United States v. F. & M. Schaefer Brewing Company

PETITIONER:United States
RESPONDENT:F. & M. Schaefer Brewing Company
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 79
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 356 US 227 (1958)
ARGUED: Jan 06, 1958
DECIDED: Apr 07, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – January 06, 1958 in United States v. F. & M. Schaefer Brewing Company

Leonard B. Sand:

Mr. Chief Justice, may it please the Court.

This case arises on the writ of certiorari to the Court of Appeals for the Second Circuit, which Court dismissed the Government’s appeal as untimely filed.

The facts are not in dispute.

This was a suit for refund of taxes and the taxpayer moved in the District Court for summary judgment.

And on April 14th, 1955, the district judge granted an opinion which quoted and relied upon the opinion of another district judge in another case.

And that opinion concluded with the language which appears on page 4 of the record.

I am in agreement with Judge Leibell’s analysis and accordingly, the plaintiff’s motion is granted.

On that same day, the clerk of the Court made an entry in the civil docket which appears at the top of page 2 of the record.”April 14th, Rayfiel, J. Decision rendered on motion for summary judgment.

Motion granted.

See opinion on file.”

On May 24, 1955, the district judge signed a paper submitted not by the Government but by the taxpayer which was — had a judgment and which appears on pages 4 and 5 of the record.

That document after — reciting that the Court’s opinion having been duly filed herein, it has ordered adjudged and decreed that the plaintiff, Schaefer Brewing Company recover of the defendant certain sums spelled out in that document.

The document was stamped, judgment rendered, dated May 24, 1955.

And on that date, the clerk made the docket entry which appears on page 2 of the record.

May 24, Rayfiel J. Judgment filed and docketed against defendant in various sums of money that spelled out.

The Government filed its notice of appeal on July 21, 1955 which was 98 days from the original grant of the motion from the decision and 58 days from the filing of the judgment, the form of judgment signed on May 24th.

The taxpayer moved in the Court of Appeals to dismiss the Government’s appeal as not timely brought.

That is not brought within 60 days from the entry of the judgment as required by Rule 73.

Thus, looking at pages 4 and 5 of the record, the first issue in this case is whether the opinion of the District Court granting the motion was in and of itself the judgment of the Court, the final disposition by the district judge of that case.

Or whether the document headed in a stamped judgment dated May 24th, 1955 submitted by the taxpayer and signed by the district judge constitutes the judgment in the case.

And the second issue, looking at page 2 of the record is whether the April 14th entry decision rendered on motion for summary judgment constitutes an entry of judgment, a docket entry of judgment which contains the nature and substance of the judgment as required by the rules to begin the running of the period within which an appeal must be taken.

Or whether the May 24th entry is the applicable judgment entry.

Felix Frankfurter:

Mr. Sand, may I ask at the outset, in order to appreciate the reach of this — does the — in the problem of this kind, appreciate the general problem, but does the specific setting in which the problem arises in the Second Circuit raised the question for all the other circuits or other variations in the different circuits regarding the practice of what they do about, what they say when they file opinions and make docket entries thereon and then later there’s a later entry.

What is (Inaudible)?

What is the situation?

Leonard B. Sand:

Well, the crucial question that the Second Circuit has — has held and the other circuits would agree, is the intent of the — of the district judge.

And to some extent in evaluating, in categorizing the words used by the district judge resort has had to local practice.

Felix Frankfurter:

Well, this — this question may not — this — you — one cannot say that this raises that question of statutory construction which will hereafter govern every circuit.

Leonard B. Sand:

I — I think not.

I think that one says — let me make that clear.

Leonard B. Sand:

I think that there is now an explicit conflict between the Second Circuit and the First Circuit.

And — and that the decision below is also inconsistent with decisions reached in the Fourth and the Ninth Circuit.

I think that these circuits disagree as to the interpretation of Rule 58.

Subsequent to the decision in the Schaefer case, the First Circuit in United States against Higginson reached a result which it recognized was inconsistent with the Second Circuit’s result.

The First Circuit said that where the district judge later signs a formal order that becomes relevant in determining whether he intended the first memorandum decision to be his final disposition in the case.

And referring to the Schaefer opinion said that that was influenced by a local rule.

Subsequent thereto, the Second Circuit decided the Matteson case which is reprinted in the appendix to the Government’s petition for certiorari.

And in that opinion, Judge Clark said, “No, the local rule merely corroborates Rule 58 and this — our decision is based on — on Rule 58.”

Felix Frankfurter:

I suppose that.

I only let you — see what you have to say but if the thing turns on intent — intent, maybe what the district judge manage to do, what he sought to be accomplished, then one either has to say that you look for nothing but the word and they must mean the same thing in whatever circuit they arise or if its other things — other understanding except words, then that’s (Inaudible), you must have local differences.

Leonard B. Sand:

Well, you — you look to the words and — and you look also the words used by the district judge and you look also to the rules of — of civil procedure which of course a uniform throughout the country to see whether those words satisfy the requirements set forth in the rules.

But I want to emphasize that there is a clear conflict between the circuits which is in no sense dependent on any local rule of court.

Was any other circuit —

William J. Brennan, Jr.:

Mr. Sand —

Excuse.

William J. Brennan, Jr.:

Go ahead.

Is any other circuit that have local Rule 10 that they have in the Southern District and the Eastern District?

Leonard B. Sand:

I– I know of —

Local Rule 10 in effect says that the opinion of the Court is to be deemed the order, right?

Leonard B. Sand:

But it goes on to say Mr. Justice Harlan that nothing in that rule will prevent the district judge from settling —

(Voice Overlap) —

Leonard B. Sand:

— a more formal order which — which in fact the district judge did in this case.

Judge Hartigan distinguished in the Higginson case, the Schaefer case on the basis of the local rule and then went on to say that the Schaefer case was intended to mean more than the reliance on a local rule.

They disagreed with it in the First Circuit.

