Utah Women's Clinic, Inc. v. Leavitt

• Decision Date: 22 November 1995
• Docket Number: No. 94-4170,94-4170
• Citation: 75 F.3d 564
• Parties: UTAH WOMEN'S CLINIC, INC.; Edward R. Watson, M.D.; Madhuri Shah, M.D.; Laurel Shepherd, M.D.; Alissa Porter; Wendy Edwards; Wasatch Women's Center, P.C.; William R. Adams, M.D.; Denise Defa and Sarah Roe, on behalf of herself and all other similarly situated women from Utah and surrounding states, Plaintiffs-Appellants, v. Michael LEAVITT, Governor of the State of Utah, in his individual and official capacities; Jan Graham, Attorney General of Utah, in her individual and official capacities; and their successors, Defendants-Appellees. Planned Parenthood of the Rocky Mountains, Inc., California Women Lawyers, Society of American Law Teachers, Women's Law Project, American Civil Liberties Union, National Abortion and Reproductive Rights Action League, National Organization for Women, Inc., National Women's Law Center, NOW Legal Defense and Education Fund, Planned Parenthood Federation of America, Women's Legal Defense Fund, and United States of America, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 564

75 F.3d 564

33 Fed.R.Serv.3d 1302

UTAH WOMEN'S CLINIC, INC.; Edward R. Watson, M.D.; Madhuri Shah, M.D.; Laurel Shepherd, M.D.; Alissa Porter; Wendy Edwards; Wasatch Women's Center, P.C.; William R. Adams M.D.; Denise Defa and Sarah Roe, on behalf of herself and all other similarly situated women from Utah and surrounding states, Plaintiffs-Appellants, v. Michael LEAVITT, Governor of the State of Utah, in his individual and official capacities; Jan Graham, Attorney General of Utah, in her individual and official capacities and their successors, Defendants-Appellees Planned Parenthood of the Rocky Mountains, Inc., California Women Lawyers, Society of American Law Teachers, Women's Law Project, American Civil Liberties Union, National Abortion and Reproductive Rights Action League, National Organization for Women, Inc., National Women's Law Center NOW Legal Defense and Education Fund, Planned Parenthood Federation of America, Women's Legal Defense Fund, and United States of America, Amici Curiae.

No. 94-4170.

United States Court of Appeals, Tenth Circuit.

Nov. 22, 1995.

Publication Ordered Feb. 1, 1996.

Appeal from the United States District Court for the District of Utah, D.C. No. 93-C-407B.

Submitted on the Briefs ^*

Eva C. Gartner, Janet Benshoof, Kathryn Kolbert, The Center for Reproductive Law & Policy, New York City, Shirley M. Hufstedler, Morrison & Foerster, Los Angeles, California, and Martin W. Custen, Marquardt, Hasenyager & Custen, Ogden, Utah, for Plaintiffs-Appellants.

Brent A. Burnett, J. Mark Ward, Reed M. Stringham III, Jerrold S. Jensen, Assistant Attorneys General, and Jan Graham, Attorney General, State of Utah, Salt Lake City, Utah, for Defendants-Appellees.

Donald W. Hoagland and Thomas S. Nichols, Davis, Graham & Stubbs, L.L.C., Denver, Colorado, for Amicus Curiae Planned Parenthood of the Rocky Mountains, Inc.

Dawn M. Shock, Mary Ann Soden, Karen L. Donald, Keesal, Young & Logan, Long Beach, California, for Amicus Curiae California Women Lawyers.

Eileen Kaufman, Touro Law Center, Huntington, New York, for Amicus Curiae Society of American Law Teachers.

Linda J. Wharton and Susan Frietsche, Women's Law Project, Philadelphia, Pennsylvania, for Amici Curiae Women's Law Project, American Civil Liberties Union, National Abortion and Reproductive Rights Action League, National Organization for Women, Inc., National Women's Law Center, NOW Legal Defense and Education Fund, Planned Parenthood Federation of America, and Women's Legal Defense Fund.

David K. Flynn and Eileen Penner, Attorneys, Civil Rights Division, Department of Justice, Washington, D.C., for Amicus Curiae the United States.

Before TACHA, BALDOCK and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiffs appeal from the district court's adverse judgment on their constitutional challenge to various statutory provisions enacted in Utah regarding informed consent prior to an abortion. Aplt.App. 1110-13. The provisions were modeled after those upheld in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). They also appeal from the district court's judgment awarding costs and attorney's fees in favor of the Defendants. Id. We sought additional briefing on whether the notice of appeal was timely filed so as to preserve the merits appeal. We conclude that we do not have jurisdiction over the merits appeal, and remand the case for reconsideration of the propriety of awarding attorney's fees in light of subsequent authority.

Background

Plaintiffs challenged the constitutionality of the Utah Abortion Act Revision, S.B. No. 60; Aplt.App. 0182b-0182j; codified at Utah Code Ann. §§ 76-7-301, 76-7-305 and 76-7-305.5 (Michie 1995 Repl.), as well as its interaction with Utah Code Ann. § 76-7-315 (Michie 1995 Repl.). On February 1, 1994, the district court entered an opinion and order denying relief on the merits and dismissing the action. Utah Women's Clinic, Inc. v. Leavitt, 844 F.Supp. 1482, 1486, 1495 (D.Utah 1994). In the last sentence of the opinion and order, the district court sua sponte ordered the Plaintiffs to pay Defendants costs and attorney's fees. Judgment reflecting the above was entered on February 4, 1994. Aplt.App. 1000.

