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 Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit The Solicitor General, on behalf of the Secretary of Health and Human Services, Petitions for a writ of certiorari to review the judgment of the court of appeals for the Second Circuit in this case. PARTIES TO THE PROCEEDING In addition to the parties named in the caption, named respondents are Angela Zamski, James Trowbridge, Louis W. Brunjes, and Verley Smith. These respondents represent a class composed of all persons in New York who receive Social Security benefits under the Old Age, Survivors and Disability program, and who have been informed that they must refund overpayments made under the Supplemental Security Income program. Richard S. Schweiker, Margaret M. Heckler, John Svahn, and Martha McSteen were named as defendants below. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Rules involved Questions presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I OPINIONS BELOW The opinion of the court of appeals is unreported; the initial opinion of the court of appeals in this case is reported at 781 F.2d 314. The initial opinion of the district court is reported at 575 F. Supp. 590; the subsequent opinions of the district court are unreported. JURISDICTION The judgment of the court of appeals was entered on April 28, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULES INVOLVED Fed. R. Civ. P. 58 provides: Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course. Fed. R. Civ. P. 79(a) provides: Civil Docket. The clerk shall keep a book known as "civil docket" of such form and style as may be prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, and shall enter therein each civil action to which these rules are made applicable. Actions shall be assigned consecutive file numbers. The file number of each action shall be noted on the folio of the docket whereon the first entry of the actions is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. When in an action trial by jury has been properly demanded or ordered the clerk shall enter the word "jury" on the folio assigned to that action. QUESTION PRESENTED Whether a final judgment is entered within the meaning of Fed. R. Civ. P. 58 and 79(a) -- thus commencing the running of the time for appeal -- when the judgment issued by the district court, and the accompanying entry on the district court's docket sheet, do not mention the relief awarded by the court and do not indicate that the case has been terminated. STATEMENT Although the background of this case is convoluted, the relevant procedural developments are easily summarized. In 1983, the district court awarded respondents partial summary judgment and injunctive relief; the court did not enter a final judgment at that time, however, because claims for money damages and attorneys' fees remained outstanding. In December 1984, respondents' claims for money damages were dismissed. Two weeks later, in January 1985, the district court entered a judgment awarding attorneys' fees to respondents. This judgment, and the corresponding entry on the district court's docket sheet, referred only to the fee award; it did not indicate that final judgment had been entered in the case, and made no mention of the relief awarded on the merits. In subsequent proceedings, the court of appeals nevertheless held that this attorneys' fee judgment was sufficient, under Fed. R. Civ. P. 58 and 79(a), to terminate the entire case and commence the running of the government's time to appeal on the merits. This holding, which forecloses the government form appealing the district court's ruling on the merits, is the subject of this petition. 1. This case began as a challenge in the United States District Court for the Southern District of New York to the Department of Health and Human Service's (HHS) use of so-called "voluntary cross-program recovery" to obtain recoupment of overpayments made under the Supplemental Security Income program (SSI). In brief, cross-program recovery permits HHS, with the recipient's consent to recoup SSI overpayments by withholding a portion of the Social Security benefits paid to the recipient under the Old Age, Survivors and Disability program. See generally App., infra, 27a-32a. To put cross-program recovery into effect, HHS sent notices to recipients stating, among other things, that "(t)here is an outstanding * * * balance on your supplemental security income overpayment," and providing that "(f)or your convenience, we can withhold the balance of your overpayment from your social security benefit" (id. at 31a). Respondents argued that cross-program recovery, even if voluntary, is barred by 42 U.S.C. 407(a). /1/ Respondents also maintained that the notices sent by HHS were constitutionally deficient, and sought money damages from individual HHS officials. The district court preliminarily enjoined the use of cross-program recovery in 1982. On November 17, 1983, the court granted partial summary judgment in favor of respondents, holding the cross-program recovery mechanism illegal and finding that the HHS notices were defective as a matter of due process. App., infra, 27a-63a. The court failed to dispose of the individual damages claims against HHS officials at that time, however, and it did not issue a judgment on a separate document that was distinct from its opinion and order. 