Leonard B. Sand:

That’s — that’s —

And Judge Clark came back and said that local rule didn’t have any independent force, it was of the confirmatory of what the Second Circuit understood the Federal Rules of Civil Procedure to be, isn’t that the wording?

Leonard B. Sand:

It’s — exactly so.

And — and so the decision stands as an interpretation of Rule — of the Rules of Civil Procedure apart —

Felix Frankfurter:

Well, it may get — one gets lost in words in this problem.

I rely on words for the — for the proposition obvious enough that while no local rule can change the terms of the legislation or that the statute of Congress or the rules adopted not changed by Congress.

Felix Frankfurter:

Statutory standard cannot be changed by local practice but local practice may determine whether the standard is satisfying.

William J. Brennan, Jr.:

Mr. Sands, may I — do I correctly infer from what you have said about the determination of several circuits that none of them has suggested that without regard to the attempt of the district judge, there was no judgment until a formal paper captioned judgment is entered.

Do you know?

Leonard B. Sand:

I’m — I’m not — I’m not certain that I understand your question.

William J. Brennan, Jr.:

Well, what I mean — what I mean is, has it been suggested by anyone that you don’t have a judgment until there’s a formal judgment entered, in other words, that you can’t spell a judgment merely out of a docket entry.

Leonard B. Sand:

I think, no.

I think that — that it’s clear under the rules of as — as they now exist that if the decision of the district judge satisfied the requisites of a judgment and by that — and we take those requisites to be that it contained judgment language that language which will clearly indicate to the lay personnel of the clerk or clerk’s office that it is to be the judgment.

And if it goes on to state the — the amount of the recovery, the — if it tells what a judgment must tell, who is to pay what to whom and the money —

William J. Brennan, Jr.:

In other words — but here, it had said at the end of the opinion, the district judge have said, “I adjudge and decree that there shall be recovered by the plaintiff from the United States X dollars.”

That would have satisfied it?

Leonard B. Sand:

That — if that had been the case and had the clerk made a — an entry in the docket which satisfied a Rule 79 indicating the nature and substance of the judgment then — then the time to appeal would begin to run from the time of that entry.

I think that’s correct.

I think that —

William J. Brennan, Jr.:

And the Government doesn’t take a different view of the rule?

Leonard B. Sand:

The Government does not take the view that — that the document which is the opinion of the Court cannot also serve as the judgment of the Court if it contains the essential elements of the judgment, which is as I say, if it contains language which directs the use of language of the rule directs the clerk that the plaintiff has to recover the money and if it spells out the — the essential elements of a judgment, who is to pay what to whom.

Felix Frankfurter:

Isn’t that the Bedford case, for — even for all the purposes of our jurisdiction.

Leonard B. Sand:

I — I think that’s correct.

Felix Frankfurter:

So that tomorrow, if this Court sustained — if we sustain the Government’s claim in this case to theirs, our judgment comes down, the Court of Appeals of the Second Circuit can effectuate its present rule by — by providing for its own rules that that what was done on April 14th to be final and nothing more shall be entered, couldn’t it?

Leonard B. Sand:

No, I — I think not.

Felix Frankfurter:

Why not?

Leonard B. Sand:

I think — I think —

Felix Frankfurter:

Why not?

Leonard B. Sand:

Well, I think if this Court reverses and says, no, the opinion of April 14th did not constitute.

Felix Frankfurter:

In this case, I’m talking about the future.

Leonard B. Sand:

Well, I think then the rule would be for the future.

Felix Frankfurter:

Yes.

Leonard B. Sand:

That’s that.

Felix Frankfurter:

That’s what you mean.

Leonard B. Sand:

Yes.

That for an opinion, the document which also serves as the opinion to constitute the judgment of the Court for it to serve those purposes, it must contain two elements which the opinion in this case did not contain.

Leonard B. Sand:

It was contained, one, a direction to the clerk operative language not merely plaintiff’s motion is granted which is — which is opinion language.

These — the entries have to made by — by court clerks.

Felix Frankfurter:

But all of that could be direct — well then, tell me why I am wrong.

I am not saying that that makes any difference but I just want to see what we’re going to do in this case.

Leonard B. Sand:

Yes.

Felix Frankfurter:

Tell me why I’m wrong in thinking that if the Government’s position in this case is to stay, the Second Circuit can continue what it conceives to be its lawful present practice by — so provided so that by then — and furthermore, I don’t think I agree with you that an incorporation by a reference in the prior decision doesn’t tell you what the decision is about.

Leonard B. Sand:

I — there are — there are two elements in your — your remarks Mr. Justice Frankfurter but — but — I’m not clear —

Felix Frankfurter:

But assume — don’t — go into that — go into the — assume the opinion satisfies the — the particularity required by the rules.

According to the Second Circuit tomorrow in futuro provide for it to continue into this present practice.

Leonard B. Sand:

Well, I — I think it could not provide that in opinion which I suppose one could conceive of a rule which would say hereafter, whenever a District Court opinion ends a motion granted and if the opinion states the — all the requisites of —

Felix Frankfurter:

Yes.

Leonard B. Sand:

— the judgment, that will be the —

Felix Frankfurter:

Well they could agree upon that when they lunched together.

Those judges do in the Second Circuit that hereafter, whenever they do that, the opinion should set forth with particularity, couldn’t they?

Leonard B. Sand:

They — they could.

Felix Frankfurter:

All right.

Leonard B. Sand:

But in which case there would be a change in — in the practice as it — as its invasion by the Schaefer decision.

There would — there would not really be a continuation of — of the result that we see reflected in Schaefer because —

Felix Frankfurter:

In other words, they could make the date of the appeal run from the days that the judge decides that he thought definitively.

Leonard B. Sand:

I think they could do that.

But I think they would also have to say before the date of the opinion will be the date of the judgment.

It must comply with the rules and it must indicate that it is to be a judgment and it must contain the essential elements in the judgment.

Felix Frankfurter:

(Voice Overlap) for the district judge to do that on April 14th?

Leonard B. Sand:

I didn’t hear you.

