Capitol Hill Group

1 Shaw Pittman is now known more fully as Pillsbury
Winthrop Shaw Pittman LLP.
2 The Orders, entered in Civil Actions Nos. 05-97 and 05-
98, affirmed this court's judgment of December 1, 2004, awarding
attorney's fees and expenses to Shaw Pittman against Capitol
Hill Group (“CHG”), and this court's order of December 17, 2004,
denying CHG's motion under F.R. Civ. P. 60(b) for relief from
that judgment (and other related judgments).
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
CAPITOL HILL GROUP,
Debtor.
)
)
)
)
)
Case No. 02-00359
(Chapter 11)
DECISION ADDRESSING PRAECIPE RE ASSERTED ISSUANCE OF MANDATE
Shaw Pittman1 filed a praecipe on August 22, 2005,
presenting certified copies of the District Court's Orders and
its Memorandum Opinions filed on June 22, 2005.2 Shaw Pittman
contends that these certified copies constitute an issuance of a
mandate by the district court, such that, under Linder & Assocs.,
P.C. v. Richards (In re Richards), 241 B.R. 769, 770 (Bankr.
D.D.C. 1999), this court may now direct enforcement of its
monetary judgment of December 1, 2004, which was affirmed by one
The decision below is hereby signed. Dated: August
24, 2005.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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2
of the Orders. This court concludes in part I of this decision
that there has been no issuance of a mandate. However, the court
concludes in part II that the device of a mandate does not even
exist in the case of a district court's judgment disposing of an
appeal from a bankruptcy court. Thus, in Richards, this court
erred in assuming that a district court is to issue a mandate to
give effect to its ruling disposing of a bankruptcy appeal, and
erred in concluding, based on that assumption, that a lack of the
issuance of a mandate is a bar to the bankruptcy court's
enforcement of the ruling.
I
If the device of a mandate were required to be used in the
case of a district court judgment disposing of a bankruptcy
appeal, the court would look, as it did in Richards, to how the
issuance of a mandate is addressed in the case of appeals from
the district court to the court of appeals in civil proceedings
generally because the Federal Rules of Bankruptcy Procedure do
not address the issuance of such a mandate. See 28 U.S.C. §
158(c)(2). Shaw Pittman correctly notes that under F.R. App. P.
41(a), “[u]nless the court directs that a formal mandate issue
the mandate consists of a certified copy of the judgment, a copy
of the court's opinion, if any, and any direction about costs,”
and that the district court has not directed the issuance of a
formal mandate. Shaw Pittman further correctly notes that the
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3 See Finn v. 415 Fifth Ave. Co., 153 F.2d 501, 501 (2d
Cir. 1946) (“our mandates had not gone down, and the judge's stay
was still in effect”), cert. denied, 328 U.S. 838 (1946); F.R.
Crim. P. 35(b) (1985 version of rule) ("A motion to reduce a
sentence may be made, or the court may reduce sentence without
motion . . . within 120 days after receipt by the [district]
court of a mandate issued upon affirmance of the judgment or
dismissal of the appeal") (emphasis added); United States v.
Robertson, 810 F.2d 254, 259 & n. 6 (D.C. Cir. 1987) (noting that
a mandate is issued by the appellate court and received by the
trial court); United States v. Ferris, 751 F.2d 436, 441 (1st
Cir. 1984) (noting, implicitly, the trial court's clerk's
office's responsibility to docket receipt of the mandate on the
trial court's docket).
3
mandate is ministerial, as the responsibility for the mandate
rests with the clerk's office, not the judge. See United States
v. Rivera, 844 F.2d 916, 920 (2d Cir. 1988).
However, the term “issue” raises the necessary question of
to whom the mandate is to issue, and plainly it is to the trial
court, with the clerk of the appellate court required to transmit
the mandate to the trial court.3 Until the clerk of the
appellate court undertakes an act intended to constitute the
issuance (including transmission) of a mandate to the trial
court, and records that act of issuance on the appellate court
docket as required by F.R. App. P. 45(b)(1) (“The clerk must
record . . . all process, orders, and judgments.”), there has
been no issuance of a mandate. See Bell v. Thompson, ___ U.S.
