Shultz v. Crowley

• Decision Date: 12 December 1986
• Docket Number: No. 84-5667,84-5667
• Citation: 802 F.2d 498
• Parties: George SHULTZ, Secretary of State, et al., Appellants, v. James D. CROWLEY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 498

802 F.2d 498

255 U.S.App.D.C. 422

George SHULTZ, Secretary of State, et al., Appellants, v. James D. CROWLEY, et al.

No. 84-5667.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 12, 1985.

Decided Sept. 18, 1986.

Rehearing Denied Dec. 12, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 74-494).

John Oliver Birch, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants.

Lawrence Speiser, with whom John P. Racin, Washington, D.C., was on the brief, for appellees.

Before BORK and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion of the Court filed by Circuit Judge SCALIA.

Dissenting Opinion filed by Senior Circuit Judge MacKINNON.

SCALIA, Circuit Judge:

The government appeals an order awarding appellees attorney's fees under Sec. 204 of the Equal Access to Justice Act ("EAJA"), Pub.L. No. 96-481, 94 Stat. 2321, 2325, 2327 (1980), amended by Act of August 5, 1985, Pub.L. No. 99-80, 99 Stat. 183, 184-87 (current version at 28 U.S.C.A. Sec. 2412 (West Supp.1986)). The principal question on appeal is whether this suit was pending on the effective date of the EAJA.

I

In 1974, appellees filed a class action against the Secretary of State, challenging the legality of a State Department employment practice. Plaintiffs requested declaratory, monetary, and injunctive relief, costs including reasonable attorney's fees, and such further relief as is just and proper. Complaint 23-25. In 1977, the District Court granted partial summary judgment to the class, declaring the challenged practice unlawful and enjoining its continuation. Crowley v. Kissinger, Civil Action No. 74-494 (D.D.C. June 24, 1977) (Memorandum). The parties then stipulated that individual claims would be considered by a Special Master, whose recommendations would be appealable to the District Court. Stipulation of Claim Procedures and Consent Order, Crowley v. Vance, Civil Action No. 74-494 (D.D.C. filed Nov. 1, 1978). On May 22, 1980, the District Court adopted the Special Master's recommendations as to the entitlement of various class members to monetary relief and his conclusion that class members were eligible for attorney's fees under the Back Pay Act, 5 U.S.C. Sec. 5596(b)(1)(A)(ii)(1982). Crowley v. Muskie, 496 F.Supp. 360 (D.D.C.1980). On July 21, 1980, the government filed a notice of appeal from the District Court's decision, but that appeal was later dismissed on the government's motion. Crowley v. Muskie, No. 80-1849 (D.D.Cir. Sept. 12, 1980) (Memorandum). Soon after, appellees filed an application for an award of attorney's fees and costs. Application for Attorney's Fees and Expenses, Crowley v. Muskie, Civil Action No. 74-494 (D.D.C. filed Sept. 26, 1980). The District Court eventually granted the application. Crowley v. Haig, Civil Action No. 74-494 (D.D.C. Sept. 15, 1981), amended (D.D.C. Sept. 25, 1981), partial relief granted (D.D.C. Dec. 9, 1981). The government appealed, Crowley v. Haig, Civil Action No. 74-494 (D.D.C. filed Nov. 16 & Dec. 15, 1981), and this court reversed the award, holding that appellees were not entitled to attorney's fees under the Back Pay Act, Crowley v. Shultz, 704 F.2d 1269 (D.C.Cir.1983). Appellees then applied to the District Court for attorney's fees under the EAJA. Motion for Attorneys Fees and Costs Pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d), Crowley v. Shultz, Civil Action No. 74-494 (D.D.C. filed June 13, 1983). The District Court held that appellees were entitled to attorney's fees, Crowley v. Shultz, Civil Action No. 74-494 (D.D.C. May 16, 1984) (Memorandum), and subsequently fixed the amount of those fees, Crowley v. Shultz, Civil Action No. 74-494 (D.D.C. July 23, 1984) (Memorandum). This appeal followed.

II

The government's principal argument is that appellees are ineligible for attorney's fees under the EAJA because their suit was not pending on October 1, 1981, the effective date of the Act. Pub.L. No. 96-481, Sec. 208, 94 Stat. 2321, 2330 (1980). The government's argument is correct if two premises are true. The first is that a suit is not pending within the meaning of the EAJA when it has been finally resolved on the merits and only collateral issues, like the availability or amount of attorney's fees, remain to be resolved. As appellees concede, this court has already accepted that premise, in Nichols v. Pierce, 740 F.2d 1249 (D.C.Cir.1984), a case decided after the District Court decisions at issue in this appeal. Thus, all that remains is to determine the accuracy of the government's second premise, i.e., that only collateral issues remained in this case on October 1, 1981.

