UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MERGENTIME CORP

v.

WMATA .


97-7138a

D.C. Cir. 1999


*	*	*


Tatel, Circuit Judge: This case requires us to interpret  Federal Rule
of Civil Procedure 63, which applies when a  district judge becomes
unable to proceed and is replaced by a  successor judge. The original
judge in this case presided  over a 45-day bench trial, during which
the parties presented  more than 50 witnesses and introduced more than
4,000  exhibits. Because the original judge became terminally ill 
after the close of evidence and could only make partial  findings of
fact and conclusions of law before he died, the  successor judge faced
two discrete tasks: adjudicating post- trial motions challenging the
original judge's findings and  conclusions, and making findings and
conclusions of his own  regarding the unresolved issues. Stating that
he would not  "second guess" the original judge's findings and
conclusions,  the successor judge refused to consider the parties'
post-trial  motions. Then, without allowing the parties to recall wit-
nesses, the successor judge made further findings and conclu- sions
from the record. Because we hold that the successor  judge's refusal
to adjudicate post-trial motions and to consid- er recalling witnesses
violated Rule 63, we reverse.


I


In 1985, the Washington Metropolitan Area Transit Au- thority awarded a
$50.9 million contract to build the Shaw  Street station and
associated tunnels on Metro's Green Line 


to a joint venture consisting of two construction companies, 
Mergentime Corporation and Perini Corporation, appellants  in this
case. WMATA soon awarded the joint venture a  second contract to build
the Green Line's U Street station  and associated tunnels for $44.3
million. The contracts, which  contained standard provisions governing
contract modifica- tion, default termination, and dispute resolution,
called for the  completion of the Shaw Street work by March 1989 and
the U  Street work by August 1989.


From the outset, both projects experienced unexpected  difficulties
that caused substantial delays and cost overruns.  For example, the
Department of Public Works rejected the  contractors' request to close
Rhode Island Avenue (as  WMATA's bid invitation had specified). This
required signifi- cant changes in utility relocation plans that were
important to  the early stages of construction of the Shaw Street
station.  The contractors also encountered unanticipated soil
conditions  as they tunneled north from the Shaw Street station,
requir- ing the use of time-consuming and expensive grouting tech-
niques to stabilize the soil.


Invoking the "changes" clause of the contracts, the contrac- tors
submitted claims for equitable adjustments to the con- tract price
seeking compensation for expenses resulting from  these unforeseen
problems. WMATA paid some of these  claims, but slowly. By early 1988,
the contractors were  running a deficit of over $8.6 million on the
Shaw Street  project alone. To make matters worse, the contractors
dis- solved their joint venture at the end of 1987, though they did 
not immediately inform WMATA. Mergentime bought out  Perini's interest
for $1.5 million. This capital outlay, coupled  with the fact that
Perini was no longer making capital contri- butions to the project,
worsened Mergentime's financial  straits.


In April 1989, the contractors sued WMATA in the United  States
District Court for the District of Columbia, alleging  that WMATA's
failure to pay their claims for additional work  constituted a breach
of the Shaw Street contract. They  sought $18.5 million in damages and
a declaration that they 


had no obligation to continue working. In the meantime,  work on the
two projects slowed significantly. By the follow- ing summer,
Mergentime had drastically reduced its work- force, falling weeks if
not months behind schedule.


In an effort to rejuvenate the projects, the contractors and  WMATA
entered into a written agreement in August 1989,  which, recognizing
that most of the completion dates in the  original contracts had
passed, established revised "milestone"  completion dates of September
1 and December 15, 1990 for  Shaw Street and U Street, respectively.
The contractors  promised to use their "best efforts" to complete the
projects  by those dates in exchange for WMATA's promise to pay the 
contractors $4.4 million against their outstanding reimburse- ment
claims and to use its "best efforts" to settle the remain- der of
those claims as promptly as possible. WMATA also  agreed to relinquish
any right to terminate the contract for  default based on events that
had occurred prior to the  agreement. In return, the contractors
agreed not to stop  working based on prior events, including WMATA's
failure to  process their reimbursement claims. Apart from the
recipro- cal waivers of the right to terminate, the agreement
expressly  disclaimed any intent by the parties to relinquish their
claims  in the pending lawsuit, which the parties asked the district 


