Barrow v. Falck, s. 90-3425

• Decision Date: 13 October 1992
• Docket Number: Nos. 90-3425,91-2937,s. 90-3425
• Citation: 977 F.2d 1100
• Parties: Thomas BARROW, Plaintiff-Appellee, v. Lloyd A. FALCK, individually and as Sheriff of Ford County, Illinois, and Ford County, Illinois, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1100

977 F.2d 1100

23 Fed.R.Serv.3d 1341

Thomas BARROW, Plaintiff-Appellee, v. Lloyd A. FALCK, individually and as Sheriff of Ford County Illinois, and Ford County, Illinois, Defendants-Appellants.

Nos. 90-3425, 91-2937.

United States Court of Appeals Seventh Circuit.

Argued Sept. 16, 1992.

Decided Oct. 13, 1992.

Edward H. Rawles (argued), Reno, O'Byrne & Kepley, Champaign, Ill., for plaintiff-appellee.

William A. Allison (argued), Bloomington, Ill., for defendants-appellants.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

A sheriff suspended a deputy without a prior hearing. A district judge decided that this omission violated the due process clause, and a jury assessed damages at $3,700. On March 19, 1990, the court entered judgment; it denied all substantive post-trial motions on October 1, 1990, while giving the plaintiff extra time to file a petition for attorneys' fees. Defendants (the sheriff and the county government) appealed--contesting the order of October 1 and not the judgment of March 19. The court detected the problem and issued this order:

A preliminary review of the short record indicates that the order appealed from may not be a final judgment within the meaning of 28 U.S.C. § 1291, Defendants-appellants attempt to appeal from a minute order entered on October 1, 1990.

Generally, an appeal may not be taken in a civil case until a final judgment is entered on the district court's civil docket ... It does not appear that such a final judgment has been entered. Therefore, this appeal appears to be premature. Accordingly,

IT IS ORDERED that defendants-appellants shall file ... a brief memorandum stating why this appeal should not be dismissed for lack of jurisdiction. A motion for voluntary dismissal pursuant to Fed.R.App.P. 42(b) will satisfy this requirement. Briefing shall be held in abeyance pending further court order.

Defendants had only to draw the court's attention to the final judgment of March 19. Although their notice of appeal pointed to the order of October 1, such a gaffe is not fatal. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Cardoza v. CFTC, 768 F.2d 1542, 1545-47 (7th Cir.1985); cf. Chaka v. Lane, 894 F.2d 923 (7th Cir.1990). The lingering dispute about attorneys' fees also did not affect the finality of the judgment on the merits. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); Continental Bank, N.A. v. Everett, 964 F.2d 701, 702-03 (7th Cir.1992); Exchange National Bank v. Daniels, 763 F.2d 286 (7th Cir.1985).

Instead of explaining why we had jurisdiction, defendants dismissed their appeal. They came to rue the decision. In August 1991 the district court awarded plaintiff more than $43,000 as legal fees and expenses under 42 U.S.C. § 1988. Defendants' best chance to knock out this award is to challenge the underlying judgment. So in addition to taking an appeal (No. 91-2937) from the award of fees, defendants want us to reinstate their original appeal (No. 90-3425). They say that the appeal was dismissed because of judicial error and contend that we should rectify our blunder by reinstating the appeal, as we did in Patterson v. Crabb, 904 F.2d 1179 (7th Cir.1990).

What gall! Defendants filed a notice of appeal from an order that denied some pending motions and set a schedule to resolve the parties' dispute about attorneys' fees. Because the order appeared to be interlocutory, we gave appellants a choice: tell us why it was nonetheless appealable, or dismiss your appeal. They chose the latter option, explaining: "Defendants-Appellants agree that there is no final judgment order within the meaning of Federal Rule of Civil Procedure 58." This is judicial error? In Patterson the court dismissed an appeal, believing that the district court had yet to enter a judgment. "In fact, there was such an order; we had overlooked it." 904 F.2d at 1179. To relieve appellants of the consequences of this mistake, we recalled the mandate and reinstated the appeal. In Patterson the court dismissed the appeal; here appellants dismissed their own appeal. They chose unwisely, but the choice was theirs.

