This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

September 22, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRI BRACKETT,

Plaintiff - Appellant,

v.

PAUL HAUTAMAA, M.D.; RUTH B.

NAUTS, M.D.; COLORADO

PERMANENTE MEDICAL GROUP,

P.C.; KAISER FOUNDATION

HEALTH PLAN OF CO, INC.;

HOWARD M. KIRSHBAUM, Arbiter;

MILES FLESCHE, Chief Clerk; JOHN

DOERNER, Chief Clerk; SUSAN

FESTAG, Chief Clerk,

Defendants - Appellees.

No. 06-1162

(D.C. No. 05-Z-2578)

(D. Colo.)

ORDER AND JUDGMENT

*

Before KELLY, McKAY, and LUCERO, Circuit Judges.**

Petitioner-Appellant Jerri Brackett, proceeding pro se, seeks to appeal the
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district court’s dismissal of her complaint challenging the result of one or more

actions filed in the Colorado state courts as violating her constitutional rights to

equal protection and due process. The district court concluded that Ms.

Brackett’s federal claims were, under the Rooker-Feldman doctrine, an

impermissible attempt to seek review of a state court judgment. The district court

found that it lacked subject matter jurisdiction and dismissed the complaint

pursuant to Fed. R. Civ. P. 12(h)(3), entering a multi-page “order and judgment”

on January 24, 2006. On February 21, 2006, Ms. Brackett filed a motion to

reconsider and for further relief which the district court construed as a motion

under Fed. R. Civ. P. 60(b).

On March 15, 2006, the district court entered a second order denying Ms.

Brackett’s motion for reconsideration. Subsequently, on April 13, 2006, Ms.

Brackett filed a “Motion to Disqualify Pursuant to 28 § 455 and Request to

Certify Pursuant to 28 § 2403 (In Lieu of Permission to Appeal),” which was

docketed by the district court as a notice of appeal. 

This court cannot exercise jurisdiction absent a timely notice of appeal.

United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004) (internal citation

omitted). If we were to construe the April 13 filing as a notice of appeal, it is

clear that the appeal from the denial of the motion for reconsideration is timely,

as the notice of appeal would be filed within 30 days of the order. Fed. R. App.

P. 4(a)(1)(A). Fed. R. Civ. P. 58(a)(1) does not require that a separate judgment
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be entered on the denial of a Rule 60(b) motion, so the time for filing a notice of

appeal would begin to run with entry of the order denying the motion for

reconsideration.

As noted, the district court entered an order and judgment on January 24. 

Even though the order and judgment purported to actually enter judgment, the

judgment was not on a separate document as required by Rule 58. The separate

document requirement is mechanically applied, so an order containing a reasoned

disposition combined with a judgment will not satisfy the rule. Clymore v.

United States, 415 F.3d 1113, 1117 (10th Cir. 2005); Allison v. Bank-Denver, 289

F.3d 1223, 1232 (10th Cir. 2002). In the absence of a separate document, a

judgment on the January 24 order and judgment is deemed entered 150 days after

its entry on the docket. Fed. R. Civ. P. 58(b)(2)(B). As Ms. Brackett’s ostensible

notice of appeal was filed before the 150 days had run, it would be timely. See

Fed. R. App. P. 4(a)(1)(A).

Ms. Brackett did not file a formal notice of appeal, so we must inquire

whether her motion to disqualify and certify is the “functional equivalent of a

timely appeal.” See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (stating that “if

a document filed within the time specified by Rule 4 gives the notice required by

Rule 3, it is effective as a notice of appeal.”). “[A] notice of appeal must

specifically indicate the litigant’s intent to seek appellate review, the purpose of

this requirement is to ensure that the filing provides sufficient notice to the other
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parties and the courts.” Id. at 248 (internal citations omitted). “[D]etermining

whether a motion is the functional equivalent of a notice of appeal turns on the

issue of notice.” United States v. Smith, 182 F.3d 733, 735 (10th Cir. 1999). 

Rule 3 requires notice of three elements: “the party or parties taking the appeal by

naming each one in the caption or body of the notice”; “the judgment, order or

part thereof being appealed”; and the “court to which the appeal is taken.” Fed.

R. App. P. 3(c)(1). 

While we must “construe Rule 3 liberally when determining whether it has

been complied with,” Barry, 502 U.S. at 248, Ms. Brackett’s motion fails to meet

the minimal notice requirements of Rule 3 and is not the functional equivalent of

a timely notice of appeal. The title of Ms. Brackett’s motion states that it is “In

Lieu of Permission to Appeal.” Further, in the motion itself, Ms. Brackett

specifically requests that the court “allow Plaintiff to bypass a petition for

permission to appeal” and instead “consider granting a motion to disqualify.” 

Mot. to Dismiss and Certify at 4. Finally, Ms. Brackett’s motion fails to state

what is being appealed. Nothing in Ms. Brackett’s motion would provide notice

to the remaining parties of her intent to appeal. If anything, Ms. Brackett’s

motion expresses her intent not to seek a formal notice of appeal. Consequently,

Ms. Brackett’s motion failed to provide adequate notice and it does not serve as

the functional equivalent of a timely notice of appeal. 

Accordingly this court lacks jurisdiction and we DISMISS the appeal. We
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DENY the motion to proceed in forma pauperis.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge