
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1630                             JOHN FULCHER HARRIS, ET AL.,                                Plaintiffs, Appellees,                                          v.                           HON. HECTOR RIVERA CRUZ, ET AL.,                                Defendants, Appellees.                                      __________                                 JOANNA DIMARCO ZAPPA                                Plaintiff, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Arturo Aponte Pares for appellant.            ___________________            Reina  Colon  De  Rodriguez,  Acting  Deputy  Solicitor   General,            ___________________________        Department of Justice,  with whom Carlos  Lugo Fiol, Acting  Solicitor                                          _________________        General, was on brief for defendants.                                  ____________________                                    March 29, 1994                                 ____________________                 BOUDIN,  Circuit  Judge.   This  case  presents a  novel                          ______________            dispute  in  which  jurisdictional  and  merits   issues  are            entangled  with a  question  of decree  interpretation.   The            course of the litigation, which must be traced in some detail            in order to  understand the issues, may  also be unique.   We            certainly hope  so and  regret that this  litigation, already            prolonged by the parties' antics, requires one more round.                                          I.                 In  April 1988, Joanna  Dimarco Zappa ("Dimarco") joined            as co-plaintiff in a pending civil lawsuit brought by another            individual against members of the Real Estate Examining Board            in  Puerto  Rico  ("the  Board").1   The  Board  had  awarded            Dimarco a  failing grade in the examination  given on October            31,  1987, for a real  estate broker license  in Puerto Rico.            Dimarco  contended that  the  examination had  been given  in            English  and Spanish and that the Board had followed a policy            of   making  the   English   version,  which   Dimarco  took,            substantially more difficult than the Spanish version.                 The suit was  brought under  42 U.S.C.    1983, and  the            complaint  (generously construed)  asserted that  the Board's            policy  and action  violated constitutional  guarantees.   At            least  by  implication, Dimarco  sought injunctive  relief to                                            ____________________                 1Neither of the  parties named in the  caption remain in            this case.   The original  plaintiff, John Harris,  is not  a            party to this appeal.  Similarly, the first  named defendant,            Hector Rivera  Cruz, the Secretary of  Justice, was dismissed            from the suit.                                         -2-                                         -2-            compel  issuance of  the  license, and  she expressly  sought            damages including compensation for  lost income in the amount            of  $100,000 per year.   The complaint also  alleged that the            Board proposed  to give future examinations  only in Spanish,            and Dimarco sought an  injunction to require that it  also be            given in English.                 After  a hearing  in July  1988, the  district  court in            March  1989  issued a  preliminary  injunction  requiring the            Board  to continue  to offer  the examination in  English, as            well as Spanish,  and to  assure that the  two versions  were            equivalent.  Harris v.  Rivera Cruz, 710 F. Supp.  29 (D.P.R.                         ______     ___________            1989).  The  Board appealed,  a cross appeal  was filed,  and            both appeals were later withdrawn.  The Board made  repeated,            and sometimes frivolous, efforts to have the case dismissed.                 In August  1989, after a pretrial  conference and waiver            of jury trial  by both sides, the court ordered both sides to            submit briefs and evidence concerning each plaintiff's actual            performance  on  the  October  31, 1987,  examination.    The            plaintiffs  complied  in  September  1989.    Their  analysis            purported to  show which questions differed  significantly in            English and  Spanish and how  the plaintiffs' own  grades had            been  lowered by  mathematical errors;  specifically, certain            true-false questions had been answered differently by the two            plaintiffs  but  both  answers  had been  graded  as  wrongly                             ____            answered.  The Board submitted no analysis or rebuttal.                                         -3-                                         -3-                 Then on March  19, 1990, the  parties attended a  status            conference.   On  March 22,  1990, the  court entered  a one-            paragraph "status  conference order" that  concluded with the            following   sentence:  "The  parties  have  agreed  that  the            examination  will be  given  in English,  and  that the  only            remaining issue is whether  the plaintiffs passed this exam."            Nothing  in the order refers  to Dimarco's damage  claim.  No            transcript  of the  conference has  been supplied,  and quite            possibly no reporter was present.                 Nothing more  occurred until November  1990 when Dimarco            filed a motion asking the court to enter judgment determining            that  Dimarco had passed the  examination with a  score of 97            points  out of 100.  The motion  argued that more than a year            had passed  since Dimarco's  evidence had  been filed  and no            rebuttal had been  offered by the  Board.  The Board  did not            respond.   On April 23,  1991, the district  court entered an            order determining that Dimarco had passed the examination and            directing the Board to issue her a license.  The order stated            that "because  both parties have previously  agreed that this            was the only issue remaining in the case, [j]udgment shall be            entered accordingly."                 On the same  day, the court  entered a "Judgment"  which            decreed  that   "[j]udgment  be  entered  in   favor  of  the            plaintiffs  . . . as both of these plaintiffs have passed the            realtor's examination"  and "ordered"  that  the Board  issue                                         -4-                                         -4-            real estate broker's licenses to the plaintiffs.  Once again,            there was  no reference to damages.  Nothing in the April 23,            1991, order or the separate judgment stated that the judgment            was  final as  to all claims  or that  the case  was formally            complete.  However, on May 2, 1991, Dimarco's counsel filed a            memorandum  seeking  costs, a  portion  of  which were  later            awarded.                 On  May 9, 1991,  the Board  filed a  motion purportedly            under  Fed. R. Civ. P. 59(e) claiming that the injunction was            improper because other requisites,  apart from passage of the            examination,  had to be  satisfied before a  license could be            granted.   The Board  also asserted  that plaintiffs  had not            exhausted their  administrative remedies.   The  court denied            the  motion  by  order filed  July  1,  1991;  it noted  that            exhaustion was  not required in  section 1983 actions  and it            observed again the  parties had earlier agreed that "the only            remaining issue before the Court was the issue of whether the            plaintiffs had passed this examination."                  Instead of issuing a license, the Board then filed a new            appeal to  this court,  which was later  withdrawn.   Dimarco            filed a motion to hold the Board in contempt.  The Board then            issued  a license  to Dimarco  in August  1991 but  the Board            noted on the face of  the license that it was given  by court            order.  Dimarco filed a new contempt motion in February 1992.            In  March 1992 the court ordered that an undefaced license be                                         -5-                                         -5-            issued.    Once  again the  Board  did  nothing until,  after            another contempt motion and  an order to show cause  from the            court,  a clean  license  was finally  issued  to Dimarco  in            August 1992.                   On January 5,  1993, Dimarco requested a  date for trial            on the  issue of damages.   The court clerk set  a trial date            but  the Board asked the court to reconsider, arguing that in            the March  19, 1990,  status conference, "the  parties agreed            that the examinations at issue in this case would be given in            English and that  the only  remaining issue in  the case  was            whether  the  plaintiffs  had  passed the  exams."    Dimarco            responded opaquely  that damages had been  requested from the            outset and  had never been adjudicated by the court.  After a            status  conference, the  court on  May 12,  1993, entered  an            order, which says in part:                      The  Court  [in  the  May  11,   1993,  status                 conference] clarified  with the parties  that since                 Judgment  was  entered  in  this case  based  on  a                 settlement   between   the  parties,   without  the                 imposition of damages, and the plaintiffs failed to                 appeal  the Judgment,  this  case is  closed.   The                 plaintiffs'  attempt to  recover  damages  at  this                 juncture in the litigation is extremely belated and                 therefore unavailing.                 Dimarco has  now appealed from  the May 12,  1993, order            and requested that we reverse the district court and direct a            trial on  damages.   Dimarco's brief, without  discussing the            March  19, 1990,  conference,  argues that  her damage  claim            cannot  have  been abandoned  since  Dimarco  was never  paid                                         -6-                                         -6-            anything in settlement  and that such  a payment is  required            under Puerto Rican  law in  order to compromise  a law  suit.            Dimarco also asserts  that nothing shows that  the court ever            consolidated the injunction and damage phases of the case.                 In  response, the  Board  argues that  this court  lacks            jurisdiction  over the appeal.2  Its theory is that the April            23, 1991, order and judgment "finally decided the case"; that            no appeal was lodged by Dimarco until two years later in June            1993;  and that this  two year interval  is long  past the 30            days allowed for appealing a final judgment.  Fed. R. App. P.            4(a)(1).  Like Dimarco,  the Board's brief casts no  light on            what  actually  happened  at   the  March  19,  1990,  status            conference.                                         II.                 We  think  that   this  appeal   presents  two   related            questions:  one  is whether  Dimarco  waived  or settled  her            damage claim on  or about March  19, 1990;  and the other  is            whether, even  if she retained  her damage claim  after March            19, 1990, her rights  were cut off by  failing to appeal  the            judgment entered on April  23, 1991.  We consider  the issues            in that order.                                            ____________________                 2We  clearly have  jurisdiction  to review  the May  12,            1993,  order  inasmuch  as it  is  itself  final  (no further            proceedings being  contemplated), and  an appeal from  it was            filed  within the prescribed period.   But we  agree with the            Board that, if the April 25, 1991, order were itself  a final            disposition of the entire  case, it would be too  late now to            resurrect the damage claim.  This issue is addressed below.                                         -7-                                         -7-                 1.   On  this  record it  is  not possible  to tell  for            certain whether  Dimarco's claim  for damages was  settled or            waived on  March 19,  1990, but  it is  possible to  say with            assurance  that  the  record  does  not  demonstrate  such  a            settlement  or waiver.  One might expect that, if a plaintiff            had  agreed to  forego  a  damage  claim  set  forth  in  the            complaint,  this  would  be  embodied  in  a  stipulation  or            evidenced by  a  transcript statement  of counsel.   No  such            document or  transcript reference has been  supplied or cited            to us by  the Board.3   Indeed, in this  instance we are  not            even  offered any  plausible  reason why  Dimarco might  have            wished to surrender her damage claim on March 19, 1990.                   The  statement in  the March 22,  1990, order  that "the            only remaining  issue is  whether the plaintiffs  passed this            exam" is  quite ambiguous.   It was made  at a time  when the            focus of the litigation  was on injunctive relief.   Both the            existence and the amount  of damages could not even  begin to            be determined until the court decided whether the license had            been  wrongfully denied and when  it should be  issued.  That                                            ____________________                 3Dimarco  asserts that  the  claim could  not have  been            relinquished  under  Puerto  Rico  law  since  there  was  no            payment.  Whatever Puerto Rico law may say about out of court            settlements,  every litigator  knows that--in  the  course of            conferences with the  judge as  a case  moves toward  trial--            complaints are narrowed by agreement and claims are abandoned            without any payment.   The question is whether  that happened            here.                                         -8-                                         -8-            order  itself does not speak  of waiver or  settlement of the            damage claim.                   In its May 12, 1993,  order, the district court refers--            seemingly for  the  first  time--to  an  earlier  "settlement            between  the  parties,  without the  imposition  of damages."            This  language may be nothing more  than the district court's            gloss  on its earlier March 22, 1990,  order.  But even if it            is treated as a  factual finding that Dimarco did  settle her            damage claim  on March 19, 1990, the "finding" cannot resolve            this case.  Such a finding would still have to rest upon some            evidence,  and  on  this record  we  have  no  evidence of  a                                                       __            settlement.                  Finally,  in an  ordinary case the  failure to  pursue a            damage claim for two  years after the definitive injunction--            here,  from April 23, 1991, to January 5, 1993--might be some            evidence of an earlier waiver or settlement or even support a            dismissal  for non-prosecution.    Here, however,  instead of            complying with the  injunction, the Board  improperly delayed            issuance  of  an adequate  license until  August 1992.   That            Dimarco waited  four more  months before asking  for a  trial            date does not count for much in a five-year-old case.                 2.   Although we cannot  find a waiver  or settlement on            this record,  the possibility  remains that Dimarco  lost her            unsettled,  unwaived damage  claim  because of  the  judgment            entered on  April 23, 1991, granting  a permanent injunction.                                         -9-                                         -9-            If that  judgment constituted  a final judgment  disposing of            the entire case,  then the  failure of Dimarco  to pursue  an            appeal  within the  prescribed  30-day period  would end  the            case.  Fed. R. App. P. 4(a)(1).  Such a  final judgment might            still  be  reopened by  post-judgment  motion;  but the  most            familiar grounds  (e.g., excusable neglect) require  a motion                               ____            within one year of the judgment.  Fed. R. Civ. P. 60(b).                 For purposes of "terminat[ing] the  action" and starting            the appeal clock on the entire case, a  judgment is not final            if it "adjudicates fewer  than all the claims" asserted  by a            party.  Fed. R. Civ. P. 54(b).   We have already seen that in            this case  the judgment  did not  actually adjudicate  all of            Dimarco's claims since, so far as the record reveals, Dimarco            still retained in April 1991 a damage claim that had not been            waived or  settled or tried.   Thus  sub specie  aeternitatis            there was on  April 23, 1991, an appealable judgment (because            of the injunction) but not a final judgment.4                  In  our view,  the  Board  could  still  rely  upon  the            judgment  as final if it had at  least purported to be final.                                                   _________            Thus,  if  the  April   23,  1991,  judgment  had  explicitly            terminated the entire  case, we would treat  that judgment as                                            ____________________                 4The terminology can be confusing because a judgment may            be appealable  at once  even though  not  "final" within  the            meaning of Rule  54(b).   See, e.g., 28  U.S.C.    1292(a)(1)                                      ___  ____            (injunctions).   Yet because  such situations are exceptions,            it is commonplace  to use  the phrase "final  judgment" as  a            synonym for  "appealable judgment," even  though the concepts            are not identical.                                         -10-                                         -10-            final, so far as a later attack upon it or attempt to undo it            is concerned.   The point is that a judgment purporting to be            final  moves the case toward  repose.  If  errors remain, the            proper  course for an aggrieved litigant is to appeal, and to            do so within the time allowed.                 Yet  in this instance the April  23, 1991, judgment does            not on its  face say anything to indicate  either that it was            resolving the damage claim or  that it intended to  terminate            the  entire  case.   A judgment  unambiguous  on its  face is            construed as a writing  without resort to extrinsic evidence;            given  doubt,  resort may  be had  to  other orders  or other            evidence ascertainable from  the record.5  In  this case, the            April 23, 1991, order accompanying the judgment refers to the            finding that Dimarco had  passed the exam as "the  only issue            remaining in  the case."   The quoted  statement should  have            alerted  a  careful  lawyer   to  the  possibility  that  the            accompanying  judgment--although   not  labeled  "final"--was            intended to dispose of all claims.                 But if resort to the accompanying order helps the Board,            the record  in other  respects assists Dimarco.   The  damage            claim  had been asserted and never resolved.  Nor was it ripe            for  resolution in April 1991 since no license had issued and            thus  there was no end point for calculating any damages that                                            ____________________                 5E.g., Security Mutual Cas. Co. v. Century Cas. Co., 621                  ____  _______________________     _______________            F.2d  1062 (10th  Cir. 1980);  Eaton  v. Courtaulds  of North                                           _____     ____________________            America, 578 F.2d 87 (5th Cir. 1978).            _______                                         -11-                                         -11-            might be  due.  All of  the attention of the  parties to that            point  had  been  centered  upon  injunctive  relief  of  two            different types, and only  injunctive relief was mentioned in            the judgment.  The same judgment could have been entered even            if  the  court  intended to  start  a  trial  on damages  the            following day.    We  think,  therefore, that  a  measure  of            uncertainty remains.                 There is no  precise formula  for construing  judgments.            But  we are reluctant to construe a judgment ambiguous on its            face  as a final judgment where it could plausibly be read as            non-final, where extrinsic  evidence does not  wholly resolve            the uncertainty, and where reading it as final could unfairly            forfeit  the rights  of  a party.    Here the  facts  already            described leave us  in doubt whether the  judgment can fairly            be construed as final;  there is a patent risk  of unfairness            to  Dimarco;  and the  Board  is not  unfairly  prejudiced by            reading the judgment to leave standing any  damage claim that            Dimarco did not previously waive or settle.                                                            III.                 It  remains to  consider the  course to  be followed  on            remand.  For reasons already explained, this record does  not            establish  that  Dimarco has  waived  or  settled her  damage            claim.  Still, in view  of the failure of anyone  to disclose            on  appeal what  happened on  March 19,  1990, we  think that                                         -12-                                         -12-            justice requires that  we not foreclose  the Board on  remand            from  offering evidence,  if it  has  any, to  establish that            Dimarco did specifically waive or  settle her damage claim at            the March 19, 1990,  conference.  The Board bears  the burden            ofproving sucha waiver orsettlement. Cf. Fed. R.Civ. P. 8(c).                                                 __                 When we  speak of the  Board offering  evidence, we  are            referring to any new  evidence that shows that Dimarco  on or                             ___            about March 19, 1990, settled  the damage claim or  expressed            an intention  to  waive it.    If  the Board  does  have  any            evidence to offer, obviously  Dimarco may respond to  it, and            the  district court  can then  make  findings to  resolve the            issue.   If no evidence  is offered  by the  Board, then  the            court should  proceed with  the  damage claim.   Whether  the            defendants  are liable for damages is, of course, a matter on            which we express no views.                 The order of  May 12, 1993, is vacated as to Dimarco and                                                _______            the case is remanded  for further proceedings consistent with                        ________            this opinion.                                         -13-                                         -13-
