Forest Henry Shipes, on Behalf of Himself and Others Similarly Situated, Cross-Appellants v. Trinity Industries, Inc., Cross-Appellee
883 F.2d 339
5th Cir.
1989
Check Treatment

*1 ground- Because we affirm sentence 5K2.1, not decide

ed in section we need serve as

whether 4B1.1 would also section proper for the sentence. basis that, “If death re-

Section states 5K2.1

sulted, the sentence the court increase guideline range.”

above the authorized guilty was found

Since defendant Marjorie respon- was

kidnapping Cox and death, years a term 30

sible for her and the conviction and sen- excessive

tence are AFFIRMED. SHIPES, Henry

Forest Behalf of On Similarly Situated,

Himself and Others al., Plaintiffs-Appellees, Cross-Ap-

et

pellants, INC., INDUSTRIES,

TRINITY

Defendant-Appellant,

Cross-Appellee. 87-2885,

Nos. 88-2027. Appeals,

United States Court of

Fifth Circuit.

Aug. Ennis, Tex.,

George Harper, for de- fendant-appellant, cross-appellee. Hahn, Hahn, Larry Daves, Ellen R. Nell Austin, Tex., plaintiffs-appellees, cross- appellants. Bannon, E.E.O.C.,

Jeffrey Atty., C. D.C., curiae, Washington, E.E. amicus O.C. *2 of the an enhancement GARWOOD, entitled to. KING, were and Before re on factors not figure based lodestar

DAVIS, Judges. Circuit court figure. The district flected in that KING, Judge: Circuit however, ordering any en refrained, from the Defendants-appellants appeal briefing by pending the hancement following attorney’s fees Supreme interim deci award of of the Court’s on the effect conclu- favor at the Valley a decision v. Delaware Pennsylvania sion underlying liability phase Air, sion Clean Citizens’ Council for suit. For the (1987) employment discrimination below, we find reasons set forth II). (Delaware On December Valley attorney’s fees is awarding interim order district court F.Supp. and appealable decision a final and original be en ordered appeal without accordingly dismiss for factors not by to account hanced 80% attorney’s fee reaching the merits figure. The court reflected in the lodestar award. to submit evidence also directed “contingency on the whether

I. appropriate. On enhancement” would be Henry Shipes Plaintiffs-appellants F.Supp. Forest December (“Shipes” or plaintiffs’ request class members for and other court denied district liability phase services, at the “plaintiffs”) expenses out-of-court includ brought under this class-action lawsuit Finally, on Au ing expert witness fees. 1981, alleging Title and 42 U.S.C. sec. VII gust district court ordered that hiring, promotion racial discrimination original by enhanced award be 33Vs% Trini- discharge defendant-appellant contingency reflect the factor. Longview, Industry’s (“Trinity”) two ty provided “judgment” This last order remedy phase of the plants. Texas “plaintiffs’ attorneys ... for be awarded to the district pending is still before ease $308,238.05, amended sum of court. attorney’s in this action” and Following victory their on the “interest on this award stated further that issue, plaintiffs moved for an award July calculated from will be attorney's fees under 42 U.S.C. sec. initial order date on which this court’s 2000e-5(k). subsequent- court The district attorney’s awarded interim fees was filed.” evidentiary hearing at ly conducted order, Trinity appealed from the first regard- plaintiffs presented evidence which contesting calculation of the district court’s expended and the nature of ing the time figure, the lodestar and from the second case, preparing involved work orders, contesting the enhance- and fourth fees, attorney’s market rates original ment of the award. Plaintiffs performed by attorney who the services pealed denying from the third order preparation in the of statistical assisted expenses award for for out-of-court servic- Trinity presented no evidence for trial. es. The were consolidated. evidentiary hearing. Both evidence at the documentary parties submitted other evi- II. attorney’s fee issue. dence motion, Although August court’s 4th the dis- the district response entry judgment for rele- order directed the trict court issued four orders 15,1987, First, plaintiffs the interim appeal. July on vant to this $144,- question whether the plaintiffs there is some the district court awarded actually made the determina- “lodestar” calculation district court 712.00 based on the order, certify the as final $7,988.73 necessary tions in costs. In this 54(b).1 argument, At oral we plaintiffs court also found that district (b) Multiple Judgment Upon Claims or In- 1. Rule reads: volving Multiple Parties sponte a more fundamental briefing raised sua After additional parties, both of question: whether the district court’s whom contend that the district fees, court’s order is final and appealable, even certified must conclude that the order 54(b), is not final as final under Rule was final within *3 within the meaning of sec. 1291 and also meaning of 28 U.S.C. sec. 1291 which does not fall within the collateral order governs scope appellate juris- of court exception to the finality rule. diction.2 As we noted in another context: developed The case law that has Finality of an interim award of attor- 54(b) finality occupies Rule that reveals ney’s fees under sec. 1291 respect appellate juris- two roles with Generally speaking, a decision of 54(b) diction. While Rule relaxes tradi- the district court is “final” if it “ends the finality respect, tional notions of in one litigation on the merits and nothing leaves by allowing certify the district court to for the court to do judg but execute the disposes judgment as final a of less States, ment.” Catlin v. United 324 U.S. rights than all of the claims or the 65 S.Ct. 89 L.Ed. 911 liabilities of less than all of the (1945). Thus, treating a claim for attor larger case, 54(b) a Rule “does not relax ney’s fees as a distinct claim for relief decision, finality required of each 54(b), under Rule awarding attor claim, appeal- an individual to render it ney’s fees be considered final within “cannot, A able.” ... trial court within meaning of disposes sec. 1291 if it discretion, the exercise of its treat as finally of question. ‘final’ that which is not ‘final’ within the In Ruiz v. Estelle we held that an inter- meaning of sec. 1291.” im fees under 42 Locker, Inc., Matter Wood & 868 F.2d of patently U.S.C. sec. 19883 “is yet not 139, (5th Cir.1989) 144-45 (emphasis sup- in the sense disposes litiga- that it (citations omitted) plied) Sears, (quoting consequently tion” and 427, Roebuck Mackey, & Co. v. separately only if it falls within the collat- 895, 899, 900, 100 L.Ed. exception eral order to sec. 1291. 609 F.2d (1956)). 118, (5th Cir.1980). Several other cir- If the award of interim attorney’s fees suit, cuits have followed broadly does not constitute a final order within the that awards or denials of interim fees are of sec. certifica- not “final” within meaning of sec. 1291. improper tion would be because Rule See, States, e.g., v. United Rosenfeld expand cannot statutory grant appel- (9th Cir.1988)(award F.2d of inter- jurisdiction. late We would therefore be im fees under Freedom of Information Act required to dismiss this for want final); of not Lac Courte Oreilles Band of jurisdiction unless the order falls within the Superior Chippewa Lake Indians v. Wis- exception narrow to the finality consin, (7th rule cre- Cir.1987) 829 F.2d (award ated the collateral final); order doctrine. of interim not Yakowicz When more than one subject claim for relief is order or other form of decision is action, presented claim, in an any whether as a entry revision at time before the counterclaim, cross-claim, claim, third-party adjudicating rights ment all the claims and the involved, multiple parties or when parties. the court and liabilities of all the entry direct the of a final as to provides 2. Section 1291 one or that: more but fewer than all of the claims or parties only upon express determination that appeals jurisdic- “The courts of ... shall have just delay there is upon no reason for appeals tion of all final decisions of the express entry judgment. direction for the district courts of the United States.” the absence of such determination and di- rection, any decision, Act, order or other Rights Attorney’s form of 3. The Civil Fees Awards designated, adjudicates however which fewer 42 U.S.C. sec. was modeled after the attor- rights than all the ney’s Act, claims or the provisions and liabilities of Rights of the 1964 Civil fewer than all the including 2000e-5(k). shall not terminate the 42 U.S.C. sec. The two any action parties, as to provisions claims or and the are thus treated as identical. (3d aspect finality principles and other- unit” Pennsylvania, F.2d final);

