Johnson v. Orr
| Decision Date | 01 March 1990 |
| Docket Number | No. 89-5315,89-5315 |
| Citation | 897 F.2d 128 |
| Parties | 133 L.R.R.M. (BNA) 3100, 15 Fed.R.Serv.3d 1335 Roy A. JOHNSON and John J. Sheller, Plaintiffs-Appellants, v. Verne ORR, Secretary of the Air Force, Francis Erard, Major General, Wilfred C. Menard, Jr., Major General, Colonel John Murphy, Brigadier General Charles Young, Air Commander Lt. Colonel Billy McDaniels, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Martin R. Cohen (argued), American Federation of Government Employees, Philadelphia, Pa., Mark D. Roth, American Federation of Government Employees, AFL-CIO, Washington, D.C., for plaintiffs-appellants.
Bette E. Uhrmacher (argued), Asst. U.S. Atty., Trenton, N.J., for defendants-appellees.
Before BECKER, COWEN, and SEITZ, Circuit Judges.
This is the decision on defendants' motion to dismiss plaintiffs' appeal from a district court order granting plaintiffs allegedly inadequate attorneys' fees on the ground that the notice of appeal is untimely. The extensive history of this case is recounted in two earlier opinions of this court. Johnson v. Orr, 780 F.2d 386 (3d Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986); Johnson v. Orr, 776 F.2d 75 (3d Cir.1985). We will repeat only those facts necessary to an understanding of the issues raised by defendants' motion.
Plaintiffs Roy A. Johnson and John J. Sheller ("plaintiffs") were civilian technicians employed by the New Jersey Air National Guard. They were discharged from their positions for labor activities alleged to be in violation of federal law. In an administrative hearing, the dismissals were upheld by an Air National Guard hearing examiner, whose findings were in turn adopted by the New Jersey Adjutant General.
Thereafter, plaintiffs filed a complaint in the district court containing three claims: 1) improper discharge in violation of the first and fifth amendments to the United States Constitution, the Bivens claims 2) improper discharge in violation of the provisions of the Administrative Procedure Act (APA) and 3) other constitutional violations remediable under 42 U.S.C. Sec. 1983 (1982).
The district court dismissed the first of these claims, the Bivens claims, in December of 1983. On July 2, 1984, the district court granted summary judgment for plaintiffs on their APA claim. The so-called Sec. 1983 claim remained undecided. Defendants moved to have the order granting summary judgment on the APA claim made final pursuant to Federal Rule of Civil Procedure 54(b). This the district court did by order dated October 24, 1985. The defendants then appealed the summary judgment on the APA claim and that judgment was affirmed by this court. Johnson v. Orr, 776 F.2d 75 (3d Cir.1985).
After the judgment on the APA claim became final in December 1986, plaintiffs renewed their motion in the district court for costs and attorneys' fees on that judgment. 1 Upon receipt of the Report and Recommendation of the United States Magistrate, the district court entered an order awarding plaintiffs certain fees and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (1982 & Supp.1987). The order was docketed on April 11, 1988. At this point in time, April 11, 1988, plaintiffs' Sec. 1983 claim remained viable in the district court.
We come next to the critical events relevant to the disposition of the pending motion to dismiss. The plaintiffs did not file a notice of appeal within sixty days after the April 11, 1988, fee order was docketed. See Fed.R.Civ.P. 4 (). Rather, after negotiation, the parties settled the Sec. 1983 claim and the court entered an order dated April 3, 1989, dismissing the amended complaint with prejudice. On April 10, 1989, plaintiffs filed a notice of appeal from the district court's fee order that had been docketed April 11, 1988. It is the timeliness of this notice of appeal that we must determine.
The issue is more simply stated than resolved. The district court's judgment for plaintiffs on the APA claim had been appealed and had become final in December 1986. The order fixing the fees and costs with respect to that judgment was docketed on April 11, 1988. Since the fees and costs were based solely on a final judgment, we must decide whether the order fixing such fees and costs likewise became final and thus triggered the running of the time for appeal.