The order giving defendants the choice between explanation and dismissal was entered not by the judges but by the legal staff. Like most other appellate courts, ours attempts to identify jurisdictional problems promptly after an appeal is filed, to save everyone's time in the event that jurisdiction is missing--as it is in about a fifth of all appeals filed in this court. The staff attorneys examine the short record that district courts transmit with the notice of appeal and the jurisdictional statement that Circuit Rule 3(c) requires of all appellants. A quick review catches many problems but inevitably overlooks the solutions to some. Thus the role of the order to file jurisdictional memoranda: the staff identifies what looks to be a problem and asks the lawyers for their views, giving appellant the option of voluntary dismissal if counsel cannot find a solution. After counsel state their views, the legal staff gives the papers to the judges for decision. Counsel who surrender, neglecting research and dismissing appeals when they could have obtained judicial resolution, have only themselves to blame.

A timely notice of appeal is essential to appellate jurisdiction. Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). A notice of appeal filed and dismissed voluntarily is gone, no more effective in conferring jurisdiction on a court than a notice never filed. Williams v. United States, 553 F.2d 420 (5th Cir.1977). Attempts to resurrect notices of appeal must be treated the same as belated notices of appeal. The time limits for filing an appeal require the losing party to choose between accepting the judgment and pursuing appellate review. The loser may not dither. Filing and dismissing an appeal prevents appellate review, and we do not think that it should place the judgment in limbo--open to review whenever the losing side changes its mind. The structure of the rules is set against such delay and uncertainty.

We asked defendants for authority that appellants may resurrect a notice of appeal after the time provided by Fed.R.App.P. 4 for commencing an appeal. They had none. Our research turned up one candidate, Williams v. Boeing Co., 681 F.2d 615 (9th Cir.1982). The ninth circuit did not mention the date of the motion to reinstate, which may have been filed within the time to take an appeal. It also did not discuss the source of its authority to reinstate the appeal, if the motion was filed after the time allowed for a notice of appeal; the panel gave no reason other than the tautology that, if it did not reinstate the appeal, the losing party would be stuck with the decision of the district court. More recently another panel of that court denied a motion to reinstate, remarking that voluntary dismissal places the parties in the position they would occupy if no appeal had been filed. United States v. Holmes, 1992 WL 102677, 1992 U.S.App. LEXIS 11588 (9th Cir.1992), an "unpublished" opinion that does not cite Williams v. Boeing. Whether or not Williams v. Boeing represents the law in the ninth circuit, it is inconsistent with Williams v. United States and the rationale of time limitations for pursuing appeals. We conclude that a notice of appeal voluntarily dismissed--even under a misapprehension of law--may not be reinstated. A motion to reinstate should be treated as a fresh notice of appeal, effective if time remains under Rule 4 and ineffective otherwise.

Defendants are limited to challenging the award of attorneys' fees, which as they point out is almost 11 times the size of the judgment. District judges possess discretion to award fees exceeding the judgment. Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986); Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir.1988). Although private parties looking only to their own interests would not invest more in litigation than the stakes of the case, the combination of self-interest with the American Rule on the allocation of legal costs means that people can get away with small offenses. A two-day suspension may be unconstitutional, but a few hours of legal time costs more than the wages lost. Section 1988 helps to discourage petty tyranny. Awarding the full cost of litigation which looks excessive in the single case, is sensible because it aids in the enforcement of rules of law. Kirchoff v. Flynn, 786 F.2d 320, 327 (7th Cir.1986). Put another way: Monetary awards understate the real stakes. Judicial decisions have effects on strangers. This litigation was prosecuted by a lawyer retained by a union of public employees and stoutly resisted by the county. If as the defendants say "only" $3,700 was at stake, why the tenacious resistance? Defendants do not contend that the exertion on plaintiff's side was unreasonable in relation to the defense; no more is necessary to show that the judge acted within his discretion in awarding fees exceeding the monetary recovery.

Whether the record supports an award of the whole $43,000 is a different matter. Barrow protested his suspension in two forums: in addition to filing this suit under 42 U.S.C. § 1983, he sought relief from the Ford County Merit Commission, the local civil service commission. The Commission received written submissions and held a hearing; when the Commission's decision was adverse, Barrow sought review in the Circuit Court of Ford County. Barrow demanded compensation for at least some of the time his lawyer spent before the local commission and the state court. The district court granted this request. To be precise, the district court declined to direct counsel to segregate the time spent in the federal litigation from the time elsewhere, concluding that hours...