Felix Frankfurter:

You mean, it’s very difficult for judges to do that hereafter.

Leonard B. Sand:

I don’t think it’s difficult but I don’t think that the judge in this case did that.

Felix Frankfurter:

I wasn’t — I’m not talking —

Leonard B. Sand:

Yes, —

Felix Frankfurter:

— about this case.

I’m talking about the consequence of a ruling in favor of the Government.

Well they couldn’t do that if we interpreted the Federal Rule is requiring a separate instrument entitled to a judgment, could they?

Leonard B. Sand:

They could not do that.

The Government concedes that —

Felix Frankfurter:

That’s one of the questions that’s involved here, as to whether the rules does require a separate instrument, isn’t it?

Leonard B. Sand:

Well, the Government’s position is that the presumption will — should be that a case will be terminated in a form of judgment.

We concede that under the rules as they now stand, there is not a need in every case for a separate document to be had at formal judgment that it is possible under the rules for the document which is the opinion also to serve as the formal judgment.

If in fact it contains the elements which — which we regard as essential to a judgment a direction for the clerk and an indication of who is to pay what to whom.

If — if the opinion is so clear that — that it is to be treated as a judgment and in fact the clerk regards it as a judgment and makes the — a judgment entry then there is — is no need, we conceive, for a separate document.

Charles E. Whittaker:

Now, Mr. Sand, let me see if I follow you.

Are you saying the clerk has the discretion as to whether he will treat the Court’s announcement as a judgment or won’t?

Isn’t this the situation, the appeal of course in real time runs from the date of the entry of the judgment?

This is an action for the recovery of money, isn’t it?

Rule 58 says that when the Court directs that a party recover only money or cost or that all right be denied, the clerk shall enter judgment forthwith upon receipt of the direction.

Now, the clerk has no authority to enter the judgment until he has a direction to do so from the Court.

Am I right?

Leonard B. Sand:

That — that is correct.

But —

Charles E. Whittaker:

Now, not need not be in writing, you don’t insist, do you?

Leonard B. Sand:

Yes, but — it could (Voice Overlap) —

Charles E. Whittaker:

Could the lower court, as I have done many times, simply direct the clerk from the bench to enter a specific judgment.

Isn’t that good?

Or couldn’t I do the same thing in a written opinion where I dispose of the issue?

You’ve been writing a direction to the clerk down to the same judgment?

Leonard B. Sand:

You could Mr. Justice Whittaker and — and if — if it was a direction —

Charles E. Whittaker:

Yes?

Leonard B. Sand:

And if the opinion or other document —

Charles E. Whittaker:

Yes.

Leonard B. Sand:

— in which that direction was embodied.

Charles E. Whittaker:

Or verbal announcement.

Leonard B. Sand:

Or verbal announcement, had all the requisites of the judgment.

Charles E. Whittaker:

Correct.

Leonard B. Sand:

And the clerk made a notation in the docket which contains a nature in substance of that.

Charles E. Whittaker:

In pursuant to that direction.

Leonard B. Sand:

Then — then the time to appeal would begin to run from that entry.

Charles E. Whittaker:

Local rules couldn’t affect that, could they?

Leonard B. Sand:

No.

This would — this would be under the — under the Federal Rules.

Charles E. Whittaker:

Now you contend here that the — if there was a direction, it was not complete.

In that it did not fix the date from upon which the or from which interest would accrue, isn’t that it?

Leonard B. Sand:

Well — that — that it contained — it lacked the direction.

It merely has the — the general language motion is granted and also it did not say who was to pay what to whom.

It was impossible looking at the four corners of the opinion of the district judge in this case to determine the exact amount which was the plaintiff was to recover of the defendant.

And — and for that reason, we think that the opinion did not satisfy the requisites of a judgment.

And — and we also think that the entry of the clerk which did not even indicate which party had prevailed below on April 14th was not an entry of the — which indicated the nature and substance of a judgment which the rules require.

Felix Frankfurter:

Mr. Sand, am I right in — in reading the — the rules, the Federal Rules as defining a judgment not intrinsically but functionally.

It’s the basis on which an appeal lie, isn’t that it?

Leonard B. Sand:

That — that —

Felix Frankfurter:

(Voice Overlap) —

Leonard B. Sand:

That’s the only definition of —

Felix Frankfurter:

Pardon me.

Leonard B. Sand:

The only definition of judgment is in Rule 54 (a) and it is as Your Honor stated.

Felix Frankfurter:

The function that it said, mainly, it’s the last step in the process so that you can go up to the higher court, is that right?

Leonard B. Sand:

I — I think that’s right.

With — envisions a document which will culminate the litigation.

A — a document which will apprise the parties of — of what the consequences of the decision below has been and we think that one of the evils of — of — of the — the decision below is that it treated an opinion which did not do that —

Felix Frankfurter:

Well, now —

Leonard B. Sand:

— as to judgment.

Felix Frankfurter:

Is there anything in the rules that prevents a particular circuit in the interest of expediting appeals in arresting that great evil in American litigation dilatory to provide that it should all be done on the final day, in one act.

The judge should hand on an opinion, that he writes an opinion as he should in all but exceptional cases.

And then in there translates that opinion into a final document for purposes of going upstairs.

Leonard B. Sand:

I know nothing in the rules that would prevent a particular circuit from saying when a district judge determines a motion, he shall also enter judgment — indicate the judgment in that case by directing the clerk to — by directing that the party recover and spelling out the exact amount.

But the difficulty that arises there, Mr. Justice Frankfurter, is that in — in some cases, particularly in tax cases, the — let me — if I may present a hypothetical.

Suppose the issue is whether a particular transaction resulted in income in 1941 and 1952 or was — or was a gift or not a sale.

The District Court may in an opinion indicate how the various transactions are to be treated.

But the computation which must follow thereafter becomes an extended process.

If — if under the —

Felix Frankfurter:

It can’t be anything but a ministerial process.Of course, it can’t be anything but a ministerial process?

