CENTER FOR NUCLEAR RESPONS. v. U.S. NUC. REG. COM'N

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge GINSBURG.

J. SKELLY WRIGHT, Circuit Judge:

This case involves a challenge to a ruling of the Nuclear Regulatory Commission (NRC) that certain proposed amendments to a nuclear power plant's operating license present "no significant hazards considerations" and, therefore, that the amendments may be made immediately effective without a pre-determination hearing. Appellants challenged that ruling in the District Court, seeking injunctive and declaratory relief. The District Court, 586 F.Supp. 579, finding that it lacked jurisdiction, dismissed the suit. Well over three months later, appellants filed a notice of appeal. Because we find that appellants failed to file a notice of appeal within the jurisdictional time limits established by the Federal Rules of Appellate Procedure, we dismiss their appeal.

I

Appellants in this case, the Center for Nuclear Responsibility and Ms. Joette Lorion, challenge two sets of amendments to the operating license for the Turkey Point Nuclear Power Plants. They filed suit in the District Court, alleging that the NRC had improperly denied them a hearing before the amendments became effective, and that the NRC had improperly approved the amendments without an environmental impact statement.

The proposed amendments included a new fuel design and reactor configuration, as well as certain modifications of the reactors' technical specifications. The NRC published a notice of the proposed amendments and allowed any interested parties to request a hearing within 30 days. Although appellants failed to file a timely request for a hearing on the first set of amendments, they did file a timely request for a hearing on the second set of amendments. In response to appellants' amendment requests, the NRC made a finding that the proposed amendments presented "no significant hazards considerations" and, therefore, that no pre-determination hearing was required.1 The NRC then scheduled a hearing to determine the merits of the proposed amendments.

Appellants argue that the NRC erred in finding that the proposed license amendments involved "no significant hazards considerations" and therefore that it did not have to hold a pre-determination hearing. Appellants argue that the amendments did raise serious safety issues and that a prior hearing was required under the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. (1982).

Appellants admittedly have had a difficult time finding a forum in which to raise their various concerns about the Turkey Point Nuclear Power Plants. They originally filed a petition in this court seeking review of an NRC refusal to institute enforcement proceedings against Florida Power & Light Company, the operator of the plants. This court dismissed that petition, finding that it did not properly have jurisdiction over the case. Lorion v. NRC, 712 F.2d 1472 (D.C.Cir.1983) (Lorion I), rev'd, ___ U.S. ___, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). While that case was on appeal to the Supreme Court, appellants filed the present action challenging the NRC's refusal to hold a prior hearing on these amendments. Reading this court's Lorion I decision as holding that jurisdiction for such a case is in the District Court, appellants filed the case in that court. Subsequently the Supreme Court reversed Lorion I, holding that this court properly had jurisdiction over the first case. Florida Power & Light Co. v. Lorion, ___ U.S. ___, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Finally, the District Court dismissed the present case. Appellants understandably express some frustration over the situation.

II

The District Court dismissed this case on April 26, 1984. The order was properly entered on the court's docket on April 27, 1984. The court issued its memorandum opinion supporting its order on May 4, 1984. While the memorandum opinion stated that it had dismissed the case for lack of subject-matter jurisdiction, its memorandum opinion actually reached the merits of appellants' National Environmental Policy Act (NEPA) claim, 42 U.S.C. § 4321 et seq. (1982). In response the NRC filed on May 14, 1984 a motion to clarify the opinion, proposing that the court amend its opinion by holding that it lacked jurisdiction over the NEPA claim as well. On June 12, 1984 the District Court granted the motion and amended its opinion accordingly. Appellants then filed their notice of appeal on August 13, 1984 — within 60 days of the June 12th decision but after the 60-day period following the original entry of judgment.

Rule 4 of the Federal Rules of Appellate Procedure provides that a notice of appeal must be filed within 60 days after entry of the "judgment" of the District Court. Fed.R.App.P. 4(a)(1).2 Rule 4(a)(4), however, provides that certain motions may toll the 60-day appeal period.3 Our first task, then, is to determine when the District Court's judgment was entered. If the judgment was entered on April 27th or on May 4th, the notice of appeal was untimely and this court may only entertain the appeal if the NRC's motion tolled the appeal period.