Mergentime resumed work in September. It progressed  satisfactorily for
a few months, but by December work had  once again slowed
substantially. Mergentime complained to  WMATA that because of its
cash flow problems it would be  unable to complete the work unless
WMATA processed its  outstanding reimbursement claims. In response,
WMATA  gave Mergentime an advance of $1 million in December 1989,  and
another advance of $1.6 million in February 1990. Al- though these
advances briefly revitalized Mergentime's prog- ress, each burst of
energy was short-lived. By the spring of  1990, Mergentime had all but
ceased working at both sites.


Asserting that the September and December 1990 mile- stone dates were
no longer attainable, WMATA issued "show  cause" letters to the
contractors. (By then WMATA knew 


that the contractors had dissolved their joint venture, but it  was not
entirely clear whether Perini, which remains a party  to this
litigation, retained its obligations under the original  contracts.)
Responding to the show cause letters and con- tinuing to insist that
further progress hinged on the settle- ment of outstanding claims,
Mergentime demanded an addi- tional $7.9 million as a condition of
returning to work.  WMATA terminated the contracts for default on May


Reviving their dormant lawsuit, the contractors added  claims for
breach of the U Street contract, breach of the  August 1989 agreement,
and wrongful termination. WMATA  counterclaimed to recover so-called
"excess reprocurement  costs"--expenses incurred in hiring other
contractors to com- plete the work covered by the contracts. During a
45-day  bench trial, the parties presented over 50 witnesses and 
submitted over 4,000 exhibits.


Following the close of evidence, the district judge devel- oped a
terminal illness. As the illness worsened, he contin- ued to work
heroically, issuing a 251-page opinion containing  partial findings of
fact and conclusions of law in July 1993.  Observing that "[t]his case
is about how not to build a subway  system," the judge held that WMATA
justifiably terminated  the contracts for default and was entitled to
$16.5 million in  excess reprocurement costs, that the contractors'
Shaw  Street reimbursement claims had "substantial, if not com- plete,
merit," and that the contractors had failed to establish  their
entitlement to prove those claims with the beneficial  "total cost"
accounting method. Mergentime Corp. v.  WMATA, No. 89-1055, at 1, 242,
247, 249 (D.D.C. July 30,  1993) ("July 1993 Order"). The judge said
that he was unable  to quantify the contractors' entitlement to
reimbursement for  its Shaw Street claims or to draw any conclusions
regarding  the merits of the contractors' U Street claims. See id. at 
248-49. The judge died two days later.


After the case was reassigned to a successor judge, the  contractors
filed motions to amend the original judge's find- ings under Federal
Rule of Civil Procedure 52 and for a new 


trial under Rule 59. WMATA filed a motion to correct  "inadvertent
omissions" in the original judge's damages calcu- lations. The parties
also filed briefs suggesting procedures  for resolving the issues left
open by the original judge.


Following more than a year of inaction, the parties asked  the
successor judge to schedule a status conference to discuss  the
court's plan for proceeding. Instead of holding a status  conference,
the successor judge issued an order summarily  denying all pending
motions, explaining that he would not  reconsider any issues already
decided by the original judge  because he was only "attempting to
finish the case as [the  original judge] would have had he survived
long enough."  Mergentime Corp. v. WMATA, No. 89-1055, at 4 (D.D.C. 
Apr. 7, 1995) ("April 1995 Order"). The order also estab- lished a
two-round briefing schedule with respect to the open  issues,
directing the parties to support their arguments by  citing to the
existing record. See id. at 12-13. Briefing  occurred throughout the
summer and fall of 1995. Two years  later, in July 1997, the successor
judge issued his findings and  conclusions with respect to the
remaining issues, awarding  the contractors $4.25 million on their
outstanding claims.  Mergentime Corp. v. WMATA, No. 89-1055 (D.D.C.
July 22,  1997) ("July 1997 Order"). He also ordered post-judgment 
interest to run from the date of his July 1997 final judgment,  not
from the original judge's July 1993 partial judgment.  Mergentime
Corp. v. WMATA, No. 89-1055 (D.D.C. Sept. 18,  1997) ("September 1997


On appeal, the contractors claim that the procedure the  successor
judge adopted for disposing of the post-trial mo- tions and resolving
the issues left open by the original judge's  death violated Federal
Rule of Civil Procedure 63. On the  merits, they challenge many of the
findings and conclusions of  both judges. Cross-appealing, WMATA
claims that post- judgment interest should run from the date of the
original  judge's July 1993 judgment.