2. After the district court rendered its partial decision on the merits, respondents moved for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412. On April 12, 1984, the court issued an opinion holding the government liable for fees. See App., infra, 6a. The court again withheld judgment, however, directing the parties to negotiate an appropriate sum for the award. On July 20, 1984, the parties stipulated that the fees awarded by the April 12 opinion should amount to $40,734.30. Id. at 25a-26a. But the government notified respondents that the fees could not be certified for payment at that time because a final judgment on the fee award had not yet been entered (see id. at 6a, 16a). On December 19, 1984, the parties stipulated to the dismissal of respondents' outstanding individual damage claims (App., infra, 23a). Shortly afterwards, without notifying counsel for HHS (See App., infra, 16a-17a), respondents' attorney submitted a proposed attorneys' fee judgment to the clerk of the district court, which read: Upon the annexed opinion and order of the Court entered April 12, 1984 and the annexed stipulation and order entered July 20, 1984 it is Adjudged that the plaintiffs' counsel do have and recover of the defendants the sum of $40,734.30. App., infra, 22a. The clerk evidently entered this judgment on the district court's docket sheet on January 3, 1985; the entry for that date reads, in full: "Filed JUDGMENT #85,008 . . . . It is Adjudged that the pltffs' counsel do have & recover of the defts. the sum of $40,734.30. Cooper, J. m/c." Id. at 70a. The district judge signed this judgment on January 4, 1985. /2/ Respondents' attorney did not notify counsel for the government of the entry of this judgment until March 8, 1985 /3/ -- 64 days after entry of the judgment, and thus four days after the government's time for noticing an appeal had expired (see Fed. R. App. P. 4(a)(1)). On that date, respondents' lawyer informed the government that judgment had been entered and demanded payment of the attorneys' fees. 3. Armed with this knowledge, the government promptly moved for relief from the attorneys' fee judgment pursuant to Fed. R. Civ. P. 60(b). The district court, however, denied this motion on July 19, 1985. App., infra, 15a-21a. The court held that the attorneys' fee issue was collateral to the merits, and "(c)onsequently, judgment was appropriately entered on that issue, and it became appealable on the date (it) was entered" (id. at 18a-19a). /4/ The court also held that attorneys' fees may be awarded under EAJA prior to the entry of final judgment on the merits (id. at 19a-21a). And the court concluded that respondents' counsel had not been obligated to notify the government prior to submission of the proposed judgment because "the judgment filed was one which the local rules contemplate would be prepared as a ministerial act by the Court clerk pursuant to Fed. R. Civ. P. 58" (id. at 19a). HHS filed a timely notice of appeal from the denial of its Rule 60(b) motion. The government's notice of appeal also raised a challenge to the district court's 1983 ruling on the legality of cross-program recovery; while the government took the position that no final judgment had yet been entered on that issue, it suggested that the notice of appeal was being filed in anticipation of "any final judgment to be entered thereon in this action." At the same time, the government moved the district court to enter a final judgment on the merits to permit an appeal on that point to proceed. On October 7, 1985, the district court denied HHS's motion for entry of final judgment on the merits (App., infra, 14a). The district court opined that "(o)ur order (supported by our opinion) filed November 17, 1983 permanently enjoining defendants' challenged practices was by law immediately appealable pursuant to 28 U.S.C. Section 1292(a)(1) 22 months ago. During that period no appeal was taken and no action by defendants to enter final judgment (sic)." The court found "no justification or excuse for (the governments) failure to proceed as hereinabove indicated." Ibid. The government promptly appealed this decision. HHS thus had two appeals pending: one (No. 85-6274) from both the denial of the Rule 60(b) motion relating to attorneys' fees and (concededly prematurely) from the district court's ruling on the legality of cross-program recovery, the other (No. 85-6332) from the district court's denial of the government's motion for entry of final judgment on the merits. 