____, ____, 125 S.Ct. 2825, 2831 (2005) (“Without a formal docket
entry neither the parties nor this Court had, or have, any way to
know whether the court had stayed the mandate or simply made a
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4
clerical mistake.” [Citation omitted.]). There has thus been no
issuance of a mandate here. However, as demonstrated below, the
device of a mandate does not apply to a district court judgment
disposing of a bankruptcy appeal.
II
In deciding how and when the district's court's appellate
ruling is to be transmitted to the bankruptcy court, there is no
necessity for resort to the rules applicable to issuance of the
mandate in the case of appeals from a district court judgment in
other civil litigation. F.R. Bankr. P. 8016(b) expressly
addresses the transmission of the district court's judgment to
the trial court, and obviates the necessity of looking to the
Federal Rules of Appellate Procedure to address that issue. Rule
8016(b) provides in relevant part:
Immediately on the entry of a judgment or order the
clerk of the district court . . . shall transmit a
notice of the entry to . . . the clerk [meaning, under
Rule 9002(3), the clerk of the bankruptcy court],
together with a copy of any opinion respecting the
judgment or order, and shall make a note of the
transmission in the docket. . . .
As the Advisory Committee Note (1983) to F.R. Bankr. P. 8017
demonstrates, the Committee was well aware of F.R. App. P. 41 in
drafting the rules regarding when an appellate ruling by the
district court is to take effect. In the case of a court of
appeals judgment, a stay of the judgment is obtained under Rule
41 by staying the issuance of the mandate; there is no separate
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4 Under Rule 41(d), “[t]he timely filing of a petition for
rehearing, petition for rehearing en banc, or motion for stay of
mandate, stays the mandate until disposition of the petition or
motion, unless the court orders otherwise.” In turn, Rule 41(b)
provides:
The court's mandate must issue 7 calendar days after
the time to file a petition for rehearing expires, or 7
calendar days after entry of an order denying a timely
petition for panel rehearing, petition for rehearing en
banc, or motion for stay of mandate, whichever is
later. The court may shorten or extend the time.
Rule 41 does not set a deadline for filing a motion for stay of
mandate, but presumably, in the absence of local rule, such a
motion is not timely if filed once the mandate otherwise would be
required to be issued.
Rule 41(d)(2) specifically addresses staying the mandate
pending the filing of a petition for a writ of certiorari in the
Supreme Court, and provides for automatic continuation of any
stay once notice is filed within the period of the stay that a
petition for the writ has been filed.
5 Beyond the express acknowlegment in the Advisory
Committee Note, the structure of Rule 8017(b) itself is evidence
5
rule addressing staying the judgment itself.4 In contrast, a
stay of a district court's bankruptcy appellate judgment, after
expiration of the 10-day automatic stay of the judgment under
Rule 8017(b), is obtained under Rule 8017(b) by filing a motion
to stay the judgment itself, not a motion to stay the issuance of
a mandate, and, in conjunction with Rule 8016(a), represents a
conscious decision to dispense with the device of a mandate, and
to dispense with a delay in issuance of a mandate as the
procedural vehicle for staying an appellate ruling of the
district court.5
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that the Committee had in mind F.R. App. P. 41 when it elected to
dispense with a delay of the issuance of the mandate as the
vehicle for staying the effectiveness of a district court's
ruling. Rule 8017(b) is analogous to F.R. App. P. 41(d)(2) (see
n.4, supra) in that it provides that a stay granted under that
rule of 30 days after entry of the judgment continues in effect
pending a final disposition by the court of appeals if, prior to
the expiration of the 30-day stay, there is an appeal to the
court of appeals by the party who obtained the stay.
6
Rule 8016(b) is the procedural vehicle whereby the
bankruptcy court is to be apprised of the district court's
ruling, without the necessity of any action by the parties, so
that the bankruptcy court is aware of the district court's ruling
and may take steps to carry out whatever is mandated by virtue of
that ruling (unless that ruling is stayed under Rule 8017).
Although a transmission under Rule 8016(b) serves a notification
function similar to that of a mandate under F.R. App. P. 41, such
a transmission is not the issuance of a mandate.
This conclusion is readily demonstrated by F.R. Bankr. P.