II


As originally adopted in 1937, Rule 63 provided:


If by reason of death, sickness, or other disability, a  judge before
whom an action has been tried is unable to  perform the duties to be
performed by the court ...  after verdict is returned or findings of
fact and conclu- sions of law are filed, then any other judge ... may 
perform those duties; but if such other judge is satisfied  that he
cannot perform those other duties because he did  not preside at the
trial or for any other reason, he may in  his discretion grant a new
trial.


According to this rule, if a judge became unable to proceed  after
verdict or judgment, a successor judge could take over  and resolve
post-trial motions without automatically having to  retry the case.
The rule made no provision for a judge  becoming unable to proceed
during a trial. Where an origi- nal judge became unavailable at any
point prior to return of a  verdict in a jury trial or the filing of
findings of fact and  conclusions of law in a bench trial, courts
interpreted Rule 63  to require complete retrial. See Whalen v. Ford
Motor  Credit Co., 684 F.2d 272 (4th Cir. 1982) (en banc); Arrow-
Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977).


Because the growing length of federal trials increased the  likelihood
that the inability of a judge to continue would  interrupt a trial
before verdict or judgment, Rule 63 was  substantially broadened in
1991 to allow successor judges to  take over at any point after trial
begins, thus creating a more  "efficient mechanism" for completing
interrupted trials with- out causing "unnecessary expense and delay."
Fed. R. Civ. P.  63 advisory committee's note (1991 Amendment).
However,  recognizing that "injustice ... may result if the substitute
 judge proceeds despite unfamiliarity with the action," id.,  amended
Rule 63 also imposes additional responsibilities on  successor judges.
The rule now provides:


If a trial or hearing has been commenced and the  judge is unable to
proceed, any other judge may proceed  with it upon certifying
familiarity with the record and  determining that the proceedings in
the case may be  completed without prejudice to the parties. In a
hearing  or trial without a jury, the successor judge shall at the 


request of a party recall any witness whose testimony is  material and
disputed and who is available to testify  again without undue burden.
The successor judge may  also recall any other witness.


Balancing efficiency and fairness, the new rule thus allows  successor
judges to avoid retrial, but only to the extent they  ensure that they
can stand in the shoes of the predecessor by  determining that "the
case may be completed without preju- dice to the parties."


In this case the successor judge served two distinct Rule 63 
functions. The first, which flowed from the parties' post-trial 
motions, called upon him to review the original judge's find- ings and
conclusions. In this sense, the successor judge  assumed the role that
the original rule contemplated: taking  over "after ... findings of
fact and conclusions of law are  filed." The second role arose from
the original judge's inabil- ity to make findings and conclusions
regarding every issue.  This required the successor judge to assume
the role specifi- cally contemplated by amended Rule 63: taking over
any  time after "a trial or hearing has been commenced."


According to the contractors, the successor judge violated  Rule 63 in
three ways: by failing to consider post-trial  motions; by failing
expressly to certify his familiarity with  the record; and by refusing
to recall witnesses. Mindful of  the successor judge's two distinct
roles in this case, we  consider each claim in turn.


Failure to Consider Post-trial Motions


We begin with the contractors' argument that the successor  judge
violated Rule 63 by failing to reconsider the original  judge's
findings pursuant to their Rule 52 and Rule 59  motions. According to
WMATA, the successor judge did in  fact consider the contractors'
post-trial motions, but simply  denied them. The record does not
support WMATA's asser- tion.


