850 F.

2d 641
11 Fed.R.Serv.3d 967

Robert LEWIS, Plaintiff-Appellant,

v.
B.F. GOODRICH COMPANY; Daniel Newsome; Roy Ailstock,
Defendants-Appellees.
No. 87-1110.

United States Court of Appeals,

Tenth Circuit.
July 5, 1988.

Jim Brent Smalling, Chickasha, Okl., for plaintiff-appellant.

C. William Threlkeld of Fenton, Fenton, Smith, Reneau & Moon,
Oklahoma City, Okl., for defendants-appellees.
Before HOLLOWAY, McKAY, LOGAN, SEYMOUR, MOORE,
ANDERSON, TACHA, BALDOCK and BRORBY, Circuit Judges.
LOGAN, Circuit Judge.

In this diversity action plaintiff Robert Lewis sued defendants B.F. Goodrich
Company, Daniel Newsome, and Roy Ailstock for slander in federal district
court. The district court granted summary judgment in favor of the defendants
by its order of December 18, 1986, and plaintiff filed a notice of appeal on
January 16, 1987, challenging this judgment. The issue before this en banc
court is whether we have jurisdiction over the appeal. In deciding this issue, we
reassess our holding in A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d
118, 120-21 (10th Cir.1981).1

The grant of summary judgment here was not an appealable final order because
a counterclaim by B.F. Goodrich against Lewis remained unadjudicated when
the district court entered summary judgment. Responding to a motion which
B.F. Goodrich had filed after the grant of summary judgment in the underlying
cause, the district court entered an order in late December staying proceedings

on the counterclaim. The order was labeled an "administrative closing order"

and stated:
3

"The Defendant B.F. Goodrich having requested the Court to stay its
Counterclaim in this cause of action, it is hereby ordered that the Clerk
administratively terminate this action in his records, without prejudice to the
rights of the Defendant B.F. Goodrich to reopen the proceedings for good cause
shown for the entry of any stipulation or order, or for any other purpose
required to obtain a final determination of the litigation.

IF, within 60 days from the date herein [December 29, 1986], the Defendant
B.F. Goodrich has not reopened the proceedings for the purpose of obtaining a
final determination herein, this action shall be deemed dismissed with
prejudice."

Administrative Closing Order, Case No. CIV-86-1227-BT (W.D.Okla.

December 29, 1986). B.F. Goodrich did not move to reopen the proceedings on
its counterclaim within the sixty-day time period; thus the closing order by its
own terms matured into a dismissal of the counterclaim with prejudice on
February 27, 1987, creating an appealable final judgment for the entire case.2

The fly in the ointment is that Lewis did not file a timely notice of appeal after
the administrative closing order terminated the entire litigation. Then, after
receiving notice that we were considering dismissing the appeal, Lewis and
defendants applied to the district court for certification of the December 18
order as final under Fed.R.Civ.P. 54(b). The district court granted the request
on May 13, 1987, but again no one filed a notice of appeal after that
certification.

If we follow the reasoning of A.O. Smith Corp., 647 F.2d at 120-21, and other
cases we have decided similarly, see, e.g., Lamp v. Andrus, 657 F.2d 1167
(10th Cir.1981); Golden Villa Spa, Inc. v. Health Industries, Inc., 549 F.2d
1363 (10th Cir.1977), Lewis' premature notice of appeal was not cured by the
later final judgment. Further, even if the Rule 54(b) certification, acquired after
the district court judgment became final, was effective to resurrect the right to
appeal the December 18 order, the failure to file a new notice of appeal
thereafter would be fatal under A.O. Smith to any claim that the certification
saved the appeal.

A.O. Smith stated that this court would dismiss appeals from interlocutory
orders when the district court had not given Rule 54(b) certification before the

notice of appeal was filed, even if the district court granted such certification
subsequently and before this court entered a dismissal order. This rule was
designed to benefit the appellate court, which no longer would have to hold the
case in administrative limbo while the appellant either returned to the district
court to seek a Rule 54(b) certification or awaited the termination of the entire
case.
9

In A.O. Smith, the premature appeal was filed while the case was ongoing in
the district court. Thus, this court thought that the appellant could either await
the end of the entire litigation in district court and then file a notice of appeal,
or seek and obtain Rule 54(b) certification after which it could file a new notice
of appeal. We thus formulated the rule in A.O. Smith in anticipation that the
rule would seldom result in a loss of appellate review for a disappointed
litigant: "This is not a situation in which a procedural technicality forever
forecloses the appellant from having an appellate court consider the merits of
the case." Id. at 121.

