OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,
PETITIONERS V. DOROTHY ELLENDER, ET AL.

   No. 86-120

   In The Supreme Court Of The United States

   October Term, 1986

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Reply Memorandum For The Petitioners

   1. Respondents' primary contention (Br. in Opp. 23-35) is that our
petition seeking review of the court of appeals' final judgment in
Docket No. 85-6332 (2nd Cir. Apr. 28, 1986), is precluded by our
failure to petition for review in Docket No. 85-6274 (2nd Cir. Jan.
15, 1986).  Respondents' contention is altogether meritless.

   It is of course entirely clear that the government is not required,
on pain of losing its right to seek review in this Court of any given
issue, to petition for certiorari from the first appellate court
determination of that issue.  See, e.g., United States v. Mendoza, 464
U.S. 154, 160-161 (1984);  cf. United States v. Clark, 445 U.S. 23,
25-27 n.2 (1980) ("(I)t is irrelevant that the (court below) reached
(its) holding by relying on its earlier dicision * * *.  On appeal
under (28 U.S.C.) 1252 lies for amy federal-court decision declaring
an Act of Congress unconstitutional * * * not just for the first such
decision.").  In the instant case, we are seeking review of the court
of appeals' holding in Docket No. 85-6332, that is, its disposition of
our appeal from the district court's denial of our motion for entry of
final judgment on the merits.  Respondents' contention in essence is
that it was legally impossible for us to seek certiorari from the
court of appeals' judgment in No. 85-6332 because (1) the panel in No.
85-6332 relied on the reasoning and holding of the panel in No.
85-6274, and (2) we declined to seek certiorari from the court of
appeals' judgment in No. 85-6274.  There is no support in law or logic
for this contention.

   Respondents rely (Br. in Opp. 26) on the principle that the time to
petition for certiorari "is not extended merely because the court of
appeals issue(s) a subsequent order in the same case" that does not
substantially change its original judgment.  But that principle is
plainly inapplicable here.  The court of appeals' order dismissing the
appeal in No. 85-6332 was not, in either form or substance, a
"subsequent order" in No. 85-6274 or an amendment of the judgment in
that earlier case.  The two cases were distinct appeals, seeking
review of distinct actions of the district court;  the cases were
separately briefed and were heard and decided by different panels of
the Second Circuit.  Our petition for certiorari seeks review of the
court's judgment in No. 85-6332.  Since in deciding No. 85-6332 the
court of appeals relied on its analysis in No. 85-6274, our petition
discusses that analysis.  The fact remains, however, that the court of
appeals considered and decided two separate appeals, and the
government's decision not to seek review in this Court of the judgment
on the first appeal in no way forecloses our petition for a writ of
certiorari from the judgment on the second appeal.  See United States
v. Clark, supra.

   In any event, as we have explained previously (Pet. 11 n.8), the
question presented in our petition -- whether the court of appeals
erred in failing to direct the district court to enter a final
judgment on the merits -- could not properly have been raised in a
petition seeking review of the judgment in No. 85-6274.  Our position
throughout this litigation has been that the district court is
required to enter a final judgment on the merits that complies with
the Federal Rules of Civil Procedure.  We accordingly informed the
court of appeals in No. 85-6274 that our notice of appeal on the
merits in that case had been filed, as a protective matter, "in
anticipation of the entry of a final judgment on the substantive
claims in this litigation" (Memo of Law in Opp. to
Plaintiffs-Appellees' Mot. to Dis. 20).  Because we believe that our
appeal on the merits in No. 85-6274 was premature, we do not take
issue with the court of appeals' judgment dismissing that appeal, but
only with its rationale.  The judgment with which we do disagree is
the court of appeals' judgment in No. 85-6332, whereby it refused to
order the district court to enter a final judgment on the merits, and
it is from the court of appeals' judgment in No. 85-6332 that we have
properly and timely sought certiorari.

   Respondents' alternative suggestion (Br. in Opp. 32) that we should
have sought certiorari from the court of appeals' denial of our
mandamus petition is equally untenable.  Such a petition for
certiorari could properly have presented only the question where the
court of appeals abused its discretion in denying our request for
mandamus -- not whether a final judgment had been entered.  Given the
stringent standards governing mandamus (see, e.g., Allied Chemical
Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980);  Will v. United
States, 389 U.S. 90, 95 (1967)), the abuse-of-discretion issue
obviously is distinct from the question whether the court of appeals
erred in concluding that the judgment on the collateral matter of
attorney fees constituted the final judgment on the merits of the
case.  Indeed, courts often rule for a party on appeal after denying a
request for mandamus.  Given the pendency of our appeal in No. 85-6332
at the time the mandamus petition was denied, it was proper for us to
follow the regular course by allowing the court of appeals to decide
that appeal prior to seeking certiorari.

