Echols v. Parker
| Decision Date | 13 August 1990 |
| Docket Number | 89-4633,Nos. 89-4349,s. 89-4349 |
| Citation | 909 F.2d 795 |
| Parties | Lonnie ECHOLS, et al., Plaintiffs-Appellees, v. Joel T. PARKER, et al., Defendants, State of Mississippi, Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Northern District of Mississippi.
ON PETITION FOR REHEARING
Before CLARK, Chief Judge, WISDOM and SMITH, Circuit Judges.
In a previous unpublished opinion, 902 F.2d 957 (5th Cir.1990), we affirmed the district court's extension of the "unique circumstances" exception to the ten-day time limit of Federal Rule of Civil Procedure 59(e). The exception had formerly been applied only "to allow untimely appeal, when the appellant has reasonably relied upon a district court's erroneous extension of the time allowed for filing Rule 52 or Rule 59 motions, or its entertaining of such motions despite their untimeliness." Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980). Applied to this case, where Echols' motion for supplemental attorney's fees was not served on all defendants within the ten-day period, the "unique circumstances" exception caused Echols' Rule 59(e) motion to vitiate the State's first notice of appeal. See Federal Rule of Appellate Procedure 4(a)(4). In our earlier unpublished opinion, we applied the exception to Echols' motion, declared the State's notice of appeal a nullity, and denied jurisdiction over the State's appeal.
On rehearing, we withdraw our previous opinion. An extension of the "unique circumstances" exception to apply to the present facts conflicts with Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986) and Cruz v. Hauck, 762 F.2d 1230, 1236 (5th Cir.1985). Harcon Barge established the bright-line rule that a motion to alter or amend the judgment of the district court, other than a Rule 60(a) motion for the correction of a clerical error, will be treated as a Rule 59(e) motion only if it is served within that Rule's ten-day limit. Because Echols' motion was not timely served under Rule 59(e) and because it does not qualify for the "unique circumstances" exception noted in Gribble v. Harris, it did not vitiate the State's first notice of appeal.
Cruz states that a motion for attorney's fees under 42 U.S.C. Sec. 1988 is properly treated as a motion for costs under Rule 54(d). A Rule 54(d) motion is not constrained by Rule 59(e)'s ten-day service limit. Neither does a Rule 54(d) motion for costs vitiate a previously filed notice of appeal. Thus, the State's notice of appeal was effective, and this court has jurisdiction. We therefore reach the merits of the State's appeal.
In 1986, after an unsuccessful attempt to effect changes in the local government of Sunflower, Mississippi by persuasion, Echols and four other plaintiffs participated in the peaceful boycott and picketing of a Sunflower pharmacy. The owner of the pharmacy, Parker, was mayor of Sunflower. Parker contacted the county attorney for Sunflower County, Ben Saucier, to ask if the picketers could be prosecuted for their activities. Saucier discussed the problem with the district attorney for the Fourth Circuit District of Mississippi, Frank Carlton, and then instituted criminal proceedings against Echols in Sunflower County Justice Court under Miss.Code Ann. Sec. 97-23-85 (1972), an anti-boycott statute.
The plaintiffs were arrested, bond was set, and they were bound over to the grand jury for possible indictment. Subsequently, the plaintiffs brought this civil action under 42 U.S.C. Sec. 1983 against Parker, the District Attorney, the County Attorney, the Justice Court Judge, and Sunflower County seeking a declaratory judgment that the statute was unconstitutional. The district court granted summary judgment for Parker and Sunflower County. The remaining defendants entered a settlement agreement which stated that the statute was unconstitutional and agreed that they would no longer attempt to enforce the statute against the plaintiffs.
In accordance with the settlement, the district court on June 10, 1986 entered a declaratory judgment stating that the statute was unconstitutional. On March 7, 1988, the district court awarded attorney's fees to the plaintiffs under 42 U.S.C. Sec. 1988. In this judgment, the court also directed the State of Mississippi to pay the plaintiffs' attorney's fees since the local officials involved had been sued in their official capacity for enforcing an unconstitutional State policy. The State, although not a named party to the suit, represented the public defendants through the Mississippi Attorney General's office. The district court reserved determination of the amount of attorney's fees. No appeal was taken from this judgment.
Eleven months later, the district court entered an order awarding plaintiffs' attorney's fees of $11,773.36 to be paid by the State. The State filed a motion for reconsideration, which was denied. Following this denial, the district court made an additional award to the plaintiffs of $450 for fees incurred in responding to the State's motion for reconsideration. The plaintiffs subsequently filed a "Motion to Alter or Amend Judgment of April 14, 1989 or in the Alternative Motion for Award of Fees" to add $3,735 to the attorney's fees award for the fees incurred in responding to the State's motion to reconsider. Notice of this supplemental attorney's fees motion did not reach the State Attorney General within the ten day period allowed by Rule 59(e). That ten day period expired on May 1, 1989. On the next day, the State filed its first notice of appeal from the initial judgment awarding attorney's fees (No. 89-4349). Formal notice of the plaintiffs' supplemental attorney's fees motion reached the Attorney General on May 8 or 9, 1989.
