In Ueckert v. Guerra, No. 22-40263 (5th Cir. June 27, 2022), the Fifth Circuit dismissed as untimely an appeal filed 412 days after a verbal bench order was entered on the docket.
“There is at least one exception to the maxim ‘no news is good news.’ When a lawyer has an outstanding motion but hasn’t heard from the court for a long time, prudence would advise double-checking to make sure the motion is still pending. No news may mean that the court already ruled on the motion, and the time to appeal is ticking away.”
Appellant Guerra was an individual governmental official seeking to appeal the denial of qualified immunity in a First Amendment 42 U.S.C. § 1983 retaliation action. “The district court held a hearing on the motion on March 2, 2021. During that hearing, Judge Hinojosa denied Guerra’s motion from the bench. A minute entry memorializing the district court’s oral order was entered on the docket on March 4, 2021, but no written order or other document was attached.” The appellant finally filed a notice of appeal on April 20, 2022, as the case was going to trial.
The Fifth Circuit dismisses. It begins by rejecting the appellant’s suggestion that an oral ruling wasn’t appealable under 28 U.S.C. § 1291. “While courts today generally rule through written orders and judgments, they may choose to rule from the bench. In England, ruling from the bench ‘ex tempore,’ or right after oral arguments, was the primary way courts conducted business . . . . Written opinions have become the norm [today] even in courts where they are not required, but federal courts at least have not lost their power to rule from the bench.”
The panel notes that the Fifth Circuit and other courts have heard appeals from oral rulings, even specifically from denials of qualified immunity. “The form of the ruling is immaterial. What matters for § 1291 purposes is whether the court’s ruling was a ‘final judgment.’” In this case, the oral ruling had all the indicia of finality.
“[T]he district court regarded its oral ruling as final. The parties both characterize the court’s oral statement as having ruled on Guerra’s motion from the bench, not merely a prediction about how the court would rule sometime in the future. The minute entry memorializing the court’s oral ruling used similarly definite language: It ‘denied . . . Defendant Juan G. Guerra[’s] Motion for Summary Judgment as stated on the record.’ And the fact that the court never issued a written memorandum or opinion erased any doubt that it intended its first word to be its last.”
The panel holds that the appeal was not rescued by the lack of a “separate order” under Fed. R. Civ. P. 58. Appellant “is right that the district court’s oral ruling did not comply with Rule 58’s requirement that every ‘judgment’ be set out in a separate order. While most people think of a judgment as the order that marks the effective conclusion of a case, Rule 54 defines ‘judgment’ as ‘any order from which an appeal lies.’ As a result, Rule 58 also applies to interlocutory orders appealable under the collateral order doctrine.” But Fed. R. App. P. 4(a)(7)(B) provides that “[a] failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that order of judgment.”
The requirement for a separate order can be waived under Rule 4, but more critically, Fed. R. App. P. 4(a)(7)(A)(ii) effectively sets “a 180-day window to file a notice of appeal if the district court neglected to enter the judgment in a separate document,” and “Guerra’s notice of appeal was filed well outside of even this generous 180-day window.” That rule provides that even if a judgment is not entered on a separate document, judgment is deemed entered 150 days after the “entry of the judgment or order in the civil docket.” The litigant, then, obviously has some duty of inquiry. “While it is not uncommon for a month or two to pass without hearing from the court, ‘150 days of inactivity . . . clearly signals to litigants that the court is done.’”
The appellant finally argued that Fed. R. App. P. 4(a)(7)(A)(ii) requires that “the judgment or order [be] entered in the civil docket under Federal Rule of Civil Procedure 79(a)” and that an oral ruling cannot satisfy Rule 79(a) “because there was no ‘copy’ of the court’s order, and that as a result Rule 4(a)’s 30-day window to appeal was never triggered.” But the panel holds this is a misreading of the rule: “[t]he copy requirement Guerra refers to appears in Rule 79(b),” and thus is not incorporated into Rule 4.
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