                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2004

Penn West Assoc v. Litman
Precedential or Non-Precedential: Precedential

Docket No. 02-4344




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"Penn West Assoc v. Litman" (2004). 2004 Decisions. Paper 564.
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                      PRECEDENTIAL               On Appeal from the
                                          United States District Court for the
        UNITED STATES                      Western District of Pennsylvania
       COURT OF APPEALS                   D.C. Civil Action No. 97-cv-01678
     FOR THE THIRD CIRCUIT                   (Honorable Alan N. Bloch)


             No. 02-4344                     Argued September 15, 2003

                                            Before: ALITO, AMBRO and
 PENN WEST ASSOCIATES, INC., a               CHERTOFF, Circuit Judges
             Corporation
   t/d/b/a THE WILKINS HOUSE,                (Opinion filed June 9, 2004)

                           Appellant   Bela A. Karlowitz, Esquire (Argued)
                                       Daniel M. Flynn, Esquire
                 v.                    Karlowitz & Cromer
                                       429 Forbes Avenue
KATHERINE COHEN, Co-Executrix of       1201 Allegheny Building
    the Estate of Eugene M. Litman*;   Pittsburgh, PA 15219
  MICHAEL LITMAN, Co-Executor of
    the Estate of Eugene M. Litman*;         Attorneys for Appellant
JAMES W. MCCARTHY; PENN WEST
  ASSOCIATES, also known as PENN       Robert L. Potter, Esquire (Argued)
  WEST OFFICE BUILDING, a              David A. Strassburger, Esquire
  limited partnership; BRANDYWINE      Strassburger, McKenna, Gutnick
       AGENCY; ALPINE                     & Potter
 CONSTRUCTION CO., a Corporation;      444 Liberty Avenue
     PROPERTY DEVELOPMENT              Four Gateway Center, Suite 2200
 ASSOCATES, INC., a Corporation;       Pittsburgh, PA 15222
     PITTSBURGH INVESTMENT
      COMPANY, a Partnership;          James A. Ashton, Esquire
   PATRICIA KATZ, general partner;     Suite 227
     ABLE HOME CENTER, INC.;           500 Lewis Run Road
              DIANNA                   Pittsburgh, PA 15122
 BOBACK, an individual; MARGARET
          MULL, an individual                Attorneys for Appellees

      *(Amended pursuant to Court
Order of May 21, 2004)                       OPINION OF THE COURT
AM BRO, Circuit Judge:                            cause of action under the Racketeer
                                                  Influenced and Corrupt Organizations Act
        We review the District Court’s
                                                  (“RICO”), 18 U.S.C. §§ 1961-1968.
November 5, 2002 order denying the
                                                  According to the complaint, the defendants
motion of Penn West Associates, Inc.
                                                  had purportedly looted, and aided in the
(“Penn West”) to re-open its civil RICO
                                                  looting of, Penn West’s assets between
case. That case was administratively
                                                  February 1988 and late 1993, when
closed by order of the District Court on
                                                  Eugene M. Litman, H. Raymond Litman,
August 19, 1999, after both parties
                                                  and McCarthy owned the company.
informed the Court that they tentatively
                                                  Levine was never a named party to the
settled their dispute. In fact, the civil
                                                  action.
RICO case was not concluded. The
District Court mistook its administrative                 On September 17, 1997, the action
closure of the case as a final decision,          was removed to the United States District
which mistakenly led it to treat Penn             Court for the Western District of
West’s motion to re-open the case and list        Pennsylvania. Prior to trial, all counts of
it for trial as one under Federal Rule of         the complaint were dismissed except for
Civil Procedure 60(b). Thus it erred in           the civil RICO claim against the Litman
denying Penn West’s motion to re-open.            Group. For trial purposes, the case was
                                                  also joined with a related qui tam action
             I. Background
                                                  under the False Claims Act, 31 U.S.C. §§
        On September 11, 1997, Penn West          3729-3731, captioned United States ex rel.
filed suit in the Court of Common Pleas of        Weinstein v. Litman, No. 96-1860. Robert
Allegheny County, Pennsylvania against            Potter, Esq. was lead counsel for the
Eugene M. Litman (individually and in his         Litman Group in both actions. Robert
capacity as Executor of the Estate of H.          Ridge, Esq. was lead counsel for the
Raymond Litman); James W. McCarthy;               private plaintiff in the False Claims Act
Penn West Associates, a partnership               case. While the RICO case was pending
comprised of Eugene M. Litman, Michael            trial, Penn West and Levine both filed
A. Litman, and James W. McCarthy                  bankruptcy petitions in the United States
(Eugene M. Litman, James W. McCarthy,             Bankruptcy Court for the Western District
and Penn W est Associates being                   of Pennsylvania. Mary Reitmeyer, Esq.,
hereinafter collectively referred to as the       was appointed as Trustee for Penn W est in
“Litman Group”); and numerous other               its case, and thereafter obtained an order
defendants. The suit arose from Lawrence          appointing John Orie, Esq. as special
A. Levine’s purchase in 1993 of all of the        counsel for Penn West for purposes of
capital stock of Penn West from Eugene            pursuing the RICO action.
M. Litman, James W. McCarthy, and the
                                                          On July 1, 1999, after six days of
Estate of H. Raymond Litman. Penn
                                                  trial in the RICO case, counsel for the
West’s complaint contained, inter alia, a
                                                  parties informed the District Judge that

