Some Appeal-Endangering Nuances of the Federal “Separate Document” Rule
It is no bold reach to assert that pharmaceutical, medical device, and food-related lawsuits annually occupy a notable portion of the nation’s federal civil litigation inventory.[1] Although precise, sector-specific case counts are hard to come by, consider for example the reported inventory of 39,672 new “Health Care/Pharma” personal injury lawsuits filed in the nation’s federal courts just during calendar year 2023.[2] That statistic is over-inclusive, to be sure (by encompassing practitioner-related claims, as well as product-based ones), but it also excludes administrative/regulatory civil claims as well as intellectual property disputes—both frequently litigated matters.[3] Suffice it to say that disputes in these areas find their way into court often.
When they do, the stakes are generally high and the disputes are intricate. Predictably, appeals in such lawsuits are not uncommon. Already awash in the esoteric complexities of issues that can arise in these highly specialized litigation sectors, practitioners must also remember to heed some peculiar features of federal appellate practice that, if ignored, pose potentially devastating consequences for appellate rights. One of those is the “separate document” requirement.
The “Separate Document” Requirement
The rule is easily stated. When a federal court enters its final judgment in a lawsuit, it must do so on a “separate document.”[4] A judgment satisfies this requirement when it is self-contained, separate from an opinion or memorandum, recites the relief awarded, and omits explanations, reasoning, and just about anything else.[5] Austerity is the key, and its purpose is to dispel doubt. The requirement is intended to demystify the formerly haunting question of “when is a judgment a judgment.”[6] Much hinges on the answer to that question. The time for filing post-trial motions, for seeking or staying execution and enforcement, and for taking an appeal all date from the entry of the federal court’s judgment.[7] Knowing, for sure, that a “judgment” has been entered is therefore critical for practitioners and courts alike—especially since several of these timing deadlines cannot be extended at all[8] and others may be expanded only under strictly cabined circumstances.[9]
The “separate document” requirement pursues this goal of confident certainty by demanding a “clear line of demarcation” between a judgment, on the one hand, and, on the other hand, the background, legal precepts, and analysis that explain and support that judgment.[10] By insisting on a freestanding writing, separate and apart from the court’s recounting of its reasoning, the “separate document” requirement endeavors to banish any doubt that a) a final, enforceable ruling has been entered; and b) the time has arrived to file post-trial motions, an appeal, and/or to execute or enforce (or a seek a stay of execution or enforcement) of the court’s decision.[11] As one court ably explained it, the “separate document” obligation “is a touch-the-base requirement that lays perception aside.”[12]
Thus, to qualify as a judgment—one that triggers the time for filing post-trial motions, taking an appeal, beginning execution or enforcement, or seeking a stay of execution or enforcement—the writing must “touch the bases”: it must be set out in a manner that satisfies the “separate document” requirement.[13] Put another way, if a “separate document” is required[14] but not filed, the clerk’s entry of that ruling on the docket will not constitute a federal “judgment” nor will that entry trigger the running of the time for post-trial motions, appeals, execution, and enforcement. That’s all pretty straight-forward—at least until you factor in the many nuances that introduce new uncertainties into a requirement that had been designed to abate them.
Nuance #1: Required, But Never Filed
What happens if a “separate document” is required to qualify a ruling as a federal judgment, but no “separate document” is ever filed? What does that mean for the time to file post-trial motions or appeals?
For many years, the answer was ghastly. As the inimitable Judge Posner once explained it: before both the federal civil and appellate rules were amended in 2002, “a losing party had forever to appeal if the district court never entered a Rule 58 judgment. Forever is too long.”[15]
Forever was fixed in 2002, but the fix introduced new complexities to answering the question “when is a judgment a judgment.” Now, under the revised rules, a federal judgment is considered entered on either one of two dates: 1) the date the clerk enters the ruling on the civil docket, provided the ruling is set out in a qualifying “separate document”; or 2) on the 150th day after the clerk enters the ruling on the civil docket, if no “separate document” is filed.[16] In this way, courts were afforded roughly five months (150 days) to cure a non-compliance with the “separate document” requirement. But if no cure occurs during that generous repair window, the post-trial filing and appeal-taking time starts to run automatically. So, the End of Days no longer will mark the outer deadline for filing post-trial motions and taking appeals. But now lawyers need to do math. And we all know how that can go.