4. In response to the government's first notice of appeal (in No. 85-6274), respondents filed a motion in the court of appeals asking the Second Circuit to dismiss the appeal as untimely insofar as it purported to challenge the district court's 1983 ruling on the merits. Respondents took the position that the appeal was not premature, but rather was too late: they argued that the district court already had issued a final order disposing of the entire case, including the merits -- either on December 19, 1984, when it dismissed the individual damages claims, or an January 4, 1985, when it issued its attorneys' fee judgment. Memorandum of Law in Support of Plaintiffs-Appellees' Motion to Dismiss 5. On January 15, 1986, the court of appeals granted this motion, dismissing as untimely the portion of the notice of appeal in No. 85-6274 that challenged the district court's 1983 ruling on the legality of cross-program recovery. /5/ In doing so, the court rejected the government's contention that the district judge never had entered a final judgment on the merits, as required by Fed. R. Civ. P. 58. The court of appeals recognized that Rule 58 directs "that every judgment be set forth on a separate document," and that Fed. R. Civ. P. 79(a) requires the clerk of the district court to "enter a judgment in the civil docket for the case, briefly showing its substance and date of entry." App., infra, 9a. But the court held these requirements to have been satisfied by the January 4, 1985, attorneys' fee judgment: "It was set out in a separate document, and its contents were summarized in the clerk's docket for the case" (id. at 10a). /6/ Similarly, the court of appeals held that the January 4 judgment had not been limited to the collateral matter of attorneys' fees, finding "no reason * * * whey an award of fees may not be made prior to or simultaneously with the entry of final judgment" (id. at 11a). The court of appeals acknowledged that it "normally (would) expect that the final judgment in an action would at least mention the permanent relief granted by the court, and this would be the better practice when no other document has been entered as a separate order setting forth the terms of such relief." But it found "no requirement in the Federal Rules of Civil Procedure that the document that constitutes the final judgment in a case be comprehensive." App., infra, 12a-13a. Instead, the court of appeals held it to be "dispositive" here "that the record reveals that the district court 'intended the (J)udgment to represent the final decision in the case'" (ibid.) (quoting Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 n.6 (1978)). The court therefore held that the January 4, 1985, order was the final judgment in the action within the meaning of Rule 58, and that it commenced the running of the government's time to appeal on the merits. /7/ Because the notice of appeal in No. 85-6274 was filed on September 17, 1985, more than eight months after the entry of the January 4 judgment, the court held that the appeal was well out-of-time. App., infra, 13a. This holding left temporarily unresolved the status of the government's appeal from the denial of its motion for entry of a final judgment on the merits (No. 85-6332). Citing its decision in No. 85-6274, however, the court of appeals subsequently dismissed the appeal in No. 85-6332. App., infra. 2a-3a. REASONS FOR GRANTING THE PETITION Although the procedural background here is complex, this case starkly presents a straightforward and recurring issue that has troubled the courts for years: "'the old, old question of when is a judgment a judgment.'" Diamond v. McKenzie, 770 F.2d 225, 232 (D.C. Cir. 1985) (Robinson, C.J., concurring) (footnote omitted) (quoting Cedar Creek Oil & Gas Co. v. Fidelity Gas Co., 238 F.2d 298 (9th Cir. 1956)). Here, the court of appeals looked to the district judge's intent in holding that a final judgment had been entered on the merits when the judge issued, and the clerk recorded on the docket, a judgment that in terms settled only the collateral matter of attorneys' fees. Despite its technical nature, this holding may have dramatic effects. As this case illustrates -- in the context of the district court's invalidation of a significant federal program -- the court of appeals' approach permits the expiration of the time for appeal before the losing party effectively has been apprised that the appeal time is running. A holding of this sort "is of importance and concern to every litigant in a federal court." United States v. Indrelunas, 411 U.S. 216, 218 (1973). /8/ The court of appeals' analysis, however, is deeply flawed. It is inconsistent with the language and purposes of the Federal Rules of Civil Procedure governing the entry of judgments. And it cannot be reconciled with the general approach taken by this Court, and by the other courts of appeals, in interpreting those Rules. In these circumstances, review of the decision below by this Court is appropriate. /9/ 1. If the losing party in a civil suit wishes to take an appeal from the decision of a district court, it must file a notice of appeal within 30 days of the entry of the district court's judgment; when the losing party is the federal government, a notice of appeal must be filed within 60 days of that date. 28 U.S.C. 2107; Fed. R. App. P. 4(a)(1). Prior to 1963, however, there was considerable uncertainty about which actions of the district courts marked the formal entry of judgment, and thus commenced the running of the time for appeal. This Court had indicated that determining whether a given order encompassed the final judgment in a case turned largely on the district judge's intent in issuing that order. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233 (1958). See Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II), 77 Harv. L. Rev. 801, 831 (1964). Even so, however, "(u)ncertainty continued to reign * * * for the judge's intention was itself a highly subjective criterion." Diamond, 770 F.2d at 233 (Robinson, C.J., concurring) (footnote omitted). See Fed. R. Civ. P. 58 advisory committee notes (1963 Amendment); 11 C. Wright & A. Miller, Federal Practice and Procedure Section 2781, at 8 (1973). To "eliminate() these uncertainties," the Federal Rules of Civil Procedure were amended in 1963. Fed. R. Civ. P. 58 advisory committee notes (1963 Amendment). As modified, Rule 58, which governs the entry of judgment, provides that "(e)very judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." Rule 79(a), in turn, requires the district court clerk to record all judgments on the civil docket, and provides that "(t)hese entries shall be brief but shall show the * * * substance of each order or judgment of the court." By establishing mechanical rules to govern the entry of judgment, these two provisions in combination were intended to "remove uncertainties as to when a judgment is entered." Indrelunas, 411 U.S. at 219. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 (1978). Application of these rules accordingly must be strict and objective: judgment must be entered both on a separate document and on the docket sheet before the time to appeal begins to run, even if years elapse between the district court's actual decision in the case and the court's formal entry of final judgment. See, e.g., Indrelunas, 411 U.S. at 211. /10/ 2. In holding that a final judgment had been entered on the merits, the court of appeals ruled that the requirements of Rules 58 and 79(a) were satisfied by the district court's actions here. The court of appeals reasoned that the January 4, 1985, attorneys' fee order complied with Rule 58 because it is a judgment that appears on a separate document. The corresponding docket entry, the court added, accorded with the dictates of Rule 79(a) because it accurately summarized the January 4 attorneys' fee award. Having reached these conclusions, the court essentially found the contents of the order and docket entry to be irrelevant. The court of appeals thus held that the reach of the judgment was not affected by the fact that, in terms, it mentioned only the attorneys' fee portion of the case and did not describe the relief awarded on the merits; the court found "no requirement in the Federal Rules of Civil Procedure that the document that constitutes the final judgment in a case be comprehensive" (App., infra, 13a). Instead, the court of appeals held it "dispositive" that the district judge intended the attorneys' fee judgment to terminate the litigation as a whole (ibid.). This approach, however, cannot be squared with the decisions of this Court and of the other courts of appeals, which have recognzied that reliance on the district judge's intent in determining whether a final judgment has been entered "directly contravenes the requirement that Rule 58 be mechanically applied." Diamond, 770 F.2d at 229. See id. at 230; id. at 233 (Robinson, C.J., concurring) ("the judge's intention as the criterion has * * * been completely displaced"). As noted above, the drafters of the Rule intended to overcome the uncertainty -- and the "occasional grief to litigants as a result of this uncertainty" (Indrelunas, 411 U.S. at 220) -- that necessarily inhered in a test turning on subjective intent. /11/ They accordingly developed the separate document rule, the application of which, as this Court repeatedly has explained, must be "mechanical" (Indrelunas, 411 U.S. at 222) and "(t)echnical" (Bankers Trust Co., 435 U.S. at 386). See id. at 384. More generally, they emphasized the importance of rules that would let the parties know where they stood at all times, and that "should be interpreted to prevent the loss of the right of appeal, not to facilitate loss.'" Bankers Trust Co., 435 U.S. at 386 (quoting 9 J. Moore, Federal Practice Paragraph 110.08(2), at 120 n.7 (1970)). /12/ Given the premium placed upon clarity in application of the Rules, the court of appeals necessarily erred in holding that the separate document required by Rule 58 -- and the corresponding docket entry mandated by Rule 79(a) -- need not be "comprehensive" (App., infra, 13a). While "'(n)o form of words . . . is necessary to evince (the) rendition (of a judgment)'" (F. & M. Schaefer Brewing Co., 356 U.S. 232, quoting United States v. Hark, 320 U.S. 531, 534 (1944), an order or docket entry obviously will put the losing party on notice that his time to appeal is running only if it "exhibit(s) the judge's statement of the substance of the court's decision." C.I.T. Financial Service v. Yeomans, 710 F.2d 416, 417 (7th Cir. 1983). And the requirement that the judgment intelligibly summarize the district court's holding is confirmed by Rule 79(a), which flatly mandates that the docket "show the substance of each * * * judgment of the court." When the judgment involved is designed to terminate the litigation, both it and the corresponding docket entry accordingly must, at a minimum, indicate that