West v. Keve
| Citation | 721 F.2d 91 |
| Decision Date | 29 September 1983 |
| Docket Number | No. 83-1085,83-1085 |
| Parties | WEST, Kermit, Appellant, v. KEVE, Paul W., in his capacity as Director of the Division of Adult Corrections of the State of Delaware and Anderson, Raymond, in his capacity as Superintendent of Delaware Correctional Center. . Submitted Under Third Circuit Rule 12(6) |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
William C. Anderson, Anderson, Converse & Fennick, York, Pa., John C. Landis, Lawrence Wimbush, The Delaware Law School, Wilmington, Del., for appellant.
John J. Polk, Deputy Atty. Gen., Delaware Dept. of Justice, Wilmington, Del., for appellees.
Before ALDISERT and BECKER, Circuit Judges, and COHILL, District Judge. *
This appeal presents two questions. First, whether a party dissatisfied with the disposition of the cause on the merits in a federal civil rights suit must appeal after the resolution of the case in chief or may wait until the determination of the attorney's fee award. Second, whether the district court has properly used Rule 60(b), Federal Rules of Civil Procedure, to reinstate a previously issued final judgment solely for the purpose of giving appellant an extension of time within which to file a timely notice of appeal, when such an extension would be barred by Rule 4(a), F.R.A.P.
The procedural posture of this case is uncomplicated. Appellant, a Delaware prison inmate who was represented by counsel, sued state prison officials in federal court under a federal civil rights statute. A final decision on the merits was rendered by the district court and reduced to judgment on June 11, 1982, 541 F.Supp. 534. On June 21, appellant moved for an award of attorney's fees and, by October 13, 1982, entered into a stipulation with defendants as to the amount. The district court has never formally endorsed this stipulation. 1
Although represented by counsel both at trial and on appeal, appellant failed to file a notice of appeal within 30 days of the June 11, 1982 judgment. He was of the view that the June 11 order was not final, and therefore not appealable, under Croker v. The Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir.1981) (in banc). Croker held that whenever there was a request for attorney's fees following a decision on the merits, so long as even the amount of the award remained unresolved, there was no final, appealable order in the case. Id. at 983. Thus, where an attorney's fee motion followed a judgment on the merits, that judgment could be appealed only after proper resolution of the fee petition. Subsequent to Croker the Supreme Court, in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), decided that attorney's fee petitions were actions collateral to the case in chief and not Rule 59, F.R.Civ.P., motions to alter or amend the judgment. Thus, according to the Court, an otherwise final decision on the merits of a case is an appealable order even though an attorney's fee petition may be filed subsequently. This ruling, as recognized in Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 644 (3d Cir.1982) (Opinion sur Petition For Rehearing), sufficiently undercut the decisional basis of Croker so that the
Croker rule no longer has any vitality, [and] litigants in this circuit should rely on our previous holdings [citing cases] that orders disposing finally of the merits are appealable even though the questions relating to attorney's fees have been left undetermined.
Although White, as illuminated by Halderman, establishes that an appeal may be lodged after final judgment on the merits, and prior to adjudication on an attorney's fee petition, the question remains whether the appeal from the decision on the merits must be lodged within the requisite time period following entry of judgment thereon.
This court is no stranger to the agony of deciding when the appeal should be filed. In a struggle to accommodate competing considerations, we decided as early as 1976 that reserving the determination of costs and attorney's fees did not affect the finality of the merits judgment for the purposes of a final appeal under 28 U.S.C. Sec. 1291. Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n. 2 (3d Cir.1976). In 1980 we reiterated this rule in DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1138 n. 3 (3d Cir.1980). But by 1981, we decided that the full court should examine the problem, and in Croker v. The Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir.1981) (in banc), we announced a preference It is not necessary to detail myriad aspects of troublesome finality-of-judgment problems that affect both judges and litigants in the circumstances presented here. We do not exaggerate when we observe that today no specific guidance appears; that the careful appellate advocate will file two appeals in each case where attorney fee adjudication is implicated--one after the merits judgment and one after the resolution of the attorney's fee dispute. We have decided to "bite the bullet." We now decide the issue with no little reluctance, in full recognition that reasonable arguments could support a different conclusion.
for a unitary rule; we decided that where attorney's fees had to be adjudicated, there was no finality to the earlier judgment on the merits and that only a decision on the attorney's fee triggered the finality requirements of 28 U.S.C. Sec. 1291. As we have noted, a year later the Supreme Court in White thought otherwise, as we explained in Halderman.
We are alerted to what the Supreme Court, speaking through Justice Jackson, stated on a kindred issue of finality:
Half a century ago this Court lamented, McGourkey v. Toledo & Ohio Cent. R. Co., 146 U.S. 536, 544-45 [13 S.Ct. 170, 172, 36 L.Ed. 1079]. This lamentation is equally fitting to describe the intervening struggle of the courts; sometimes to devise a formula that will encompass all situations and at other times to take hardship cases out from under the rigidity of previous declarations; sometimes choosing one and sometimes another of the considerations that always compete in the question of appealability, the most important of which are the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950). We recognize that respectable arguments may be advanced to support the position that the time for filing an appeal on the merits should be optional, i.e., that the appeal could be filed either after the merits judgment or after a subsequent fee adjudication. In certain cases, a unitary appeal will terminate the litigation, and thus eliminate the cost and inconvenience of piecemeal appeals. The appellate court may be able to affirm both the merits and the fee award in a single appeal. Yet there is no guarantee that a unitary appeal will always conclude the litigation.
Only where the appellate court is able to affirm both the decision on the merits and the fee award will a unitary appeal filed after the fee determination be both more cost-effective and convenient. If the fee award is based on a "prevailing party" standard, however, see, e.g., 42 U.S.C. Sec. 1988, then an appellate court's reversal on the merits may well require a redetermination of the fee issue. In such cases, a unitary appeal saves no appellate court time because later the court may be required to review a new fee determination.
But it is the district court that expends the most time and energy on the difficult process of evaluating fee petitions and conducting hearings on them. To permit the option of a unitary appeal, with the possibility of appellate reversal on the merits, exposes district judges to the necessity of conducting two separate time-consuming fee proceedings, both prior to and after the appeal. This is an inefficient use of judicial resources, already overtaxed.
Under White and Halderman, a decision on the merits, arrived at prior to a fee determination, is a final judgment from which an appeal may be taken immediately, and that the subsequent attorney's fee petition "raises legal issues collateral to the main cause of action ...." White, 455 U.S. at 451, 102 S.Ct. at 1166. The fee determination does "not make any step toward We conclude that attorneys' fees awards are "incidental" to the main litigation, and thus reservation of the issue of fees does not affect the finality of the decision on the merits of the case. Therefore, when plaintiffs failed to appeal from the judgment ..., they lost their right to a review of that judgment.
final disposition of the merits of the case" and "is not an ingredient of the cause of action and does not require consideration with it." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949). It was this collateral aspect of the fee determination that prompted the Seventh Circuit to conclude that appellants are required to appeal from the
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