A.

Appellants contend that the judgment of the District Court was the memorandum opinion issued on May 4th, rather than the April 27th order. As a result, they argue, the NRC motion on May 14th was a timely motion under Federal Rule of Civil Procedure 59(e) to amend the judgment which tolled the appeal period.

Rule 4(a)(6) provides that a judgment is entered within the meaning of Rule 4(a) "when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure." Fed.R.App.P. 4(a)(6).

Fed.R.Civ.P. 58 requires that the "judgment" of a District Court be set forth in a separate document. As the notes of the Advisory Committee on Rules explain, the purpose of this requirement is to remove any doubt about when the time for filing a notice of appeal begins to run. See Notes of Advisory Committee — 1963 Amendments. See also United States v. Indrelunas, 411 U.S. 216, 220, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973) (purpose of the rule to remove uncertainty over appeal period); Diamond v. McKenzie, 770 F.2d 225, 230 n. 10 (D.C.Cir.1985) (same). As the Supreme Court noted in Indrelunas, this test is to be applied mechanically "in order to avoid new uncertainties as to the date on which a judgment is entered." 411 U.S. at 222, 93 S.Ct. at 1565. Rule 79(a) requires that the clerk of the court enter the judgment on the civil docket.

Thus, as this court recently noted in Diamond v. McKenzie, supra, these two rules establish two procedural requirements for entry of a judgment that triggers the running of the time for appeal: "first, a statement of the judgment on a separate document, and second, the entry of the judgment by the clerk on the civil docket." 770 F.2d at 228.

Applying this rule to the present case compels the conclusion that the judgment of the District Court was entered on April 27th. That order clearly satisfied both of the procedural requirements of Rule 4(a)(6). It stated the judgment of the District Court on a separate document and was entered by the clerk of the court on the civil docket. Consequently, appellants' notice of appeal, filed well beyond the 60-day appeal period, was untimely.

B.

As noted above, however, under Federal Rule of Appellate Procedure 4(a)(4), the 60-day appeal period is tolled when a party files certain motions. In this case, appellants argue, the NRC motion was a motion to amend the judgment under Rule 59(e) which, if filed within 10 days of the judgment, would toll the appeal period.4 Appellees argue that the motion was a Rule 60(b)(1) motion to correct a technical legal error in the judgment.5 Such motions do not toll the appeal period. Appellees argue in the alternative that even if the NRC motion were a Rule 59(e) motion, it was not a timely motion and therefore could not toll the appeal period.

Courts have split over whether errors in legal reasoning may be corrected by Rule 60(b)(1) motions.6 The tension between Rule 59(e) and Rule 60(b) is generated by the competing goals of finality of judgments and rendering justice to particular litigants. Those courts that oppose the use of Rule 60(b) to correct legal errors7 generally base their conclusion on two arguments. First, allowing substantive modifications to be made under Rule 60(b) eviscerates the 10-day time limitation imposed by Rule 59(e) on motions to "alter or amend the judgment." Moreover, use of Rule 60(b) to correct substantive legal errors indirectly extends the appeal period. Because an unsuccessful litigant could appeal the denial of his Rule 60(b) motion, he is thus allowed an extension of time during which to file an appeal and to gain review of the District Court's judgment.8 McKnight v. United States Steel Corp., 726 F.2d 333, 338 (7th Cir.1984); Peacock v. Board of School Comm'rs, 721 F.2d 210, 214 (7th Cir.1983).

Proponents of the use of Rule 60(b),9 however, often argue that allowing a court to correct its own legal errors has the beneficial effect of eliminating needless appeals. Gila River Ranch, Inc. v. United States, 368 F.2d 354, 375 (9th Cir.1966); 7 J. MOORE, FEDERAL PRACTICE ¶ 60.22[3] at 186 (2d ed. 1983). This benefit may be illusory, however, given that the litigant who was originally successful is likely to appeal the modification of the original judgment.