                                              2
they had reached a settlement. During a           sealed. The District Judge ended the
telephone conference on the record that           conference by stating: “We’ll advise the
day among, inter alia, the District Judge,        jury that they are discharged, and we’ll
Potter and Orie, Potter informed the              wait to receive from you the settlement
District Court that his clients (the Litman       papers that I have to approve.”
Group) had agreed to pay $25,000 to the
                                                         Seven weeks later, the Court,
United States Department of Justice to
                                                  having heard nothing further from the
settle the False Claims Act case and that
                                                  parties and making no inquiry of them,
the Department of Justice had approved
                                                  issued the following order:
the settlement. Furthermore, the Litman
Group had agreed to pay $75,000 to Penn                  AND NOW , this 19th day of
West to settle the RICO case. Potter                     August, 1999, having been
informed the District Court that “[m]utual               advised by the parties of the
releases will be exchanged with everybody                full and final settlement of
in the RICO case[,] including attorneys.”                the above captioned matter
Potter also stated that, as part of the                  and there are no further
settlement, the Litman Group would be                    matters pending before the
dropping its claims against Levine                       Court,
individually in his bankruptcy proceeding
and would assert no further claims in                    IT IS HEREBY ORDERED
either Levine’s or Penn W est’s bankruptcy               that the Clerk of the Court
proceedings. Moreover, the Litman Group                  mark the above captioned
would be marking as satisfied any state                  matter closed.
court judgments it had obtained against
Levine personally. 1                              The triggering premise of the order (final
                                                  settlement) proved, however, to be
        Although Orie did not speak at the
                                                  premature. No settlement agreement was
conference, at no time did he object to the
                                                  ever drafted and settlement papers had
description of the terms of the settlement.
                                                  never been sent to, nor approved by, the
The parties then agreed that they would
                                                  District Court. Nevertheless, the order
not file the settlement agreement of record
                                                  was entered by the Clerk and counsel were
in the District Court because of concern
                                                  notified accordingly.2
that, if filed, the agreement could not be
                                                         As a result of the August 19, 1999
                                                  order, the parties and the District Court
  1
    The District Court’s opinion notes that
this reference to judgments against Levine
                                                     2
relates to a “long history of a                       The release to settle the False Claims
contemptuous and litigious relationship”          Act case was nonetheless executed and the
between Levine and one or more members            Litman Group paid the $25,000 settlement
of the Litman Group.                              amount to the Department of Justice.

                                              3
appear to have operated under the                  personally represented by Orie and that he
assumption that the litigation was                 had never authorized Orie to include him
terminated. Approximately three months             in the settlement. As later recounted in its
later, Reitmeyer, the bankruptcy Trustee           opinion, the District Court found it
for Penn West, filed a motion with the             “incredulous that the defendants would
District Court to compel enforcement of            pay money to [Penn West], solely owned
the purported settlement terms of the              by Lawrence Levine, and yet leave
RICO case. The motion stated that the              themselves open to lawsuits filed by
settlement had not been finalized because          Levine.” Penn West Associates, Inc. v.
the Litman Group had insisted that Levine          Litman, No. 97-1678, slip op. at 6 (W.D.
personally join in the “mutual release”            Pa. Nov. 5, 2002). Nevertheless, the
referred to during the July 1, 1999                District Court stated that the case was
teleconference.    The Litman Group’s              “settled and closed.” The Court further
response to Penn West’s motion stated that         stated that the settlement agreement, which
the settlement had not been completed for          had not been made a part of the record,
the sole reason that Levine “consistently          was a contract between the parties whose
refused to execute a general release in            terms would have to be litigated in another
favor of the Litman Group Defendants,              forum. It therefore denied Penn West’s
notwithstanding that he expects the Litman         motion to enforce the settlement. 4
Group Defendants to release all of their
claims against him individually.” 3
                                                      4
       A conference with the parties                   The District Court, in its November 5,
(including Levine) was convened by the             2002 opinion, subsequently noted that its
District Court on November 18, 1999 to             refusal to enforce the purported settlement
discuss the motion.         During this            was based on Kokkonen v. Guardian Life
conference, Levine stated that he was not          Ins. Co. of Amer., 511 U.S. 375, 380-81
                                                   (1994) (holding that a district court lacks
                                                   jurisdiction to enforce a settlement
        3
         The Litman Group’s response               agreement unless the court retains
concerned the substance of the settlement          jurisdiction over the agreement or
negotiations, indicating that it was Orie,         incorporates the terms of the agreement
special counsel for Penn West, who                 into its dismissal order), and Sawka v.
intended any settlement to encompass “all          Healtheast, Inc., 989 F.2d 138, 141 (3d
matters.” During the negotiations, Potter,         Cir. 1993) (holding that a district court
counsel for the Litman Group, apparently           does not have the power to exercise
informed Orie that the Litman Group was            jurisdiction over a petition to enforce a
willing to release its claims against Levine       settlement “unless ... [it] is part of the
individually, but only in return for a             record, incorporated into an order of the
general release from, among others,                district court, or the district court has
Levine personally.                                 m a n i f e s te d a n inte nt to r e t a in

                                               4
       Penn West’s Trustee (Reitmeyer)           until March 15, 2002, w hen a plan of
did not seek immediately to re-open Penn         reorganization was approved by the
West’s civil RICO case. Instead, she filed       Bankruptcy Court. Under the plan, Levine
an adversary proceeding in Penn W est’s          regained control of Penn West.
ongoing bankruptcy case to enforce the
                                                         Subsequently, on May 10, 2002,
purported settlement against the Litman
                                                 Penn West filed with the District Court a
Group. On September 11, 2000, the
                                                 Motion to List the Case for Trial and Other
Bankruptcy Court issued an opinion
                                                 Relief. The motion related the foregoing
stating that
                                                 facts and that the Litman Group had filed
       [t]here existed a mistake in              a substantial claim against Levine in his
       the understanding of the                  ongoing individual bankruptcy case. Penn
       parties as to the terms of                West argued that the resolution of its civil
       settlement.    The mistake                RICO case would affect substantially the
       was basic and central to any              claims of the Litman Group and others in
       settlement.      Defendants               Levine’s individual bankruptcy case.
       were not going to settle on               Finally, the motion requested that “(i) the
       the terms offered without                 docket entry in this Civil Action showing
       the release from Mr. Levine               that the case is settled be stricken and (ii)
       and Mr. Levine, believing                 the case be scheduled for trial forthwith . .
       he had no control over                    . .” No legal authority for this request was
       matters having to do with                 cited.
       the corporation, was willing
                                                         The Litman Group’s memorandum
       to let the Trustee settle for
                                                 in opposition to Penn West’s motion
       the corporation, but he
                                                 argued that “[t]o declare a ‘closed’ case
       individually was not going
                                                 ‘open’ for reasons other than clerical
       to release the defendants.
                                                 mistake, it is necessary to file a motion for
                                                 relief from the final order under Federal
The Bankruptcy Court concluded that, due
                                                 Rule of Civil Procedure 60(b).” Agreeing
to the mistake, no settlement agreement
                                                 with the Litman Group, the District Court
existed and therefore denied Penn West’s
                                                 analyzed Penn West’s motion under Rule
motion to enforce the settlement.
       The Trustee again did not return to
the District Court to seek re-opening the
closed RICO civil case. Rather, Penn
West proceeded through its bankruptcy



jurisdiction”). See Penn West Associates,
Inc., No. 97-1678, slip op. at 6-7.

