*1 panel’s the classification failure to do so required by
within the time the statute.
IV
We FDA hold that the was within its
broad discretion to conclude General
Medical has meet either the failed to bur- showing
den of the Drionic device to be
safe and effective or burden of show-
ing present po- that the device does inju-
tential risk of illness or unreasonable that,
ry. Congress We hold while contem-
plated that not all in Class I devices
have to have been shown safe and effec-
tive, require the FDA may the Drionic de-
vice to be shown safe effective before
the device is into reclassified Class I. We procedural
rule that the FDA committed consequence
errors of in this but
warn the FDA that it would do inwell
future closely to adhere more to Con-
gress’s directive that the pan- classification collective,
el summary submit a written Secretary
its views delegatee. or her
So ordered. DIAMOND, by
Daniel his mother
Justine DIAMOND McKENZIE, al., Appellants.
Floretta et
No. 85-5205. Appeals,
United States
District of Columbia Circuit.
Aug. *2 ROBINSON, Judge
Before Chief STARR, Judges. TAMM and Circuit PER CURIAM: presents recurring This case issues on operation applicability of Rule provision That of the Federal requires every judgment, in or- Rules effect, enjoy legal der to be set forth on a “separate document.” We hold that Rule test, 58’s mechanical as elucidated Court, United States sat- by the District order in isfied Court’s present case. further hold that We timely, and we therefore dis- charge previously the order to show cause sponte by entered the court. We set sua reasoning forth our and conclusions on this procedural question inasmuch as the issues recurring raised in this matter are and are important orderly admin- for the sound and justice istration of in this District. I briefly background which To sketch hand, plaintiffs spawned question Diamond, teenaged severely are Daniel learning emotionally disturbed disabled Diamond, child, and Justine his mother. January plaintiffs complaint filed a charging District Court the United States of Edu- that the District of Columbia Board had violat- cation and various D.C. officials federal plaintiffs’ rights ed under several and the United States Constitu- statutes charges tion. These stemmed from defend- in a alleged place ants’ failure to Daniel facility appropriate residential educational Suda, H. L. John Charles Reischel and to his needs. Nettler, D.C., Washington, Richard B. appellants’ response or- show cause subsequently Defendants moved to dis- der. or, alternative, summary miss 21, 1984, Goodman, the Dis- Bogin judgment.
Matthew B. and Beth On December D.C., pivot- Washington, reply. filed an order which is the were on trict Court al document analysis. for our See Dia January On one month after its (D.D.C. mond v. No. 84-0241 order, initial the District Court filed its 21, 1984) (order). Dec. That order did sev which set forth both first, things: eral it dismissed all claims findings of fact and conclusions of law. *3 Rights under the Civil Act of the McKenzie, Diamond v. F.Supp. 632, Rehabilitation Act of and the Fifth (D.D.C.1985) (“This Memorandum Amendment; second, it dismissed the Dis Opinion constitutes the ruling Court’s trict of Columbia Board of Education as а the motion to dismiss and the Court’s find- party; third, and it ordered defendants to ings of fact and pursu- conclusions of law place School, Vanguard Daniel at the a ant 52.”). to Fed.R.Civ.P. placement Florida, residential in and direct January On the defendants ed the District of Columbia Public Schools filed their notice appeal. This notice pay placement for that and to reimburse referred to both “the January any previous Ms. Diamond for pay tuition Opinion Memorandum and December ments. The order stated that Court “[t]he 1984 order----” Appeal, Notice of will a Dia- Opinion file Memorandum setting McKenzie, (D.D.C. mond v. No. 84-0241 forth the reasons for its decision.” Id. at January 1985). It also February stated that “this Order On shall (Robinson, C.J.) constitute the final order of this the Court.” court issued an order more; Id. at 3. The order did still it set to show why cause appeal the should not forth in brief fashion the court’s reasoning be dismissed for lack jurisdiction.1 The provided and several citations to au by issue raised that order and discussed in thorities. response reply and thereto is now be- fore the court. 7, 1985, January On defendants moved 60(b)(6),Fed.R.Civ.P., under Rule for relief from the order. The requested defendants II responsibility their payment for for In civil actions where the United Daniel’s far-away placement commence States is not a party, a notice appeal only aftеr anticipated issuance of the mem must be filed thirty within days after the opinion. orandum Motion for Relief from entry date of judgment of the or order Order of December 1984 at Dia appeal. under 2107; 28 U.S.C. Fed.R. (D.D.C. mond v. § No. 84-0241 4(a)(1). App.P. question The in 1985).
