                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0543n.06

                                            No. 16-3613

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                   Oct 24, 2019
 CHRISTOPHER J. HUNTER,                              )                        DEBORAH S. HUNT, Clerk
                                                     )
           Petitioner-Appellant,
                                                     )
                                                     )            ORDER
           v.
                                                     )
                                                     )
 UNITED STATES OF AMERICA,
                                                     )
           Respondent-Appellee.                      )


       Before: CLAY and NALBANDIAN, Circuit Judges.*

       Christopher J. Hunter appeals two district court orders, one rejecting his motion under

28 U.S.C. § 2255 and the other denying his motion to amend.

       But before we examine the merits of Hunter’s appeal, this Court has an independent duty

to “satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under

review.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998) (cleaned up). See

also Answers in Genesis of Kentucky, Inc. v. Creation Ministries Intern., Ltd., 556 F.3d 459, 465

(6th Cir. 2009).

       In February 2016, the trial court in this case rejected Hunter’s habeas petition and a motion

to amend. Then, in March 2016, Hunter made several timely motions under Fed. R. Civ. P. 59(e)

to revisit those rulings. Hunter filed his first motion for reconsideration a month after the district

court entered its order on his motion to amend. Because he filed that motion pro se while at the


       *
        In view of recusal by the third judge, this order is entered by a quorum of the
panel. 28 U.S.C. § 46(d).
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same time represented by counsel, the district court entered an order striking that motion the next

day. Through counsel, and three days later, he filed a redacted motion for reconsideration. In that

motion, he sought permission to file a supporting report and recommendation from an unrelated

case. The district court granted his request and, thirteen days after he had tried to file his pro se

Rule 59(e) motion, he filed an identical but unredacted copy of the motion he had just filed. In

each of these motions, Hunter asked the district court to reconsider both the February 11 order

rejecting Hunter’s motion to amend and the February 12 order rejecting his § 2255 motion.

       The district court never entered a formal judgment for either order. Neither order is an

exception to the separate document requirement under Rule 58(a). Fed. R. Civ. P. 58(a) (requiring

“[e]very judgment and amended judgment [] be set out in a separate document” with five

exceptions). And neither fulfills the requirement. See United States v. Dean, 519 F.2d 624, 625

(6th Cir. 1975) (holding that a district court’s “‘Order’” that “contained findings and conclusions

and stated that the Court ‘enter[ed] summary judgment’ for the Government” did not meet Rule

58’s separate document requirement); Cloyd v. Richardson, 510 F.2d 485, 486 (6th Cir. 1975)

(concluding that the district court’s “‘Judgment and Order’” that “set forth certain findings of the

court and its reasoning in reaching a conclusion on the issue” with a “specific order” is not a Rule

58 separate document).1 So Rule 58(c) considers the judgment for both orders entered 150 days

after their respective entries in the docket. Fed. R. Civ. P. 58(c).




       1
        These cases interpret Rule 58 as it existed after the 1963 amendment and not the most
recently amended rules. But the cases still help clarify the meaning of the separate document
requirement in the present-day Rule 58(a). The 1963 amendment added the separate document
requirement. See Fed. R. Civ. P. 58 (1963) (“Every judgment shall be set forth on a separate
document.”). Although later amendments do change the rule’s language, they do not change that
requirement. See Fed. R. Civ. P. 58(a) (2002). In 2002, Rule 58 was amended to ensure that
appeal time does not linger indefinitely if a district court does not enter a separate document.
Under the 2002 amendment, the rule considers the time of entry of a judgment failing the separate
                                                  2
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       A party must file its Rule 59(e) motion to alter or amend a judgment “no later than 28 days

after the entry of the judgment.” Fed. R. Civ. P. 59(e). So to file a timely Rule 59(e) motion here,

Hunter needed to file his motion within 178 days after the district court entered the respective

orders in the docket. He did just that. He filed his last Rule 59(e) motion in March 2016, only a

little over a month after the court entered its orders in the docket.

       But before the district court could rule on Hunter’s Rule 59(e) motion, Hunter filed his

notice of appeal. In response, the district court stayed his Rule 59(e) motion until this Court

resolved the appeal. It explained that “once a notice of appeal is filed, the District Court loses

jurisdiction to decide . . . Hunter’s Motion for Reconsideration.” (R. 255, Order re Notice of

Appeal, PageID # 3930–31; see also R. 244, Magistrate’s Order to Pro Se Defendant,

PageID # 3867 (“understanding [] the applicable law” to mean that the district court “lose[s]

jurisdiction to decide [Hunter’s] Fed. R. Civ. P. 59(e) motion” once he filed his notice of appeal).)

       Although that was once a correct statement of the law, it simply is no longer true. In 1993,

the Advisory Committee amended Fed. R. App. P. 4(a). The amendment’s effect “suspend[s] or

render[s] dormant a notice of appeal regardless of whether the [Rule 59(e)] motion was filed before

or after the notice of appeal.” Patterson v. Anderson, 586 F. App’x 657, 662 (6th Cir. 2014)

(cleaned up). Under current law, Hunter’s timely Rule 59(e) motion “toll[ed] the time to appeal

[and] suspends the effectiveness of a notice of appeal until the last of such motions is resolved.”

Id. See also Fed. R. App. P. (a)(4)(A) (explaining that the “time to file an appeal” begins only

after the district court enters its order “disposing of” the Rule 59(e) motion); Fed. R. App. P.

(a)(4)(B)(i) (explaining that a notice of appeal does not “become[] effective” until the court’s order




document requirement to be 150 days after the entry of the judgment in the civil docket. Fed. R.
Civ. P. 58(b).
                                                   3
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“disposing of the last such remaining” Rule 59(e) motion). When a party files a timely Rule 59(e)

motion, “the district court still retains jurisdiction to consider the motion” even if the motion

precedes the notice of appeal. Patterson, 586 F. App’x at 663 (cleaned up).

       The district court’s stay here does not change matters.             A stay of a motion for

reconsideration is not an order “disposing of” the motion for reconsideration. Lexon Ins. Co. v.

Naser, 781 F.3d 335, 338 (6th Cir. 2015) (cleaned up) (“To dispose of a motion, a court must act

in a way that indicates an intention that the act be final.”). The stay’s terms confirm this

conclusion. The stay did not provide a ruling on Hunter’s Rule 59(e) motion and only paused its

determination on the motion “pending appeal.” (Order Terminating Motion 5/31/2016.)

       And the district court’s stay of Hunter’s Rule 59(e) motion is not a “final decision[].”

28 U.S.C. § 1291 (giving this Court jurisdiction over “appeals from all final decisions of the district

courts of the United States”). See Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d

712, 715 (6th Cir. 2015) (cleaned up) (A “final” decision under § 1291 is a district court decision

that “ends the litigation on the merits and leaves nothing for the court to do but execute the

judgment.”); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 103 U.S. 927, 934

n.11 (1983) (referring to “the usual rule that a stay is not ordinarily a final decision for purposes

of § 1291, since most stays do not put the plaintiff ‘effectively out of court.’”); Clark v. Adams,

300 F. App’x 344, 350 (6th Cir. 2008) (cleaned up) (noting the “uniqueness” of a stay qualifying

as a “final decision for purposes of § 1291”). So this Court cannot yet exercise its appellate

jurisdiction over the district court orders subject to the Rule 59(e) motion.




                                                  4
                                              16-3613


       Accordingly, it is ordered that the appeal is DISMISSED and REMANDED to the district

court for further proceedings not inconsistent with this order.

                                              ENTERED BY ORDER OF THE COURT




                                              Deborah S. Hunt, Clerk




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