final judgment has been rendered in the case. /13/ See F. & M. Schaefer Brewing Co., 356 U.S. at 234-235. /14/ See generally 7 J. Moore, Federal Practice (Pt. 2) Paragraph 79.02(2), at 79-54 (2d ed. 1986). Here, of course, the January 4, 1985, judgment and the corresponding docket entry refer only to the attorneys' fee award. Neither makes any mention of the relief awarded on the merits, or indicates even in a general way that final judgment in the case has issued; neither adverts, as Rule 79(a) puts it, to the "substance" of the district court's ruling on any issue other than attorneys' fees. If, as the court of appeals held, such a judgment is enough to set the time for appeal running on the merits, the parties in complex cases presumably will consider themselves obligated to keep track of the outstanding issues and to appeal whenever they believe that the final claim may have been resolved. /15/ Such a practice inevitably "would lead to a blizzard of protective appeals as litigants tried to ensure their rights to review; many times the rule also would lead to pointless forfeitures as litigants inadvertently overlooked the possibility that a particular order might be characterized as a 'final decision.'" Exchange National Bank v. Daniels, 763 F.2d 286, 290 (7th Cir. 1985). The result would be a return "to the melange of guesswork and confusion that antedated the separate-document (requirement)." United States v. City of Kansas City, 761 F.2d 605, 607 (10th Cir. 1985). The defects in the court of appeals' approach will be particularly noticeable in a case, such as this one, where the judgment on its face terminates only an attorneys' fee dispute -- an issue that is entirely collateral to the merits. See White v. New Hampshire, 455 U.S. 445, 451-452 & n.14 (1982). /16/ The usual rule, as the court of appeals itself acknowledged (App., infra, 11a), is that the merits and the attorney's fee disputes are independent of one another for Rule 58 purposes, so that the time to appeal from a disposition on the merits begins to run while a request for attorneys' fees is still outstanding. See Exchange National Bank, 763 F.2d at 291-292; International Ass'n v. Madison Industries, Inc., 733 F.2d 656 (9th Cir. 1984); Bernstein v. Menard, 728 F.2d 252, 253 (4th Cir. 1984); Smillie v. Park Chemical Co., 710 F.2d 271, 273-274 (6th Cir. 1983); Smith v. Mine Safety Appliances Co., 691 F.2d 724 (5th Cir. 1982). See generally White, 455 U.S. at 452-453 n.14. It stands to reason that the converse situation, involving entry of judgment on a fee award when judgment has not yet been entered on the merits, should not be sufficient to notify a party that the time to appeal on the merits is running. /17/ 3. The difficulties created by a test that looks to the district court's intent to determine whether final judgment has been entered, rather than to the objective contents of the judgment and docket entry, are well illustrated by the record here. When the January 4, 1985, order was issued, the district court gave no public indication that it intended the attorneys' fee order to serve as the final judgment on the merits. To the contrary, as the district judge subsequently explained (App., infra, 19a), both he and the clerk treated the entry of the January 4, 1985, order as a ministerial act of the sort that is appropriate only when the judgment is for a "sum certain." See Fed. R. Civ. P. 58(1); Indrelunas, 411 U.S. at 220; 6A J. Moore, supra, Paragraph 58.01(1.-2), at 58-5, 58-7; Paragraph 58.04(4.-2), at 58-45 to 58-46. And the district court later confirmed that no final judgment had issued on the merits: in rejecting the government's Rule 60(b) motion, the judge indicated that the entry of judgment awarding attorneys' fees had been appropriate not because it was part of a final judgment, but because the fee award was collateral to the merits. /18/ Given this, it is not suprising that respondents themselves, in their pleadings before the court of appeals, were unable to identify with certainty the single document representing the final judgment in the case. /19/ In holding that the district judge intended the January 4, 1985, order to serve as the final judgment here, the court of appeals relied principally on an internal court memorandum acccompanying that judgment, which indicated that the district judge expected the fee award to close the case. But a final judgment test that requires consideration of internal housekeeping documents is hardly consistent with the Rules' focus on clarity; the application of such a test inevitably would frustrate Rule 79(a)'s "public recordkeeping function," while failing to "giv(e) notice to the losing party that a final decision has been entered against it." Bankers Trust Co., 435 U.S. at 384 n.4. Indeed, while the district court may well have believed the attorneys' fee order to be the final judgment in the case, "the question is not beyond dispute * * *. It is precisely this kind of uncertainty about whether the District Court intended to enter a final order that warrants the mechanical application of Rule 58." Diamond, 770 F.2d at 230 (footnote omitted). /20/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General JULY 