Nuance #2: When Is It “Separate” Enough?
The best practice for courts is, of course, unambiguous compliance: the ruling should be labeled “Judgment” and should be separate from the court’s memorandum, opinion, or other similar expression of reasoning.[17] But compliance by the courts has not always been unambiguous. A combined “memorandum-and-order” obviously fails the “separate document” requirement,[18] as will an order “replete with legal analysis” along with facts and a detailing of the reasons supporting the ruling.[19] But so, too, will an otherwise austere judgment order fail if it is attached—even inadvertently—to the last page of the court’s corresponding memorandum[20] or one that, although otherwise separate from all other material, drops footnotes that set out the court’s opinion.[21] The filing of a “minute entry” or “minute order” also fails the “separate document” requirement,[22] except when it doesn’t.[23]
On other occasions, courts have not applied the “separate document” requirement with the same, unforgivingly mechanical observance. A judgment order that listed pending motions and briefings and then also “refer[red]” the reader to a separately filed opinion still satisfied the “separate document” requirement.[24] An order that included just a “single ‘explanatory sentence’” also complied with the requirement,[25] as did an order that contained a single citation with a single sentence of explanation.[26] As one federal court of appeals offered: “it is one thing to say that Rule 58 creates a straightjacket, another to define the straightjacket’s precise measurements,” and while “at some point” the insertion of reasoning and authorities will cross the line, “some explanation is acceptable—so long as it is very sparse.”[27]
That’s a fair summary of the interpretative case law. It is tough to safely navigate a “sometimes-some-but-not-too-much” standard, especially when timeliness of post-trial motions or an appeal hangs in the balance. And this standard seems to flex a bit circuit-to-circuit, only adding to the practitioner’s concerns.
Nuance #3: Labeling Can Matter
The best practice, again, is for the court to title its ruling as “Judgment.” That certainly would offer the reader an added level of confidence in appreciating the court’s intended purpose for its document. But courts disagree whether alternative titling can be significant, even dispositive. Some have held that labeling a ruling as “Order” defeats its capacity to serve as a federal judgment;[28] other courts reject that view,[29] even tolerating a composite titling (like “Judgment and Order”).[30] Other courts seem to focus not so much on the document’s title, but whether the official “judgment” form adopted by the Administrative Office of the United States Courts was used.[31] The variability of these baselines just add more uncertainty.
Nuance #4: Which Date?
The date assigned to a federal judgment is the date a qualifying document is “entered in the civil docket under Rule 79(a).”[32] That Rule sets out the process and logistics for entering judgments.[33] Even here, practitioners can be confounded for several reasons. An array of different dates are likely associated with any given order (e.g., a date can be typed into the document’s text, a date could be endorsed by a judge adjacent to her or his signature, a date of filing could be stamped or recorded), all of which may be different from the date the formality of docket entry actually occurs. Only the later—date of entry—matters for judgment purposes.
Here, too, uncertainty can creep in. For example, the clerk’s office might fail to use the term “ENTERED” when recording the judgment or otherwise employ imprecise nomenclature,[34] or the clerk’s office might enter the judgment at an unauthorized time or in an unauthorized manner.[35] Or the clerk’s office might fail to give notice of the entry of the judgment or the notice it gives might fail to reach the parties.