On Echols' motion, the district court awarded the requested additional attorney's fees. The court ruled that although Echols' rule 59(e) motion had not been served on the State in a timely manner, the motion was properly before the court because a motion for attorney's fees is not limited by the time restrictions of Rule 59(e). Alternatively, the court held it had the authority to award additional attorney's fees under the "unique circumstances" exception to the Rule 59(e) ten-day deadline recognized in Fairley v. Jones, 824 F.2d 440, 442 (5th Cir.1987). The court reasoned that the exception applied because (1) the district court and the other parties did receive timely notice of the plaintiffs' motion, (2) the apparent cause of the slow delivery of notice to the State was a clerical error (the plaintiffs used an incorrect mailing address), and (3) the State was not prejudiced by receiving actual notice 7 or 8 days late. On August 18, 1989, the State filed a second notice of appeal (No. 89-4633), this time from the supplemental award of fees. The appeals were consolidated.
Echols asserts that the State's first notice of appeal was untimely and, therefore, that this court lacks jurisdiction over the State's appeal from the initial attorney's fees award. The district court's judgment holding the State liable for attorney's fees but deferring the decision on the amount of fees owed was entered March 7, 1988. Echols asserts that under Budinich v. Becton Dickinson and Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), and Federal Rule of Appellate Procedure ("FRAP") 4(a), the State was required to file its notice of appeal within thirty days of March 7, 1988. Instead, the State sought to appeal only after February 2, 1989, the date on which the district court denied a motion to reconsider its judgment fixing the amount of the award.
The first question on this issue is whether the State was required under FRAP 4(a) to file its notice of appeal within thirty days of the adjudication of liability for attorney's fees or could wait to file an appeal within thirty days of the court's determination of the amount of the fee award. Budinich does not answer this question. The Supreme Court there created "a uniform rule that an unresolved issue of attorney's fees for the litigation in question does not prevent judgment on the merits from being final." 486 U.S. at 202, 108 S.Ct. at 1721. But here we are not faced with tandem decisions on the merits of a case and on liability for attorney's fees. The situation here is one step removed from Budinich. Here, distinct from any decision involving the merits judgment in the case, we must deal with a judgment of liability for attorney's fees and a subsequent judgment fixing the amount of those fees. We are guided in this situation by Deloach v. Delchamps, Inc., 897 F.2d 815 (5th Cir.1990). There we stated:
It is clear that a judgment on the merits determining both liability and damages is final even though the attorney's fee issue has been left open. Additionally, attorney's fees are considered collateral to the merits, so that final judgments as to attorney's fees can be appealed separately from the "merits" judgment. Because a judgment is not final until both liability and damages are determined, a judgment awarding an unspecified amount of attorney's fees is interlocutory in nature.
897 F.2d at 826. The settlement order constituting the judgment on the merits of this case was entered on June 10, 1986 (the "merits judgment"). That judgment was final and the time for appeal commenced on its entry despite the fact that the issue of liability for attorney's fees remained open. Budinich, 486 U.S. at 201-02, 108 S.Ct. at 1721-22; Treuter v. Kaufman County, Texas, ...
To continue reading
Request your trial
-
Rodriguez v. Bexar Cnty. Hosp. Dist.
...District Attorney did not act as a local policy-maker when performing his official duties as a criminal prosecutor); Echols v. Parker, 909 F.2d 795,801 (5th Cir. 1990) (holding a Texas district attorney is a state official when instituting criminal proceedings to enforce state law). In addi......
-
Planned Parenthood of Greater Tex. Surgical Health Servs. v. City of Lubbock
...that a state official sued in his or her official capacity "is essentially a suit against the state"); see Echols v. Parker , 909 F.2d 795, 799–801 (5th Cir. 1990) (affirming order directing the State of Mississippi, although not a party, to pay the plaintiffs’ Section 1988 attorney's fees ......
-
Hicks v. Bexar County, Tex., SA-96-CA-951.
...Attorney did not act as a local policy-maker when performing his official duties as a criminal prosecutor); and Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990), (holding that a Texas district attorney is a state official when instituting criminal proceedings to enforce state law). 155. ......
-
Brotherton v. Cleveland
...writ pursuant to state non-discretionary duty), cert. denied, 508 U.S. 942, 113 S.Ct. 2421, 124 L.Ed.2d 643 (1993); Echols v. Parker, 909 F.2d 795, 801 (5th Cir.1990) (finding that local officials acted as State agents when they enforced a State anti-boycott statute by prosecuting boycotter......