Cir.1982) (denial operates within the constraints fees not wise statutory finality. Central Hastings v. Maine-Endwell (2d District, 676 Cir. F.2d School is, in collateral order doctrine The final). 1982) (award of interim fees contrast, judicially-created exception statutory requirements suggest supplemental parties’ briefs —and aspect statutory finali is an therefore district court’s that we could treat permits from orders ty order un- as a final and —that interlocu would otherwise considered not fall within sec. 1291 even it does der is, Because an award of fees tory. doctrine, have iden- collateral order but *4 definition, relationship interlocutory, the by Rule rule or other than tified no doctrine these two that an rules is such between 54(b) treating this order justify that would fee award not certified as interim could meaning our statu- final within the as 54(b) Rule meets final under unless it also appellate jurisdiction. The tory grant of requirements of the collateral order the the parties’ arguments fail to address thus statutory exceptions or one of doctrine the argument. As a we raised at oral issue finality rule.5 to the housekeeping, of doctrinal we must matter 54(b) Rule the collateral clarify that B. The Collateral Order Doctrine conceptually create distinct order doctrine have mixed Courts reached results exceptions finality to the rule and are determining appealability in of interim co-equal principles purposes for the of this doc fee awards under the collateral order case. Realty Dardar trine. See v. LaFourche 54(b) adopted response Rule was in to (5th Cir.1988) Co., F.2d 849 957 n. 8 burgeoning complex litigation in the cases). (citing adoption courts. of Rule federal Prior to doctrine, in announced Cohen 54(b) finality principle required —at Co., allows Industrial Loan theory in entire least case be Beneficial —that peals from a small class of orders which single judicial if it treated as unit even finally determine issues from consisted numerous discrete claims. See merits of the case. 337 69 U.S. Wright, Cooper, 10 Feder- C. Miller & E. (1949). 93 S.Ct. L.Ed. 1528 al Practice & sec. at 448- Procedure order to be Cohen (1976).4 By allowing district courts to conclusively order de- doctrine must “[T]he certify as those decisions that dis- disputed question, termine resolve an posed pieces larger litigation, of discrete important completely separate issue from 54(b) Rule vested the district courts with action, effectively the merits and be to the discretion alleviate the burden to appeal unreviewable from a final waiting until resolution Coopers Livesay, ment.” & Lybrand v. may case to entire a decision that 98 S.Ct. years have been entered As we before. (1978). above, however, note the distinct claims 54(b) Rule governed required to vary Because fee awards will in statutory character, finality requirements. meet Rule we must consider whether this 54(b) “judicial therefore relaxes sufficiently different from Wright suggest interlocutory Professors and Miller 4. 5. An order also be rigidity single judicial unit rule have it is an within the of 28 minimum, however, 1292(a)(1) exaggerated. been At a U.S.C. sec. or if the district court 54(b) uncertainty judge, pursuant Rule reduced the inherent in to 28 U.S.C. certi- sec. judicially-created exceptions controlling ques- to the rule. fies that the order "involves a Locker, (con- See Wood & F.2d at 145-46 tion of law as which there is substantial cluding Bankruptcy ground that strict opinion adherence to for difference of and that an analog 7054—an to Rule immediate from the order material- —reduces uncertainty judicially-created ap- ly litiga- inherent advance the ultimate termination of the context). pealability bankruptcy doctrine in tion.” Dardar, hand, in Ruiz below, On the other we note we considered awards “prevailing party” White’s scope may, rationale supra, fall within the of the doc- contexts, in certain undermine the conclu- require- We turn now to the three trine. siveness of an interim fee award within the ments. meaning of Cohen. Completely Separate Mer- 2. Conclusiveness its Both suggest First, Supreme we note that the Court’s finally this case resolved Hampshire Dep’t White v. New respect issue with phase Security, Employment underlying lawsuit. In contrast to the (1982), L.Ed.2d could awards considered in and Has- Rosenfeld tings, supra, support the conclusion that the district court this case computed figure “completely sepa- a concrete fees is entered plaintiffs. Hastings, See from the merits. rate” Yakowicz, 896; but see 683 F.2d at F.2d Plaintiffs argue following also (noting n. 11 members of the that two *5 Supreme Court’s recent decision in Texas White controlling point found on this panel Indepen State Teachers Ass’n v. Garland — find White writing would judge while District, School —, dent U.S. 109 attorney’s of inapplicable to interim awards (1989), S.Ct. 103 L.Ed.2d 866 no sub fees). sequent proceedings the district court affect “prevailing par will their status as White, post- In the Court held that a Garland, In rejected ties.” Court this attorney’s judgment motion for fees under “prevail circuit’s rule that in order to be a 1988 was not a to amend or