10

Apparently all of the other circuits that have considered this matter, however,
have accepted jurisdiction in analogous circumstances, notwithstanding a
premature filing of a notice of appeal. These circuits hold pre-Rule 54(b)
appeals in abeyance while the parties obtain certification after the court's
reminder of the omission, treating the 54(b) certification as relating nunc pro
tunc to the date of the notice of appeal or treating the notice of appeal as
ripening as of the date of the 54(b) certification. See Tidler v. Eli Lilly & Co.,
824 F.2d 84, 85-87 (D.C.Cir.1987) (per curiam); Coalition for Equitable
Minority Participation in Architectural Contracts in Tennessee (COMPACT) v.
Metropolitan Government of Nashville and Davidson County, 786 F.2d 227,
228 & n. 1 (6th Cir.1986); Lac Courte Oreilles Band of Lake Superior
Chippewa Indians v. Wisconsin, 760 F.2d 177, 180-81 (7th Cir.1985);
Metallurgical Industries, Inc. v. Fourtek, Inc., 771 F.2d 915, 916 (5th Cir.1985)
(per curiam); Freeman v. Hittle, 747 F.2d 1299, 1301-02 (9th Cir.1984);
Hayden v. McDonald, 719 F.2d 266, 268 (8th Cir.1983) (per curiam) (taking
jurisdiction of appeal before determining that Rule 54(b) certification had been
improvidently granted); Tilden Financial Corp. v. Palo Tire Service, Inc., 596
F.2d 604, 606-07 (3d Cir.1979). But cf. Oak Construction Co. v. Huron Cement
Co., 475 F.2d 1220, 1221 (6th Cir.1973) (per curiam) (no 54(b) certification
was entered before appellate court's decision; "[t]his lack of jurisdiction cannot
be cured now by a belated Rule 54(b) certification").

11

The circuits that take a more forgiving attitude toward premature notices of
appeal state varying reasons to reject our A.O. Smith approach. The Ninth
Circuit, in Freeman v. Hittle, 747 F.2d 1299 (9th Cir.1984), takes direct issue

with A.O. Smith's assertion that dismissing premature notices of appeal would
prevent administrative complications:
12 concern of the Tenth Circuit was that allowing appeals where the appellant had
"The
not secured a 54(b) certification would lead to a large number of cases being held in
a pending category and to confusion and delay. [A.O. Smith, 647 F.2d] at 121. We
respectfully disagree. The procedure would not be unduly complicated. If a 54(b)
certification had been entered since the notice of appeal, as here, the case would be
properly before the reviewing court; if 54(b) certification had not been entered, the
appeal would be dismissed as a nonfinal judgment."
13

Id. at 1301-02. The Seventh Circuit takes the position that dismissal of
premature notices of appeal actually would increase administrative burdens on
courts and litigants: "[D]ismissal of the appeal due to the belated certification
would be 'empty paper shuffling' because the same papers would likely be
before the court in a matter of months after appellants went through 'the empty
formality of obtaining another certification and filing another notice of appeal.'
" Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin,
760 F.2d 177, 181 (7th Cir.1985) (quoting Local P-171, Amalgamated Meat
Cutters and Butcher Workmen v. Thompson Farms Co., 642 F.2d 1065, 1074
(7th Cir.1981)).

14

Strictly speaking, precedent in this circuit does not require dismissal of this
appeal. The A.O. Smith opinion did not cite or expressly overrule Morris v. Uhl
& Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir.1971), in which we took a
more charitable approach to a premature notice of appeal. The facts of Morris
closely parallel the instant case. The appellant there filed a notice of appeal
without obtaining Rule 54(b) certification; the entire case was concluded by the
district court by the time the original appeal reached the panel's attention, but
appellant had failed to file a new notice of appeal. As in the instant case, a
hard-line rule would have denied appellant any appeal at any time. Rejecting
this approach, we wrote:

15

"In our view, the notice of appeal had capacity in the circumstances to provide
jurisdictional basis that would entitle this Court to refuse, as it did, to make
dismissal of the appeal out-of-hand and to allow the notice to ripen into full
effectiveness as to the rendered judgment, since it seemed apparent that the
judgment would remain unchanged in its form and content; that its lack of
technical formal finality would become dispelled in natural course and within a
not undue period of time; and that no prejudice could result to any one from so
dealing with the notice."

