Stallworth v. Greater Cleveland Regional Transit Authority

• Decision Date: 21 January 1997
• Docket Number: No. 95-4065,95-4065
• Citation: 105 F.3d 252
• Parties: 69 Empl. Prac. Dec. P 44,476 Robert STALLWORTH, Plaintiff-Appellant, v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY; David Vegh; and Ronald Tober, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 252

105 F.3d 252

69 Empl. Prac. Dec. P 44,476

Robert STALLWORTH, Plaintiff-Appellant, v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY; David Vegh; and Ronald Tober, Defendants-Appellees.

No. 95-4065.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 10, 1996.

Decided Jan. 21, 1997.

S. David Worhatch (argued and briefed), Stow, OH, for Plaintiff-Appellant.

Douglas A. Gonda, Cleveland, OH and Cheryl A. Haynes (argued and briefed), Greater Cleveland Regional Transit Authority, Cleveland, OH, for Defendants-Appellees.

Before: BOGGS, NORRIS, and GIBSON, ^* Circuit Judges.

BOGGS, Circuit Judge.

After prevailing in a motion to remand this removed case to state court, Robert Stallworth moved for an award of attorney fees, ¹ pursuant to 28 U.S.C. § 1447(c). ² The district court denied that motion for procedural reasons, based on its interpretation of the remand statute. Stallworth now appeals that denial. Because we disagree with the district court's interpretation, we remand.

I

Stallworth first sued the Greater Cleveland Regional Transit Authority ("GCRTA") in the United States District Court for the Northern District of Ohio, alleging violations of 42 U.S.C. §§ 1981, 1983, 1985, and 1986. The case was assigned to Judge White as No. 94-CV-2595.

Subsequently, Stallworth sued GCRTA in Cuyahoga County Common Pleas Court, alleging violations of Ohio law that included malicious prosecution, discriminatory practices, wrongful discharge and refusal to hire, promissory estoppel, and negligence. GCRTA timely filed a notice of removal to the United States District Court for the Northern District of Ohio, and the case went to Judge Wells as No. 1:95-CV-1098. In the notice, GCRTA asserted that "each of the claims in both actions [i.e., the case originally filed in federal district court and the case filed in Cuyahoga County court] are so related and are based upon identical facts that federal supplemental jurisdiction is mandated under the provisions of 28 U.S.C. 1367."

Stallworth moved to remand pursuant to § 1447. His motion concluded as follows:

For all the reasons set forth above, plaintiff respectfully requests that this court grant his motion for remand ... and that this court further require defendants to pay all costs and actual expenses incurred by or for plaintiff, including attorney fees, incurred as a result of the removal and plaintiff's efforts to seek remand. Plaintiff reserves the right to supplement the record to provide an accurate accounting of all such fees, costs, and expenses incurred once this court's order for remand is filed of record.

The district court remanded the case on the grounds that there was no basis for original federal jurisdiction in the complaint filed in state court, and that § 1367 did not create an independent basis of jurisdiction. Neither the memorandum of opinion nor the remand order itself mentioned the issue of attorney fees and expenses.

Stallworth apparently did not perceive that order, which did not explicitly act on his request for attorney fees, as a denial of fees, and thus he did not appeal that order to this court. Instead, twelve days later, Stallworth applied to the district court for attorney fees and costs. He offered a detailed statement to support a claim for fees of $1,747.50 and costs of $24.68.

GCRTA opposed Stallworth's application for an award of fees. Stallworth replied with another brief in support of his application, at the same time upping his claim by $375 for the two and a half hours his lawyer spent in responding.

The district court issued an "Order Denying Plaintiff's Application for Attorney's Fees and Costs." In its entirety, the order read:

This case is before the Court on Plaintiff's application for attorney's fees and costs pursuant to 28 U.S.C. § 1447(c). Plaintiff's complaint was recently remanded to the Cuyahoga County, Ohio Court of Common Pleas because this Court lacked jurisdiction over it. After the order of remand was entered, plaintiff filed his motion for fees and costs.

Section 1447(c) provides that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees as a result of the removal." Under the terms of this statute, any award of fees and expenses must be made in the order of remand. Therefore, plaintiff's motion is untimely. United Broadcasting Corp. v. Miami Tele-Communications, Inc., 140 F.R.D. 12, 14 (S.D.Fla.1991). Moreover, this Court no longer has jurisdiction over this case, and has no power to act. Therefore, plaintiff's motion is denied.