January
case is
represented
Defendants
when the time
appeal begins
for
to run.
have filed a notice
ap
The
peal in
answer is to be
in
stay
order to
found
money judgment,
58(2),
provides:
but that
which
“Every
decision
judgment
cannot be reached
“[a]
regarding
appeal
an
shall
...
be set forth on separate
until the
a
facts
document.
upon which the
A judgment
order is based are
is
only
filed.”
effective
when so set
Id. at 1. The District Court did not rule on forth and when
provided
entered as
in Rule
this motion.
79(a).”2
requirement
in Fed.R.Civ.P.
appeal
1. The
timely
in this case
by
if measured
Rule 3 shall be filed with the clerk of the
from the date of the
but not if mea-
days
district court within 30
after the date of
sured from the date of the order.
28 U.S.C.
entry
judgment
appealed
of the
or order
from____
provides
pertinent part:
§ 2107
in
Except
section,
provided
as otherwise
in this
provides
2. Fed.R.Civ.P. 58
in full:
bring any judgment,
shall
order or
Subject
provisions
54(b): (1)
to the
of Rule
action,
proceeding
decree in an
suit or
of a
upon
general
jury,
upon
verdict of a
or
appeals
civil nature before a court of
for re-
by
party
decision
the court that a
shall recov-
filed,
view unless notice of
is
within
only
er
a sum certain or costs or that all relief
thirty days
entry
judgment,
after the
of such
denied,
clerk,
shall be
unless the court
order or decree.
orders,
prepare,
otherwise
shall
forthwith
4(a)(1)
Fed.R.App.P.
provides:
sign,
and
awaiting
enter the
without
permitted
In a civil case in which an
is
court;
by
(2)
by
upon
direction
right
a deci-
law as of
from a district court to a
relief,
by
granting
sion
appeals
the court
appeal required
court of
other
or
the notice of
79(a),
turn,
simply
guided
analysis
in
that the clerk of the
in
We are
our
of the
facts at hand
entry
Court’s deci
District Court make
on the civil
Indrelunаs,
sion United
States
judgment showing
docket of the date of the
U.S.
move was entered entered____” Id. at is 93 S.Ct. at we would be convinced purposes maintaining certain- 1563. For unique pro course of the District Court ty appeal begins the time for as to when ceedings and the contents of the order and run, announced, the Rule the Court “must subsequent that Rule Id. mechanically applied.” at outset, 58 has not been satisfied. At the S.Ct. 1565.7 we conclude that the mere fact 21, 1984 order December stated that it con us, appellees In the case before do stituted “the final order of the Court” does separate not contend thаt a document with problem.8 resolve the Rule 58 meaning of Rule 58 was ever set question whether an order is a final order Indeed, flatly forth in this case. state question whether separate judg that “there still has been no setting judg forth the [by Reply filed District Court].” *5 properly been has entered. We fur Appellants’ Response to Show Cause that, ther observe at the outset although Diamond v. 3, Order No. determination, not critical to our the form (D.C. 21, 1985). Rather, they 85-5205 Mar. 21, of the December 1984 order does not 21, argue that the December 1984 order provided conform to the model forms in the effect, was final in its the District Federal critically, Rules.9 Most the Dis final, Court intended it to be and that triсt Court’s order did more than render by intent the is evidenced District Court’s judgment; contrary, it set forth a statement that “this Order shall constitute See id. providing basis, decision in the sense of the final order of the the Court.” order). (quoting Appellees’ briefly, District Court albeit of the reasoning, court’s soning, embody only 7. This court has not had occasion to address the whereas Forms 31 and 32 Fed.R.Civ.P, procedure contemplated by judgment significance the to be entered. The of however, appeals, squarely Other courts of have By apparent. labeling sepa- these two facts is every judgment appeal held that from which an "judgment,” rate document as a the District seрarate is taken must be set forth in a doc may clearly signify finally its intent to ument, appeal untimely and that an is not when Similarly, dispose by eliminating any of a case. See, e.g., no