16

442 F.2d at 1250. See also Frankfort Oil Co. v. Snakard, 279 F.2d 436, 438-39
(10th Cir.) (allowing appeal in similar circumstances), cert. denied, 364 U.S.
920, 81 S.Ct. 283, 5 L.Ed.2d 59 (1960).

17

Morris and A.O. Smith are not irreconcilable. In Morris, the appeal would have
been lost but for the court's lenity. A.O. Smith, in contrast, did not present an
appellant which would lose entirely its right to appeal if the panel ruled against
it. Thus, perhaps the two cases can coexist in this circuit on this basis; but there
is no doubt great tension exists between their different approaches.

18

Jurisdictional problems under the A.O. Smith rationale have arisen too
frequently in this circuit since that decision. In a typical scenario, counsel, after
belatedly recognizing the lack of a Rule 54(b) certification, would secure such a
certification from the district court but would fail to file a new notice of appeal.
Because the appealed order was final and certified for appeal under Rule 54(b),
failure to file a new notice foreclosed the appeal unless the court was willing to
interpret the words "final order" in Rule 54(b) and in 28 U.S.C. Sec. 1291 as
having different meanings. See Trinity Broadcasting Corp. v. Eller, 835 F.2d
245, 247 n. 2 (10th Cir.1987). In other cases no Rule 54(b) certification would
ever be obtained, but before this court alerted the parties to the jurisdictional
defect, the district court would have terminated the entire litigation by
adjudicating the other claims. The losing parties, thinking they already had a
viable appeal raising the issues that concerned them, would fail to file a new
notice of appeal. Thus, the requirement that a new notice of appeal be filed after
a belated Rule 54(b) certification or after disposition of all other claims often
proved a trap for unwary attorneys. Further, the rule of A.O. Smith caused this
court to expend undue judicial resources untangling situations such as the
"administrative closing order" in the case before us. Because of these problems
we now overrule A.O. Smith, Lamp, Golden Villa Spa, and any other cases to
the same effect, and we reaffirm Morris, with the refinements hereafter noted.

19

In the situation like that before us, in which the other claims were effectively
dismissed after the notice of appeal was filed, we believe Fed.R.App.P. 4(a)(2)
permits the interpretation that the notice of appeal, filed prematurely, ripens and
saves the appeal. Accord Cape May Greene, Inc. v. Warren, 698 F.2d 179, 18485 (3d Cir.1983); see also Finn v. Prudential-Bache Securities, Inc., 821 F.2d
581, 585 (11th Cir.1987) (allowing appeal without express reliance upon
Fed.R.App.P. 4(a)(2)); Gillis v. United States Department of Health & Human
Services, 759 F.2d 565, 569 (6th Cir.1985) (same); Pireno v. New York State
Chiropractic Association, 650 F.2d 387, 389-90 n. 4 (2d Cir.1981) (same), aff'd
sub nom. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct.

3002, 73 L.Ed.2d 647 (1982); Anderson v. Allstate Insurance Co., 630 F.2d
677, 680-81 (9th Cir.1980) (same); Jetco Electronic Industries, Inc. v. Gardiner,
473 F.2d 1228, 1231 (5th Cir.1973) (same). In analogous situations, the
Supreme Court has allowed subsequent events to validate prematurely filed
appeals. See, e.g., Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30,
9 L.Ed.2d 222 (1962); Lemke v. United States, 346 U.S. 325, 326, 74 S.Ct. 1,
1, 98 L.Ed. 3 (1953) (criminal appeal). Thus, when a district court has
adjudicated all remaining outstanding claims before this appellate court acts to
dismiss the appeal, we will consider the appeal on its merits rather than dismiss
for lack of jurisdiction, whether or not a party in the meantime has obtained a
Rule 54(b) certification. In such cases generally we will consolidate or
companion the earlier appeal with any subsequent appeals arising out of the
same district court case.
20

When the district court case is still ongoing at the time the appeal reaches this
court's attention, two possibilities arise. One is that a belated Rule 54(b)
certification has been obtained. In this situation, if the appellant obtains a 54(b)
certification after the notice of appeal was filed, we will deem the notice of
appeal to ripen as of the date of certification and will accept the jurisdiction
pursuant to the savings provision of Fed.R.App.P. 4(a)(2). The other possibility
is that no Fed.R.Civ.P. 54(b) certification has been obtained. For this, we
hereby adopt the practice of notifying the parties of our observation of the
apparent jurisdictional defect and giving them a date certain by which to secure
Rule 54(b) certification or an order or judgment explicitly adjudicating all
remaining claims. If no certification, or final, dispositive adjudication, is
obtained and presented to this appellate court by the specified date, the case
will be dismissed summarily for lack of appellate jurisdiction.