Leonard B. Sand:

Well —

Felix Frankfurter:

The clerk can fill out that he can’t do anything except an arithmetic or what I call a ministerial thing.

Otherwise, you’re transferring the judicial functions to the Clerk’s Office.

Leonard B. Sand:

Well, I think that’s right.

But if — if the opinion does not leave unanswered only matters which can be ministerially handled and is accorded a judgment — the status of judgment which — which Schaefer indicates would be the case, then the time to appeal might begin to run or even expire before the parties knew who was to pay what to whom.

And — and as Mr. Justice Whitaker indicated, the opinion of the district judge below did not indicate one of the crucial elements in determining what the consequences of this judgment would be.

He did not indicate the date on which the taxpayer paid his taxes.

And under the applicable statute, interest runs from that date of payment.

So, if that have been possible for the clerks in this case from the — within the four points as of the opinion itself to have determine the amount — the amount of the judgment.

They would have to go beyond that to the pleadings and to the answer and submit that the — the function of a judgment is — is — is to be a document which culminates the litigation and which presents in that one collection of words, the — the consequences of the litigation.

Hugo L. Black:

But an execution have been issued on this?

Well, no.

Hugo L. Black:

It had been against the (Inaudible)?

Leonard B. Sand:

Mr. Justice Black —

Hugo L. Black:

(Voice Overlap) — that an execution has been issued basing on the decision that —

Charles E. Whittaker:

(Inaudible)

Hugo L. Black:

— It’s about the party?

Leonard B. Sand:

I think not Mr. Justice Black.

Hugo L. Black:

Why?

Leonard B. Sand:

Well, under the — under the practices of — of the Eastern District of New York —

Hugo L. Black:

I’m not talking about the practices, I’m talking about this judgment.

Leonard B. Sand:

Well —

Hugo L. Black:

Can you issue an execution on the judgment with doesn’t fix an amount?

Leonard B. Sand:

I think, no.

No.

Hugo L. Black:

Can it be a judgment if it doesn’t fix an amount?

Leonard B. Sand:

No.

It — the writ of execution must be for a — a specific sum which must be spelled out.

As a matter of fact, we — as we show in our reply brief, the taxpayer who now says that the formal judgment was a useless thing, could not have been paid unless he had a document which spelled out the amount of the recovery.

But the suit was brought not to obtain an opinion but to obtain the payment of money and without — without going beyond the opinion of the District Court and securing this formal document — this document which said who was to pay what to whom, the taxpayer could not have — have received its money.

Charles E. Whittaker:

Mr. Sand —

Leonard B. Sand:

We —

Charles E. Whittaker:

— just one brief question.

I know — I hate to take your time.

But, if the intention has anything to do with this, the intention of the District Judge does not the fact that he later, after pronouncing orally the judgment or the writing of his opinion later enters a formal entry of judgment have some bearing upon the fact that he didn’t intend his first pronouncement to be the judgment.

Leonard B. Sand:

I — I think it has — it’s crucial.

And the First Circuit agrees and the Fourth and the Ninth Circuit agrees.

And — and the decision of this Court in United States against Hark is to the same effect.

One shouldn’t presume that the District Judge in later signing the formal order performed a useless act or an act intended improperly to extend the time — the time for appeal.

I think that — that that — that in determining intent, of course we should look to what the — what the District Judge later did.

I think there’s — I think that Court congestion need not result from a — a reversal of the decision below.

It is always available to the district judge.

If he does not have before him the necessary information to — to enter a — a document which contains the requisites of a judgment to prescribe the time within which the parties must do that, he can still retain control.

Felix Frankfurter:

Why do you — why do you suggest or agree that intention is the determining thing.

Why should we — isn’t that a confusing and a disturbing test to apply?

We’re not saying, why not go after what is essential mainly?

Whether the particular situation, the particular piece of paper, the particular entry is or is not a finality of the process so far as the District Court is concerned as a basis of going up to the Court of Appeals or so far as the Court of Appeals is concerned for coming here, for being allowed to come here.

Why is that — why do we have to constantly invoke that cloudy search intention —

Leonard B. Sand:

(Voice Overlap) —

Felix Frankfurter:

— then disregard the intention.

I should pick the Court of Appeals of the District — of the circuit is the best and most authoritative voice as to what is intended and yet it’s disregarded here?

Why do we disregard it?

Because the objective circumstances as you argue don’t satisfy.

Leonard B. Sand:

Well, I think the only reason we — we refer to retention is because the variety — there’s a variety of words which may be used that — and words have — in interpreting words, one — one frequently lead us to retention.

We think the consequence of the decision below will be the — in many cases rather than eliminating another document of formal judgment.

There will be two judgments, one of which will measure the time for appeal, one of which will be necessary to secure execution, to secure payment to record the judgment to obtain a lien in — in the state courts.

Nothing in the Federal Rules suggest that there should be more than one judgment and the result we think needs — leads to ambiguities and confusions.

Charles E. Whittaker:

Or in other words, there cannot be more than one judgment, is it?

Leonard B. Sand:

I — I think it’s implicit throughout the rules and in the whole concept of a judgment that it is a single document which — which culminates the litigation here.

Earl Warren:

Mr. Burke.

Thomas C. Burke:

Mr. Chief Justice, may it please the Court.

The question as to the timeliness of the appeal in this case depends on when judgment was rendered and when judgment was entered.

Although that question may depend to some extent on local rules and practice as they affect judicial intent, our first point of departure is Rule 58 of the Federal Rules of Civil Procedure.

Plaintiff’s contention of respondent here, is that in this case, Rule 58 disposes of the question completely without ever having to resort to local rules to ascertain the judicial intent.

This was a case for the recovery of money only.

The sentence of Rule 58 which Mr. Justice Whittaker read a few moments ago expressly provides that where only money is recovered where there is a direction for the recovery only of money, judgment is to be entered forthwith.

Charles E. Whittaker:

If the Court so directs the clerk (Inaudible).

Thomas C. Burke:

The rule of — of — I don’t want to dispute the — the — but I would like to quote the exact language of the rule which states, “When the Court directs that a party recover only money, etcetera, the clerk shall enter a judgment forthwith upon receipt by him of the direction.”

The word direction must prefer to the — relate back to the word directs in the clause preceding it.

It’s enough that there be a direction for the recovery of money to permit the clerk to enter a judgment.

Earl Warren:

Mr. Burke, the — the complaint is not in the record and I wonder if the judgment, the final judgment, whichever is the final judgment, used judgment for the precise amount paid for in the complaint.

Thomas C. Burke:

The — is a — are you referring to the final judgment as the later document which the judge signed?

Tom C. Clark:

Well, if — if not the amount that you have — you would’ve executed on, if you had — if you had levied under your — under your judgment as you conceive it.

Thomas C. Burke:

Oh, may I say this that the compliant does expressly set forth the amount that was paid and for which suit was being brought.

It also sets forth the date of payment so that there could be no question as to the amount of interest or the amount of the recovery attack itself.

Charles E. Whittaker:

(Inaudible) appears from the requirement in the complaint?

Does it require the dates here, some requirement from the complaint whether that should be in the judgment?

Thomas C. Burke:

The judgment sets forth the — the amount of the tax that was paid.

Charles E. Whittaker:

Yes.

Thomas C. Burke:

There was no dispute over the dates.

The — the judge might or might not have put it in but there was certainly no reason for his putting it in.

Charles E. Whittaker:

But now, if it is in there, can the clerk automatically compute the interest?

Thomas C. Burke:

The clerk can automatically compute the interest.

If you thought you had a judgment by virtue of Judge Rayfiel’s opinion, why did you submit a judgment for signature?

Thomas C. Burke:

Hindsight, Mr. Justice Harlan, suggest to us that — that it might have been the better course not to do it.

(Inaudible)

Thomas C. Burke:

I cannot say from personal knowledge why it was done except that the individual who did prepare and submit it may have been affected by notions of state practice.

The fact that it was done however, what we submit, cannot affect the proper instruction of this Federal Rule.

Well, isn’t that (Voice Overlap) every careful law office does.

I can’t remember a case that I had where I didn’t follow and particularly if I wanted, by a formal judgment.

Thomas C. Burke:

Well, may I say this, Your Honor, it — it is certainly a frequent thing to do.

I can’t introduce any statistics as to how often it’s done.

But in view of the repeated pronouncements of the Second Circuit that the practice is incorrect, I can’t see any reason why it should be considered.

And I can’t see that it should be allowed to become the correct practice merely because lawyers do what their circuit says that’s improper.

Charles E. Whittaker:

(Inaudible) are rather sent back as on (Inaudible) because I guaranteed from the oral direction of the clerk — the Court, didn’t the clerk enter a judgment.

The Court of Appeals doesn’t appeal.

The appeal was premature.

You have to await the entry of the formal entry of judgment.

And I — that the — the type of thing that ought to be settled uniformly throughout the country, isn’t it?

Thomas C. Burke:

I don’t think that —

Felix Frankfurter:

It depends —

Thomas C. Burke:

— in all inclusive rule can be stated on that, Mr. Justice Whittaker.

For this reason, there are — there are two types of cases, I think.

The first type would be where the direction for the recovery of money is clear on its basis.

We say parenthetically that it was clear here because the amount was stated in the opinion and the opinion was clear that it represented the respondent’s adjudication.

The second type of case would be where the direction is not so clear.

It may or may not constitute a direction.

In those cases, the judicial intent can be clarified by — resort to local rules in practice.

When we do that on each case, assuming that the direction was not clear on its face, we find a local rule which states that the memorandum of a termination of a motion shall constitute the order.

The order is a direction and therefore under the local rule which have now been construed by — by the number of decisions of the Second Circuit and are no longer open to doubt as to their own rule.

Under those local rules, we do have the words of direction which might or might otherwise be spelled out from the district judge’s actions.

Turning just briefly to the —

Felix Frankfurter:

Do any of these opinions to which you refer give any history beyond whet Judge Clark gave in his opinion?

Felix Frankfurter:

As to the origin of it and the consideration of it, and things that move those judges?

They were after all have had a good deal of experience of these matters to (Voice Overlap) —

Thomas C. Burke:

(Voice Overlap) —

Felix Frankfurter:

— for there to be such a rule and to sanction it?

Thomas C. Burke:

There is very little in the decided cases, Mr. Justice Frankfurter.

The Roth case thus — makes some analysis of —

Charles E. Whittaker:

Roth?

Thomas C. Burke:

United States versus Roth.

Charles E. Whittaker:

(Inaudible)

Felix Frankfurter:

The one that came here?

Thomas C. Burke:

That case did not come up here.

Felix Frankfurter:

Not on that point.

Yes, all right.

Thomas C. Burke:

Not on that point.

In that case, there is some analysis of local practice but it is not by any means all inclusive and really doesn’t a shed a great deal.

Felix Frankfurter:

To my self, I don’t see why one circuit shouldn’t be more expeditious than another.

I can’t understand why that should be —

Charles E. Whittaker:

Shouldn’t be all be expeditious?

Felix Frankfurter:

Well, we —

Charles E. Whittaker:

(Inaudible) rules of requirements.

Thomas C. Burke:

Well, of course, I believe in this case that in any circuit, the Government’s appeal would have been untimely by reason of Rule 58.

I certainly agree that appeal should be expeditious in — in all circuits.

Felix Frankfurter:

Well, it’s meant — the notion of how to expedite differ, which is a large (Inaudible).

Thomas C. Burke:

I would like to turn briefly to the question —

William J. Brennan, Jr.:

May I ask Mr. Burke this question.

As I recall it, the clerk stamped the — the formal judgment, would he not, with a stamp which judgment entered the day of May 24 or something like that?

Thomas C. Burke:

Words to that effect.

William J. Brennan, Jr.:

Is that an indication that to him at least, the judgment was the formal document that he so stamps and that the notation that he made was not a judgment in response to any direction?