such document is filed. Townsend authority, reference to court’s the rationale or Lucas, (5th Cir.1984); Greg v. 745 934 creating possibility the court avoids of Virgin son & Assocs. Architects v. Gov’t Islands, the of combined memorandum and order. (3d Cir.1982); Caper 675 F.2d 593 Rules, Advisory See Notes of Committee on 1963 v. ton 683, Beatrice Pocahontas Coal 585 F.2d Amendment, ("The following Fed.R.Civ.P. 58 (4th Cir.1978). agree We with these by amended rule eliminates these uncertainties holdings, entirely keeping as are in with requiring judgment that there be a set out on a Supremе the Court’s Indrelunas decision. separate any opinion document—distinct from NLRB, provides Cafeteria, or memorandum —which 8. See Furr’s the basis for Inc. v. 566 F.2d Otherwise, (5th Cir.1978). judgment.”). it seems to meaningless us requirements Rule become 58 could if its suggest While we do not intend to that the easily evaded. so only model form of is means of complying with Rule adherence to the for- in order this case differs from that con- Appendix mat set forth in the of Forms would templated by Appendix Forms in the eliminating be of considerable assistance in un- of Forms to the Federal Rules of Civil Proce- certainty as to the nature District Court’s First, significant respects. dure in at least two Moore’s, ([ action. See 6A Federal Practice 58.- the December 1984 order is entitled "order” (1984) (“[I]t at 58-47 is advisable to "judgment,” by 04[4. 2] contemplated rather than as — Second, ‘Judgment follow Form 32 on Decision Forms 31 and 32. the December feasible.”). authority 1984 order contains citation of and at Court’ to extent preliminary explanations least of the court’s rea- (7th Cir.1983) along (indicating authorities.10 F.2d 417 n. 5 with citations to more, subsequently give issued What is that Rule 58 is intended to notice to suggests Opinion strongly losing party); Gregson Memorandum & Ar- Associates not intended to that the earlier order was Virgin chitects v. Government Is- for, appeal running, lands, (3d Cir-1982) start the time for 675 F.2d terms, that, its own that decision states that (holding appellant even where had Opinion Memorandum constitutes final, actual notice that order was Rule 58 “[t]his ruling the motion to dis- the Court’s mechanically applied). must be ” McKenzie, 602 v. Diamond miss .... (D.D.C.1985). This 633 n. F.Supp. Ill December suggests that the further action literally, If taken Rule 58 would re “decision” of in fact a 1984 “order” was quire that this be dismissed because within court, to a opposed filed, separate no document was and thus Rule 58. meaning of See Communica- no final order existed from which an Tele- America United tions Workers of Indeed, appellees could taken. maintain (6th Ohio, 491 F.2d phone Co. of logical consequence that the Cir.1974) (distinguishing “decisions” having been entered is that the “judgments”). “premature.” instant is But this though may reasoning incomplete, light the District Court well Even is of the Su preme teaching have intended the December 1984 order Court’s in this area. ques- the final to be order Bankers Trust Co. v. beyond dispute, light (1978)
tion is not
(per
L.Ed.2d 357
curiam),
just
It
considerations we have
reviewed.
Court considered
precisely
uncertainty
this kind
about whether failure
the District Court to set
whether the District Court intended to en-
forth a
in a
automatically deprived
appellate
ter a final order that warrants the mechani-
court
*6
application
By
jurisdiction.
cal
of Rule
appel
58.11
mechani- of
The Court held that
rule,
cally
existed,
applying
jurisdiction
despite
this
as the
late
the District
do,
taught
may
has
comply
Court
us to
court
Court’s failure to
with the Rule.
383,
speculation
appel-
Observing
avoid
as to whether an
at
Id.
ly.
comports
This view
with the Mallis
necessarily
tion is not
emasculated.2 Each
thаt
58
instruction
Rule
should be inter-
propositions
fully
of these
has been
con-
preted
prevent
right
to
the loss of
of
Court,3
Second,
by
firmed
their
appeal.12
and
in this case
pertinence
was
bar is
entered
the clerk’s civil docket. The
to
case at
obvious.
