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 (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 ...