 
any opinion or memorandum—which provides the 
basis for entry of judgment.” Ibid, (quoting 28 U.S.C. 
App., at 7824).

As there is no “distinct” district court judgment in 
this matter that is separate from the court’s memo­
randum, we agree that the court did not comply with 
the separate judgment requirement of Rule 58. 
Indeed, as petitioner notes (Pet. 15), numerous



6

appellate courts have held that documents containing 
the type of discussion included in the district court’s 
decision in this case do not satisfy the separate 
judgment rule. See Cooper v. Town of East Hampton, 
83 F.3d 31 (2d Cir. 1996); Barber v. Whirlpool Corp., 
34 F.3d 1268 (4th Cir. 1994); Axel Johnson, Inc. v. 
Arthur Andersen & Co., 6 F.3d 78 (2d Cir. 1993); 
Clough v. Rush, 959 F.2d 182 (10th Cir. 1992); Allah v. 
Superior Court, 871 F.2d 887 (9th Cir. 1989); Vernon 
v. Heckler, 811 F.2d 1274 (9th Cir. 1987); Kanematsu- 
Gosho, Ltd. v. MIT Messiniaki Aigli, 805 F.2d 47 (2d 
Cir. 1986); Paddock v. Morris, 783 F.2d 844 (9th Cir. 
1986); Gregson & Assoc, v. Government of the Virgin  
Islands, 675 F.2d 589 (3d Cir. 1982).

b. Further, the prejudice that has resulted from 
the failure to comply with Rule 58’s requirements 
suggests that “mechanical application” of the rule is 
warranted in this case; the case relied on by the court 
of appeals is thus distinguishable. In Spann v. 
Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990), 
plaintiffs’ previous attempt to appeal had been re­
buffed because the district court had failed to rule on 
all claims. The district court then endeavored to 
resolve the matter by ruling on the remaining claims, 
stating that its order “makes judgment in these cases 
final.” Id. at 31. The court did not enter a separate 
judgment in accordance with Rule 58. Rejecting an 
argument that the appeal was premature, then-judge 
Ginsburg stated for the, court that “Rule 58 * * * 
‘must be applied in such a way as to favor the right to 
appeal,’ ” and that it “should not be used to require the 
pointless formality of returning to the district court 
for ministerial entry of judgment.” 899 F.2d at 32 
(quoting Bankers Trust v. Mollis, 435 U.S. at 384).



7

Clearly, the holding in Spann, like Bankers Trust, 
construed Rule 58 “to favor the right to appeal” and 
avoided the “pointless formality” of requiring an ap­
pellant to return to the district court for entry of a 
separate judgment meeting the requirements of Rule 
58. 899 F.2d at 32 (quoting In re Seiscom Delta, Inc., 
857 F.2d 279, 283 (5th Cir. 1988)). That is entirely 
distinguishable from the present case, where the 
lower courts’ construction of the February 23, 1993, 
“Memorandum and Order” resulted in the loss of 
petitioner’s right to appeal.

3. This Court, of course, does not “mechanically 
accept any suggestion from the Solicitor General that 
a decision rendered in favor of the Government by a 
United States Court of Appeals was in error.” 
Lawrence v. Chater, 116 S. Ct. 604, 606-608 (1996) 
(quoting Mariscal v. United States, 449 U.S. 405, 406 
(1981)). However, in light of the change in position 
taken by the government, and the substantial author­
ity supporting petitioner’s contention (with which we 
now agree) that the court below erred in precluding 
her appeal, we respectfully suggest that the Court 
grant the petition, vacate the decision below, and 
remand the case to the court of appeals for further 
consideration. See generally, e.g., Lawrence v. 
Chater, 116 S. Ct. at 606, 608; Stutson v. United 
States, 116 S. Ct. 600, 602 (1996).



CONCLUSION
The petition for a writ of certiorari should be 

granted, the order of the court of appeals granting 
summary affirmance and denying summary reversal 
should be vacated, and the case should be remanded for 
further consideration in light of the views expressed 
herein.

Respectfully submitted.

November 1996

Acting Solicitor General Dellinger has recused himself 
from participation in this case.

Seth P. Waxman 
Acting Solicitor ral*

Frank W. Hunger 
Assistant Attorney General

William Kanter 
John P. Schnitker 

Attorneys