In his April 1995 Order, the successor judge said specifical- ly that
he would "not accept the parties' invitations to second- guess the
conclusions [the original judge] reached," and that  he would thus
"deny all motions that seek to revisit issues  clearly decided by" the
original judge. April 1995 Order at 2  & n.1. The successor judge
cautioned the parties that any  "[a]rguments that attempt to
second-guess [the original  judge's] Opinion or to open up issues that
have already been  decided will not be considered." Id. at 3 (emphasis
added).  Instead, the successor judge "accept[ed] the factual and
credi- bility determinations that [the original judge] made" and 
urged the parties "to pursue any claim of error [with respect  to the
original judge's findings] on appeal." Id. at 2, 3 n.3.  In a later
order, the successor judge chastised the contractors  for attempting
to relitigate the original judge's findings,  stating again: "To the
extent that the parties are dissatisfied  with the [original judge's]
rulings, an appeal [to the Court of  Appeals] is open to them. This
Court will not sit as an  appellate court with respect to any of [the
original judge's]  rulings." July 1997 Order at 6 n.2.


Despite these indications that the successor judge gave no 
consideration to the contractors' post-trial motions, WMATA  insists
that he actually did consider them, pointing to his  statement in the
April 1995 Order that he had "examined the  extensive record in this
case, including [the original judge's]  251 page opinion and all the
filings that followed the reassign- ment." April 1995 Order at 2.
According to WMATA, the  fact that the successor judge said that he
had examined the  record and the filings before he said that he was
denying the  contractors' pending motions demonstrates that he fully
con- sidered the motions and then denied them on their merits.


We cannot tell what the successor judge meant when he  said that he had
examined the "record." As WMATA con- cedes, he could not have meant
that he had examined the trial  exhibits; the parties had reclaimed
them after the original  judge died. Indeed, without the trial
exhibits, understanding  many of the contractors' arguments would have
been impossi- ble. For example, the contractors' Rule 52 motion
contended  that the original judge erred in finding that they had


duced absolutely no evidence to refute WMATA's claimed  excess
reprocurement costs. According to the contractors,  the original judge
overlooked the testimony of Dennis Ham- mond, the reprocurement
contractor's project manager, who  testified regarding his "cost
compilation" document, a trial  exhibit that detailed reprocurement
costs different from those  claimed by WMATA. We reviewed the
transcript of Ham- mond's testimony ourselves and found it totally
incomprehen- sible without simultaneously referring to the cost
compilation  exhibit. We doubt that the successor judge could have 
understood Hammond's testimony--and hence the contrac- tors'
reprocurement cost arguments--without also referring  to the exhibit.
Since the successor judge did not have the  exhibit when he ruled on
the post-trial motions, we think he  could not have considered those


By refusing to consider the post-trial motions, the succes- sor judge
failed to comply with Rule 63. After all, the  original judge could
not have refused to consider them.  Although district courts enjoy
wide discretion to grant or  deny post-trial motions, see Hutchinson
v. Stuckey, 952 F.2d  1418, 1420 (D.C. Cir. 1992), they cannot refuse
to exercise  that discretion. See Charles A. Wright et al., Federal 
Practice and Procedure s 2818, at 194 (2d ed. 1995) ("If the  trial
judge has failed to exercise discretion at all, as when he  is under
the mistaken apprehension that he has no power to  grant the relief
sought, the appellate court can review that  decision and can order
the judge to exercise his discretion.");  12 Moore's Federal Practice
s 59.54[3] (Matthew Bender 3d  ed. 1998); cf. In re Green, 669 F.2d
779, 786 (D.C. Cir. 1981)  (district court violated in forma pauperis
statute by refusing  to exercise discretion regarding whether to waive
filing fee).  Since Rule 63 requires a successor judge to stand in the
shoes  of the original judge, the successor judge in this case assumed
 the original judge's obligation to exercise his discretion with 
respect to the contractors' post-trial motions. It would be  unfair to
"deny a litigant's right to try to persuade the court  that it has
erred simply because the judge who rendered the  original decision is
unavailable and cannot be called on to 


reconsider the matter." 12 Moore's Federal Practice  s 63.05[1].


