Plaintiffs brought this pro se action for damages on the ground that the defendant Town of Flower Mound, which taxes them and interferes with their liberty, does not have a republican form of government. The district court dismissed for lack of jurisdiction sua sponte. See Fed.R.Civ.P. 12(h)(3). After dealing with a question concerning our own jurisdiction, we affirm.
I. Appellate Jurisdiction
We raise the question of our own jurisdiction sua sponte. The district court entered an order reciting "that this action is dismissed in its entirety with prejudice." Plaintiffs appeal from this order. Our examination of the record and the docket sheet indicates that a final judgment was never entered. See Fed.R.Civ.P. 58 ("Every judgment shall be set forth on a separate document.").
Under 28 U.S.C. § 1291, "[t]he courts of appeals ... have jurisdiction of appeals from all final decisions of the district courts of the United States" (emphasis added). By its terms, § 1291 does not require a "final judgment," nor does it incorporate any procedural rule.
Rule 4(a) of the Federal Rules of Appellate Procedure provides that the time to appeal in a civil case runs from "the date of
Taking the Court's "mechanical application" language perhaps too literally, this court applied Indrelunas in a long line of decisions to dismiss appeals when no separate document had been entered by the district court. The reported decisions include State Nat'l Bank v. United States, 488 F.2d 890, 892-93 (5th Cir. 1974); Taylor v. Sterrett, 527 F.2d 856, 857-58 (5th Cir. 1976); Nunez v. Superior Oil Co., 535 F.2d 324 (5th Cir. 1976); Sassoon v. United States, 549 F.2d 983, 984 (5th Cir. 1977); Furr's Cafeterias, Inc. v. N.L.R.B., 566 F.2d 505 (5th Cir. 1978). Although there was some recognition in our opinions that there was a difference between requiring strict compliance with the rule to avoid unfair loss of the right to appeal and requiring strict compliance when the district court's decision is final under § 1291 and the decision has been appealed within the time limits set by Rule 4, see Sassoon v. United States, 549 F.2d at 984 (noting that Indrelunas "address[ed] rather different facts"), we were bound by our initial interpretation of Indrelunas to dismiss the appeals.
Our understanding of Indrelunas, however, was rejected by the Supreme Court in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). In Mallis, the Supreme Court held that the Second Circuit had properly assumed jurisdiction of an appeal from an order of dismissal under § 1291, even though no separate judgment had been entered, when the order "represent[ed] the final decision in the case" and the appellee did not object to the appeal. Id. at 387, 98 S.Ct. at 1121. "Under these circumstances," the Court held, "the parties should be deemed to have waived the separate-judgment requirement of Rule 58 ...." Id. at 388, 98 S.Ct. at 1121.
While Mallis thus permits us to take jurisdiction, it does not require us to do so.
Thus, we are confronted with a question of stare decisis.
Although Mallis does not require us to modify our rule, we nevertheless conclude that it is an overriding change in the law. Our adoption of the separate document rule was based entirely on the theory that Indrelunas required the rule. See State Nat'l Bank v. United States, 488 F.2d at 892-93; Taylor v. Sterrett, 527 F.2d at 856-57. According to Mallis, however, Indrelunas does not require the rule when the appellee fails to object. Our decisions did not rest on any policy concern independent of Indrelunas; to the contrary, our few independent expressions of policy concerns indicated dissatisfaction with a literal, mechanical application of the rule. See Taylor v. Sterrett, 527 F.2d at 858 ("such action on our part does not appear to accomplish any meritorious result ..., creating only delay"); Sassoon v. United States, 549 F.2d at 985 (suggesting that an exception might be made "in a proper case" and citing the authorities eventually relied on by the Supreme Court in Mallis, 435 U.S. at 386-87, 98 S.Ct. at 1121).
We conclude that we are free to hold that we may take jurisdiction of an appeal from a "final decision" under § 1291, even though no separate judgment has been entered, when the parties fail to raise the issue.
Second, this decision does not change the law when the appellee does object to the failure to enter the judgment as a separate document.
Third, it remains the better practice to have the judgment entered as a separate document. See Turner v. Air Transp. Lodge 1894, 585 F.2d 1180, 1182 (2d Cir. 1978) (remanding when the finality of the district court's decision was unclear). If an appellant realizes that a final judgment has not been entered, or that there may be some doubt about it, he should take steps to obtain the entry of a certain final judgment, and then file a new notice of appeal. See, e.g., Calmaquip Eng'r W. Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 635-36 (5th Cir. 1981).
