Dardar v. Lafourche Realty Co., Inc., No. 87-3629

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before CLARK, Chief Judge, GOLDBERG and GARWOOD; GOLDBERG
• Citation: 849 F.2d 955
• Parties: Summersgill DARDAR, et al., Plaintiffs-Appellants, v. LAFOURCHE REALTY CO., INC., et al., Defendants, Col. Eugene S. Witherspoon, et al., Defendants-Appellees.
• Decision Date: 18 July 1988
• Docket Number: No. 87-3629

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849 F.2d 955 Summersgill DARDAR, et al., Plaintiffs-Appellants,
v.
LAFOURCHE REALTY CO., INC., et al., Defendants,
Col. Eugene S. Witherspoon, et al., Defendants-Appellees. No. 87-3629. United States Court of Appeals,
Fifth Circuit. July 18, 1988.

Michael Osborne, Osborne & McComiskey, New Orleans, La., for plaintiffs-appellants.

Kai David Midboe, Baton Rouge, La., for State of La.

Dirk Snell, Carl Strass, Environmental Def. Sect., Land & Natural Resources Div., Robert L. Klarquist, Washington, D.C., John P. Volz, U.S. Atty., New Orleans, La., for Federal.

William R. Pitts, New Orleans, La., for Lafourche Realty Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.

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GOLDBERG, Circuit Judge:

Plaintiff-Appellants, small boat fishermen of the Louisiana bayou country (the "Fishermen"), brought suit under The Administrative Procedures Act, 5 U.S.C. Sec. 701 et seq., to challenge permits, granted by the Army Corps of Engineers (the "Corps"), allowing Lafourche Realty Co. ("Lafourche Realty") to erect barriers on its own property, which effectively barred Appellants from their traditional fishing grounds. In the district court, the Fishermen demonstrated that the Corps had failed to consider possible public rights of access when it decided to grant the permits. The district court found that the Corps' decision to grant the permits was "arbitrary and capricious," and issued an injunction ordering the Corps to engage in additional fact-finding. The Fishermen now appeal the district court's denial of their motion for interim attorney's fees.

Because this is not an appeal from a final order, we do not have subject matter jurisdiction. We therefore dismiss this appeal, without prejudice to a renewed application for fees at the close of the suit on the merits. See, e.g., Baker v. Bowen, 839 F.2d 1075 (5th Cir.1988). ¹

I. Facts

Since 1921, Lafourche Realty has owned a tract of land east of Bayou Lafourche. In 1948, Lafourche Realty's oil and gas lessee obtained a permit from the Corps to dredge and construct the Tidewater Canal, a six-mile canal connecting Lafourche Realty's property to Bayou Lafourche. Since that time, Lafourche Realty has constructed an extensive network of artificial canals on its property known as the Tidewater Canal System.

In 1983 Lafourche Realty applied to the Corps for an additional permit to erect fences at the entrances to the Tidewater Canal System. Lafourche Realty sought to restrict access to the canal system in order to prevent vandalism, poaching, and erosion of their land.

In an unfortunate example of agency decision making, ² the Corps granted the requested permits. Lafourche Realty then installed the fences, thereby excluding all unauthorized traffic from the canal system. Small boat fishermen, barred from their traditional fishing grounds brought this suit. ³

After trial, the district court found the Corps' decision to be "arbitrary and capricious." The court found that the Corps had based its decision on inadequate fact-finding procedures and an inadequate record. As the district court noted, "The administrative record [was] devoid of evidence that the Corps researched the facts to support its conclusion. There is no suggestion that historical, geographical, or top[o]graphical data were compiled or studied to determine whether The Tidewater System obstructed or diverted natural navigable waterways." ⁴ Without invalidating

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the permits, the court ordered the Corps to engage in fact-finding procedures, to determine whether the Tidewater Canal System obstructed or diverted preexisting natural navigable waterways.

The Corps immediately sought review of the district court's order. The Fishermen moved for dismissal of the appeal. A panel of this court, in an unreported decision, held that the order was injunctive in nature and therefore constituted an appealable interlocutory order under 28 U.S.C. Sec. 1292(a)(1). Notwithstanding this decision, the Corps voluntarily dismissed its appeal. The Fishermen then submitted a motion seeking attorney's fees. The district court denied fees without reasons. The Fishermen now appeal that denial of interim fees.

II. Discussion

Federal Circuit Courts only have jurisdiction over three types of appeals: (1) final orders, 28 U.S.C. Sec. 1291; (2) certain specific types of interlocutory appeals, such as those where injunctive relief is involved, 28 U.S.C. Sec. 1292(a)(1); and (3) appeal where the district court has certified the question as final pursuant to Federal Rule 54(b), 28 U.S.C. Sec. 1292(b).

A denial of attorney's fees, however, is not injunctive or within any of the specific exceptions stated in Sec. 1292, nor has the district court certified the question. We therefore must determine whether the denial of attorney's fees in this case constitutes a final order.

Denials and awards of attorney's fees may be appealed separately as final orders after a final determination of liability on the merits. ⁵ Where, however, the case has yet to be heard on the merits, ⁶ or the amount and or propriety of the attorney's fees themselves have not yet been decided, ⁷ an award or denial is not yet final and is therefore unappealable as a strictly final order. Here, the district court had not yet disposed of the merits at the time appeal was taken, and consequently neither the propriety nor the amount of attorney's fees have been determined with finality. This case instead involves a request for interim attorney's fees during the pendency of the case.

Section 1291 is not limited exclusively to orders which dispose of entire cases. There is a small class of orders, which finally determine issues separate from the merits of the case, which have been deemed appealable as collateral orders. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To be appealable under the Cohen doctrine, an order must meet three requirements. The order "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).

Whether an order fits within the Cohen doctrine necessarily turns on the facts of the specific case, and different cases in different circuits have reached differing results. ⁸ Not all of the cases can be

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easily reconciled, many because they were decided prior to Coopers & Lybrand, and many because the court has not examined all three prongs of the test articulated in that case. ⁹

Courts applying the test have generally found attorney's fee awards sufficiently separate from the merits of the case to be deemed collateral. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). But see, Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982) (where attorney's fees are inseparable from the merits, they are not collateral and therefore not appealable). The appealability of an award turns, therefore, upon whether the award is conclusively determined, and...