Nuance #5: Interlocutory, But Appealable, Orders
For practitioners, the “separate document” requirement feels instinctively like (and is often remembered to be) just a final judgment prerequisite. But it isn’t. The reason why is a drafting anomaly found in the federal rules themselves. Rule 58(a) contains the “separate document” requirement, obligating the court to set out every “judgment” or “amended judgment” in a freestanding filing.[36] The duty to enter the judgment is also set out in Rule 58, with cross-references back to Rule 54.[37] Rule 54, in turn, contains a specific definition: “‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.”[38] As a literal matter of syntax, then, a “judgment” is any ruling by the court from which an appeal can be taken—which includes:
- Most interlocutory orders “granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions”;[39]
- Certain interlocutory orders involving receivers;[40]
- Certain interlocutory orders in admiralty cases;[41]
- Interlocutory orders certified by the district judge as eligible for an immediate appeal;[42]
- Partial final orders entered by the district judge under Rule 54(b);[43] and
- Orders entitled to immediate appeal under the common law collateral order doctrine.[44]
Each of these non-case-ending, interim rulings by a trial judge are orders “from which an appeal lies,” which thus encompasses them with the federal rules’ definition of “judgment,” which then triggers the application of the “separate document” requirement. Thus, the “separate document” requirement (along with its two entry-dating formulas) governs, at least literally, in many contexts that are not final judgments. This can have unexpected ramifications that might surprise practitioners.
When the “separate document” requirement was reconfigured in 2002, the advisory committee that drafted the fixes noted the problem.[45] Their advice (as memorialized in the advisory committee notes accompanying the 2002 amendments to Rule 58) was to have courts apply or not apply the “separate document” requirement as practicality would dictate. They recommended that their newly installed “separate document” timing formulas “be applied with common sense to other questions that may turn on the time when judgment is entered,” and if, for example, the new 150-day dating provision “serves no purpose, or would defeat the purpose of another rule, it should be disregarded.”[46]
The difficulty with the advisory committee’s invitation to “disregard” the “separate document” requirement in certain circumstances is that it is extratextual. The advisory committee’s official notes are rightly treated with great respect,[47] but they “are not part of the rules[,] . . . have no official sanction, and can have no controlling weight with the courts.”[48] Thus, while they may be considered in resolving an ambiguity in the text of a given Rule, the advisory committee’s notes may not be used to contradict or supplant a Rule’s plain meaning.[49]
Notwithstanding the advisory committee’s invitation, courts have not, in point of fact, “disregarded” the “separate document” requirement in the context of appealable interlocutory orders, but instead have applied it faithfully in those settings “because that is what the plain meaning of the rules requires.”[50] So, if an interim ruling by the court is appealable, the time for taking that appeal implicates the “separate document” rule. Accordingly, if the court issues its appealable interlocutory order on a “separate document,” the appeal time runs from the clerk’s entry of the order; if no ”separate document” is supplied, the appeal time does not begin to run until either the “separate document” omission is corrected or 150 days lapses.
Nuance #6: Oral Rulings from the Bench
If this journey has not already unnerved the reader enough, consider the matter of appealable rulings that are delivered orally from the bench. In such instances, there may be no writing of any kind at all. That’s unlikely with truly case-ending final judgments, to be sure. But interlocutory rulings that qualify for immediate appeal could well be delivered orally in a courtroom with no ensuing written memorialization. Given the plain language set out in Rules 54 and 58, such rulings implicate the “separate document” requirement—because of their immediate appealability—and thus trigger the timing formulas the “separate document” requirement now sets. If a court delivers orally a final, immediately appealable interlocutory ruling, the appeal time will not begin to run until either the ruling is memorialized in a “separate document” or, if that never occurs, 150 days lapses.[51]
Navigating the Shoals
Theoretically winning arguments are actually losing arguments if they cannot be asserted in a timely manner. The “separate document” requirement erects an often unstudied complexity to the timeliness of post-trial and appellate filings and, thus, can pose a threat to meaningful post-trial review. As this discussion has demonstrated, there are more than a few traps for the unwary here. Here are some tools for navigating safely:
- Know the “Separate Document” Requirement: The “separate document” requirement and its operation has evolved over the years. Modifications have cured some risks the procedure presents, but those changes have not resolved all the ambiguities. There is no substitute for understanding this requirement and its various nuances.