So,
'appellants’
appeal
notation
if
December
1984 order
notice of
time-
was
Lucas,
II;
Compare
Majority Opinion (Maj. Op.) pt.
12.
Townsend v.
See
Part
745
1.
I
(5th Cir.1984)
that,
(holding
appeal
934
where
infra.
untimely
separate
if
would be
even
document
entered, appeal
should be dismissed for
III;,
Maj. Op. pt.
2. See
56
note
infra.
document,
separate
lack of
separate
so that
may permit
appeal)
document
new
Indrelunas,
See
3.
United States v.
411 U.S.
Dean,
(6th
with United States v.
the reasons for its
its effort
opinion or
arguably
pass
appealable
an
order is evident. For
ingredient
judg-
lacked an essential
least,
immediately
me at
the order was not
ment,
judge
signed
when the
or
later
what
clearly
either with those that
classifiablе
appeared
judgment.15
be a
formal
intercepted by
are
clearly
rule8 or with those that
are not.9
uncertainty
was
The result
considerable
just
pronouncements
as to
what
amounted
The decided cases have not staked out a
correspondingly
judgment,16
to a
as to
bright
dividing
categories.
line
these two
just
post-judgment
what
activate
Only
delving
into the historical context
periods,17 particularly
time
those for mo-
purpose
separate-document stip-
appeals.19
problem
gleaned enough insight
ulation have I
tions
try
Having
undertake a
in that direction.10
somewhat in 1958 when the Su-
alleviated
III;
Hark,
Maj. Op. pt.
13. See United States
4.
v.
U.S.
See
note 56
infra.
(1944).
88 L.Ed.
5. See
v.
Civ.
Diamond
No. 84-0241
M.
Brew-
See also United States
F. & Schaefer
(D.D.C.
1984) (order),
Dec.
Record Doc-
227, 232,
674, 677-78,
ing
S.Ct.
(R. Doc.)
ument
24.
(1958).
2 L.Ed.2d
Id. at 3.
advisory
14. See Fed.R.Civ.P. 58
committee note
to 1963 amendment.
Id. at 2.
15. Id.
Typically,
which are
orders
tacked onto
*8
memorandum,
findings of fact or con-
Indrelunas,
3,
Id.;
16.
supra
United States v.
note
See
clusions of law.
note 40
and accom-
infra
1564,
It inwas 1963that Rule 58 was amended in an effort to Reject- remove all doubt.22 test, ing judge’s intention II opted wholly pragmatic rulemakers for a explicit While Rule 58 is in its demand “Every judgment,” standard. the amend- judgment that a be set forth “on a states, sepa- “shall be set forth on a document,” neither that rule nor any other document,” rate and will become “effective prescribe undertakes to precise form only when so set forth and when entered as take, the document should nor is the case- 79(a).”23 provided in Rule The Advisory very helpful law on that score. An histori- explained Committee amended “[t]he cal separate-document, concomitant of thе by requir- rule eliminates ... uncertainties however, meaningful guidance affords ing judgment that there be a set out on a this connection. any opin- document—distinct from Simultaneously with the 1963 amend- ion or provides memorandum—which ment of Rule incorporate 58 to that re- This,
basis for the
judgment.”24
quirement,
specimens
two
of a judgment
acknowledged,
Court has
appendix
were added to the
of official civil
purpose
the wholesome
of the 1963 amend-
ment,25
forms.28 One is a model
judgment
of a
and the
on
Court has described its true
verdict,29
jury
and the other
sample
character. The
is a
provi-
sion,
said,
judgment
on
the Court has
a decision
is “a ‘mechanical
the court.30
change’
Advisory
that must
The 1963
mechanically applied
expressly
Committee
re-
in order to avoid new
forms,31
uncertainties as to
ferred readers of Rule 58 to these
the date on which
is en-
and declared that
are “illustrative of
tered;”
“[tjechnical application
to be entered.”32 I find com-
384-85,
Brewing
20. United States v. F. & M.
24. Fed.R.Civ.P. 58 committee note on *9 1963 amendment. advisory 31. Fed.R.Civ.P. 58 committee note to 1963 amendment. Indrelunas, 3, 25. supra United States v. note 411 1564, 31, app. advisory U.S. at 32. 93 S.Ct. at L.Ed.2d at Forms 36 32 com- 206; Mallis, 3, supra Bankers v. Trust Co. note mittee n. 1. 234 a document sim- that the 1963 amend- its character as
pelling the inference
a document sub-
ment to Rule 58 calls for
it
a one-sentence ex-
ply because
includes
stantially similar to those exhibited
about,36
planation
the order is all
of what
new official forms.