8015. That rule provides that the district court may grant a
rehearing pursuant to a motion filed within 10 days after entry
of the district court's judgment. If a transmission under F.R.
Bankr. P. 8016(b) (required to be made immediately upon entry of
the district court's judgment) constituted an issuance of a
mandate, the district court would be without jurisdiction to
consider a Rule 8015 motion for reconsideration. See Richards,
241 B.R. at 770 (opening sentence of part II), 771 nn. 2 and 3,
and 777 (part IV). This cannot be.
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6 See United States v. Barela, 571 F.2d 1108, 1113 (9th
Cir.) ((“[T]he unequivocal, mandatory language of Rule 41(a) [now
Rule 41(b)] of the Federal Rules of Appellate Procedure made
issuance of the mandate a mere ministerial act.”) (Ferguson, J.,
dissenting), cert. denied, 436 U.S. 963, 98 S.Ct. 3083, 57
L.Ed.2d 1130 (1978); Finberg v. Sullivan, 658 F.2d 93, 97 n. 5
(3d Cir. 1980) (the issuance of the mandate "is largely a
ministerial function, and follows automatically 21 days after
entry of judgment, unless stayed”) (applying former version of
Rule 41(b), then appearing in Rule 41(a), which had a different
deadline for issuance of the mandate); Clarke v. United States,
915 F.2d 699, 706 (D.C. Cir. 1990) (Edwards, J., dissenting)
(“Issuance of the mandate is a purely ministerial function that
ordinarily occurs automatically twenty-one days after entry of
judgment or seven days after denial of a petition for
rehearing.”) (applying former version of Rule 41(b), then
appearing in Rule 41(a)).
7
The Federal Rules of Bankruptcy Procedure set forth no
further provision regarding transmitting the district court's
ruling to the bankruptcy court, and it would be odd for such a
transmission to be done twice, once under Rule 8016(b) and at a
later time as a mandate. Moreover, the issuance of a mandate
under F.R. App. P. 41(b) is designed to be a ministerial task.6
If the Advisory Committee on Bankruptcy Rules had intended that
there be a mandate device applicable to appeals to the district
court from the bankruptcy court, it would surely have spelt out
for the clerk when the clerk's ministerial task of issuing the
mandate is to be performed.
The Rules Committee, in electing not to make any reference
to a mandate despite borrowing from Rule 41 in addressing the
effectiveness of a district court's appellate ruling, made a
conscious decision to dispense with the device of issuance of a
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mandate, and with utilization of such issuance as the determinant
of when an appellate ruling may be enforced. The court thus
rejects its prior assumption in Richards, 241 B.R. at 771, that,
at some point, a mandate is to be issued by the district court.
The district court does not issue a mandate in the case of a
judgment it enters disposing of an appeal from the bankruptcy
court. Further, the court must as well reject its prior
subsidiary conclusion in Richards, 241 B.R. at 777, that issuance
of a mandate is a condition to the bankruptcy court's giving
effect to the district court's judgment.
III
The failure of the District Court's clerk's office to comply
with Rule 8016(b) does not serve to stay the District Court's
Orders: only a stay under Rule 8017 would stay the effectiveness
of the Orders. CHG filed a motion for a stay in the District
Court eight days after entry of the District Court's Order
affirming this court's judgment of December 1, 2004, and thus
prior to expiration of the 10-day automatic stay of Rule 8017.
CHG also filed a motion to stay the issuance of the district
court's mandate. The District Court may thus be operating under
the erroneous assumption, in which this court engaged in
Richards, that a mandate must be issued before there is any need
for a stay to be issued. Accordingly, the court will transmit a
copy of this order to the District Court, and delay enforcing the
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9	O:\JUDGEFIL\APPEALS\Mandate Inapplicable to District Court Appellate Ruling - CHG vs Shaw Pittman.wpd
December 1, 2004, judgment against the cash bond until after
August 29, 2005, so that the District Court can decide whether to
issue a stay pending its disposition of CHG's motion for a stay
pending appeal.
[Signed and dated above.]
Copies to:
Donald Hartman [counsel for CHG]
John Burns [counsel for CHG]
Patrick Potter [counsel for Shaw Pittman]
Office of the United States Trustee
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