                                             5
60(b). 5 On November 5, 2002, the Court                denied the motion, holding that Penn West
                                                       could not satisfy the requirements of Rule
                                                       60(b)(1), (2), (3) or (6). Penn West filed a
  5                                                    timely notice of appeal from the District
      Rule 60(b) states in pertinent part:
                                                       Court’s order.
        On motion and upon such
        terms as are just, the court                                II. Jurisdiction
        may relieve a party or a
                                                               The District Court had jurisdiction
        party’s legal representative
                                                       over Penn West’s civil RICO action
        from a final judgment,
                                                       pursuant to 28 U.S.C. § 1331, which
        order, or proceeding for the
                                                       provides for federal question jurisdiction,
        following reasons: (1)
                                                       and removal was proper under 28 U.S.C. §
        m i s t a k e , i n a d ve r t e n c e ,
                                                       1441. With respect to our appellate
        surprise, or excusable
                                                       jurisdiction, we have noted previously that,
        negle ct; ( 2) ne w ly
                                                       while “it would appear that an order
        discovered evidence which
                                                       denying a Rule 60(b) motion is appealable
        by due diligence could not
                                                       under 28 U.S.C. § 1291,” this may not
        have been discovered in
                                                       always be the case. See Torres v. Chater,
        time to move for a new trial
                                                       125 F.3d 166, 167-68 (3d Cir. 1997). In
        under Rule 59(b); (3) fraud
                                                       Torres, we stated:
        ( w h e ther her e t o f o re
        denominated intrinsic or                              There is an interdependence
        e x t r i n s i c ) ,                                 between the “f inality”
        misrepresentation, or other                           required for Rule 60(b) and
        misconduct of an adverse                              section 1291.      In some
        party; (4) the judgment is                            instances, the Court of
        void; (5) the judgment has                            Appeals may not entertain
        been satisfied, released, or                          an appeal [from a denial of a
        discharged, or a prior                                Rule 60(b) motion] under
        judgment upon which it is                             section 1291 because the
        based has been reversed or                            underlying order in the
        otherwise vacated, or it is no                        district court is purely
        longer equitable that the                             interlocutory and, thus, not
        judgment should have                                  within the scope of Rule
        prospective application; or                           60(b), which applies only to
        (6) any other reason
        justifying relief from the
        operation of the judgment.                            (3) not more than one year
        The motion shall be made                              after the judgment, order, or
        within a reasonable time,                             proceeding was entered or
        and for reasons (1), (2), and                         taken.

                                                   6
       “final”    judgments     and                effect of that denial was to dismiss Penn
       orders.                                     West’s action. Thus we hold that the
                                                   District Court’s November 5, 2002 order
Id. at 168 (citing Kapco M fg. Co. v. C & O
                                                   was a final decision under 28 U.S.C. §
Enters., 773 F.2d 151, 153 (7th Cir.
                                                   1291. See Brown Shoe Co. v. United
1985)). Thus, if the denial of the Rule
                                                   States, 370 U.S. 294, 306 (1962) (noting
60(b) motion is itself interlocutory, we
                                                   that the Supreme Court has adopted a
normally do not have appellate jurisdiction
                                                   “pragmatic approach to the question of
to review that denial. Torres recognized,
                                                   finality”); cf. In re Grand Jury
however, that even where an underlying
                                                   Proceedings (U.S. Steel-Clairton Works),
order is purely interlocutory, we may
                                                   525 F.2d 151, 155 (3d Cir. 1975) (holding
nonetheless review a district court’s denial
                                                   that a district court’s indefinite stay of
of a Rule 60(b) motion if the denial has the
                                                   federal grand jury proceedings pending a
effect of “‘wrap[ping] up all matters
                                                   state civil contempt action had “the
pending on the docket,’ thus making the
                                                   practical effect of a dismissal of the
decision final.” Id. (quoting Kapco Mfg.
                                                   proceedings” and hence was a final order).
Co., 773 F.2d at 153). An example is a
                                                   We therefore have jurisdiction over this
district court’s interlocutory order
                                                   appeal.
remanding a case to an administrative
agency for reconsideration. See id. If,                     III. Standard of Review
while the case was pending before the
                                                          A District Court’s denial of a Rule
agency, a party filed a Rule 60(b) motion
                                                   60(b) motion generally is reviewed for
arguing that the remand had been procured
                                                   abuse of discretion. Montgomery County
by fraud on the court, a denial of that
                                                   v. Microvote Corp., 320 F.3d 440, 445 (3d
motion would be dispositive of the charge
                                                   Cir. 2003). The District Court’s decision
of fraud. Id. Given those circumstances,
                                                   to treat Penn West’s motion as a Rule
we held that the underlying remand order
                                                   60(b) motion, however, is purely a
may be considered final for purposes of
                                                   question of law, which we review de novo.
Rule 60(b) and the denial of a Rule 60(b)
                                                   See United States v. Small, 333 F.3d 425,
motion would be a final decision,
                                                   427 (3d Cir. 2003) (citing United States v.
reviewable under 28 U.S.C. § 1291. Id.
                                                   Singletary, 268 F.3d 196, 198 (3d Cir.
       We are, however, not presented              2001)).
with the difficulties addressed in Torres
                                                                  IV. Discussion
because this case does not require us to
review the merits of the denial of a Rule                   On appeal, Penn West argues that
60(b) motion, for we conclude below that           the District Court erred in denying its
it was error to apply Rule 60(b) in this           motion to re-open the civil RICO case and
case. The decision before us is the District       list it for trial, as its case did not settle and
Court’s denial of a motion to re-open an           the District Court’s August 19, 1999 order
administratively closed case. The practical        marking the case closed was void. Penn