The last order on the merits in this case was issued on May 22, 1980, when the District Court adopted the conclusions and recommendations of the Special Master regarding the entitlement of various class members to individual monetary relief. Crowley v. Muskie, 496 F.Supp. 360 (D.D.C.1980). Although the government appealed this order, it voluntarily withdrew its appeal on September 12, 1980, over a year before the effective date of the EAJA. Crowley v. Muskie, No. 80-1849 (D.C.Cir. Sept. 12, 1980). There has been substantial litigation since then, but it has concerned only attorney's fees. It would thus appear that Nichols controls this case, and that appellees are not entitled to an award of attorney's fees. Appellees nevertheless argue that this case was pending on October 1, 1981 within the meaning of the EAJA as interpreted in Nichols, because the District Court's order of May 22, 1980 left unresolved the amount of the attorney's fees award to which it held appellees were entitled under the Back Pay Act. Since that order did not dispose of the "whole case," appellees reason, it was merely "collateral," and the government could have appealed the merits of the case for sixty days after the date on which the amount of the award was fixed (and thus the "whole case" decided). Since the amount of the award was fixed on September 15, 1981, they conclude that this suit was pending on October 1, 1981, the effective date of the EAJA.

The government did not appeal on the merits, however, instead appealing only the District Court's attorney's fees determinations. See Crowley v. Shultz, 704 F.2d 1269 (D.C.Cir.1983). Thus, appellees' argument rests on the implicit assumption that a case in which an appeal on the merits could have been brought after the effective date of the EAJA was pending on that date even if no appeal on the merits was actually brought. Our decision in Nichols casts substantial doubt on this proposition. See 740 F.2d at 1256. But cf. Massachusetts Union of Public Housing Tenants v. Pierce, 755 F.2d 177, 179-80 (D.C.Cir.1985).

Even granting that assumption, however, the appellees' argument also rests upon another assumption: that the pendency of an unresolved request for attorney's fees normally affects the appealability of an order finally disposing of the merits of the case. The sole support appellees adduce for this proposition is Crowley v. Shultz, 704 F.2d 1269 (D.C.Cir.1983), our earlier decision in this case. In Crowley, the government, appealing from an order determining the amount of the fee award to which plaintiffs had previously been held to be entitled under the Back Pay Act, sought to challenge not only the amount but also the entitlement. The plaintiffs argued that we lacked jurisdiction to consider the entitlement question, since the government had not brought a separate appeal from the earlier District Court order deciding that issue. We rejected that argument, holding that an order determining that a party is entitled to a fee award but not fixing the amount of the award is properly challenged on an appeal from the later order fixing the size of the amount. Id. at 1271-72. That conclusion simply sheds no light at all on the very different question presented by this appeal, i.e., whether on order finally resolving the merits of a case is properly challenged on appeal from a later order finally resolving pending attorney's fees issues.

This latter question was once the source of substantial confusion and disagreement among the federal circuits. See, generally Green, From Here to Attorney's Fees: Certainty, Efficiency, and Fairness in the Journey to the Appellate Courts, 69 CORNELL L.REV. 207, 224-26 (1984) (hereinafter Green, From Here to Attorney's Fees). This confusion, however, has been greatly reduced by the Supreme Court's decision in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). The precise question posed in White was whether a postjudgment request for attorney's fees under 42 U.S.C. Sec. 1988 (1982) was a motion to alter or amend the judgment subject to FED.R.CIV.P. 59(e), which requires that such motions be filed within ten days of the entry of judgment. The Court answered this question in the negative, relying on the following propositions: Rule 59(e) was intended to apply only to requests for reconsideration of "matters properly encompassed in a decision on the merits"; "a request for attorney's fees under Sec. 1988 raises legal issues collateral to" and "separate from" the decision on the merits--issues that cannot be resolved until after one party has finally prevailed on the merits; and attorney's fees therefore are distinguishable from other forms of judicial relief. ¹ White, 455 U.S. at 451-52, 102 S.Ct at 1166-67. As the White Court itself realized, one necessary consequence of characterizing requests for statutory attorney's fees as separate from and collateral to judgments on the merits is that the pendency of such requests can have no effect on the finality (and thus the appealability) of a judgment finally disposing of the merits of a...