This court addressed the issue in D.C. Federation of Civic Ass'ns v. Volpe, 520 F.2d 451 (D.C.Cir.1975). In that case the appellant had moved under Rule 60(b)(1) to amend the court's attorney fee award in light of a post-judgment change in the law of the circuit. The appellant made the motion 13 days after the judgment, but before the expiration of the appeal period. Anticipating a favorable ruling on its motion, appellant allowed the appeal period to expire. To its chagrin, the court ruled against it. On appeal this court held that the District Court erred in failing to amend its decision to reflect the change in the law of the circuit. 520 F.2d at 453.

Although Volpe could be read as adopting the more liberal interpretation of Rule 60(b)(1), allowing correction of substantive legal errors during the appeal period, that case involved the unique situation where the controlling law of the circuit had changed between the time of the judgment and the time of the motion. Whether we would extend this rule to allow corrections of substantive legal errors where no such change in the law of the circuit has occurred we need not decide today. For either way we resolve the issue, appellants lose.

On the one hand, if the NRC motion were a Rule 60(b)(1) motion under the Volpe reasoning, then clearly appellants' appeal was untimely since such motions do not toll the appeal period. On the other hand, if we limit Volpe to when the governing law changes during the appeal period, and therefore hold that the NRC motion was a Rule 59(e) motion, the appeal would nonetheless be untimely. Rule 59(e) motions must be made within 10 days after the judgment of the District Court in order to toll the appeal period. See Fed.R.App.P. 4(a)(4) ("[i]f a timely motion is filed under * * * [Rule] 59 * * *") (emphasis added). Because the NRC motion was made 17 days after the entry of judgment, even if it were a Rule 59(e) motion it is clear that the motion was untimely. Therefore, because untimely Rule 59(e) motions do not toll the appeal period, the appeal would again be untimely.

Thus appellants appear to rest in an awkward position: either the motion was a Rule 60(b)(1) motion, in which case the appeal period was not tolled, or the motion was an untimely Rule 59(e) motion, and again the appeal period was not tolled.

C.

Alternatively, appellants argue that regardless of the true nature of the motion the fact that the District Court considered the motion on the merits allowed them to file the notice of appeal beyond the 60-day time period.

Although the Supreme Court has held that appellate time limits are jurisdictional,10 see Browder v. Director, Dep't of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), the Court has recognized a narrow exception where the appellant is misled into delaying the filing of his notice by some action of the District Court.11 Appellants argue that they were misled by the District Court's consideration of the NRC's motion on the merits. They argue that because the court reached the merits of the NRC motion, rather than dismissing it as untimely, they were entitled to believe that the court considered the motion as a timely Rule 59(e) motion. We reject this argument.

Concededly, the law governing the type of motion made in the present case is, at least arguably, unsettled. Under such circumstances this court has found it reasonable for a litigant to conclude that the court is treating the motion as a Rule 59(e) motion.12 See Webb v. Dep't of Health & Human Services, 696 F.2d 101 (D.C.Cir.1982). Even if appellants could reasonably have concluded that the motion was a Rule 59(e) motion, however, it would only render the NRC's motion an untimely Rule 59(e) motion. Rule 59(e) motions are expressly limited to the 10-day period following entry of judgment, and the District Court simply has no power to extend that time limitation.13 Fed.R.App.P. 4(a)(5). And parties can only reasonably rely on timely Rule 59(e) motions as a basis for delaying the filing of their notice of appeal.

The mere fact that the District Court took the motion under advisement cannot reasonably mislead a litigant as to the timeliness of the motion. The parties have no right to an immediate decision as to the timeliness of a motion. See Alvestad v. Monsanto Co., 671 F.2d 908, 911 n. 1 (5th Cir.1982) (District Court's mere willingness to entertain a tardy motion for a new trial does not relieve the prospective appellant from responsibility for filing a timely notice). Cf. Parisie v. Greer, 705 F.2d 882, 888 (7th Cir.1983) (en banc) (Wood, J., dissenting). Indeed, as in the present case, a decision on timeliness often necessitates a decision on what type of motion is involved.

Parisie v. Greer, 685 F.2d 1016 (7th Cir.1982), vacated, 705 F.2d 882 (7th Cir.) (en banc), cert. denied, 464 U.S. 950, 104 S.Ct. 366, 78 L.Ed.2d 326, and 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 261 (1983), and Pierre v. Jordan, 333 F.2d 951 (9th Cir.), cert. denied, 379 U.S. 974, 85 S.Ct. 664, 13 L.Ed.2d 565 (1964), are not to the contrary.

