Frew v. Young

• Decision Date: 26 March 2021
• Docket Number: No. 20-40541,20-40541
• Citation: 992 F.3d 391
• Parties: Carla FREW; Charlotte Garvin, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and Breanna Garvin; Class Members; Nicole Carroll, Class Representative; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez, and Joseph Veliz; Mary Jane Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza, Plaintiffs—Appellants, v. Cecile YOUNG, M.D.; John William Hellerstedt, M.D., Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

992 F.3d 391

Carla FREW; Charlotte Garvin, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and Breanna Garvin; Class Members; Nicole Carroll, Class Representative; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez, and Joseph Veliz; Mary Jane Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza, Plaintiffs—Appellants,

v.Cecile YOUNG, M.D.; John William Hellerstedt, M.D., Defendants—Appellees.

No. 20-40541

United States Court of Appeals, Fifth Circuit.

FILED March 26, 2021

Timothy Borne Garrigan, Timothy David Craig, Stuckey & Garrigan Law Offices, P.L.L.C., Nacogdoches, TX, for Plaintiffs—Appellants.

Adam Israel Steene, Andrea Leyva, Office of the Attorney General, General Litigation Division, Philip A. Lionberger, Office of the Solicitor General for the State of Texas, Austin, TX, for Defendants—Appellees.

Before King, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Plaintiffs return to this court to challenge the district court's determination that, despite their status as a "prevailing party" under 42 U.S.C. § 1988, they are entitled to no fees. They appeal the court's underlying judgment and its ensuing denial of their motion to reconsider that judgment. But because plaintiffs failed timely to appeal the underlying judgment, we lack jurisdiction to review it, requiring that we dismiss that portion of the appeal. Nonetheless, the denial of the motion for reconsideration properly is before us. Although the district court construed that motion under the incorrect Federal Rule of Civil Procedure, it nonetheless reached the proper result. We affirm the judgment accordingly.

I.

This appeal is the latest canto in a litigation epic that has spanned nearly three decades. The case has wound its way through the courts, producing six earlier opinions from this court and one from the Supreme Court.¹ Mercifully, much of that snarled history is not relevant here—we can skip ahead to 2007.

In 2007, the parties agreed to eleven corrective-action orders ("CAOs") intended to bring Texas into compliance with a consent decree to which the parties had assented about a decade earlier. Frew V , 780 F.3d at 323–24. The consent decree was aimed at making improvements to Texas's implementation of Medicaid's Early and Periodic Screening, Diagnosis, and Treatment program. Id. at 323. The CAO at issue here, entitled "Check Up Reports and Plans for Lagging Counties," required the state to gather data by county regarding its provision of Medicaid services. As it collected data, the state was obliged to develop plans for increasing participation in counties that "lagged" behind others.

The CAO included a four-year "conference period," at the end of which the parties were to "confer to determine what further action, if any, [was] required." In the event they could not agree within ninety days of that conference, the court would step in to resolve the dispute. That's what happened here. The parties failed to agree, plaintiffs moved for further action pursuant to the Lagging Counties CAO, and defendants filed a competing motion to eliminate portions of that CAO. The district court denied plaintiffs’ motion and granted defendants’.

Plaintiffs do not contest the resolution of those competing motions. Instead, the present dispute regards attorneys’ fees for the plaintiffs’ unsuccessful efforts related to the Lagging Counties CAO. The parties negotiated over the fees owed to plaintiffs’ attorneys, agreeing in part and submitting a joint motion for an award of uncontested fees. But they were not able to agree on fees pertaining to the attorneys’ efforts on the Lagging Counties CAO. Notwithstanding plaintiffs’ overarching "prevailing party" status, defendants opposed awarding fees for their attorneys’ efforts on the unsuccessful motions relating to the Lagging Counties CAO.

The district court determined that, even though plaintiffs "were ultimately unsuccessful on their motions related" to the Lagging Counties CAO, the defendants were required to pay the full cost of plaintiffs’ fees "in connection with [those] motions." That conclusion was based on plaintiffs’ "undisputed" status as "prevailing parties with regard to the Consent Decree and the [CAOs]."

The district court noted that the CAO "specifically contemplate[d] that Plaintiffs will seek court action," such as the motions regarding the Lagging Counties CAO, if the parties failed to agree at conference. Thus, precluding plaintiffs’ attorneys from recovering "for work that is anticipated by the parties’ agreements would deprive Plaintiffs of their victory in procuring the [CAO]."