Within ten days of the entry of final judgment, Plaintiffs served a Fed.R.Civ.P. 59(e) "Motion to Alter or Amend Judgment to Rescind Award of Attorneys' Fees Or, in the Alternative, to Certify Interlocutory Appeal." Aplt.App. 1001. Plaintiffs raised no issue concerning the merits or correctness of the district court's decision on the constitutionality of S.B. 60. Instead, they argued that the award of attorney's fees constituted an abuse of discretion. Plaintiffs also requested that if the district court did not delete the award of attorney's fees and costs, it should certify an interlocutory appeal of the issue pursuant to 28 U.S.C. § 1292(b) so that there might be a single appeal "of the fee issue along with the merits issues." Aplt.App. 1043. See also Id. at 1001, 1033.

In a memorandum decision and order entered June 21, 1994, the district court denied Plaintiffs' Rule 59(e) motion, set the amount of attorney's fees ($72,930) and costs ($477.40), and invited Defendants to seek additional fees for defending against the Rule 59(e) motion and establishing the fee award. Aplt.App. 1104. Judgment was entered in favor of Defendants for attorney's fees (now $81,477.50) and costs on July 15, 1995. Id. at 1109. The notice of appeal was filed on July 18, 1994. Id. at 1110.

On August 4, 1994, a jurisdictional panel raised the issue of whether the notice of appeal was timely filed as to the district court's February 1, 1994 opinion and order and subsequent judgment entered February 4, 1994. The parties responded and the jurisdictional issue was referred to the merits panel.

Discussion

A civil notice of appeal where the United States is not a party must be filed within thirty days after the date of entry of an order or judgment appealed from. Fed.R.App.P. 4(a)(1). A timely filed notice of appeal is an absolute prerequisite to our jurisdiction. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Normally, a timely filed Rule 59(e) motion tolls the thirty- day period until entry of an order disposing of the motion. Fed.R.App.P. 4(a)(4)(C). The jurisdictional issue in this case is whether the Rule 59(e) motion, which sought only "to delete the award of attorneys' fees and costs to defendants in this matter," Aplt.App. 1001, prior to the quantification of those fees and costs, tolled the time in which to take an appeal from the merits, i.e. the constitutionality of S.B. 60.

The Supreme Court has held that the question of attorney's fees and costs are collateral to and separate from a decision on the merits. Buchanan v. Stanships, Inc., 485 U.S. 265, 267-68, 108 S.Ct. 1130, 1131, 99 L.Ed.2d 289 (1988) (per curiam) (costs); White v. New Hampshire, 455 U.S. 445, 451-52, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982) (attorney's fees). The Court adopted a "bright-line rule" holding "that an unresolved issue of attorney's fees for the litigation in question does not prevent the judgment on the merits from being final." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988). When a judgment on the merits has been rendered, the Court has declined to apply Rule 59(e) to requests for attorney's fees or costs based upon the underlying merits judgment. Buchanan, 485 U.S. at 267-68, 108 S.Ct. at 1131 (costs); White, 455 U.S. at 451, 102 S.Ct. at 1166 (attorney's fees).

Plaintiffs argue that their Rule 59(e) motion tolled the time to appeal from the February decisions notwithstanding that it related "in part" to an award of attorney's fees. They claim that the finality of the merits judgment in this case is not really an issue because a Rule 59(e) motion was filed and the motion would require the district court to consider matters intertwined with the merits. Finally, they urge adoption of the rule in Ramsey v. Colonial Life Ins. Co., 12 F.3d 472 (5th Cir.1994) which held that "a motion to reconsider a judgment will be considered a Rule 59(e) motion even where the request for reconsideration encompasses only that part of the judgment regarding attorney's fees." Id. at 478. See also Penland v. Warren County Jail, 759 F.2d 524, 527 (6th Cir.1985) (en banc).

Defendants recognize the above circuit authority, but contend that it is difficult to reconcile with the bright line rules established by the Supreme Court as well as other circuit authority. They raise Collard v. United States, 10 F.3d 718 (10th Cir.1993), in which we held that an amendment to the judgment to award costs, like an amendment to award attorney's fees, is collateral and will not alter the finality of the original judgment. See also Lentomyynti Oy v. Medivac, Inc., 997 F.2d 364, 368 (7th Cir.1993) (Rule 68 motion for costs is not a Rule 59(e) motion because it raises collateral matters). Defendants decline to take a position on whether the court has jurisdiction over the merits appeal.

Plaintiffs' Rule 59(e) motion and memorandum could not be any clearer regarding the relief requested: deletion of the award of attorney's fees and costs before those fees and costs were settled in further proceedings. Aplt.App. 1001, 1033. Plaintiffs argue that their Rule 59(e) motion questioned the correctness of the February decisions insofar as attorney's fees are concerned; however, that does not change the fact that costs and attorney's fees normally are collateral to the merits judgment, particularly when the judgment contemplates significant further proceedings concerning costs and attorney's fees. Therefore, a Rule 59(e) motion, challenging only the award of costs and attorney's fees, does not toll the time for a merits appeal. The Supreme Court has created a uniform rule, regardless of the statutory or...