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February 16, 1982


The opinion of the court was delivered by: Marshall, District Judge.


This case is before us on an application for attorney's fees from counsel for the plaintiff in an action in which plaintiff successfully sought reversal of a decision of the Social Security Administration which had denied plaintiff's request for revision of his social security earnings record. On Friday, August 14, 1981, we issued a memorandum order granting summary judgment for the plaintiff. On the ensuing Monday, August 17, 1981, the clerk issued judgment pursuant to Rule 58, Fed.R.Civ.P. The August 14 order was not entered on the docket until August 17 and the August 17 judgment until September 2.

The fee application is brought pursuant to "The Equal Access to Justice Act", 28 U.S.C.A. § 2412 (West Supp. 1981) ("the Act"), which became effective October 1, 1981. To our knowledge there is only one reported decision under the Act and we confront several issues of first impression.

At the outset there are two questions of timing which we must address. Our memorandum order granting summary judgment was issued August 14, 1981, and judgment was issued by the clerk August 17. However the judgment was not entered on the docket until September 2. The Act was passed in October, 1980 and implemented according to the following provision:

  Sec. 208. This title and the amendments made by
  this title shall take effect on October 1, 1981,
  and shall apply to [any civil action] which is
  pending on, or commenced on or after, such date.
  5 U.S.C. § 504 note.*fn1

Defendants contend that our decision of August 14 or issuance of judgment on August 17, was a final disposition of the case with the result that the case was not pending as of October 1. Plaintiff counters that because the time for defendant to appeal the judgment did not run until sixty days after issuance of the judgment, this case was still pending on the effective date of the Act.

In addition, though the defendant has not raised the point, the Act requires that "[a] party seeking an award of fees . . . shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses . . ." 28 U.S.C. § 2412(d)(1)(B) (1981). Thus, if either our decision of August 14 or the clerk's issuance of judgment on August 17 qualifies as a "final judgment", then the fee application would be late and we could not consider it. See Hairline Creations, Inc. v. Kefalas, 664 F.2d 652 (7th Cir., 1981). However, if the September 2 entry of the judgment on the docket qualifies as the date on which the judgment became final, then the application was timely made within the thirty day rule of the Act.

There is little legislative history or case law on the meaning of the word "pending." What case law there is, however, uniformly supports plaintiff's position that a case is "pending" so long as the losing party's right to appeal has not yet been exhausted or expired. See Perzinski v. Chevron Chemical Co., 503 F.2d 654, 657 (7th Cir. 1974); Williams v. State, 62 Cal.App.3d 960, 133 Cal.Rptr. 539 (1976); In re Estate of Stith, 45 Ill.2d 192, 258 N.E.2d 351, 353 (1970) (and cases cited therein). We agree that until it becomes clear that the litigation will end with the district court's judgment, the action is still "pending." See also, Buckton v. NCAA, 436 F. Supp. 1258, 1262-63 (D.Mass. 1977). Absent some statement in the legislation or its history to the contrary, we must assume that Congress meant the term "pending" to be applied consistent with its generally accepted meaning. Accordingly, we hold that because the government's 60 day period within which it could appeal had not expired on October 1, 1981, the effective date of the Act, this action was pending on that date.

As noted earlier, the Act also requires that any fee application be submitted within thirty days of final judgment in the action. Rule 58, Fed.R.Civ.P. requires that "[e]very judgment shall be set forth on a separate document." The purpose of the separate judgment requirement is to alleviate the "considerable uncertainty over what actions of the district court would constitute entry of judgment, and [the] occasional grief to litigants as a result of this uncertainty." United States v. Indrelunas, 411 U.S. 216, 220, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973). The Supreme Court has held that the rule "must be mechanically applied to avoid new uncertainties as to the date on which the judgment is entered." Id. at 221-22, 93 S.Ct. at 1564.*fn2

The two leading authorities on federal procedure make clear that the process of entering judgment is not completed until the judgment is recorded on the docket by the clerk:

  "Entry of judgment" presupposes, of course, the
  rendition of a judgment, which is a judicial act,
  followed by the proper notation of the judgment in
  the civil docket, which is a ministerial act of
  the clerk. 6A J. Moore, Federal Practice
  ¶ 58.05[2] (1979).
  To be effective as a judgment it is the separate
  document known as a judgment that must be entered
  on the docket. . . . Even though the separate
  document exists in proper form, there is no
  effective judgment until it is entered in the
  docket. Although occasionally a court has been
  willing to overlook the failure to enter a
  judgment in the docket, this is undesirable. The
  requirement that a judgment be on a separate
  document and that it be entered in the docket
  should be regarded a[s] mandatory in all cases. 11
  C. Wright and A. Miller, Federal Practice and
  Procedure § 2785 (1973) (footnotes

Were we to hold that the date of issuance of the judgment document, rather than the date of entry on the docket, starts the period running for notice of appeal and other post-judgment motions, given the delay which often occurs in entering the court's actions on the docket sheet, the time for filing such motions would sometimes run before the parties ever had notice of the court's judgment. The problem would be particularly acute for filing notice of appeal, since if notice is filed before the Rule 58 judgment is entered the appellate court does not have jurisdiction to decide the case. See Furr's Cafeteria, Inc. v. NLRB, 566 F.2d 505 (5th Cir. 1978); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir. 1970); 11 Wright and Miller, supra § 2781 n. 8. Cf. note 2, supra.

Our decision is consistent with the opinion of the Seventh Circuit in Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974), where the court held that the date of entry as reflected on the docket could not be challenged by an affidavit to the effect that entry was actually made at some later date. Id. at 902. Brainerd suggests that if the docket had reflected some date other than the date on which the judgment was signed, the date of entry would be controlling. Some time after that decision the Clerk of this court changed procedures to reflect on the docket the actual date of entry as well as the date the judgment or order was issued. In the instant case, while the Rule 58 judgment was ...

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