   2. Respondents offer virtually no response to our explanation of
why the decision below merits review by this Court.  Respondents do
not mention Fed. R. Civ. P. 79(a), which requires that the docket
sheet show the substance of a judgment;  instead, they think it
sufficient that the district judge sent the court clerk an internal
and nonpublic memorandum expressing his determination that "this
judgment closes this case" (Pet. App. 7a;  see Br. in Opp. 44).
Respondents do not discuss our contention that the court of appeals
improperly relied on the distinct court's intent, a reliance that
conflicts with the purpose of Fed. R. Civ. P. 58 and the decisions in
other circuits (see Pet. 14-17).  And respondents do not mention the
Rules' policy of encouraging clarity in judgments and of preventing
parties from facing the alternatives of losing their appeal rights or
filing blizzards of protective appeals.

   Instead, respondents fault the Secretary for "failing to keep track
of his own multiple efforts to obtain identical relief" (Br. in Opp.
22), and suggest (id. at 33) that we are seeking "repeated bites at
the apple to appeal." /1/ We of course agree that we have made
"multiple efforts to obtain identical relief," efforts that we
properly undertook to protect the interests of the United States.  And
we agree that the consequence of our protective efforts is a record
that is procedurally quite complex.  What the complexity of the record
demonstrates, however, is the procedural morass likely to result when
a district court fails to issue a document that is unambiguously a
"final judgment" on the merits of the case. /2/ The steps necessary to
comply with the requirements of Rules 58 and 79(a) are remarkably
simple.  The district court was unjustified in refusing to take those
steps, and the court of appeals erred in sanctioning its refusal.  /3/

   For the reasons stated above and in the petition, it is therefore
respectfully submitted that the petition for a writ of certiorari
should be granted.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1986

   /1/ Respondents' related assertion is that a party under our
analysis would be able to move in the district court for a "new"
judgment at any time, and then take a timely appeal from the denial of
that motion, thus rendering "the finality of judgments unsettled" (Br.
in Opp. 33-34).  But we make no such claim.  What we sought here is
not a new judgment on the merits, but the entry of an initial final
judgment.  The district court itself recognized that no such final
judgment had ever been entered;  it simply concluded that one was
unnecessary (Pet. App. 19a n.1).

   /2/ As we noted in our petition (at 20), neither the district court
nor respondents were able to identify with certainty a single document
that constituted the "final judgment" on the merits.  Respondents
argued below that either the December 1984 order disposing of their
damages claims or the January 1985 order respecting the attorney fees
represented the final judgment, and the court of appeals opted for the
latter (Pet. App. 8a).  But the district court itself did not regard
its attorney-fee judgment as the final judgment on the merits;  six
months after entering the attorney-fee judgment, the district court
"note(d) that a formal judgment was never entered after (the) November
17, 1983 opinion permanently enjoining defendants' challenged
practices" (id. at 19a & n.1).  The district court simply concluded
that a "formal judgment" on the merits, incorporated in a separate
document, was unnecessary.  See id. at 14a, 19a n.1.

   /3/ Respondents also assert (Br. in Opp. 38-42) that we were
deprived of our right to appeal not because of any defect in the
substance of the judgment entered on January 4, 1985, but rather
because of our failure to realize that any judgment had been filed on
that date.  They speculate that had we known of the judgment
respecting the attorney fees we would have recognized that it was
final on the merits.  We note first that respondents -- who submitted
the proposed judgment order without notifying government counsel, and
who waited until 4 days after our appeal time had expired to request
payment of the attorney fees (Pet. 5-6) -- are not very well situated
to fault the government for its ignorance of the order.  In any event,
the facts belie respondents' speculation:  our Rule 60(b) motion,
relying on Fed. R. Civ. P. 54(b), shows that when we did learn of the
January 1985 order, we interpreted it as simply determining the
attorney-fee issue, and sought reconsideration only on that basis (see
Pet. 6-7, 19-20;  Pet. App. 18a-19a).  And since our Rule 60(b) motion
concerned only the attorney-fee portion of the case, we do not
understand why respondents charge us with inconsistency (Br. in Opp.
45-47) in abandoning our appeal on that issue.