In Parisie the appellant, a prisoner acting pro se, filed a Rule 59 motion beyond the 10-day time limitation established by Rule 59. 685 F.2d at 1017. Although the motion was technically untimely, a panel of the Seventh Circuit held that, because of appellant's unique situation and because the state failed to object to the timeliness of the motion, appellant was reasonably misled by the District Court's consideration of the motion on the merits. Id. at 1018. In reaching this conclusion the court relied heavily upon appellant's pro se status. See id. at 1017 (noting the "special latitude given pro se litigants"). Upon reconsideration en banc, the Seventh Circuit vacated the panel opinion and, because a majority of the court believed that the court had jurisdiction over the appeal, affirmed the District Court's denial of the motion on the merits. See 705 F.2d at 883. The only three judges of the full court that thought the Harris Truck Lines exception applicable also considered appellant's pro se status important. Id. at 898 (Swygert, J., with Cummings, C.J., and Cudahy, J., concurring in part).

Similarly, Pierre involved a litigant acting pro se who filed an untimely Rule 59(e) motion. 333 F.2d at 955. The court, noting that Mrs. Pierre was a layperson, held that because the lower court reached the merits of her motion, she was "entitled to conclude that the district court regarded the motion as timely * * *." Id.

In both cases, then, the court bent the rules, giving "special latitude" to pro se litigants. Neither case stands for the proposition that this court should similarly bend the rules merely because appellants' counsel erred. It is hardly unreasonable to impute knowledge of simple, mechanical procedural rules to attorneys who, indeed, have a professional obligation to be aware of them. See Reed v. Kroger Co., 478 F.2d 1268, 1272 (Temp.Emer.Ct.App.1973) (per curiam). In a very real sense, the rules are the tools of the trade. Allowing appellants to evade compliance with these rules blunts the tools fashioned to govern procedure in our courts, engenders confusion in the lower courts, and could produce mischievous results in the long run. Cf. Thompson v. I & NS, 375 U.S. 384, 390, 84 S.Ct. 397, 11 L.Ed.2d 404 (1963) (Clark, J., with Harlan, Stewart, and White, J.J., dissenting).

For the foregoing reasons we conclude that appellants' argument should be rejected.14 Therefore, because this appeal is untimely, this court has no jurisdiction to entertain the merits of the appeal.15 Browder v. Director, Dep't of Corrections of Illinois, supra, 434 U.S. 257, 98 S.Ct. 556.

Dismissed.

GINSBURG, Circuit Judge, dissenting:

The allocation of judicial business in our complex federal court system can be problematic. For example, Congress sometimes allocates subject matter competence (jurisdiction) with less than ideal clarity; occasionally, legislation is opaque in instructing which federal tribunal is the proper — or a proper — forum for the first court airing of, or an appeal in, a particular kind of federal case. Compare Hohri v. United States, 782 F.2d 227, 239-41 (D.C.Cir. 1985), with id. at 944-946 (dissenting opinion) (divided views on "plain meaning" of 28 U.S.C. § 1295(a)(2) (1982)). When administrative action is in question, as in the instant case, the governing statute may fail to say with precision whether judicial review should initially occur in a district court, or directly in a court of appeals. The matter at hand pointedly illustrates these difficulties, as did our previous encounter with these appellants, Lorion v. NRC, 712 F.2d 1472 (D.C.Cir.1983) (holding that judicial review of Nuclear Regulatory Commission decision at issue must first occur in district court), rev'd sub nom. Florida Power & Light Co. v. Lorion, ___ U.S. ___, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (finding that court of appeals, not district court, is proper forum for judicial review).

Appellants' confusion arose in large measure from the timing of the instant suit in relation to this court's opinion in the Lorion case. Contesting nuclear plant license amendments, appellants filed this action in the district court at the end of 1983, after we held that Lorion belonged in that forum, but before the Supreme Court reversed our decision. The district court dismissed this action some months later, holding that the plea for judicial review should have been filed in the first instance in this court. As the majority acknowledges, "[a]ppellants admittedly have had a difficult time finding a forum in which to raise their various concerns...." See maj. op. at 937.