                                               7
West concludes that the District Court              “applies only to ‘final’ judgments and
should have reviewed the motion under               orders.” Torres, 125 F.3d at 168; see also
Rule 60(b)(4), which allows relief from a           Kapco Mfg. Co., 773 F.2d at 154 (holding
“void judgment,” rather than conducting             that “Rule 60(b) must be limited to review
an analysis under Rule 60(b)(1), (2), (3),          of orders that are independently ‘final
and (6). We agree that the District Court           decisions’ under 28 U.S.C. § 1291”). 6
erred, albeit for different reasons than
                                                            The concept of “finality” is well-
those articulated by Penn West. We first
                                                    settled. In Catlin v. United States, 324
address whether Rule 60(b) is the correct
                                                    U.S. 229, 233 (1945), the Supreme Court
rule governing Penn West’s motion. We
                                                    defined a “final decision” for purposes of
next address the significance of the
                                                    appeal “generally [as] one which ends the
District Court’s August 19, 1999 order.
                                                    litigation on the merits and leaves nothing
Finally, we respond briefly to the concerns
                                                    for the court to do but execute the
raised by our dissenting colleague.
                                                    judgment.” Interpreting Catlin, we have
A.     Application of Rule 60(b)                    described a final decision as “‘one which
                                                    disposes of the whole subject, gives all the
        Our analysis of Rule 60(b) begins,
                                                    relief that was contemplated, provides with
as it must, with its text (see supra note 5).
                                                    reasonable completeness for giving effect
It allows a party to seek relief only from a
                                                    to the judgment and leaves nothing to be
“final judgment, order, or proceeding . . .
                                                    done in the cause save to superintend,
.” The application of the word “final” is
                                                    ministerially, the execution of the
clarified by the Advisory Committee
                                                    decree.’” Isidor Paiewonsky Assocs., Inc.
Notes, which explain that
                                                    v. Sharp Props., Inc., 998 F.2d 145, 150
       the qualifying word “final”                  (3d Cir. 1993) (quoting In re Moody, 825
       emphasizes the character of                  F.2d 81, 85 n.5 (5th Cir. 1987)) (emphasis
       the judgments, orders or                     in original). Accordingly, “there is no
       proceedings from which                       final order if claims remain unresolved and
       Rule 60(b) affords relief;                   their resolution is to occur in the district
       and hence interlocutory                      court.” Aluminum Co. of Amer. v. Beazer
       judgments are not brought                    East, Inc., 124 F.3d 551, 557 (3d Cir.
       within the restrictions of the
       rule, but rather they are left
                                                      6
       subject to the complete                          In Kapco, the Court reasoned that Rule
       power of the court rendering                 60(b) must be so limited because “[a] party
       them to afford such relief                   should not get immediate review of an
       from them a s justice                        order for discovery, or one denying
       requires.                                    summary judgment and setting the case for
                                                    trial, just by filing a Rule 60(b) motion to
Accordingly, we have held that Rule 60(b)           set aside the order and then appealing the
                                                    denial of this motion.” 773 F.2d at 154.

                                                8
1997) (“Ordinarily, a final decision will           importantly, there was more for the
have two effects. First, the decision will          District Court to do. The parties had to
fully resolve all claims presented to the           continue their litigation in both the District
district court. Second, after the decision          Court and the Bankruptcy Court to
has been issued, there will be nothing              determine: (1) whether they had indeed
further for the district court to do.”). This       “settled” their case in July 1999, and (2)
description accords with several other              (a) if so, the terms of that settlement and
courts of appeals. See Moody, 825 F.2d at           whether to approve it, or (b) if not, how to
85 n.5; Youghiogheny & Ohio Coal Co. v.             achieve a resolution of their ongoing
Baker, 815 F.2d 422, 424 (6th Cir. 1987);           dispute. Accordingly, the District Court’s
United States v. Western Elec. Co., 777             order does not satisfy our definition of a
F.2d 23, 26 (D.C. Cir. 1985); see also Otis         final decision.
v. City of Chicago, 29 F.3d 1159, 1163
                                                            Our conclusion is not altered by the
(7th Cir. 1994) (“[A final judgment]
                                                    parties’ mistaken assumption that their
should be a self-contained document,
                                                    litigation was terminated by the District
saying who has won and what relief has
                                                    Court’s August 19, 1999 order. The Court
been awarded . . . .”).
                                                    itself contributed to this misunderstanding
        Is the District Court’s August 19,          with its November 18, 1999 statement on
1999 order a final decision? If not, relief         the record that “our cases are settled and
is unavailable under Rule 60(b). At the             closed, and that’s the way they are going to
outset, we note that the order did not              stay, and if you have a dispute over the
resolve, or even purport to resolve, any of         terms of the settlement, that’s a contract
the claims that Penn West presented to the          dispute, and you go ahead and litigate that
District Court. Rather, its purpose was             contract dispute wherever you please.”
solely to direct the Clerk of the Court to          This mistaken assumption on the part of
mark Penn West’s case as closed.7 More              the District Court does not end the case.
                                                    See Bensalem Township. v. American
                                                    Fidelity Fire Ins. Co., 644 F.2d 990, 994
     7
      We also note that the factual basis           (3d Cir. 1981) (“[T]he boundaries of
given for the order is incorrect. It stated         section 1291 jurisdiction do not depend on
that the District Court had been “advised           the trial court’s belief that a particular
by the parties of the full and final
settlement” of Penn West’s case. That
event, however, never occurred. All                 from the record any substantive reason for
parties agree that counsel and the District         the issuance of the District Court’s order,
Court did not communicate between the               especially after telling the parties on July
July 1, 1999 teleconference and the August          1, 1999 that “[w]e’ll advise the jury that
19, 1999 order. The parties also agree that         they are discharged, and we’ll wait to
no final settlement papers were sent to the         receive from you the settlement papers that
District Court. We thus cannot discern              I have to approve.”

                                                9
decision is or is not ‘final’ . . . .”). That        Lehman v. Revolution Portfolio L.L.C.,
the parties followed suit in the belief that         166 F.3d 389, 392 (1st Cir. 1999). There,
the District Court’s order terminated their          the plaintiff in a civil action requested the
litigation does not make it so. Cf. Brown            District Court to stay its proceedings
Shoe Co. v. United States, 370 U.S. 294,             because he had entered bankruptcy. Id. at
305 (1962) (holding that “the mere consent           391. The District Court, responding to this
of the parties to the Court’s consideration          request, issued what it termed a
and decision of the case cannot, by itself,          “Procedural Order of Dismissal.” Id. It
confer jurisdiction on the Court” in the             stated:
absence of a final judgment); Gerardi v.
Pelullo, 16 F.3d 1363, 1368 (3d Cir. 1994)                  In order to avoid the
(“[W]e directed the parties to brief the                    necessity for the counsel to
finality issue, notwithstanding their                       appear at periodic status
agreement that the certification was                        conferences, it is hereby
proper, for we consider the validity of a                   ORDERED that the above-
Rule 54(b) certification ourselves.”).                      entitled action be and hereby
                                                            i s d i s m i s se d w i t h o u t
       Because the District Court’s August
                                                            prejudice to either party
19, 1999 order was not a final judgment or
                                                            moving to restore it to the
order, we hold that it erred in analyzing
                                                            docket if any further action
Penn West’s motion under Rule 60(b).
                                                            is required upon completion
How then should the District Court have
                                                            and termination of all
analyzed Penn West’s motion? To that we
                                                            bankruptcy or arbitration
now turn.
                                                            proceedings.
B.     Administrative Closings
                                                     Id. Upon receiving the order, “the clerk of
        To determine the nature of the relief
                                                     court closed the file, but did not enter a
requested in Penn West’s motion to re-
                                                     final judgment.” Id. At the request of one
open, we need to clarify the legal
                                                     of the parties, the District Court re-opened
significance of the District Court’s August
                                                     the case three years later and heard its
19, 1999 order directing the Clerk to mark
                                                     merits. Id. One of the appellant’s
Penn West’s civil RICO case closed. We
                                                     arguments on appeal was that the Court
conclude that the sole legal consequence
                                                     had improperly re-opened the case. Id.
of this order was to remove Penn West’s
                                                     The appellant argued that the case had
case from the District Court’s active
                                                     been dismissed and to re-open it three
docket. Several courts refer to such an
                                                     years after dismissal violated the
order as an “administrative closing.”
                                                     timeliness requirements of Rule 60(b). Id.
       The Court of Appeals for the First            The First Circuit clarified that the District
Circuit has addressed the purpose and                Court’s order, while labeled a “dismissal,”
significance of administrative closings in           was not a final judgment that could be