Quoting from our decision in Thompson v. Sawyer,  WMATA argues that a
successor judge's Rule 63 obligation  "does not encompass relitigation
of all issues decided by the  predecessor judge." 678 F.2d 257, 270
(D.C. Cir. 1982). The  issue in Thompson, however, was whether the
successor  judge erred in refusing to overturn a decision that the 
original judge made years before he died. The plaintiffs thus  had
ample opportunity to convince the original judge that he  had erred.
In this case, the contractors had no such opportu- nity because the
original judge died two days after issuing his  order. As Thompson put
it, a successor judge's "reconsidera- tion of errors may be especially
appropriate where the prede- cessor judge cannot perform the task
himself." Id.; see also  United States Gypsum Co. v. Schiavo Bros.,
668 F.2d 172, 176  (3d Cir. 1981) (a successor judge is empowered to
reconsider  legal issues "to the same extent that his or her


The circumstances of this case made careful consideration  of the
post-trial motions particularly important for two rea- sons. First,
although the original judge struggled to resolve  as much of this
complex case as possible before his death, it  would be unrealistic to
assume that he made no mistakes in  his 251-page opinion. Indeed,
WMATA itself filed a post- trial motion seeking to correct what it
called "inadvertent  omissions" in that opinion. And at oral argument,
WMATA  conceded that the original judge made at least one mistake to 
the contractors' detriment: He found that by signing the  August 1989
agreement the contractors waived their breach  of contract claim
arising from WMATA's allegedly unreason- able delays in processing
their claims. This finding was  erroneous because in the August 1989
agreement the contrac- tors waived only their right to terminate
performance be- cause of the alleged breach, not their right to sue
for breach.  The contractors argued this point in their post-trial
motion,  but the successor judge never considered it.


The second reason for carefully considering the post-trial  motions
relates to the successor judge's dual role. More than  merely assuming
the validity of the original judge's findings,  the successor judge
relied on those findings in making addi- tional findings of his own
with respect to the issues left  unresolved by the original judge. For
example, the original  judge found that the adverse impact caused by
the disapprov- al of the contractors' plan for controlling traffic on
Rhode  Island Avenue ceased by November 6, 1986. See July 1993  Order
at 222. The contractors specifically challenged this  finding in their
post-trial motion. Without considering their  challenge, the successor
judge then limited the contractors'  damages on their Rhode Island
Avenue claim to those in- curred before November 6, expressly relying
on the original  judge's previous finding regarding the Rhode Island
Avenue  closure. See July 1997 Order at 10-11. In other words, the 
validity of the successor judge's own findings regarding the 
unresolved issues depends in part on whether the original  judge's
findings were valid--a question the successor judge  was asked to
consider, but never did.


Failure to Certify Familiarity with the Record


In January 1995, by which time the successor judge still  had not
established a schedule for resolving the open issues,  the contractors
sent him a letter reminding him of Rule 63's  requirement that he
"certify[ ] familiarity with the record"  and suggesting that before
he did anything he should retrieve  the trial exhibits and certify his
familiarity with them. In  response, the successor judge issued the
April 1995 Order,  which identified the outstanding issues and
scheduled two  rounds of briefing. The order instructed the parties
that  their briefs should "highlight specific pages in the transcript,
 specific exhibits, and specific pages in [the original judge's 
opinion] that support their particular arguments." April 1995  Order
at 3. "This type of detailed support," the successor  judge said,
would "ensure that [he was] as prepared as  possible to rule on the
remaining issues without prejudice to  either party," id., and would
be "adequate to allow [him] to 


meet the standard established for successor judges" in Rule  63. Id.
at 3 n.2.


The contractors now argue that the successor judge violat- ed Rule 63
because he never expressly certified his familiarity  with the record
before resolving the outstanding issues. This  argument implicates the
two distinct Rule 63 roles the succes- sor judge performed in this
case. See Perini Br. at 26 (the  successor judge's "failure to
certify, before either ruling on  [the contractors'] motion for
reconsideration or adjudicating  the open issues, violate[d] Rule


We need not consider whether the successor judge erred in  refusing to
certify familiarity with the record with respect to  his first role
(deciding the contractors' post-trial motions); as  we have concluded,
he failed to consider those motions. See  supra at 10-12. We therefore
turn to the contractors' argu- ment that the successor judge should
have certified his  familiarity with the record before ruling on the
open issues.