Thomas C. Burke:

It’s possible although — we don’t know that the clerk —

William J. Brennan, Jr.:

No, I’m — just from the face of it, the stamp is that judgment entered, (Inaudible) May 24th, 1955, (Inaudible), Clerk.

Thomas C. Burke:

I think the answer to your question, Mr. Justice Brennan, it should be that the clerk’s job is not to decide or to interpret but simply to record.

If the opinion did constitute a judgment, then the clerk’s act in duly recording it was an act of entry of judgment.

William J. Brennan, Jr.:

Yes, but the rule itself contemplates that there’s no judgment although there’s — such action taken by the clerk, isn’t it?

Thomas C. Burke:

Oh that’s what — that’s correct, Your Honor.

William J. Brennan, Jr.:

The rule says that the — the clerk shall enter the judgment forthwith upon receipt by him of the direction.

And they gather that at least — certainly it’s permissible entrance from what he did down the formal document that he thought within response to his — the direction, this was the judgment entered on that day.

Thomas C. Burke:

But our point is that the clerk is directed by the rules to perform a ministerial act which he did in fact perform on the earlier date.

And if he performed all that was required under the rules, then there was a —

William J. Brennan, Jr.:

I mean, even though he didn’t think he was doing it.

And assuming that that have (Voice Overlap) —

Thomas C. Burke:

He might not have thought about it.

William J. Brennan, Jr.:

Even if he didn’t think he was, nevertheless, the notation he made, motion granted or whatever it is.

Thomas C. Burke:

He performed his ministerial duty in — in entering the judgment on the earlier date and he may or may not have thought that that was the judgment.

William J. Brennan, Jr.:

Well, now —

Thomas C. Burke:

When the later document —

William J. Brennan, Jr.:

Let’s look at that.

All that he did on April 14th, was that the note, Rayfiel, J.

Decision rendered on motion for summary judgment.

Motion granted.See opinion on file.

That’s all he did.

Thomas C. Burke:

That entry was enough to tell anyone who is interested in the case exactly what had happened.

The parties —

William J. Brennan, Jr.:

It’s the same with what I’ve told you

Thomas C. Burke:

There had been only one motion for summary judgment and that motion was granted.

William J. Brennan, Jr.:

But for me, it didn’t — it didn’t seem that — it been — that information to you because you later submitted a formal judgment.

Thomas C. Burke:

Well, may I say this that there is a difference between what a party may do and a difference between what he ought to do.

We don’t claim to be able to shed — to destroy the validity of the judgment by any actions which we may have taken ourselves.

If what was done on the earlier date did constitute the entry of judgment, nothing we could do to change that judgment.

Earl Warren:

Mr. Burke, would you — would you answer Justice Black’s question to Mr. Sand as to whether you would’ve levied the execution on that first minute order?

Thomas C. Burke:

I was just turning to Mr. Justice Black’s question and I can only state in my opinion as a lawyer and not from any factual material in the record that execution could have been obtained.

Thomas C. Burke:

The practice in the Second Circuit is that a lawyer acting as an officer of the Court swears out a writ of execution before the clerk.

The clerk may or may not check some record of judgments.

Assuming that the clerk first of all might have refused to issue an execution, if in fact, there was a judgment here, there was certainly a procedure whereby the clerk could have been directed to issue execution.

Earl Warren:

What was — what was the procedure?

Thomas C. Burke:

Why?

I don’t think there are or has been such an attempt, Mr. Chief Justice but further proceedings by way of mandamus would undoubtedly be proper.

Hugo L. Black:

Either had to show any — had a good judgment, wouldn’t he?

Thomas C. Burke:

Yes, sir.

Hugo L. Black:

Suppose it just had been a suit on a tort, $5000 at the first submission, would judges write exactly the same opinion he has here that says summary judgment entered for the plaintiff.

Could an execution have been issued on that?

Thomas C. Burke:

I believe it could have, Mr. Justice Black.

Hugo L. Black:

How much would it then cost?

Thomas C. Burke:

On that — the execution could have included interest, I believe.

Hugo L. Black:

I’m not talking about interest.

How much money was it?

Thomas C. Burke:

Oh well, the money, the — the —

Hugo L. Black:

Wasn’t the (Voice Overlap) —

Thomas C. Burke:

The amount —

Hugo L. Black:

— but it wasn’t a judgment by default, it was a summary judgment.

Thomas C. Burke:

The — the amount would have been the tax plus interest.

Hugo L. Black:

I’m not talking about tax, the suit, the $5000 personal injury, we’re talking about judgment.

The suit for $5000 for personal injuries, that he suffers so much for — never paying it (Inaudible).

And the judge writes up an opinion, it says on the law here, summary judgment entered for the plaintiff.

Then the plaintiff found that they entered this same order.

Made it with some clerk, he says, “I want an execution.”

How much is he getting for it?

Thomas C. Burke:

Of course, the judge said more than that.

He said that in this case —

Hugo L. Black:

I’m not talking about — I’m talking about – do you go behind the judgment to find out the amount, to look at the papers, and the evidence, and so forth?

Thomas C. Burke:

In any —

Hugo L. Black:

Why do you have to depend to your amount on the judgment itself?

Thomas C. Burke:

You may go behind the judgment, we submit.

Hugo L. Black:

You can via of course a motion to amend nunc pro tunc, I suppose, or something of that kind.

But can you have a good judgment when you have sued for a certain amount either in Court or here and the judge just said, judgment for plaintiffs.

Thomas C. Burke:

We think we do, Mr. Justice Black and we think that the Federal Rules contemplate it.

Rule 58, another portion of the rule expressly states that entry of judgment is not to be delayed for the taxing of cost.

Hugo L. Black:

That’s right but —

Thomas C. Burke:

But how cost —

Hugo L. Black:

It’s an entry of — a judgment of something that a man had that tells him he’s got the right to some either money, an injunction, order somebody to do something.

What order was made here, either what the definite thing had to be done?