                                                10
corrected under Rule 60. Id. Rather, the                     (W.D. Pa. 1990),8 aff'd, 931
order did no more than administratively
close the case. Id. at 391-92. The fact that
the order had a misleading label “cannot                8
                                                          We think it telling the manner in which
alter the character of its action.” Id. at 392
                                                      the District Court in Mercer explained the
n.2.
                                                      Western District of Pennsylvania’s
       The Lehman Court explained the                 practice of issuing orders directing the
nature of an administrative closing as                Clerk of Court to mark a case “closed.”
follows:                                                      It is the practice of this
                                                              Court to administratively
       Administrative closings
                                                              close those cases where
       comprise a familiar, albeit
                                                              representations are made
       essentially ad hoc, way in
                                                              that settlement is imminent
       which courts remove cases
                                                              or some other disposition of
       from their active files
                                                              the case is contemplated by
       without making any final
                                                              the parties other than
       adjudication. See Corion
                                                              a d j u d i ca t i o n . The
       Corp. v. Chen, 964 F.2d 55,
                                                              administrative closing Order
       56-57 (1st Cir. 1992)
                                                              reads, in part, “[N]othing
       (holding that an order
                                                              contained in this Order shall
       deeming           a    case
                                                              be considered a dismissal or
       “administratively closed”
                                                              disposition of this matter,
       was not a final, appealable
                                                              and shou ld further
       order absent a separate
                                                              proceedings in it become
       document to signal the
                                                              necessary or desirable,
       court’s “view that the case
                                                              either party may initiate it in
       had concluded”).         The
                                                              the same manner as if this
       method is used in various
                                                              O rd e r h a d n o t b e en
       districts throughout the
                                                              entered.”
       nation in order to shelve
                                                      132 F.R.D. at 39 n.1. In this case, the
       pending, but dormant, cases.
                                                      District Court’s August 19, 1999 order
       See, e.g., id.; In re
                                                      appears not to conform to the Western
       Arbitration Between Phila.
                                                      District’s practice described above. If the
       Elec. Co. v. Nuclear Elec.
                                                      order had contained the language recited
       Ins. Ltd., 845 F. Supp. 1026,
                                                      by the Mercer Court, Penn West and the
       1028 (S.D .N.Y . 1994);
                                                      Litman Group likely would have better
       Mercer v. Allegheny Ludlum
                                                      understood its nature and effect. The
       Corp., 132 F.R.D. 38, 38-39
                                                      failure to include such language, however,
                                                      did not render the District Court’s August
                                                      19, 1999 order any less an administrative

                                                 11
       F.2d 50 (3d Cir. 1991). We          Id. at 392 (emphasis added). 9 Lehman
       endorse the judicious use of        therefore ruled that the District Court’s
       administrative closings by          “Procedural Order of Dismissal” “did not
       district courts           in        terminate the underlying case, but, rather,
       circumstances in which a            placed it in an inactive status until such
       case, though not dead, is           time as the judge, in his discretion or at the
       likely to remain moribund           request of a party, chose either to
       for an appreciable period of        reactivate it or to dispose of it with
       time.                               finality.” Id.
                                                   Lehman’s view of administrative
       Properly understood, an
                                           closings has been followed by the Courts
       administrative closing has
                                           of Appeals for the Tenth and Eleventh
       no effect other than to
                                           Circuits. See, e.g., Florida Ass’n for
       remove a case from the
                                           Retarded Citizens v. Bush, 246 F.3d 1296,
       court’s active docket and
                                           1298 (11th Cir. 2001) (“Designating a case
       permit the transfer of
                                           “closed” does not prevent the court from
       records associated with the
                                           reactivating a case either of its own accord
       case to an appropriate
                                           or at the request of the parties.”); Cantrell
       storage repository. “In no
                                           v. International Broth. of Elec. Workers,
       event does such an order
                                           AFL-CIO, Local 2021, 69 F.3d 456, 457
       bar a party from restoring
                                           (10th Cir. 1995); see also American
       the action to the Court's
                                           Heritage Life Ins. Co. v. Orr, 294 F.3d
       active calendar upon an
                                           702, 715 (5th Cir. 2002) (Dennis, J.,
       appropriate application.”
                                           concurring) (“[T]he administrative closure
       In re Arbitration, 845 F.
                                           reflects nothing more than the federal
       Supp. at 1028 (S.D.N.Y.
                                           courts’ overarching concern with tidy
       1994). Nor is the power to
                                           dockets; it has no jurisdic tional
       resurrect reserved to the
                                           significance.”); cf. Mickeviciute v. I.N.S.,
       parties. The court, too,
                                           327 F.3d 1159, 1161 n.1 (10th Cir. 2003)
       retains the authority to
                                           (noting that an “[a]dministrative closure of
       reinstate a case if it
       concludes that th e
       administrative closing was               9
                                                 The Lehman Court also noted that
       improvident or if the
                                           administrative closings “may permissibly
       circumstances that sparked
                                           contain a built-in timetable under which it
       the closing abate.
                                           automatically will expire, effectively
                                           reinstating the case . . ., or, conversely,
                                           mature into a final judgment if no action
                                           inures within a specified period . . . .” 166
closing.                                   F.3d at 392 n.4 (citations omitted).