- Exercise Vigilance: The revisions to the “separate document” requirement now afford practitioners a degree of protection against “forever” post-trial and appellate filing periods. But the courts are unlikely to excuse a lack of diligence. Waiting for the court or clerk to correct a “separate document” omission now has an expiration point: a judgment that fails to satisfy the “separate document” requirement will silently trigger the post-trial/appeal periods 150 days after it is entered on the docket.[52]
- Nudge the Court: When a “separate document” is required, but has not been forthcoming, practitioners now have a clear path to a remedy. The Rules permit litigants to formally request that the court set its judgment out in a “separate document,” when one is required.[53]
- File Right Away: Case law evolution and amendments to the federal appellate rules have eliminated some of the historical risk endured by practitioners. The Supreme Court has emphasized that the “separate document” requirement is intended to help prevent, not cause, the loss of appellate rights.[54] Accordingly, while appellants are permitted to wait out[55] a district judge’s delayed compliance with the “separate document” requirement, they do not have to; the “separate document” requirement can be waived by filing early.[56] That early-filing option is now memorialized in the appellate rules, which expressly tolerate early-filed appeals from judgments that fail to satisfy the “separate document” requirement.[57] There are obvious limits to this liberality, of course. Filing an early appeal from a ruling that is indisputably not yet appealable will not preserve appeal rights.[58]
Litigating pharmaceutical, medical device, and food disputes is heavy lifting. Procedural rules ought to make that task more just, simple, and inexpensive.[59] In many respects, the “separate document” requirement helps accomplish that objective. But the requirement also introduces complexities that practitioners need to navigate. The requirement merits review and careful study.
[1] Not an especially courageous claim, given that the federal regulator in these sectors (FDA) is responsible for safeguarding the safety of more than $3.6 billion in products that account for about 21¢ of every dollar spent by American customers. See FDA, FDA at a Glance (Jan. 2024), available at https://www.fda.gov/media/175664/download.
[2] See Administrative Office of the U.S. Courts, Table C-2—U.S. Dist. Cts.—Civil Statistic Tables for the Federal Judiciary (Dec. 31, 2023), available at https://www.uscourts.gov/statistics/table/c-2/statistical-tables-federal-judiciary/2023/12/31.
[3] There were, for instance, 6,466 new federal trademark and patent lawsuits filed during 2023 (248 of which were ANDA patent claims). See id.
[4] See Fed. R. Civ. P. 58(a).
[5] See DLJ Mortg. Cap., Inc. v. Sheridan, 975 F.3d 358, 364 (3d Cir. 2020). See also Fed. R. Civ. P. 54(a).
[6] See United Auto. Workers Loc. 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 287 n.1 (3d Cir. 2007) (quoting 11 Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 2781 (1995) (citation omitted)). See also In re Cendant Corp. Sec. Litig., 454 F.3d 235, 245 (3d Cir. 2006) (“Doubt is exactly what the separate-document requirement was designed to avoid.”).
[7] See, e.g., Fed. R. Civ. P. 50(b) (time for filing motions for judgment as matter of law); 52(b) (time for filing motions for amended or additional bench trial findings); 59(b) (time for filing motions for new trial); 62(a) (automatic suspension of execution and enforcement); 62(b) (motions for further stays upon posting security). See also Fed. R. App. P. 4(a)(1) (time for appealing).
[8] See Fed. R. Civ. P. 6(b)(2) (denying trial court right to extend post-trial motion filing deadlines).
[9] See Fed. R. App. P. 4(a)(5)–(a)(6) (narrow opportunities for extending appeal time).
[10] In re Cendant Corp. Sec. Litig., 454 F.3d 235, 243 (3d Cir. 2006).
[11] See generally Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384–86 (1978) (“The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run” and, in doing so, “to avoid the uncertainties that once plagued the determination of when an appeal must be brought.”).
[12] In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 n.4 (3d Cir. 2006).
