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November 24, 2021 Feature

A Cause for Certainty Not Delay: Rule 58’s Separate-Document Requirement

By Francis L. Kailey
Civil Procedure Rule 58 and Appellate Rule 4 together are meant to lengthen the appeals clock if the parties are uncertain about judgment finality.

Civil Procedure Rule 58 and Appellate Rule 4 together are meant to lengthen the appeals clock if the parties are uncertain about judgment finality.

Utamaru Kido/ Moment via Getty Images

Rule 58 of the Federal Rules of Civil Procedure requires that a judgment be set out on a separate document from whatever order decides the case. Practitioners often wonder whether a separate document is required to make a judgment final for appeal purposes. The short answer is “no.” This is because finality (as a legal concept) is unaffected by the procedure of how a judgment is entered. As Scholars point out, Rule 58 states how a judgment is entered. It does not speak to whether a judgment entered in this fashion is a “final judgment” for purposes of appeal.

Because the separate document does not affect finality, this essay makes two assumptions for the analysis that follows: (1) the judgment in the order is final, and (2) none of the exceptions of Rule 58(a) apply. The question then becomes whether the separate-document rule imposes some kind of barrier to appealing a judgment as soon as it is final. The answer to that is also “no.”

In practice, Rule 58 neither constrains a party to waiting 150 days to appeal nor limits the appeal to 150 days. Rather, Rule 58’s separate-document rule is meant to eliminate uncertainties about when the appeals clock begins to run. Accordingly, an apparently final order can always be appealed, even when the court does not produce a separate document. Even so, the appropriate action for a party that wants to start the appeals clock is to request that the court file a separate document under 58(d).

Discussion

Because the finality of the judgment is unaffected by how the judgment is entered, failure to comply with the separate-document requirement (by the court or the clerk) only extends the time for the losing party to file an appeal. This also means that Rule 58(b) does not require the appellant to wait 150 days—or even for the court to file a separate form—before filing an appeal.

Rule 58(c)(2) plainly means that when a separate document is required (as we are now assuming it is), the earlier of two events starts the time for post-judgment motions and appeal: (A) when the clerk actually enters a separate judgment; or (B) when 150 days have passed since the entry of an order that contains a final judgment.

Further, Federal Rule of Appellate Procedure 4(a)(7)(A)(ii) integrates Rule 58 as the test for when the appeals clock begins to run. That means that, far from forcing a party to wait 150 days for post-trial motions or appeal, Rules 58 and 4 preclude a party’s argument that the motion or appeals clocks never began to run because the court never filed a separate document.

From these rules, we see that the absolute maximum appeal time is 180 days if the clerk enters no separate document. If the clerk does enter the separate document sooner, it only starts the 30-day appeals clock running that much earlier. The rules do not mean that the losing party can’t file a notice of appeal (and the appeal itself) before the appeals clock even starts.

This is so for two reasons: First, the parties can waive the separate-document requirement where they assume that the judgment is final and act accordingly. Second, Federal Rule 4(a)(2) treats a notice of appeal that a party filed before entry of a separate judgment as if the party filed it on the actual entry of the separate-document judgment or after 150 days.

To the first point, parties can waive the separate document requirement. Before 1978, the large majority of circuits held that the separate document was a prerequisite to appellate jurisdiction under 28 U.S.C. § 1291. Then, the Supreme Court decided that a separate document was never such a “categorical imperative” that the parties could not waive it before filing an appeal.

But even with the parties able to waive it, Rule 58 caused problems. Its text provided that “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).” Deciding which judgments were “effective” proved to be a murky standard that caused a big headache for the courts. It created cases where the appeals clock could run on forever because a trial court might never produce a separate judgment.

To avoid this, Congress amended Rule 58 to what is today. When the amendment took effect in 2002, the question became if modern Rule 58’s clear 150-day time limit still allowed the parties to waive the separate-document requirement.

So, to the second point, appellate procedure Rule 4(a)(2) allows a premature notice of appeal (including one that is filed before a separate-document judgment) to be treated as if it were filed on the date of the actual judgment. In a case called Outlaw, the appellant filed a premature notice of appeal. Then-Circuit-Judge Roberts decided that Rule 4(a)(2) solved that problem. And because no separate judgment was ever entered, the appeals clock did not even begin to run until the judgment was constructively entered 150 days after the final order. The appeals court treated the premature notice of appeal as if the appellant filed it 150 days after the final order, and it was timely. This case shows how Rule 58 and Appellate Rule 4 allow a party to timely file an appeal even before a separate document is created.

Why have Rule 58 then? Rule 58 contemplates two scenarios. First, the court may overlook filing a separate judgment completely. Second, a party may want the court to actually enter judgment sooner than 150 days. The first scenario is why Rule 58(c) institutes the 150-day time limit. The second is why 58(d) allows the parties to request entry of a final judgment in a separate document.

Spoken more generally, the separate-document requirement is all about providing notice to the parties and the court: When the judge never enters the judgment on a separate document, the parties may be confused about the judge’s intentions. But if the judge does nothing further for 150 days, even the most unaware counsel will realize he needs to seek clarification or file an appeal.

This explains why the parties can waive the separate document requirement. It also explains why a party eager to start the appeals clock should request a separate document.

Conclusion

Civil Procedure Rule 58 and Appellate Rule 4 together are meant to lengthen the appeals clock if the parties are uncertain about the finality of a judgment. Conversely, Rule 58 and Rule 4 prevent an appeals clock that never runs when the court fails to provide a separate judgment.

In no way do these rules require that a party receiving an adverse final judgment wait around for the court to “shuffle paper.” Nevertheless, the safest and wisest strategy for the losing party—as well as the winning party—is to request that the trial court shuffle the paper promptly under Rule 58(d). The separate-document judgment ensures the appellant that the final judgment is ripe for appeal. Probably more important, by requesting a separate document, the appellee presses the chess clock against her opponent.

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By Francis L. Kailey

Francis L. Kailey is from Colorado, where he is an associate at Witwer, Oldenburg, Barry & Groom, LLP. While writing this article, he worked for the Department of Justice in the Tax Division’s Civil Trial Section. His email is [email protected].