                                      12
[an immigration] case temporarily removes             request of a party, chose either to
the case from an immigration judge’s                  reactivate it or to dispose of it with
calendar . . . . The administrative closing           finality.” Id. at 392.
of a case does not result in a final order. It
                                                              We also recognize the possibility
is merely an administrative convenience
                                                      that there are cases in our Circuit in which
which allows the removal of cases from
                                                      the last order docketed is an administrative
the calendar in appropriate situations”).
                                                      closing order. If those administrative
        Lehman presents a reasoned                    closings comport with the practice
explication of a device that, when used in            described in Mercer, 132 F.R.D. at 39 n.1
correct context, enhances a district court’s          (i.e., clearly indicating the status of the
ability to manage its docket. We adopt                litigation), there is little possibility that the
that rationale and hold that an order merely          parties mistake the order as a final
directing that a case be marked closed                decision. Here, however, it is easy to
constitutes an administrative closing that            understand why counsel believed their
has no legal consequence other than to                case over. As noted already, that belief
remove that case from the district court’s            does not a final decision make, for an
active docket.                                        administrative closing order is not
                                                      sanctioned by the Federal Rules and does
        We recognize that, in our case,
                                                      not dispense with the technical
nearly three years have passed between the
                                                      requirements of finality.                 These
District Court’s August 19, 1999 order to
                                                      requirements include not only a resolution
mark the case closed and Penn West’s May
                                                      of the parties’ claims before the District
10, 2002 motion to re-open the case and
                                                      Court, but also compliance with Rules 54
list it for trial. Yet we know of no
                                                      and 58 of the Federal Rules of Civil
provision in the Federal Rules of Civil
                                                      Procedure.10 It is indeed possible that, as
Procedure by which the mere passage of
time can mature an administrative closing
into a dismissal or a final judgment or                 10
                                                          Fed. R. Civ. P. 54(a) provides, in part:
order. As the Lehman Court noted, a
                                                      “‘Judgment’ as used in these rules includes
district court can provide, in the text of its
                                                      a decree and any order from which an
order, a built-in timetable under which the
                                                      appeal lies.” Fed. R. Civ. P. 58 (as in
administrative closing may automatically
                                                      effect when the District Court issued its
expire, or, alternatively, mature into a final
                                                      August 19, 1999 order; the rule was
decision. See 166 F.3d at 392 n.4. In this
                                                      rewritten, in April 2002, in a manner that
case, however, the District Court’s August
                                                      does not affect our analysis) required that
19, 1999 order provided no such feature.
                                                      “[e]very judgment shall be set forth on a
We can only conclude that the Court’s
                                                      separate document.”         The separate
order merely placed Penn West’s civil
                                                      document requirement must be applied
RICO case in an “inactive status until such
                                                      “mechanically.”       United States v.
time as the judge, in his discretion or at the
                                                      Indrelunas, 411 U.S. 216, 221-22 (1973);

                                                 13
a consequence of our holding that the                 C.        The Dissent
administrative closing order in our case
                                                             As a final matter, a brief response
has no legal significance beyond removing
                                                      to the dissenting opinion is in order. We
the case from the District Court’s docket,
                                                      note that our dissenting colleague does not
litigants will return to the courts to re-open
                                                      challenge our application of well-
their administratively closed cases. Our
                                                      established principles of finality or the
fidelity to uniform and consistent
                                                      conclusion that an administrative closing
application of the Federal Rules, however,
                                                      order does not constitute a final decision.
does not permit us to hold otherwise.
                                                      Instead, the dissent’s objection is to our
       We endeavor today only to correct              construction of the District Court’s August
a misapplication of Fed. R. Civ. P. 60(b),            19, 1999 order as an administrative closing
and to clarify the legal significance of the          order rather than a dismissal.         This
District Court’s August 19, 1999 order                objection, however, is based solely on the
administratively closing Penn West’s civil            proposition that the District Court’s order
RICO case, so that the motion before the              was “ambiguously worded.” 11 Relying on
District Court may be properly analyzed.              this supposed ambiguity, the dissent
We decline to address whether Penn                    proposes that we use extrinsic evidence in
West’s case may be equitably barred from              order to conclude that the District Court
restoration to the District Court’s active            and the parties actually understood the
docket or whether the case may be                     August 19th order to constitute a
dismissed for failure to prosecute under              dismissal, and that, ergo, it was a
Fed. R. Civ. P. 41(b). The District Court             dismissal.
may consider these issues on remand.
                                                             We do not agree. The August 19th
                                                      order is plain that the case be marked
                                                      closed. This was predicated on the District
                                                      Court’s statement that it had been “advised
                                                      by the parties of the full and final
see also Gregson & Assoc. Architects v.
                                                      settlement” of the case and that “there
Government of the Virgin Islands, 675
F.2d 589, 591-92 (3d Cir. 1982)
(mandating a “mechanical” application of
                                                           11
Rule 58’s separate document requirement,                    The dissent does not explain whether
even where the appellant had mistakenly               its finding of ambiguity is premised upon
believed that the district court had issued a         an ambiguity on the face of the order or,
final judgment); United States v. Fiorelli,           alternatively, an ambiguity that is only
337 F.3d 282, 286 (3d Cir. 2003) (applying            apparent after considering extrinsic
Rule 58’s separate document requirement               statements made by the District Court. As
to determine the timeliness of motions for            we describe below, however, we do not
post-judgment relief under Rules 59 and               consider extrinsic evidence unless the
60).                                                  order is ambiguous on its face.