We begin with a few basics. First, successor judges need  only certify
their familiarity with those portions of the record  that relate to
the issues before them. See Canseco v. United  States, 97 F.3d 1224,
1227 (9th Cir. 1996) ("To certify her  familiarity with the record,
the successor district judge will  have to read and consider all
relevant portions of the rec- ord."); see also Moore's Federal
Practice s 63.04[3]. Sec- ond, the extent of the certification
obligation depends upon  the nature of the successor judge's role in a
given case. A  successor judge who inherits a jury trial before the
close of  evidence must become familiar with the entire record in
order  to have the context necessary to rule on evidentiary objec-
tions based on relevance. By comparison, a successor judge  who
inherits a case after the entry of verdict or judgment and  who must
consider only a narrow post-trial motion--such as  one challenging the
sufficiency of the evidence regarding a  single factual finding--need
only review the portion of the  record relevant to that particular


In this case, the contractors do not challenge the proce- dures by
which the successor judge determined which por- tions of the record
were relevant to the open issues, and for  good reason: Faced with a
record containing 4,000 exhibits 


and thousands of pages of trial transcript, the successor judge  wisely
entrusted the parties to guide him through the massive  record and
point him to the material relevant to their argu- ments. Far from an
abdication of his Rule 63 duties, this  procedure made perfect


Rather than claiming that the successor judge gathered the  wrong
material, the contractors argue that due to the lack of  express
certification we cannot know whether he reviewed the  material he did
gather. We think this argument elevates  form over substance. Although
the successor judge nowhere  actually stated that he had reviewed the
voluminous appendi- ces of exhibits and transcript excerpts that the
parties sub- mitted along with their open issues briefs, we have no
doubt  that he did. After all, he told the parties that he needed 
these record excerpts to "satisfy the mandate of Rule 63."  April 1995
Order at 3 n.2. The successor judge obviously  required this exercise
to ensure that the parties directed him  to each item in the record
relevant to the outstanding issues.  We simply do not believe that he
then proceeded to ignore  these materials in the process of making his
findings and  conclusions.


To be sure, express certification would have been prefera- ble, for it
would have avoided this issue. We find no error  here, however,
because the procedure the successor judge  ordered together with the
language he used demonstrate that  he complied with Rule 63's basic
requirement: that a succes- sor judge become familiar with relevant
portions of the  record.


Failure to Recall Witnesses


In their opening district court brief regarding the outstand- ing
issues, the contractors emphasized Rule 63's requirement  that "[i]n a
hearing or trial without a jury, the successor  judge shall at the
request of a party recall any witness whose  testimony is material and
disputed and who is available to  testify again without undue burden."
Their brief stated:


[We] question[ ] whether the issues such as those can- vassed [in] the
[April] 1995 Order can be determined 


fairly and reliably by a review of the transcript passages  and
exhibits cited in the parties' briefs.... 


... [A]ssuredly some open issues will turn on credibili- ty
determinations, for example, disputes about relative  responsibility
for changes and delays, damage computa- tions, and adjustments.... In
this brief, [we] rel[y] on  testimony and exhibits in evidence. If
WMATA chal- lenges their reliability or credibility, [we] request[ ]
that  appropriate witnesses be recalled.


In their reply brief, filed after WMATA submitted its opening  brief
identifying the testimony it believed supported its posi- tions on the
unresolved issues, the contractors once again  argued that the
successor judge would have to recall certain  of WMATA's witnesses. As
an example, they pointed to  WMATA's damages expert, who they claimed
had "self- destruct[ed] on cross-examination." The contractors offered
 to submit a complete list of other such witnesses after  WMATA
submitted its surreply, but the successor judge  never afforded the
contractors an opportunity to do so before  issuing his July 1997
order deciding the remaining issues.