[13] See Fed. R. App. P. 4(a)(7).
[14] Not every post-trial ruling triggers the “separate document” requirement, however. Rulings that merely “dispos[e]” of post-trial motions for judgment as a matter of law, to amend or add findings after bench trials, for an award of attorney’s fees, for a new trial, or to alter, amend, or grant relief from a judgment are not required to be set out in a “separate document.” See Rule 58(a)(1)–(a)(5). However, every judgment or amended judgment must comply with the “separate document” requirement. See Rule 58(a).
[15] Carter v. Hodge, 726 F.3d 917, 919–20 (7th Cir. 2013) (Posner, J.).
[16] See Fed. R. Civ. P. 58(c)(2); Fed. R. App. P. 4(a)(7)(A)(ii).
[17] See Arzuaga v. Quiros, 781 F.3d 29, 33 (2d Cir. 2015).
[18] See CX Reinsurance Co. Ltd. v. Johnson, 977 F.3d 306, 311 (4th Cir. 2020); Calumet River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Loc. 150, AFL-CIO, 824 F.3d 645, 650 (7th Cir. 2016).
[19] See Jeffries v. United States, 721 F.3d 1008, 1013–14 (8th Cir. 2013).
[20] See Alinsky v. United States, 415 F.3d 639, 642 (7th Cir. 2005).
[21] See Bazargani v. Radel, 598 Fed. Appx. 829, 830 (3d Cir. 2015).
[22] See Vergara v. City of Chicago, 939 F.3d 882, 885 (7th Cir. 2019).
[23] See Carter v. Hodge, 726 F.3d 917, 918 (7th Cir. 2013) (“We have suggested that such a notation [minute entries of dismissal] might satisfy Rule 58” in certain circumstances.).
[24] See In re Murphy, 679 Fed. Appx. 107, 110 (3d Cir. 2017).
[25] See Vaqueria Tres Monjitas, Inc. v. Comas-Pagan, 772 F.3d 956, 959 (1st Cir. 2014).
[26] See Kidd v. D.C., 206 F.3d 35, 39 (D.C. Cir. 2000) (court’s “single-citation, single-sentence standard for Rule 58 may well seem arbitrary,” but still found to be proper).
[27] Id.
[28] See Kanematsu-Gosho, Ltd. v. M/T Messiniaki Aigli, 805 F.2d 47, 49 (2d Cir. 1986) (purpose of requirement is “ensuring that the parties have clear notice of the entry of final judgments, thus allowing them to know with some certainty when an appeal must be noticed,” and: “One clear way to do this is to call a judgment a judgment.”).
[29] See Cantu v. Moody, 933 F.3d 414, 418 n.1 (5th Cir. 2019) (announcing that “it doesn’t matter that each ‘order [was] denominat[ed] as an ‘order,’ rather than a ‘judgment’’”) (citation omitted).
[30] See Vaqueria Tres Monjitas, Inc. v. Comas-Pagan, 772 F.3d 956, 960 (1st Cir. 2014).
[31] See Johnson v. Edward Orton, Jr. Ceramic Found., 71 F.4th 601, 608–09 (7th Cir. 2023) (ruling that neither stipulations of dismissal, minute entry of future dismissal, or arrival of dismissal date qualified as judgment: “Instead, final judgment was entered . . . when the district court entered Form AO 450, which is ‘the form specifically used for entry of a separate final judgment under Rule 58.’”) (citation omitted).
[32] See Fed. R. Civ. P. 58(c)(2); Fed. R. App. P. 4(a)(7)(A)(ii).
[33] See Fed. R. Civ. P. 79(a) & (a)(2)(C).
[34] See Vargas Torres v. Toledo, 672 F. Supp. 2d 261, 262–65 (D.P.R. 2009).
[35] See, e.g., Orr v. Plumb, 884 F.3d 923, 928 (9th Cir. 2018) (judgment entered by clerk without first obtaining required court approval); Brown v. Fifth Third Bank, 730 F.3d 698, 701 (7th Cir. 2013) (document not signed by clerk).