                                                 14
[were] no further matters pending before            order.” (citing Adams, 874 F.2d at 395));
the Court.” As we have noted above, this            In re UNR Industries, Inc., 143 B.R. 506,
factual predicate was certainly erroneous           516 (Bankr. N.D. Ill. 1992) (“If an order is
because the District Court had yet to               clear and unambiguous on its face, there is
receive and approve the final settlement            no need to look beyond the face of the
papers from the parties. But nothing in the         order to determine its meaning.”).
order mentions dismissal. With no patent            Applying this rule of construction, we
ambiguity in the August 19th order, no              reject our dissenting colleague’s
need exists for parol or extrinsic evidence.        proposition that we may look past the clear
                                                    and unambiguous words used in the
                                                    District Court’s August 19th order for
       The judicial process works
                                                    what the Court and the parties intended or
       best when orders mean what
                                                    understood the order to mean.
       they say.             Surp rising
       interpretations of simple                           Reminiscent of the emperor’s new
       language – perhaps on the                    clothes, the dissent has us, in effect,
       basis of a judicial intent not               pretending to see something that does not
       revealed in the words –                      exist. Per the dissent, we should simply
       u n n e cessa rily c r e a te                pretend that Penn West’s case was
       complex questions and can                    dismissed, even though (1) no language in
       cause persons to forfeit their               the August 19th order mentioned a
       rights unintentionally. Parol                dismissal, (2) the District Court ignored
       evidence about the judge’s                   the fact that it was not to act absent
       i n t e n t io n s s h o u l d b e           receiving and approving settlement papers
       irrelevant, just as parol                    from the parties, and (3) treating the case
       evidence is excluded in                      as dismissed might unknowingly subject
       contract cases when the                      Penn West to a refiling obligation that
       language is clear.                           would trigger a statute of limitations
                                                    defense. The upshot: the dissent finds that
                                                    our decision is unfair to Penn W est’s
Adams v. Lever Bros. Co., 874 F.2d 393,             adversaries; we find unfair the dissent’s
395 (7th Cir. 1989); see also Berke v.              treatment of Penn West. Penn West
Bloch, 242 F.3d 131, 136 (3d Cir. 2001)             should not be penalized when it was the
(“The judicial process works best when              District Judge who failed to terminate
orders mean what they say. . . . Just as            properly the case before him.
parol evidence is excluded in contracts
                                                                 V. Conclusion
cases when the plain language is clear, so
too this type of [extrinsic] evidence about                 The District Court misunderstood
a party’s intentions must be considered             Penn West’s May 10, 2002 motion as one
irrelevant to an unequivocal and final              for relief under Fed. R. Civ. P. 60(b). Rule


                                               15
60(b) did not govern Penn West’s motion            the order that is at issue here. The order
because the District Court’s August 19,            noted that the Court had been informed by
1999 order directing that Penn West’s case         the parties “of the full and final
be marked closed was not a final judgment          settlement” of the case and that “there
or order. That order accomplished no               [were] no further matters pending before
more than an administrative closing of             the Court.” The Order then provided that
Penn West’s case. Thus we vacate the               “the Clerk of the Court mark the above
District Court’s November 5, 2002 order            captioned matter closed.”
denying the motion to re-open and remand
this matter for further consideration
consistent with this opinion.                               Unfortunately, the order did not
                                                   state expressly that the case was dismissed,
                                                   but it is clear that the Court and the parties
                                                   viewed the order as one that ended the
                                                   litigation in the District Court. Indeed, the
Penn West Associates v. Litman
                                                   majority notes that “the parties and the
No. 02-4344                                        District Court appear to have operated
                                                   under the assumption that the litigation
                                                   was terminated.” Maj. Op. at 3-4.
ALITO, Circuit Judge, dissenting.

                                                           The District Court’s understanding
       In my view, the District Court was          was confirmed a few months later when
correct in denying Penn West’s Motion to           the settlement fell apart and the bankruptcy
List the Case for Trial and For Other              trustee for Penn West filed a motion
Relief. The majority’s holding – that this         asking the District Court to enforce the
case has remained on the District Court’s          settlement. The District Court responded
docket in a state of suspended animation           that the case was “settled and closed,” that
for nearly five years – is unsound and may         it was going to stay closed, and that the
cause problems in other cases. I therefore         Trustee would have to file an independent
respectfully dissent.                              action if it wished to claim that the
                                                   settlement had been breached. Neither
                                                   before nor after this ruling did any party
                    I.                             complain that the Court was failing to
                                                   open a case that had not been dismissed
                                                   but had merely been administratively
       The relevant facts are simple. After        closed.
receiving notice that a settlement had been
reached, the District Court waited a few
days and then, on August 19, 1999, signed                 Several years later, after Penn West

                                              16
emerged from bankruptcy and after the                      the case was closed. Isn’t
Bankruptcy Court had declared that no                      that tanta m ount to a
valid settlement agreement existed, Penn                   dismissal of the complaint?
West filed in the District Court a Motion
                                                           Counsel: It certainly is your
to List the Case for Trial and For Other
                                                           honor. That’s the reality of
Relief. The motion did not specify the
                                                           life, that’s what it is . . . .
legal authority on which it was based, but
the District Court, consistent with its view
that the case had been dismissed long ago,          Audio tape: Transcript of Oral Arguments
assumed that Penn West was moving for               in Penn West v. Littman, (Sep. 15, 2003)
relief from a final judgment or order under         at 093 (emphasis added).
Federal Rule of Civil Procedure 60(b).
Concluding that the motion did not meet
the standard for relief under that rule, the               Under further questioning, counsel
Court denied the motion, and Penn West              for Penn West held to this position:
took the present appeal.


                                                           The Court:. . . [W]hat’s the
        On appeal, Penn West has not                       legal significance of the
argued that the District Court erred in                    August 19, 1999 order of
treating its motion as a Rule 60(b) motion                 Judge Bloch ordering that
for relief from a final judgment or order.                 the case be closed?
Rather, Penn W est’s sole argument is that
it is entitled to relief under Rule 60(b)(4)               Counsel:It closes the case.
because the order at issue is void because                 The Court:What’s the legal
it was based on the mistaken belief that the               significance of that?
case had been settled.
                                                           Counsel:The case is over.
        At oral argument, counsel for Penn                 The case is over. What the
West insisted, even under questioning that                 case does. What the order
invited him to change his position, that the               does...
August 19 order was a final order and that
the issue before our Court is whether his                  The Court:Are you sure you
client should have been granted relief from                want to say. . . Is the case
that order under Rule 60(b).            The                over or is it just an
following exchange occurred:                               administrative closing?


       The Court:The effect of the                  Id. at 111. Even after this suggestion that
       order of Judge Bloch saying                  counsel might not “want to say” that the
                                                    August 19 order signified that “[t]he case