The contractors now argue that the successor judge should  have
recalled WMATA's damages expert as well as other  witnesses before
resolving the open issues. WMATA, relying  on the Ninth Circuit's
decision in Canseco, supra, responds  that recalling witnesses is not
always necessary because  sometimes successor judges can evaluate
witness credibility  from the record. See 97 F.3d at 1227 ("In the
event the  sufficiency of the evidence depends upon the credibility of
a  witness whose credibility is in question, and that credibility 
cannot be determined from the record, the successor judge  will have
to recall the witness...."). The successor judge in  Canseco, however,
was only called upon to review her prede- cessor's findings. Here the
successor judge made fresh  findings of his own. While Rule 63 allows
successor judges to  make findings of fact based on evidence heard by
a predeces- sor judge, the 1991 advisory committee note makes clear
that  this practice is appropriate only "in limited circumstances," 
such as when a witness has become unavailable or when the 


particular testimony is undisputed or immaterial. A succes- sor judge,
according to the advisory committee note, would  "risk error to
determine the credibility of a witness not seen  or heard who is
available to be recalled." Thus, whatever  latitude successor judges
may have to determine credibility  from the record in the context of
reviewing an original judge's  findings, we hold that in the context
of making new findings  the plain language of Rule 63 controls: If a
party so requests,  the successor judge "shall ... recall any witness
whose  testimony is material and disputed and who is available to 
testify again without undue burden."


We thus agree with the contractors that the successor  judge failed to
comply with Rule 63. Nothing in the record  indicates that the
successor judge determined that WMATA's  damages expert was
unavailable or that his testimony was  immaterial or undisputed--the
only permissible reasons for  not recalling witnesses when making
fresh findings. More- over, the successor judge never afforded the
contractors an  opportunity to suggest which additional witnesses they


III


This brings us to the question of relief. Because this case  has
lingered in this post-trial posture for more than five  years, and
because the contractors' challenges to the original  judge's findings
and conclusions are fully briefed, we could  address the merits
ourselves were the successor judge's  failure to consider the parties'
post-trial motions the only  error in this case. See Wharf v.
Burlington N. R.R. Co., 60  F.3d 631, 637 (9th Cir. 1995) ("Where the
trial court has  erroneously failed to exercise its discretion, we may
either  remand or, if the record is sufficiently developed, decide the
 issue ourselves.").


But the successor judge's failure to consider recalling wit- nesses
before making his own findings has left a gap that an  appellate court
cannot fill. Although we could give the  contractors an opportunity
(through supplemental briefing) to  list the witnesses they wish to
recall, we think that Rule 63's  witness recall calculus is best
performed by the judge ulti-


mately responsible for fashioning findings based on the evi- dence.
Moreover, given the sheer number of witnesses in  this case and the
stringent recall requirements imposed by  Rule 63 when making new
findings, we think it virtually  inevitable that remand would be
necessary to allow the  successor judge to hear new testimony.


Unable to resolve this case once and for all, we vacate the  April 1995
and July 1997 Orders and remand for the succes- sor judge to proceed
in accordance with Rule 63. To step in  the shoes of the original
judge as the rule requires, the  successor judge first must consider
the parties' post-trial  motions to the same extent an original judge
would have.  Once he disposes of those motions, the successor judge
should  turn to the task of making findings and conclusions regarding 
the unresolved issues, giving appropriate consideration to  whether
witnesses must be recalled.


We realize this remand will impose substantial burdens on  a district
judge who has already expended enormous amounts  of time and energy on
this case. But the requirements of  Rule 63 and the principles of
fairness inherent in them  require no less.


IV


We turn finally to WMATA's cross-appeal, in which it  challenges the
successor judge's determination that post- judgment interest runs from
the date of his July 1997 judg- ment, not from the original judge's
July 1993 judgment.  Even though we have vacated the July 1997
judgment, we  address this issue now because it is fully briefed and
because  it will almost certainly arise again once the successor judge
 issues a new order resolving the open issues.