[36] See Fed. R. Civ. P. 58(a).
[37] See Fed. R. Civ. P. 58(b).
[38] See Fed. R. Civ. P. 54(a).
[39] See 28 U.S.C. § 1292(a)(1).
[40] See 28 U.S.C. § 1292(a)(2).
[41] See 28 U.S.C. § 1292(a)(3).
[42] See 28 U.S.C. § 1292(b).
[43] See Fed. R. Civ. P. 54(b).
[44] See Ueckert v. Guerra, 38 F.4th 446, 451–55 (5th Cir. 2022).
[45] See Rule 58 advisory comm. note (2002).
[46] See id. (“In theory, for example, the separate document requirement continues to apply to an interlocutory order that is appealable as a final decision under collateral-order doctrine. Appealability under collateral-order doctrine should not be complicated by failure to enter the order as a judgment on a separate document—there is little reason to force trial judges to speculate about the potential appealability of every order, and there is no means to ensure that the trial judge will always reach the same conclusion as the court of appeals. Appeal time should start to run when the collateral order is entered without regard to creation of a separate document and without awaiting expiration of the 150 days provided by Rule 58(b)(2). Drastic surgery on Rules 54(a) and 58 would be required to address this and related issues, however, and it is better to leave this conundrum to the pragmatic disregard that seems its present fate.”).
[47] See Tome v. United States, 513 U.S. 150, 160 (1995) (plurality) (recounting that Court has “relied on those well-considered Notes as a useful guide in ascertaining the meaning of the Rules” and has accepted them “as a respected source of scholarly commentary”).
[48] See Introductory Statement for Original Notes to Federal Rules of Civil Procedure.
[49] See In re Kirkland, 75 F.4th 1030, 1043 (9th Cir. 2023) (“it is the text of the rules that control, and ‘the [n]otes cannot . . . change the meaning that the Rules would otherwise bear’”) (citation omitted); Spirit Lake Tribe v. Jaeger, 5 F.4th 849, 853 (8th Cir. 2021) (advisory committee notes “cannot change the meaning of the plain language of a federal rule of procedure”); United States v. Carey, 120 F.3d 509, 512 (4th Cir. 1997) (“[T]he Advisory Committee Note is not the law; the rule is. Accordingly, . . . if the rule and the note conflict, the rule must govern. Because the rule on the issue before us is unambiguous, we need not even consult the note to determine the rule’s meaning.”).
[50] Ueckert v. Guerra, 38 F.4th 446, 455 (5th Cir. 2022).
[51] Id. at 448–55.
[52] As one court wisely summarized:
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.
Id. at 448.
[53] See Fed. R. Civ. P. 58(d) (“Request for Entry”).
[54] See Bankers Tr. Co. v. Mallis, 435 U.S. 381, 386 (1978).
[55] But now, following the 2002 amendments to the federal appellate rules, they cannot wait forever. The time for appealing from an appealable judgment that lacks a required “separate document” is 180 days: on the 150th day after docket entry, a non-compliant judgment’s time for appeal begins its 30-day run (for most appellants, that is). See Ueckert v. Guerra, 38 F.4th 446, 453 (5th Cir. 2022) (“But they can only wait for 180 days—not eternity.”) (footnotes omitted).
[56] See id. at 384.
[57] See Fed. R. App. P. 4(a)(7)(B) (“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 judgment or order.”).
[58] See FirsTier Mortg. Co. v. Invs. Mortg. Ins. Co., 498 U.S. 269, 276 (1991) (“This is not to say that [federal appellate practice] permits a notice of appeal from a clearly interlocutory decision—such as a discovery ruling or a sanction order under Rule 11 of the Federal Rules of Civil Procedure—to serve as a notice of appeal from the final judgment. A belief that such a decision is a final judgment would not be reasonable. In our view, Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.”).
[59] See Fed. R. Civ. P. 1.
Update Magazine
Summer 2024