21

Having determined that we have jurisdiction in the instant case, we order the
appeal placed on the regular calendar. Briefs are to be filed according to the
schedule set out in 10th Cir.R. 31 measured from the date this opinion is
entered.

22

IT IS SO ORDERED.

23

BALDOCK, Circuit Judge, with whom BRORBY, Circuit Judge, joins,

dissenting.

24

The majority holds that a premature notice of appeal is effective if a subsequent

Fed.R.Civ.P. 54(b) certification is obtained or if a final adjudication of the
matter occurs before the court considers the merits of the appeal. I respectfully

disagree with this procedure for two reasons. First, I do not think that the court
of appeals has the power to expand appellate jurisdiction through
reinterpretation of settled law. Second, even assuming the new procedure is
more efficient, I question the need to provide a failsafe system for preserving a
civil appeal due to the ease of compliance with the established rules.
25

28 U.S.C. Sec. 1291 provides that "The courts of appeals ... shall have
jurisdiction of appeals from all final decisions of the district courts of the
United States ... except where a direct review may be had in the Supreme
Court." In the situation before us, there is little mystery as to what constitutes a
final decision. A final decision under Sec. 1291 is one which " 'ends the
litigation on the merits and leaves nothing for the court to do but execute on the
judgment.' " Gulfstream Aerospace Corp. v. Mayacamas Corp., --- U.S. ----, 108
S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (quoting Catlin v. United States, 324
U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). In the absence of a
final judgment on all claims or a final judgment on part of the claims,
Fed.R.Civ.P. 54(b) makes it clear that 1) there can be no final decision which
terminates the action, and 2) any previous decision is subject to revision at any
time before the entry of a final judgment adjudicating all claims.1 Although the
collateral-order doctrine provides an exception to the final-decision rule
contained in Sec. 1291, the doctrine is without application in this case. See
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221,
1225-26, 93 L.Ed. 1528 (1949) (collateral-order doctrine stated); Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351
(1978) (requirements for application of collateral-order doctrine). Instead, we
are presented with a notice of appeal filed before the district court adjudicated
all the claims in the action and before a Rule 54(b) certification was obtained.

26

Under our prior decisions, this appeal would be dismissed for lack of
jurisdiction. Appellate jurisdiction would be determined as of the date the
notice of appeal was filed (January 16, 1987), and a later Rule 54(b)
certification by the district court would be ineffective. Lamp v. Andrus, 657
F.2d 1167, 1169 (10th Cir.1981); A.O. Smith Corp. v. Sims Consol., Ltd., 647
F.2d 118, 120 (10th Cir.1981). Although summary judgment in favor of
defendants was entered on the main claim on December 18, 1986, that
judgment failed to adjudicate all the claims of the parties. It was not a final
judgment. Fed.R.Civ.P. 54(b). The next order entered on December 31, 1987,
the administrative closing order staying the defendant's counterclaim, left
defendant Goodrich the option of reopening the action within sixty days. The
administrative closing order indicates that the district court never intended its
summary judgment order to be a final order. The counterclaim was pending at
the time the notice of appeal was filed, January 16, 1987, and the summary

judgment entered by the district court could have been revised. Golden Villa
Spa, Inc. v. Health Indus., Inc., 549 F.2d 1363, 1364 (10th Cir.1977);
Fed.R.Civ.P. 54(b). Accordingly, the notice of appeal was premature and
ineffective.
27

The majority concludes that the premature notice of appeal became effective
when the administrative closing order "matured into a dismissal of the
counterclaim with prejudice" and thereby created an appealable final judgment.
Majority Opinion at 643. The majority claims to find support for its new rule in
Fed.R.App.P. 4(a)(2), which provides:

28

Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the
announcement of a decision or order but before entry of the judgment or order
shall be treated as filed after such entry and on the day thereof.

29

Fed.R.App.P. 4(a)(4), referred to in Rule 4(a)(2), clarifies that a notice of

appeal filed prior to the disposition of a post-trial motion is ineffective and that
a new notice of appeal must be filed after the disposition of the motion. By its
terms, Rule 4(a)(2) applies when a party appeals "after the announcement of a
decision or order but before entry of the judgment or order." "It applies,
therefore, only to a decision that will be final on its entry. It does not make
appealable an order that is not appealable under Sec. 1291 or Sec. 1292(a)." 9 J.
Moore, B. Ward & J. Lucas, Moore's Federal Practice p 204.14 (1987). Thus,
Rule 4(a)(2) hardly applies in these circumstances because the original
summary judgment was not an appealable order. Moreover, the appellate rules
are not to be construed so as to expand the court's jurisdiction. Fed.R.App.P.
1(b).