The original judge entered judgment in favor of WMATA  for $16.5
million in July 1993. Nearly four years later, in  July 1997, the
successor judge resolved the open issues and  entered judgment in the
contractors' favor for $4.25 million.  To perfect their appeal, the
contractors posted a bond in the  amount of $13.2 million, which they
calculated by netting the  two judgments and adding interest from the
date of the 


second judgment through January 31, 1999. Objecting to the  amount of
the bond, WMATA argued that under 28 U.S.C.  s 1961 (1994)--providing
that post-judgment interest "shall  be calculated from the date of the
entry of the judgment"-- interest should run from the date of the
first judgment, not  the second.


Relying on this court's opinion in Hooks v. Washington  Sheraton Corp.,
642 F.2d 614 (D.C. Cir. 1980), the successor  judge ruled that
calculation of post-judgment interest from  the date of the second
judgment was proper. We agree.  Hooks held that section 1961 requires
post-judgment interest  to be calculated from the date the district
court enters final  judgment under Federal Rule of Civil Procedure
54(b). See  id. at 618. To be sure, Hooks involved the difference be-
tween a final Rule 54(b) judgment and a clerk-entered judg- ment under
Rule 58(1), while this case involves the difference  between a final
Rule 54(b) judgment and an interim judg- ment. Even if this
distinction means that Hooks does not  directly control here, we think
that its finality principle best  resolves the post-judgment interest
question on the facts of  this case. The original judge entered
partial judgment in  1993 only because he knew he was unable to
resolve all  issues. Had he lived, he would have had no reason to
enter  judgment for WMATA until he ruled on all of the parties' 
claims. The original judge's decision to address WMATA's  claims
before turning to the contractors' claims was simply  fortuitous,
particularly given that WMATA is a counterclaim- ant. Under these
circumstances, allowing post-judgment in- terest to run from the date


WMATA argues that the Supreme Court's post-Hooks  opinion in Kaiser
Aluminum & Chemical Corp. v. Bonjorno,  494 U.S. 827 (1990), requires
the opposite result. In Bonjor- no, after a jury returned a verdict in
the plaintiff's favor, the  district court entered judgment on August
22, 1979. Citing  insufficient evidence, the district court
subsequently vacated  that judgment. A jury returned a second verdict
in the  plaintiff's favor on December 2, 1981, and the district court 
entered judgment on that verdict on December 4, 1981.


The Supreme Court granted certiorari on two questions  relevant here:
First, under 28 U.S.C. s 1961, is interest  calculated from the date
of the jury verdict (December 2) or  the date that the court
subsequently entered judgment on  that verdict (December 4)? Second,
is interest calculated  from the date of a legally insufficient
judgment (1979) or the  subsequent correct judgment (1981)? See id. at
834. The  Court answered the first question by holding that post-
judgment interest runs from the date of the judgment en- tered upon a
verdict, not the date of the verdict itself. See id.  at 835. With
respect to the second question, the Court held  that interest should
not be calculated from the date of a  judgment later determined to be
unsupported by the evi- dence, stating that post-judgment interest
includes "the time  between the ascertainment of the damage and the
payment  by the defendant." Id. at 835-36 (internal quotation
omitted).  Relying on this language, WMATA argues that interest 
should run from the date the original judge first entered  judgment in
its favor because it was on that date that he  "ascertained" its


WMATA misreads Bonjorno. Not only does the "ascer- tainment" language
have little to do with the invalid judgment  passage in which it
appears, but WMATA neglects to mention  that the Court quoted that
language from Poleto v. Consoli- dated Rail Corp., 826 F.2d 1270 (3d
Cir. 1987), a case that it  expressly rejected in answering the first
question by holding  that interest runs from the date of the judgment,
not the date  of jury ascertainment. See Bonjorno, 494 U.S. at 834.
While  we cannot explain Bonjorno's internal inconsistency, we are 
certain that nothing in it requires interest in this case to run  from
the date of the original judge's decision. At most,  Bonjorno holds
that "judgment" means judgment, not verdict,  and that "judgment"
means valid judgment, not invalid judg- ment. Our holding that on the
facts of this case interest runs  from the second, final judgment
comports with both princi- ples.


So ordered.