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09/02/86 Paul D. Johnson, v. Bechtel Associates

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


September 2, 1986

PAUL D. JOHNSON, APPELLANT

v.

BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., ET AL.; HOWARD L. EIGHMEY, ET AL., APPELLANTS,

v.

BECHTEL CIVIL AND MINERALS, INC., ET AL.; CALVIN WALKER, ET AL., APPELLANTS, V. BECHTEL CIVIL AND MINERALS, INC., ET AL.; JOHN WARREN

CLANAGAN, APPELLANT

v.

BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., ET AL.; PAUL D. JOHNSON, APPELLANT,

v.

BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., ET AL.;

CALVIN WALKER AND RENA WALKER, APPELLANTS

v.

BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., ET AL.; JOHN

WARREN CLANAGAN, APPELLANT

v.

BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., ET AL.; HOWARD L. EIGHMEY, ET AL., APPELLANTS,

v.

BECHTEL ASSOCIATES PROFESSIONAL

CORPORATION, D.C., ET AL.; STANLEY WILMES, APPELLANT

v.

BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., ET AL.; PAUL D. JOHNSON, APPELLANT,

v.

BECHTEL ASSOCIATES

PROFESSIONAL CORPORATION, D.C., ET AL.; JAMES H. BUCHANAN AND SHIRLEY BUCHANAN, HIS WIFE, APPELLANTS

v.

BECHTEL

Before ROBINSON, Circuit Judge, and WRIGHT and MACKINNON, Senior Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Associates Professional Corporation, D.C., et al.; Stanley

Wilmes, Appellant, v. Bechtel Associates Professional

Corporation, D.C., et al.; Calvin Walker, et al., Appellants, v. Washington Metropolitan Area Transit

Authority; John Warren Clanagan, Appellant, v. Bechtel

Associates Professional Corporation, D.C., et al.; Howard

L. Eighmey, et al., Appellants, v. Washington Metropolitan

Area Transit Authority; Glenwood Williams, Appellant, v.

Washington Metropolitan Area Transit Authority

Nos. 82-2017, 82-1784, 82-1809, 82-1813, 82-1899, 82-2062, 82-2063, 82-2148, 82-2374, 82-2458, 82-2459, 82-2525, 82-2529, 82-2530, 82-2531, 83-1003 1986.CDC.291

Appeals from the United States District Court for the District of Columbia, Civil Action Nos. 81-00963, 81-01261, 81-01125, 81-01481, 81-00114, 81-03057 and 82-00999, On Petition for Rehearing.

Opinion Per Curiam.

PER CURIAM: Appellants petition the court to reconsider its supplemental judgment of August 27, 1984, *fn1 affirming the district Court's prior rulings that appellee Washington Metropolitan Area Transit Authority enjoyed immunity from appellants' tort claims. The petition comes in light of legislation, enacted shortly after our judgment issued, that assertedly dictates the outcome of the case. Appellants also endeavor to raise new questions about WMATA's immunity. Because appellants' arguments are properly to be addressed, not on a petition for rehearing, but on a group of appeals from judgments of the District Court following our supplemental judgment, *fn2 we deny the petition. I

Appellants are workers allegedly injured while performing underground construction work on the subway system serving the District of Columbia and its environs. They filed negligence actions against WMATA and others, and in 1982, the District Court granted the defendant-appellees' motions for summary judgment. *fn3

On appeal, we vacated the judgments, holding, inter alia, that WMATA could not assert immunity under Section 905(a) of the Longshoremen's and Harbor Workers' Compensation Act. *fn4 In turn, the Supreme Court reversed, however, concluding that "WMATA [is] entitled to immunity from the tort actions brought by" appellants, *fn5 and remanded the case for further proceedings. In accordance with the Supreme Court's mandate, we entered the supplemental judgment to which the petition for rehearing relates, and directed the Clerk of this court to transmit a certified copy of the judgment to the District Court in lieu of a formal mandate. *fn6 On September 21, 1984, the District Court entered judgments for appellees. *fn7

On September 27, appellants filed in this court a petition for rehearing coupled with a suggestion of rehearing en banc. Their primary argument was made in anticipation of statutory amendments that were signed into law by the President the next day. *fn8 Appellants assert that the amendments legislatively overrule the Supreme Court's decision that WMATA enjoyed immunity, and urge this court to modify its supplemental judgment accordingly. They also claim that WMATA lacked immunity for another reason, which was not discussed by the Supreme Court. *fn9 We directed appellees to respond to these arguments.