How can you say there is a judgment of that kind?

Thomas C. Burke:

The opinion of the Court, Mr. Justice complied with all of the requirements of Rule 58.

It was as much of a direction —

Hugo L. Black:

You think that Rule 58 provide that hereafter, a judgment need — never state the amount that that could be left in the air and the clerk somehow can figure that.

Thomas C. Burke:

I would like —

Hugo L. Black:

(Voice Overlap) —

Thomas C. Burke:

— to say first of all that that is a different case from ours because our — our opinion did state the amount.

Hugo L. Black:

Did it say a judgment for — entered a judgment (Inaudible)?

Thomas C. Burke:

It does say that the plaintiff sues for a specific sum of money.

Hugo L. Black:

I understand it said that and he could say that in a Court.

You said, he sued for $5000.

Thomas C. Burke:

And as the motion for summary judgment was made for that specific sum and the opinion ends with the words, plaintiff’s motion is granted.

There is no possible interpretation except that the motion was being granted for the sum in suit.

Hugo L. Black:

Why would a man have to appeal from the judgment, from an order which doesn’t state that he – how much he is to pay somebody on the money claimed?

Why — why would his (Inaudible), you claim you’re entitled (Voice Overlap) for a certain amount, made the most into the judge to complete that judgment?

You call it some kind of a primary entry or a primary entry of a judge.

Thomas C. Burke:

Why, simply because the overall policy of the Federal Rules as one of the expeditious entry of judgment and the prosecution of the field.

Hugo L. Black:

I agree with that, expeditious but does it do away with certainty in the amount?

Thomas C. Burke:

Of course, Your Honor, I don’t agree that there was uncertainty in the amount in this case.

If — your question is —

Hugo L. Black:

(Voice Overlap) — it doesn’t have to appear in the judgment.

Whenever — whichever the judgment was, whether it’s a personal (Inaudible).

You say it’s a good judgment even though it doesn’t fix the amount.

Thomas C. Burke:

It does fix the amount to this extent that it states the precise sum for which —

Hugo L. Black:

The judgment does?

Thomas C. Burke:

The opinion of the Court which we — we —

Hugo L. Black:

Well, I — I —

Thomas C. Burke:

— say as the judgment does.

Hugo L. Black:

Are you relying on the whole opinion there?

Thomas C. Burke:

Yes, sir.

We are, Your Honor.

Hugo L. Black:

Of the judgment?

Thomas C. Burke:

We think that the short opinion in this case was the judgment, the opinion as a whole.

It does end with the words —

Hugo L. Black:

What then — well, do you — do you find in there a definite statement that he owed a certain amount from — from the judgment?

Thomas C. Burke:

There is certainly no question reading the memorandum opinion as to how much the Government owed to plaintiff.

Hugo L. Black:

You do not rest then on this first order that was made on the document.

Thomas C. Burke:

Well, there are two items here.

First of all, the questions —

Hugo L. Black:

Rayfiel J., April 14th, the decision rendered on motion of the summary judgment.

Motion granted.

See opinion on file.

That’s not enough, would it be?

Thomas C. Burke:

Oh, I think it’s a proper notation of an entry of judgment.

There is a difference between what is the judgment of the Court and what constitutes an entry of judgment.

The clerk’s docket entry was the entry of the judgment.

The opinion of the Court was the judgment itself.

I would like to conclude with the statement that there may well be cases where it’s desirable to have a formalized judgment.

But, the decision as to what those cases are should rest with the Court and it’s easy enough for the Court to state in its opinion that counsel should submit a form of judgment for the Court to consider.

In this complicated cases involving computations, it may well be that that’s the preferable procedure.

Thomas C. Burke:

But it’s for the judge to decide that and not for the attorneys and if in fact, the judge does show final adjudication, then he has rendered judgment.

Felix Frankfurter:

(Inaudible)

Charles E. Whittaker:

(Inaudible)

Thomas C. Burke:

In very — many of the cases, a computation is necessary.

That is almost always apparent from the case itself.

Certainly, if it is not apparent, the attorney should bring it home to the Court that some computation is necessary and the Court can be guided by their advice as to whether or not it’s necessary to have a formal order.

In the Second Circuit, there is a standard practice when the Court intends to have a party submit orders for the judge’s signature.

The word settle orders are comparable language are used where the Court does not intend to have a further order presented, those words are lacking.

Felix Frankfurter:

Mr. —

Thomas C. Burke:

So —

Felix Frankfurter:

— Burke — I beg your pardon.

Thomas C. Burke:

So, I was — I was just going to conclude that in those cases where it is desirable to have the further formalized order, there is an appropriate procedure for doing it.

Felix Frankfurter:

Costs, do the — what is the range of cost of litigation in the Southern District?

Thomas C. Burke:

Why?

Felix Frankfurter:

Sometimes sizeable?

Thomas C. Burke:

In the ordinary case, Mr. Justice Frankfurter, they are nominal.I know — know cases where they’re really sizable.

I certainly haven’t seen any where they’ve been (Inaudible).

Felix Frankfurter:

(Inaudible)

Thomas C. Burke:

The printing in the ordinary case is — is not taxable as part of the cost in the federal —

Charles E. Whittaker:

(Inaudible)

Thomas C. Burke:

They would be, yes.

There — there could well, be cases where the cost are — are substantial.

Felix Frankfurter:

The reason I asked that question is because that the rule provide with the entry of judgment shall not await taxation of cost.

But you can have a judgment which is leviable in which you can get execution all over the total amount recoverable is not yet ascertained, is that right?

Thomas C. Burke:

That’s right, Your Honor.

I wouldn’t like to suggest that there is a difference depending on how large cost may be or —

Felix Frankfurter:

Well, I’m not suggesting that either but you may have a case in which as Justice Whittaker suggest.

The cost may amount to something, at least to some litigants who aren’t multimillionaires and yet, is that a judgment on which execution for the basis of which you can get execution but you haven’t got execution for all of it, is that right?