1986 /1/ That provision provides that "(t)he right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process." /2/ At the same time, the judge sent the clerk an internal memorandum that read: "This judgment closes this case. If for any reason this action cannot be closed, please advise Chambers immediately by calling Law Clerk at Ext. 0972. Thank you." App., infra, 7a. /3/ While the clerk's notation "m/c" indicated that copies of the judgment were mailed to counsel for the parties (App., infra, 7a), a copy was not in fact received by the government. /4/ In the course of this ruling, the district court observed that "a formal judgment was never entered after our November 17, 1983 opinion permanently enjoining defendants' challenged practices" (App., infra, 19a n.1). /5/ The court acknowledged that the Rule 60(b) appeal could proceed (App., infra, 13a). The government has since withdrawn that appeal, however. /6/ The court concluded that the December ruling was not a final judgment because "the court's order was merely endorsed on a stipulation and was not set forth in a separate document" (App., infra, 9a-10a). /7/ The court also held that the judgment was final within the meaning of 28 U.S.C. 1291, so that appellate jurisdiction existed in the case. On this issue, as it had in analyzing whether judgment had been entered for purposes of Rule 58, the court reasoned that "the determining factor is 'whether the district court intended the judgment to represent the final decision in the case'" (App., infra, 10a (quoting Bankers Trust Co., 435 U.S. at 385 n.6)). On the facts here, the court had "little difficulty" concluding that the district judge intended the January 4, 1985, judgment "to be the final decision in the case," noting that he had instructed the clerk that the judgment "'close(d) this case'" (App., infra, 10a). In the court of appeals' view, this conclusion was confirmed by the fact that no issues remained to be adjudicated after December 1984 (ibid.). /8/ This petition seeks review only of the court of appeals' judgment in No. 85-6332. In our view, the notice of appeal in No. 85-6274 was premature insofar as it sought to challenge the district court's ruling on the merits, because to this day that court has refused to enter a final judgment; while the court of appeals therefore relied on an improper rationale in dismissing that appeal, we do not take issue with the disposition in that case. Instead, our submission is that the district court erred in refusing to enter a final judgment on the merits, and that the court of appeals erred in No. 85-6332 in failing to direct it to do so. Because the court of appeals' decision in No. 85-6332 relies upon the reasoning expressed in the court's opinion in No. 85-6274, however, we address the reasoning of the latter opinion in this petition. /9/ The Court has several times granted certiorari to resolve -- occasionally without full briefing and argument -- issues relating to the running of the time for appeal. See Acosta v. Louisiana Department of Health and Human Resources, No. 85-1500 (June 30, 1986) (per curiam); United States v. Indrelunas, supra (per curiam); United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227 (1958). Cf. Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). /10/ The parties may waive Rule 58's requirement that judgment be entered on a separate document. See Bankers Trust Co., 435 U.S. at 384-386. When a district court issues what appears to be the final decision in a case, the losing party may file an appeal from that order even if the "judgment" does not satisfy Rule 58's requirements. The Court has explained that strict application of the separate document requirement in these circumstances would serve no useful purpose; it would simply result in remand of the case for entry of final judgment, from which another appeal then would be taken. See Bankers Trust Co., 458 U.S. at 385. The Court has made clear, however, that this exception may not be applied in a manner that would deprive a party of its right to appeal. See ibid. ("The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered"); id. at 386; Louisiana World Exposition v. Logue, 746 F.2d 1033, 1038-1039 (5th Cir. 1984); Townsend v. Lucas, 745 F.2d 933, 934 (5th Cir. 1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 975 (1st Cir. 1982). Indeed, even when the Bankers Trust Co. exception is applicable, courts have suggested that the better practice is for litigants to seek the entry of a final judgment prior to appeal. See, e.g., Hanson v. Town of Flower Mound, 679 F.2d 497, 501-502 (5th Cir. 1982). /11/ In finding the intent of the district judge dispositive here, the court of appeals seemingly relied on language from Bankers Trust Co. (App., infra, 13a (quoting 435 U.S. at 386 n.6)). In doing so, however, the court of appeals plainly misread this Court's meaning. Bankers Trust Co. indicated that, in determining "whether the decision of the District Court was 'final' for purposes of (28 U.S.C.) Section 1291," "the courts of appeals must * * * determine whether the district court intended the judgment to represent the final decision in the case." 435 U.S. at 385-386 n.6 (emphasis added). As the