On October 12, appellants noted separate appeals from the September 21 judgments of the district Court. These appeals are explicitly predicated upon a supposed denial by this panel of the relief requested by the petition for rehearing, and feature appellants' theory that the statutory amendments strip WMATA of immunity. The appeals have been briefed and argued orally, and are decided today. *fn10 II

Appellants assert an "absolute right" to petition for rehearing of our supplemental judgment pursuant to Rule 40 of the Federal Rules of Appellate Procedure and our Local Rule 14. Appellate Rule 40(a) provides that "[a] petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order or by local rule." Local Rule 14(a) specifies, relevantly to this case, that "[a] party that wishes to file a petition for rehearing . . . shall do so within 30 days after entry of judgment."

Appellants contend that the filing of their petition on September 27, 1984, was timely under our local rule. *fn11 That rule, however, does not control; rather, Appellate Rule 40(a), which permits shortening of the filing time for rehearing petitions "by order," is dispositive here. In our supplemental judgment, we directed the Clerk to transmit a certified copy of the judgment to the District Court, which he did on the same day, and that constituted the mandate of this court. *fn12 The time issuance of the mandate, like the time for petitioning for rehearing, may be shortened by order. *fn13 The clause of the supplemental judgment respecting the mandate was just such an order, and its effect was therefore to reduce to zero the period before issuance of the mandate, and necessarily the period for petitioning for rehearing. *fn14

A court may order immediate issuance of the mandate when "satisfied (1) that [the] Court would not change its decision upon hearing, much less hear the case en banc, and (2) that there is no reasonable likelihood that the Supreme Court would grant review." *fn15 Here, both requirements were met, for the course of action directed by the Supreme Court was very clear. Although it is our general practice in such a case specifically to order that the mandate be issued "forthwith," this omission from the supplemental order is of no consequence. We intended that the Clerk issue the mandate immediately, and he did so.

Issuance of the mandate formally marks the end of appellate jurisdiction. Jurisdiction returns to the tribunal to which the mandate is directed, for such proceedings as may be appropriate, *fn16 and in the instant case the District Court regained authority to enter judgments for appellees. This authority was not compromised by the filing of the petition for rehearing in this court six days after the District Court had acted, for that court was free to exercise its jurisdiction absent a recall of the mandate. *fn17 Because the immediate issuance of the mandate precluded a petition for rehearing, appellants' sole alternative was a motion to recall the mandate. *fn18 Accepting that as appellants' evident intention, we treat their petition for rehearing also as a motion to recall the mandate. III

Appellate courts have inherent power to recall a mandate upon a showing of good cause, but should exercise it only in exceptional circumstances. *fn19 If, after the mandate issues, the movant demonstrates good cause for failing to present an argument in a petition for rehearing, the court must then decide whether there are "special reasons" favoring recall. *fn20 But the recall power may not be used simply as a device for granting late rehearing; "there must be an end to dispute." *fn21

Because of the unusual procedural posture of this case, however, it is unnecessary to determine whether suitable reasons exist here. Our supplemental judgment returned this case to the District Court, and proceedings leading to new judgments were completed before appellants did anything further in this court. Moreover, appellants have had full opportunity to press their arguments on their appeals from those judgments. *fn22 Surely with the normal process of appeal available, resort to the extraordinary step of recalling the mandate is unjustifiable. *fn23

In issuing the supplemental judgment, we were merely effectuating the will of the Supreme Court. To pave the way for presentation of their new arguments directly to this court, appellants might have asked the Supreme Court to recall its mandate, but they did not see fit to do so. Recall of this court's mandate, on the other hand, not only would generate questions concerning our fealty to the Supreme Court's mandate, *fn24 but in the circumstances presented is inappropriate.

Without, then, reaching the merits of appellants' contentions, the petition for rehearing, treated both as such and as a motion to recall the mandate, is denied. *fn25

So ordered.


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