Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 84-0537).
Before: Seitz, Higginbotham, and Sloviter, Circuit Judges.
The plaintiff, Dale Hall, appeals from the denial of his motion to vacate and reenter a final order dismissing his lawsuit in order to permit a timely appeal on the merits. This court has jurisdiction under 28 U.S.C. § 1291 (1982).
On July 3, 1984, the district court entered an order dismissing Hall's sex discrimination suit against his employer, Community Mental Health Center of Beaver County. Although the docket entries show otherwise, neither party was actually notified of the order. On August 29, 1984, counsel for the Mental Health Center sent a letter to the district court judge supplementing his motion to dismiss, apparently unaware that the motion had already been decided in his favor. On September 13, 1984, Hall requested by letter to the judge twenty days to respond to the issues raised by the Mental Health Center, and on October 1, Hall submitted a supplemental brief on those issues, apparently directly to the judge. There was no acknowledgement or other response to any of those communications.
Eventually, on November 21, Hall's attorney discovered, while attempting to ascertain the status of the motion to dismiss, that the case had been resolved, and the motion to dismiss granted, on July 3. On November 23, Hall filed a motion in the district court for leave to appeal the final order. This motion was denied on November 26, on the grounds that under Federal Rule of Civil Procedure 77(d) and Federal Rule of Appellate Procedure 4(a)(5), the court had no authority to grant such a motion.
On December 3, Hall filed a motion to vacate and reenter the final order of July 3, citing Federal Rule of Civil Procedure 60, and Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977) (in banc), which held that the district court may vacate and reenter an order for the purpose of rendering an interlocutory appeal timely by virtue of its "broad power over its interlocutory orders before a final judgment is entered." Id. at 954. The district court denied this motion as well, holding that Braden applies only to the court's power to modify interlocutory orders where the district court retains control of the course of further proceedings, and not to final orders where the case has passed completely out of the power of the district court. It is from this ruling that Hall appeals.
We agree with the district court's interpretation of Braden. As we stated in Braden, "Rule 77(d) should not be read woodenly so as to preclude such relief in the interlocutory situation, particularly given its [Rule 77(d)'s] limited purpose-- to protect the finality of judgments." 552 F.2d at 954 (emphasis in original). While there is in Braden some relatively sympathetic discussion of cases allowing use of Rule 60(b) where there has been a failure to receive actual notice of a final judgment, the court there was using those cases to point out that the exception being allowed in Braden was less extreme. In any case, Braden expressly found Rule 60(b) inapplicable to its facts and found authority for the district court's actions under the broad power that a district court has over a case before final judgment is entered, citing Hill v. Hawes, 320 U.S. 520, 524, 88 L. Ed. 283, 64 S. Ct. 334 (1944).
Hall argues that Federal Rule of Civil Procedure 60(b) empowers the district court to vacate and reenter the July 3 dismissal, allowing him to file his appeal timely despite the lapse of five months between the date of the order and the date of his attempted appeal, and despite the strict wording of Federal Rule of Civil Procedure 77(d) and Federal Rule of Appellate Procedure 4(a). Federal Rule of Civil Procedure 77(d) provides in part that:
[i]mmediately upon the entry of an order or judgment the clerk shall serve a notice . . . upon each party . . . Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, ...