Defendants appealed, asserting "that because Plaintiffs were unsuccessful in extending the defendants’ obligations under the lagging counties provision, they are not a ‘prevailing’ party." Frew VII , 688 F. App'x at 254. We disagreed, holding instead that plaintiffs "had an entitlement to fees as the round of motion practice was the final step contemplated under the 2007 [CAO]." Id. at 251. Nonetheless, because "prevailing party status does not automatically entitle a party to the full amount of attorneys’ fees incurred," we vacated and remanded because the district court failed to perform a reasonableness analysis per Hensley v. Eckerhart , 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Frew VII , 688 F. App'x at 257–58.

On remand, the district court went to the opposite extreme and denied an award of any fees. Applying a two-factor test from Hensley , the court concluded "that the Plaintiffs’ unsuccessful pursuit of their lagging counties motion was not related to the claims upon which they had been successful." It further held, without analyzing the question, that plaintiffs had failed to achieve a level of success that made the hours expended a satisfactory basis for making a fee award.

The court entered that order on April 7, 2020. Thirty days later, on May 7, 2020, Plaintiffs filed both a motion to stay the running of the time to file a notice of appeal and a motion to reconsider. The district court granted both motions the same day. Roughly two months later, on July 23, the court denied plaintiffs’ motion for reconsideration. Plaintiffs filed a notice of appeal on August 13.

We now arrive at the crux of the present appeal—whether the district court committed reversible error when it denied all fees for the motions relating to the Lagging Counties CAO. But before we reach the merits of the fee dispute, we must determine whether we possess appellate jurisdiction to review the underlying order. We do not.

II.

Typically, an interim fee award "may not be immediately appealed as a final judgment" or "as a collateral order." 10 JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE [hereinafter Moore's] § 54.158[1][a], at 54-260.1 (3d ed. 2020). But we need not concern ourselves with the particulars of the collateral order doctrine—the law of the case dictates that the interim fee award at issue here is appealable as a collateral order. Frew VII , 688 F. App'x at 253. And "[a]n appealable collateral order is a ‘final decision’ under 28 U.S.C. § 1291 and must be appealed within the time specified by Appellate Rule 4." 19 MOORE'S , § 202.07[1], at 202-47.

A notice of appeal must be filed "within 30 days after entry of the judgment or order appealed from." FED. R. APP. P. 4(a)(1)(A) ; 28 U.S.C. § 2107(a). Because that 30-day requirement has statutory roots in 28 U.S.C. § 2107, it is jurisdictional. See Bowles v. Russell , 551 U.S. 205, 209–13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Thus, if an appeal is untimely, we lack jurisdiction to entertain it. Id. The underlying judgment from which Plaintiffs appeal was entered on April 7. Plaintiffs filed their notice of appeal on August 13, well beyond the 30-day window.

Nonetheless, certain postjudgment motions, if timely filed, toll the appellate deadline until the district court disposes of the motion. FED. R. APP. P. 4(a)(4). It is uncontested that plaintiffs moved for reconsideration on the 30th day after the judgment, falling within the deadline to appeal. Thus, if properly construed as a timely motion under Rule 4(a)(4), the 30 -day window to file a notice of appeal would have been tolled until the July 23 order.

Plaintiffs’ motion conceivably could be construed as one of three different motions that Rule 4 permits to toll the appellate deadline. We could construe it as a motion (1) "for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58," (2) "to alter or amend the judgment under Rule 59," or (3) "for relief under Rule 60." Rule 4(a)-(4)(A)(iii), (iv), (vi). Any of those motions, if filed "within the time allowed by" the applicable Rule, would toll the appellate deadline. Rule 4(a)(4)(A).

But, for a district court to extend the time to appeal under Rule 58, a Rule 54(d)(2) motion must "be filed no later than 14 days after the entry of judgment." FED. R. CIV. P. 54(d)(2)(B)(i) ; FED. R. CIV. P. 58(e). A Rule 59(e) motion fares no better, because it "must be filed no later than 28 days after the entry of the judgment." FED. R. CIV. P. 59(e). And, similarly, a Rule 60 motion will toll the appellate deadline only "if the motion is filed no later than 28 days after the judgment is entered." Rule 4(a)-(4)(A)(vi). The May 7 motion for reconsideration—filed 30 days after the district court entered judgment—was therefore not filed "within the time allowed by" any of the applicable rules under which the motion could have been brought. FED. R. APP. P. 4(a)(4)(A). Consequently, it failed to invoke Rule 4 ’s tolling provision.

Irrespective of how we construe plaintiffs’ motion, it was untimely for purposes of Rule 4—it failed to toll the deadline to appeal the April 7 order.² Accordingly, the August 13 notice of appeal was untimely, and we lack jurisdiction to review that order.³

III.

Dismissing the appeal of the April 7 order does not, however,...