Defendants contend quite simply that the fee order was a final judgment for appeal purposes. Plaintiffs counter that the fact that a final judgment existed with respect to the APA claim, did not render the subsequent fee order final because the Sec. 1983 claim remained outstanding.
Generally speaking, an order unconditionally fixing fees, docketed after the docketing of the final merits judgment, is a separate final judgment, at least where the merits judgment resolved all of the claims before the district court. Such a conclusion is implicit in some of the Supreme Court's analysis in White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Indeed, this proposition seems not to be challenged here. Plaintiffs say the rule is otherwise, however, where other claims remain unresolved and there is no 54(b) certification of the fee order.
An analysis of our problem must begin with a recital of certain federal law relating to 54(b) final judgments. Generally speaking, a judgment entered pursuant to Rule 54(b) has the same finality as any other judgment. See, e.g., Hayes v. Sealtest Foods Div. of Nat'l Dairy Prods. Corp., 396 F.2d 448 (3d Cir.1968) (); Government of Virgin Islands v. 2.6912 Acres of Land, 396 F.2d 3 (3d Cir.1968) (); Hooks v. Washington Sheraton Corp., 642 F.2d 614 (D.C.Cir.1980) (); Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721 (D.C.Cir.1969) ().
Thus, certification of a judgment under Rule 54(b) triggers, subject to review, all of the direct consequences of any final judgment. While plaintiffs would, of course, agree that the district court was authorized to fix attorneys' fees, they insist that the fee order, unlike the merits judgment, was not a final judgment when entered because of the existence of the Sec. 1983 claim. Such a result would follow in the absence of a certification of the merits judgment where claims remained undecided. But does plaintiffs' position clash with the basic purpose behind the adoption of the Rule 54(b) provision permitting a district court to render a judgment final while other claims remain pending?
The factors that motivated the adoption of the certification provision in Rule 54(b) are clear:
Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than all the claims or as to one or more but fewer than all the parties in an action involving more than one claim or party. It was adopted because of the potential scope and complexity of civil actions under the federal rules, given their extensive provisions for the liberal joinder of claims and parties. The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available. [footnote omitted]
10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Sec. 2654 (2d ed.1983).
Attorneys' fees are, of course, collateral to the main cause of action. White, 455 U.S. 445 at p. 451, 102 S.Ct. 1162 at p. 1166. However, when the judgment on the fees is rendered after the entry of final judgment on the merits pursuant to Rule 54(b), is there any policy reason why the court's decision to render the merits judgment final should not carry over to the fee determination thereon solely because of the existence of another claim?
If plaintiffs are correct, the fee order of the district court docketed on April 11, 1988, lacked finality and thus could not have been appealed at that time by either side without a certification. Such a result could materially delay the finality of a frequently not unimportant aspect of a favorable judgment on the merits--attorneys' fees. Moreover, since a 54(b) certification indicates that the district court believes the merits judgment should become final immediately, we can think of no policy consideration that would suggest that a separate fee award on that judgment should not also be final. This is even more true when, as here, the certified merits judgment has already been affirmed on appeal. Assuredly, the very purpose served by a certification of finality suggests the importance of making final all of its collateral consequences.
Plaintiffs contend that the legal fees award was not appealable because there was no express Rule 54(b) determination as to the fees and costs claims. The contention implies that such an express determination of finality was necessary. Of course, the certification would only be necessary if the attorneys' fee order were to be viewed as not being a final judgment. Our determination to the contrary negates this argument.
Plaintiffs assert that this court's decision in Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778 (3d Cir.1982), requires us to find this fee order unappealable until the entire complaint was dismissed. However, that case is not controlling. Yakowicz ruled that an order denying interim attorneys' fees was not final and appealable. Here, in contrast, the final assessment of fees was based...
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