magistrate’s report and
or a recital that a
Advisory
Additionally, the 1963
Commit-
being adopted.37
are
recommendation
contemplate
rules
tee noted that “[t]he
respect
with
same result has been reached
simple judgment promptly entered.”33
merely adding a
to an order
citation to a
hallmark of the
Simplicity is indeed the
ease;38
said,
reported
Rule
the court
(a)
confines itself
specimens. Each
official
applied “[mjechanically”
to be
but not
been tried
that the issues have
to a recital
hand,
“mindlessly.”39 On the other
orders
by jury,
the one instance
and resolved—in
combining the court’s directives with its
(b)
judge
and in the other
—and
findings
statement of factual
or
con-
conformity to the
for action in
direction
plainly
pass
sep-
clusions
cannot
muster as
judge’s decision. Un-
jury’s verdict or the
arate documents.40
December 1984
like the District Court’s
order,
alludes to
case
neither form
Where, then, is the line of demarcation?
reasoning;
any legal
history, factfinding or
point
I believe it is to be
at the
drawn
rather,
free of extrinsic
specimen
each
is as
conformity
substantial
to the official
forms,
are
can be. These
we
matter as
forms, adopted contempora-
forms. These
told,
compli-
only to assure
are intended not
neously with and cross-referenced to the
rules,
also to “indicate
ance with the
but
prescription
separate-document,
of a
de-
brevity of statement
simplicity
signedly
type
judg-
are
beacons
contemplate.”34
the rules
which
required. Equally importantly,
me to conclude
These considerations lead
very purpose
rule
separate-
that
Rule 58’s
involvement with
uncertainty
was elimination of
as to when
only by
rule can
avoided
periods
post-judgment
time
motions
adhering closely
to the official
appeals begin
uncer-
to run.41 Since
complete fidelity to
forms. But while
tainty of that sort is bound to increasе as
course,35
those forms is the
it seems
safest
departure from
the forms becomes
departures
clear that trivial
must be toler-
serious,
conformity
more
substantial
Thus,
ated
the name of common sense.
only acceptable
outer limit.
it has been held that an order does not lose
seem to be
States,
advisory
Weinberger
app.
n.
v. United
559 F.2d
33. Id.
Form 31
committee
3.
38.
(5th Cir.1977).
See also United States v. Wissahickon Tool
Works,
Cir.1952) (there
(2d
200 F.2d
simple
es-
should be "a
chewing
form of
...
added, however,
Id. at
The court
lengthy
recitals familiar in state
better had the citation been omit-
would be
"[i]t
ted,
practice”).
expressly provide
The rules
that "[a]
very
and doubtless a
little morе would have
plead-
shall not contain a recital
rendered the order vulnerable to ... attack.”
master,
ings,
report
or the record
Id.
54(a).
prior proceedings.” Fed.R.Civ.P.
E.g.,
supra
Bankers Trust Co. v.
note
34. Fed.R.Civ.P. 84.
n.
return uncertainty to the state of con
fusion that the 1963 amendment was de
signed to And the sec eliminate.49 court’s writing, styled opin
ond a “memorandum
ion” elaborating logic,50 on the court’s
does purport not even to be an Not order. McKenzie, supra note at 232.
42. Diamond
supra
53. See text
at notes 20-23.
43.
Id. at 232.
Caperton
54.
v. Beatrice Pocahontas Coal
su-
pra note
585 F.2d
See
at 689.
also Furr's
44. Id. at 2-3.
NLRB,
Cafeterias, Inc. v.
(5th Cir.1978) (multi-page
containing
45.
Id. at 3.
fact,
findings
tion,
injunc-
law and
conclusions of
stating
that it
“final
was a
order and
46. Id. at 2.
judgment”).
supra
47. See text
at note 33.
E.g.,
supra
55.
Bankers Trust Co. v.
note