Since neither party to this appeal has raised the failure to obtain entry of the judgment as a separate document, we have jurisdiction and we proceed to the merits.
II. A Republican Form of Government
Plaintiffs allege that the government of the Town of Flower Mound is a nullity because all power is reposed in the "Town Council," which plaintiffs allege is a legislature. Plaintiffs argue that this claim presents a federal question under 28 U.S.C. § 1331 by virtue of the Guaranty Clause of the United States Constitution, which provides: "The United States shall guarantee to every State in this Union a Republican Form of Government ...." U.S.Const. art. IV, § 4. Even if the Guaranty Clause has any application to a municipal government, the question whether a government is a nullity because its form violates the Clause is a nonjusticiable political question.
Plaintiffs also argue that the question whether the Town is organized in violation of the Texas Constitution
Finally, plaintiffs contend that they presented a federal question in their claim that they were illegally arrested. The district court rejected this argument twice, first implicitly in its opinion and order dismissing the suit, and then expressly in its order denying plaintiffs' motion to amend the order. The district court read the plaintiffs' complaint to allege that the arrest was illegal only because the Town's form of government was illegal. We agree that this is the only fair reading of plaintiffs' allegation:
On this appeal, however, plaintiffs claim in their brief that the arrest was made without probable cause. They argue that the district court should have recognized this fact because the allegation refers to the Fourth Amendment. They also point out that the complaint's "jurisdictional" allegations refer to 42 U.S.C. § 1983
We assume for the sake of argument that a stop of plaintiffs' automobile without probable cause would be a violation of plaintiffs' Fourth Amendment rights and thus actionable under 42 U.S.C. § 1983. But cf. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (requiring only an "articulable and reasonable suspicion" for discretionary stops to check license and registration). Plaintiffs did not allege in their complaint that the automobile was stopped without probable cause. In none of plaintiffs' submissions to the district court — not in their briefs on the question of jurisdiction nor even in their motion to amend the order based on their Fourth Amendment claim — did plaintiffs suggest that their automobile was stopped without probable cause. Plaintiffs' citation of the Fourth Amendment in their complaint did not put the defendants or the district court on notice of any claim that their automobile was stopped without probable cause. To state a claim, a pleader must allege facts, not legal conclusions. See, e.g., Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir. 1980). The only fact in the complaint indicating that the stop might be illegal was the fact that the police had been appointed by an allegedly illegal government. As for Hanson's statement in his deposition, even if we assume that this deposition was properly before the district court on its motion to dismiss, the court had no duty to pore over the deposition to find intimations of claims that plaintiffs had not brought to the court's attention.
While complaints are to be construed liberally and leave to amend a complaint is to be granted liberally, see Fed.R.Civ.P. 8(f); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215, at 113, § 1216, at 124 (1969), an attempt to amend one's pleadings in an appellate brief comes too late. See Claus v. Gyorkey, 674 F.2d 427, 432 (5th Cir. 1982). The district court's order is AFFIRMED.
While Escamilla's broad language could be read as adopting the Second Circuit rule, the issue in Escamilla did not involve appellate jurisdiction. The panel neither cited nor considered our long line of cases dismissing appeals under the separate document rule. Moreover, the Escamilla opinion simply cites Mallis; but, as noted above, there is nothing in Mallis that requires a court of appeals to exercise its jurisdiction when the separate document rule has not been complied with. Finally, we note that the scope of the Escamilla opinion is troubling. If the district court in Escamilla had no power to award attorneys' fees because the "memorandum opinion" was a "final judgment," and the case was no longer "pending," id. at 1088, then logically the district court also no longer had power to enter a separate judgment and thereby begin the time to appeal. This latter result, however, is flatly inconsistent with Indrelunas, which was not overruled by Mallis. See Mallis, 435 U.S. at 386 & n.7, 98 S.Ct. at 1120-21 & n.7. Accordingly, we read Escamilla only as an expression of this court's willingness to adopt the waiver rule permitted by Mallis.
Nevertheless, we hold that the district court's dismissal for lack of subject matter jurisdiction was proper. "[A] suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution ... is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), cited in Baker v. Carr, 369 U.S. at 199, 82 S.Ct. at 700. The Bell v. Hood exception is satisfied only in rare circumstances, one of which exists when the plaintiff's claim "is clearly foreclosed by a prior Supreme Court decision." Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). In this case, plaintiffs' claim is clearly foreclosed by a long line of Supreme Court decisions beginning with Luther v. Borden. See Baker v. Carr, 369 U.S. at 223-24, 82 S.Ct. at 713-14 (collecting cases).