Stallworth timely appealed that order.

II

We first must determine whether this court has jurisdiction to consider this appeal. The jurisdictional issue here arises because of 28 U.S.C. § 1447(d), which provides that "an order remanding a case ... is not reviewable on appeal or otherwise...." GCRTA asserts that because of this language, no appeal can lie to this court of the order denying attorney fees. We disagree.

We could justify our conclusion in a rather hair-splitting fashion by noting that the district court did not deny Stallworth's application for attorney fees in its order remanding the case--the action for which appellate review is proscribed by § 1447(d)--but in a separate order. However, because the decision whether to award attorney fees under § 1447(c) is part of the process of remanding a case, it is more satisfying to consider directly whether that phase of the district court's duties is reviewable.

We note that this court has in the past reviewed the award of attorney fees under § 1447(c), though it did not address the issue of appellate jurisdiction other than implicitly. See Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238 (6th Cir.1993). Other courts have explicitly held that appellate review of remand-related fee awards is proper. The Eleventh Circuit has squarely held (though without discussion) that "Section 1447(d) does not ... exclude the district court's assessment of costs from appellate review." Fowler v. Safeco Ins. Co., 915 F.2d 616, 617 (11th Cir.1990). In Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 447 (9th Cir.1992), the court, before reviewing an award of attorney fees for abuse of discretion, grappled with the possible bar of § 1447(d) thusly: "Although this [abuse of discretion] standard will require some consideration of the underlying remand order ... such consideration does not amount to impermissible review of the remand order. After all, on review of the fee award, we are not empowered to reverse the remand order, whether or not it is erroneous." ³ The Fifth Circuit followed Moore in Miranti v. Lee, 3 F.3d 925, 927-28 (5th Cir.1993), and concluded that, while a remand order itself is not reviewable, " § 1447(d) does not prohibit review by this court of the order of costs and fees." That was true in part because of Supreme Court holdings, recently reiterated in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2456, 110 L.Ed.2d 359 (1990), that the award of "attorney's fees" (like the imposition of other sanctions and costs) is "not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue ...." To review on appeal a district court's determination of an issue merely collateral to remand does not offend § 1447(d). Miranti, in turn, has been followed in LaMotte v. Roundy's, Inc., 27 F.3d 314, 315 (7th Cir.1994).

On the authority of these cases, we hold that this court has jurisdiction to review a district court's decision whether to award attorney fees under § 1447(c).

III

Having resolved the question of our own jurisdiction, we now consider whether the district court was correct in holding that it had no jurisdiction, after its order of remand, to consider an application for attorney fees.

The district court cited United Broadcasting Corp. v. Miami Tele-Communications, Inc., 140 F.R.D. 12 (S.D.Fla.1991) to support its holding that it lacked such jurisdiction. In that case, the district court adopted the report and recommendation of a magistrate judge, who concluded that "the plain language of [§ 1447(c) ] controls and clearly provides that if the court is going to award costs and expenses, including attorneys' fees ..., it must be taken care of in the order of remand." Id. at 14. GCRTA seeks to buttress the district court's holding with another case, Faust v. Com. of Pennsylvania Dept. of Revenue, 1990 WL 11674 (E.D.Pa. Feb. 8, 1990). The court there held:

It is well-settled that once a district court certifies a remand order to state court it is divested of jurisdiction and can take no further action on the case.... Under [the language of § 1447(c),] the district court may only award attorneys' fees as part of its original order remanding the case to state court, and not thereafter. It follows that any motion for fees must be made in conjunction with the motion to remand, not after the motion to remand has already been decided.

Id. at * 1. ⁴

Stallworth counters with the Ninth Circuit's decision in Moore, discussed above. In considering this same issue, the court looked to Cooter & Gell, in which

the Supreme Court held that district courts retain jurisdiction to award attorney's fees pursuant to Rule 11 after a voluntary dismissal of the suit. The Court stated:

It is well established that a federal court may consider collateral issues after an action is no longer pending. For example, district courts may award costs after an action is dismissed for want of jurisdiction. See 28 U.S.C. § 1919. This Court has indicated that motions for costs or attorney's fees are "independent proceeding[s] supplemental to the original proceeding and not a request for modification of the original decree." Thus, even "years after the entry of a judgment on the merits" a federal court could consider an award of counsel fees.... Like the imposition of costs, attorney's fees, and contempt sanctions, the...