Thomas C. Burke:

Oh, that — that’s correct, Your Honor and it does show that every judgment so far as execution is concerned that may differ from the ultimate amount that may be recovered.

That’s true of interest, too where interest continues to run after the date to which it’s been computed.

William J. Brennan, Jr.:

What’s with the case here, Mr. Burke, was interest computed to the date of the form — entry of the formal judgment or —

Thomas C. Burke:

Interest was actually computed to the date of the formal entry which I think may have deprived plaintiff of a few dollars to which he was entitled on the theory that subsequent to that date, interest runs on interest by incorporating interest in the amount of principle that you — recovered himself.

William J. Brennan, Jr.:

Well, how do you — (Inaudible) — and this one is to the date of May 24th which was the date of the formal judgment presented not merely the April 14, the date of the judgment decision, isn’t it?

Thomas C. Burke:

That’s correct.

William J. Brennan, Jr.:

Didn’t deprive himself of anything, get something more with it.

Thomas C. Burke:

No, because interest continues to run afterwards and if you have —

William J. Brennan, Jr.:

Until the date of (Voice Overlap) of the judgment.

Thomas C. Burke:

— interest running for longer period, it would have a larger principal to someone which in —

William J. Brennan, Jr.:

He’d waited another couple of months, you mean, it’s been a larger —

Thomas C. Burke:

It — it would be a — it could vary depending on how long afterwards the recovery of the actual payment is made.

It could be greater or less depending on — on the time of law in — in minor amounts.

Earl Warren:

Why did you — why did you compute it up to the formal judgment if you rely it on the — on the first minute order?

Thomas C. Burke:

I think at the time that formal judgment was submitted, there was no thought of this issue in the case.

Earl Warren:

In other words, you took the same position as the Government at that time.

Thomas C. Burke:

It was lack of thought rather than affirmative thought.

Hugo L. Black:

(Inaudible)

Thomas C. Burke:

But we — we don’t contend that —

Hugo L. Black:

(Voice Overlap) —

Thomas C. Burke:

— that the procedural steps —

Hugo L. Black:

— judgment might be entered.

Sometime your first idea about the law might be better than the second.

[Laughter]

Thomas C. Burke:

But we would like to — thought about it a little.

Earl Warren:

[Laughter]

Felix Frankfurter:

I note that you say to the Government you’re another because they argued it, to borrow this Court’s from years ago that the opinion was a judgment.

For purposes of this very kind of a question, Bedford stated that —

Thomas C. Burke:

Well, in the — the Bedford case differed from this in that it was an appeal or certiorari to the Second Circuit.

Felix Frankfurter:

(Voice Overlap) — yes, I know but the question is to say what you can do whether 90 days means 90 days from what day?

Thomas C. Burke:

Except that different rules applied.

Felix Frankfurter:

Well, all I’m suggesting, the Government thought an opinion when the judgment was a —

Hugo L. Black:

When was that?

Thomas C. Burke:

The Bedford case I think was 1945.

Mr. Justice Frankfurter wrote the —

Hugo L. Black:

I thought that that was a little different.

Thomas C. Burke:

I think Mr. Justice Frankfurter wrote the opinion and I believe it was —

Felix Frankfurter:

I had a hard time to disapprove that the Government was right, to prove the Government was right, isn’t it?

Earl Warren:

Mr. Sand.

Leonard B. Sand:

Mr. Chief Justice.

With respect to Mr. Justice Black’s question as to whether writ of execution could be — could be obtained.

I — I agree with Mr. Burke that further proceedings would have been necessary before execution could have been obtained and it could not have been obtained merely on this opinion.

And I suggest that further proceedings that would have been necessary would have been mandamus to compel the district judge to sign a document which contains the elements that are found in the formal judgment.

Felix Frankfurter:

That answer — that answer is based on the assumption that a specific figure in the judges’ opinions are not to be deemed incorporated in the judgment, i.e. the entry of April 14th that that’s really at the heart of this business, to what extent you can incorporate in an informal statement to formalize terms and statement of the judges’ opinion.

If — if — I don’t know whether — I emphasized it maybe, if in this case, there isn’t any doubt as to the mathematical computation which followed the amount for which recovery could be had and the judge says, “Yes, you can recover what you asked for, $6000, whatever it is.”

It’s just like a bill in equity for specific performance in which you asked for the delivery of a (Inaudible) and the judge says “Yes.”

That’s the — the bill for specific performance is granted and the (Inaudible) should be delivered.

Now, I — you can’t incorporate that in the formalized statement of a — of a clerk’s entry.

I don’t understand.

Leonard B. Sand:

Well, even if you can, it was not done here.

Felix Frankfurter:

All right, (Voice Overlap) —

Leonard B. Sand:

Certainly in the April 14th entry.

And secondly, within the four corners of the opinion, you could not —

Felix Frankfurter:

All right.

Leonard B. Sand:

— in this case have calculated the amount.

Hugo L. Black:

I would ask you one more question.

I don’t know if it has anything to do with it but I’m wondering if there are any particular statute which controlled Government agents in the payments of judgment against the Government.

Leonard B. Sand:

We cite in the — in our reply brief to page 5, the Treasury regulations which applied at the time — the District Court rendered its decision in Schaefer and the construction of those by the Internal Revenue service and they would not have made payment unless they were submitted to them a document which contained the exact amount of the recovery.

And so, the taxpayer was qualified in this case to have secured the additional document high insider or not because without such a document, it could never had been paid.

Hugo L. Black:

Is there any challenge to the validity of that regulation?

Leonard B. Sand:

No.

Hugo L. Black:

I had an idea that there were general statutes which (Inaudible) considerably in the payment of judgment complying, it must be at a particular (Inaudible) formal judgment of the Court —

Leonard B. Sand:

Well, —

Hugo L. Black:

— that — that’s the one you referred to.

Leonard B. Sand:

— there was one — which applied in this — in this particular case that the prospect of the possibility of the taxpayer going to the Internal Revenue service with this opinion to obtain payment is what is on the (Inaudible).