In the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, § 301(a), 96 Stat. 25, 55 (1982), Congress provided a transfer remedy for plaintiffs who experience this kind of confusion. Congress created 28 U.S.C. § 1631 (1982), which controls the action of a federal court when it finds that it lacks jurisdiction but that another federal court has authority to hear the case. In such an instance, the first federal court must transfer the case to the proper court, if transfer is in the interest of justice.

Section 1631 reads:

The section is entitled "Transfer to cure want of jurisdiction"; its prescription suits this case to a T. Section 1631 serves to "aid litigants who were confused about the proper forum for review." American Beef Packers, Inc. v. ICC, 711 F.2d 388, 390 (D.C.Cir.1983) (transferring to the district court a review proceeding filed in this court). The appellants here surely fit the American Beef Packers description. Encountering our decision in Lorion, supra, they were understandably confused about the proper forum for their challenge to the Commission's action.

Section 1631, however, was still new at the time this case was dismissed and the section apparently was not brought to the attention of the district court.1 Had the district court been aware of section 1631 and followed its directions, the case would have arrived here by transfer rather than on appeal from the district court's dismissal, and there would have been no timeliness question. We would simply have applied section 1631's instruction to proceed "as if [the case] had been filed [in this court] on the date [in 1983] upon which it was actually filed in [the district court]." 28 U.S.C. § 1631 (1982).

This court and others have transferred cases under section 1631 without reference to any cue in the form of a party's motion. See American Beef Packers, supra; Lorion, 712 F.2d at 1479; United States v. John C. Grimberg Co., 702 F.2d 1362 (Fed.Cir.1983). A motion is unnecessary because of the mandatory cast of section 1631's instructions. In this regard, section 1631 has a very different office than does 28 U.S.C. § 1406(a), (b) (1982) (cure or waiver of venue defects). It is the parties' responsibility to raise and argue over venue if they will; the court may disregard that highly waivable matter if the parties do not choose to contest it. See id. § 1406(b); 15 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3826 (1976). On the other hand, it is the court's responsibility to consider subject matter competence even if the parties fail to raise the issue. See FED.R.CIV.P. 12(h)(3); 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1393 (1969 & Supp.1985). Part of the court's responsibility, with section 1631 on the books, is to determine whether "[t]ransfer to cure [its] want of [subject matter] jurisdiction" would best promote "the interest of justice."2

We have recently reminded the district courts of this responsibility in Ingersoll-Rand Co. v. United States, 780 F.2d 74, 80, (D.C.Cir.1985). In that case, we agreed with the district court that an action brought there belonged in the Claims Court. The district court had dismissed the action. We remanded for the limited purpose of allowing the district court to consider transferring the case to the Court of Claims. Judge McGowan, writing for the panel, explained:

Id. (footnote omitted).

Ingersoll-Rand dealt with the prospect of a lateral transfer outside the circuit, from district court to Claims Court. In the instant matter, this very court is the proper forum for the proceeding erroneously filed in our district court. That fact should make the case for transfer all the more compelling. This court's qualification as the proper forum also suggests the appropriateness of our rendering the transfer decision here and now. It would be a curious procedure indeed to remand this aging matter to the district court so that a district judge could decide whether or not to ticket as a "transfer" the parties' return trip here. Nor is such a convoluted procedure necessary to a fair decision: all the considerations relevant to "the interest of justice" appear from the record to be within our plain view. See Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1388 (D.C.Cir.1985) (holding that remand is unnecessary when only one conclusion is supportable on the record). To assure that we have given that interest its full due, we could invite the Commission to show cause, if any there be, why we should not deem the case transferred and therefore proceed to a decision on the merits.

In sum, I cannot join my colleagues' decision to affirm for want of jurisdiction and thereby cut off judicial review.3 I find that judgment strange, for we are the court, indeed the only lower court, that has subject matter competence in this case.4 We should not turn away litigants who were understandably "confused about the proper forum for review," American Beef Packers, supra at 390, simply because the paper that brought them here lacked the appropriate label.

The mechanical analysis offered by the court does not persuade me that we lack power to hear this case. On the contrary, the case belongs in this forum, we should treat it as having been transferred here as section 1631 requires, and we should accord these litigants their long-sought day in court. I dissent.