30

The majority also relies on other cases which have reached a similar result. The
most persuasive reason advanced for this result is that the Supreme Court has
indicated that there must be a practical rather than technical approach to finality
under Sec. 1291, one which balances the harms of piecemeal review against
justice denied by delay. Gillespie v. United States Steel Corp., 379 U.S. 148,
152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964); Cohen, 337 U.S. at 546, 69
S.Ct. at 1225. I cannot agree, however, that "[i]n analagous situations, the
Supreme Court has allowed subsequent events to validate prematurely filed
appeals. See, e.g., Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30,
9 L.Ed.2d 222 (1962); Lemke v. United States, 346 U.S. 325, 326, 74 S.Ct. 1,
98 L.Ed. 3 (1953) (criminal appeal)." Majority Opinion at 645.2 These brief
cases simply do not turn on an attempt to appeal solely from a judgment which
could not be final upon entry. Because I view the majority's decision as
conflicting with Fed.R.Civ.P. 54(b), I am not persuaded that the general

Supreme Court authority mentioned by the majority is adequate support for the
result achieved here.
31

There is another reason why I cannot agree with the new procedure announced
by the majority. Perfecting an appeal is not a difficult task and it should be
entrusted to those appearing before the court rather than to the court itself. The
following best expresses this sentiment:

32

The rules of appellate practice in hand are simple and plain. They fill no office
of mere red tape, or as a show of surface routine. To the contrary, they have
substance, and carry on their face the obvious purpose to aid appellate courts in
getting at the right of a cause. Hence, apparently, they bespeak the dignity
arising from obedience. If they are not to be obeyed, they should be done away
with once and for all. A just rule, fairly interpreted and enforced, wrongs no
man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those
who labor to obey it--the very ones it should not injure.

33

Sullivan v. Holbrook, 109 S.W. 668, 670 (Mo.1908) (Lamm, J.). After our
initial reminder that the appeal was jurisdictionally defective, appellants
obtained a Rule 54(b) certification from the district court but did not file
another notice of appeal. In light of what was settled Tenth Circuit law at the
time, the failure to file a timely notice of appeal was hardly prudent. In the long
run, and in fairness to those who do follow the simple appellate rules, the
court's time is better spent resolving correctly filed appeals rather than
shepherding stray appeals back into the flock.

34

I would dismiss the appeal for lack of jurisdiction.

Noting that many if not all of the circuit courts which have considered the
matter have disagreed with our result in A.O. Smith, this court sua sponte
ordered en banc consideration of the jurisdictional issue to decide whether we
should overrule A.O. Smith. After examining the briefs and the appellate
record, the court determined unanimously that oral argument would not
materially assist the determination and ordered the cause submitted without
oral argument. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.2. The
parties were afforded an opportunity for additional briefing before the en banc
court

Although the district court's "administrative closing order" with respect to the
counterclaim is somewhat peculiar, we construe it as not becoming a final

judgment until the expiration of the sixty days given B.F. Goodrich to reopen
its counterclaim
In Schuurman v. Motor Vessel "Betty K V", 798 F.2d 442 (11th Cir.1986), the
court faced an analogous situation: the district court dismissed plaintiff's
complaint but granted plaintiff twenty days from the date of the order to amend
the complaint. The Eleventh Circuit established the following rule for this
situation:
"If the plaintiff does not amend the complaint within the time allowed, no
amendment may be made absent leave of court, and the dismissal order
becomes final at the end of the stated period. For appeal purposes, we hold that
the order of dismissal in this situation becomes final upon the expiration of the
time allowed for amendment. The time for appeal is measured from the date on
which the district court order of dismissal becomes final."
Id. at 445.
1

Fed.R.Civ.P. 54 provides:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more
than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when multiple parties are
involved, the court may direct the entry of a final judgment as to one or more
but fewer than all of the claims or the parties only upon an express
determination that there is no just reason for delay and upon an express
direction for the entry of judgment. In the absence of such determination and
direction, any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to revision at any time before
the entry of judgment adjudicating all the claims and the rights and liabilities of
the parties.

See also Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir.1980)
("Analogously, subsequent events can validate a prematurely filed appeal.").
This proposition is also supported by citations to Foman and Lemke