Court made clear, however, the question whether an order satisfies the final judgment requirement of Section 1291, and the question whether it complies with Rule 58's separate document rule, are entirely distinct. See Bankers Trust Co., 435 U.S. at 383-384; Parisie v. Greer, 705 F.2d 882, 890 (opinion of Eschbach, J.) (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 950 (1983). The Court nowhere suggested that the district court's intent has any bearing on the latter question. /12/ The courts of appeals -- with the exception of the Second Circuit -- have taken this guidance to heart, concluding that "(t)he purpose of the separate document requirement is to avoid the inequity of a party being denied the opportunity to appeal because of failure to realize which of several actions by the court constituted 'entry' of judgment." Taylor Rental Corp. v. Oakley, 764 F.2d 720, 721 (9th Cir. 1985). They accordingly have endorsed a mechanical application of Rule 58. See, e.g., Diamond, 770 F.2d at 230; United States v. City of Kansas City, 761 F.2d 605 (10th Cir. 1985); Exchange National Bank v. Daniels, 763 F.2d 286, 290 (7th Cir. 1985); Louisiana World Exposition v. Logue, 746 F.2d 1033, 1038 (5th Cir. 1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 975 (1st Cir. 1982); Gregson & Associates Cir. 1982); Gallimore v. Missouri Pac. R.R., 635 F.2d 1165, 1169 n.5 (5th Cir. 1981); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689 (4th Cir. 1978). See generally 6A J. Moore, Federal Practice Paragraph 58.02.1, at 58-19, 58-22 (2d ed. 1984). Cf. In re Ozard Restaurant Equipment Co., 761 F.2d 481, 483-484 (8th Cir. 1985). /13/ "Since the running of time for * * * appeal begins from the entry of judgment, such entry, though not necessarily in any particular forms of words, should be unambiguous on its face so that counsel or a party consulting the docket will have no reasonable basis for doubt as to the nature and effect of what has been done or as to the timeliness of further proceedings." Danzig v. Virgin Isle Hotel, Inc., 278 F.2d 580, 582 (3d Cir. 1960). /14/ In F. & M. Schaefer Brewing Co., an action for a monetary recovery, the district court's order and the corresponding docket entry indicated that summary judgment had been granted, although they failed to indicate the amount of the award. The Court held this insufficient to give rise to a final judgment: "Rule 79(a) expressly requires that the clerk's entry 'shall show . . . the substance of (the) judgment of the court . . . .' Surely the amount of a judgment for money is a vital part of its substance. To hold that one must search the whole record to determine the amount, or the facts necessary to compute the amount, of a final judgment for money would be to ignore the quoted provision of Rule 79(a)." 356 U.S. at 234-235. /15/ Even then, under the court of appeals' reasoning, their appeal would be appropriate only if the district court had intended the order resolving that claim to serve as the final judgment in the case. /16/ When a district court's judgment disposes of fewer than all of the claims in a case, the losing party may not appeal from that judgment unless the court explicitly certifies that an appeal is warranted. Fed. R. Civ. P. 54(b). See 6A J. Moore, Federal Practice Paragraph 58.01(1.-2), at 58-4 (2d ed. 1984). As a general matter, a party therefore cannot lose its right to appeal by awaiting entry of judgment on the final claim in the case. The courts have not treated Rule 54(b) as applicable when the unresolved claims are collateral ones, however. See cases cited at page 19, infra. /17/ This is particularly true if, as the court of appeals concluded (App., infra, 11a), a fee award may precede the entry of final judgment on the merits. /18/ The court explained at the time that "a formal judgment was never entered after our November 17, 1983 opinion" granting summary judgment on the merits (App., infra, 19a n.1). Indeed, when the district court subsequently denied the government's motion for entry of a final order on the merits in October 1985, it did not suggest that such a judgment already had been entered; instead, it expressed its view that its ruling on the merits "was by law immediately appealable * * * 22 months ago," adding that "(d)uring that period no appeal was taken and no action by (the government) to enter final judgment (sic)" (id. at 14a). /19/ Respondents argued that judgment had been entered either at the time of the dismissal of their individual damages claims or at the time of the attorneys' fee award. Memorandum of Law in Support of Plaintiffs-Appellees' Motion to Dismiss 5. /20/ This case also forcefully demonstrates the consequences of a misapplication of Rules 58 and 79(a). HHS informs us that cross-program recovery currently is in effect in 48 states; the district court's holding on the merits in this case, which forecloses use of the cross-program mechanism in New York, thus detracts from the uniformity of a nationwide program-- and does so, HHS reports, in a manner that costs the government approximately $1.5 million annually. Yet the court of appeals' holding prevents the government from even attempting to rectify this problem. APPENDIX