                                               17
[was] over,” counsel for Penn West                 dismissal with prejudice when parties
continued to maintain the position that the        engaged in conduct “akin to standing on
August 19 order was a final order from             their complaint”), the order was final;
which relief should have been granted              Penn West’s motion was properly
under Rule 60(b).       See Audio tape:            categorized by the District Court as an
Transcript of Oral Arguments in Penn               order for relief under Fed. R. Civ. Proc.
West v. Littman, (Sep. 15, 2003) at 163 (“I        60(b); and because Penn West cannot
am appealing [the District Court’s]                qualify for such relief, the order denying
application of 60(b)(2) because I suggest          its Motion to List the Case for Trial and
that my motion makes it pretty clear that          For Other Relief should be affirmed.
there is a denial of due process.”). Id. at
163 (emphasis added).
                                                           The majority, however, concludes,
                                                   contrary to the understanding of the
                    II.                            District Court and the parties, that the case
                                                   was never dismissed but merely placed on
                                                   hold – apparently indefinitely – and that
        In my view, the District Court’s           therefore Penn West is entitled to revive
order of August 19, 1999, was exactly              the case, unless it is equitably barred from
what the Court and the parties understood          doing so. The majority cites nothing in the
it to be: an order dismissing the case. The        Federal Rules or in case law that supports
fact that the order did not use the correct        this result, and I see no justification for the
terminology is unfortunate but not                 majority’s approach. When a dispute
dispositive. If the dismissal was without          arises as to whether an ambiguously
prejudice, see Fed. R. Civ. Proc. 41(a)(2),        worded order is in effect a dismissal, we
the order nevertheless removed the case            should take a practical approach. If it
from the District Court’s docket, and Penn         appears that the order was intended to have
West could not restore the case to the             the same effect as a dismissal and was
docket simply by moving for such relief.           understood by all concerned as having the
Rather, Penn West would have to refile its         same effect as a dismissal, the order
complaint, assuming that its claims, which         should be treated as such.
date from the late 1980s and early 1990s,
were not time-barred.
                                                          An example of this approach is
                                                   provided by Delgrosso v. Spang and Co.,
       Alternatively, if the dismissal             903 F.2d 234 (3d Cir. 1990). The order in
eventually ripened into a dismissal with           that case stated:
prejudice when Penn West stood pat, cf.
Berke v. Bloch, 242 F.3d 131 (3d Cir.
2001)(conditional dismissal became                        IT IS HEREBY ORDERED

                                              18
       that the Clerk of Court mark                Id. Other courts of appeals have taken a
       the above caption case                      similar tack. See, e.g., American Heritage
       closed. Nothing in this                     Life Ins. Co. v. Orr, 294 F.3d 702, 707-08
       order shall be considered a                 (5 th Cir. 2002), cert. denied, 537 U.S. 1106
       dismissal or disposition of                 (2003); Corion Corp. v. Chen, 964 F.2d
       this matter and, should                     55, 56 (1 st Cir. 1992).
       further proceedings in it
       b e co m e n e ce ss ar y o r
       desirable, either party may                         The order involved here is nothing
       initiate it in the same                     like the “administrative closing” orders
       manner as if this order had                 that the majority discusses.        As the
       not been entered.                           majority notes, those orders typically state
                                                   that the parties may restore the case to the
                                                   docket if further action is required. See
Id. at 236. We did not hold that this order        Maj. Op. at 10. See also Mercer v.
was interlocutory simply because it did not        Allegheny Ludlum Corp., 132 F.R.D. 38,
state that the case was dismissed. Rather,         38-39 (W.D. Pa. 1990), aff’d, 931 F.2d 50
we analyzed the practical effect of the            (3d Cir. 1991(describing order generally
order and observed:                                entered in the W estern District of
                                                   Pennsylvania to accomplish a mere
                                                   “administrative closing”). The August 19,
       [T]he order in this case                    1999, order in this case contained no
       permits reinstatement and                   similar language and, as noted, it recited
       contemplates the possibility                that there were “no further matters pending
       of future proceedings. The                  before the Court.”
       order does not purport to
       end litigation on the merits
       and the parties agree that it                       The majority argues that the August
       does not determine any                      19 order was not a final order, but this
       issues or resolve the entire                argument does not support vacatur of the
       case. We recognize that the                 order denying the Motion to List the Case
       conduct of the district court               for Trial and For Other Relief. First, even
       raises the question whether                 if the August 19 order never ripened into a
       the order effectively, if not               dismissal with prejudice and thus never
       expressly, brings the case to               became a final order, it would not follow
       a close. O n bala nce,                      that Penn W est, years later, could restore
       however, we believe that the                the case to the District Court’s active
       order is not final.                         docket simply by moving to do so. Penn
                                                   West would have to file a complaint. It
                                                   did not do so, and therefore the denial of

                                              19
its motion was correct.                             Maj. Op. 9.


        Second, if the August 19 order                      This argument confuses the
eventually became a dismissal with                  question whether an order resolves all the
prejudice, that order resolved all of the           claims that are before a court with the
claims that Penn West asserted in its               separate and (for present purposes)
complaint and was thus final. Compare               irrelevant question whether an order
Maj. Op. 9 (stating that the this order was         resolves all the issues that may arise
not final because it “did not resolve, or           between the parties in the future. Suppose
even purport to resolve, any of the claims          that the August 19, 1999, order had stated
that Penn West presented to the District            expressly that all the claims in the case
Court”). Once Penn West’s claims were               were dismissed with prejudice. There
dismissed with prejudice and Penn West              would then be no basis for disputing the
failed to appeal, further assertion of those        finality of the order, but disagreements
claims was barred, and Penn West was                might nevertheless arise between the
relegated to asserting claims under the             parties regarding the meaning or, indeed,
settlement agreement.                               the validity of the settlement agreement.
                                                    The parties might then wish to return to
                                                    the District Court to litigate those
       The majority contends that the               disagreements, but the parities’ desire to
August 19 order was not final because               resume litigation would not undermine the
“there was more for the District Court to           finality of the order of dismissal.
do.” Maj. Op. 9. The majority elaborates:
                                                           For these reasons, I believe that the
                                                    majority’s analysis is incorrect, that the
                                                    District Court dismissed this case long
       [T]he parties had to
                                                    ago, and that Penn West’s motion to
       continue their litigation in
                                                    restore the case to the active docket was
       both the District Court and
                                                    properly denied. The majority’s decision
       the Bankruptcy Court to
                                                    is unfair to Penn West’s adversaries, and I
       determine: (1) whether they
                                                    have some concern about the effect of this
       had indeed “settled” their
                                                    decision on other cases. The majority
       case in July 1999, and (2)(a)
                                                    notes that there may be other “cases in our
       if so, the terms of that
                                                    Circuit in which the last order docketed is
       settlement and whether to
                                                    an administrative closing order” and that
       approve it, or (b) if not, how
                                                    “[it] is indeed possible that, as a
       to achieve a resolution of
                                                    consequence of our holding that the
       their ongoing dispute.
                                                    administrative closing order in our case
                                                    has no legal significance beyond removing


                                               20
the case from the District Court’s docket,
litigants will return to the courts to re-open
their administratively closed cases.” Maj.
Op. 13-14. I see no justification for
creating this danger.




                                                 21