sec. motion ing party,” fees under entitled to sec. 59(e), judgment, governed by a alter plaintiff prevail must on the issue cen attorney’s because fees “is Id. to their 109 tral ease. S.Ct. at 1492. uniquely separable the cause of from ac- prevailing The Court party held that is “[a] Id. proved to be at tion trial.” U.S. at any significant who on one has succeeded 452,102 S.Ct. at 1166. The Court reasoned affording claim it some of the relief “[sjection provides because pendente lite sought, either at the con of attorney’s ‘prevail- awards fees to a Id. litigation.” clusion party[,]’ decision ing ... the court’s of en- Garland thus addresses the reservation require inquiry titlement to fees will ... expressed given we Dardar —that this from separate the decision merits— determining “prevailing circuit’s test inquiry that cannot commence until even parties,” it would difficult ever to find ” 451-52, Id. at party ‘prevailed.’ one has that an interim award fees was “conclu- at 1166-67. Because the Court prior determination on sive” reasoning stated that the above would Dardar, merits. F.2d at 959 n. 12. “regardless attorney’s ply of when fees are note, however, Garland that while We requested,” id. at 102 S.Ct. at it might allow an interim award to be possible argue is that awards of interim party considered “conclusive” when a has attorney’s similarly from claim, language on a discrete they merits of the case because also Garland referring to “relief” creates an party cannot be awarded unless “a has considering a fee obstacle to award “con- prevailed on the merits of at least some of prior remedy clusive” to resolution Hampton, Hanrahan claims.” his plaintiff has achieved a phase where —even S.Ct.1987, 1989, nearly victory liability at complete (1980). phase.6 Garland, reject Trinity’s challenge plain- might attempt to reflect on conclusiveness of 6. We prevailing they party did not cast doubt tiffs’ status —which did not Garland awarding addressing propriety guise on interim fees at the raise on —in liability language quoted phase issue. of trial before While the conclusion of the not, however, liability improper alone was because not rest our decision on on We do Thus, 1291). admittedly technicality for we if we were to this narrow final under sec. concern with the have a more substantial fee issue allow an any interim award of “conclusiveness” of point apart this from a review time— correspond to an order fees that does not the merits of the determina- separately appealable. that is itself posi- could in the anomalous tion—we altering plaintiffs’ prevail- tion of status as If an interim award of fees corre subsequent appeal. If that ing parties in a appeal- itself sponds to an order which is occur, eventuality were to the award of able, compensation for represents “and vacated or fees would have to be compensable that is no matter what work at least altered to reflect lesser it subsequent the course of events” degree of success. well be “conclusive” within 15 C. the collateral order doctrine. See piecemeal places Such review an unnec- Cooper, Wright, supra, A. Miller & E. sec. essary judicial resources. While burden (Supp.1989); Hastings, 676 but see recognize that both have an (stating F.2d at 896 that even achieving certainty in interest in some preliminary injunction grant were fees and fees, award of interim the structure of the order, ed in same fee award would not be litigation such that even if we were to part because interlocutory appeal from allow an White). independent two are award, we could not resolve once and for Meese, Refugee Haitian Center v. all the entitlement to (11th Cir.1986), part F.2d 1489 vacated in the award. *6 (11th grounds, on other 804 F.2d 1573 Cir.1986), example, plaintiffs had Capable Appeal 3. Review on merits, and the district Judgment Final granted temporary injunctive court had re- lief, These considerations lead us to conclude pending approval of defendant’s deportation procedures. further that an award new The court of of interim fees judgment effectively had also affirmed the of be reviewed after final court, or, alternatively, the district with minor modifications. ment is when entered — at corresponds Id. 1493. Interim fees were awarded fee award to an appeal. after the successful interlocutory separately order that is itself Id. appealable. Pierce, Similarly, in Young v. 822 F.2d exception The one to this conclusion (5th Cir.1987), we did not be, Ruiz, suggested as we in when “the district court’s Rule certification of an alleged proved defendant has interim fee at entered the conclu- payment mere of the fees would make liability phase, par- sion of the where the 119; them unrecoverable.” 609 F.2d at see ties had also the district court’s City v. Chicago, also Palmer 806 F.2d issuing orders an interim (7th Cir.1986) (interim 1319-20 fee appointing special master. Young See v. appealable award when fees were to be

Pierce, (5th Cir.1988) (com- 822 F.2d 1368 paid attorneys “revolving not to but to issues). panion addressing case latter two prisoner-plaintiffs); Rosenfeld, fund” of case, contrast, (distinguishing 859 F.2d at Palmer no has Green, been, be, payable attorneys); where fees or could taken from the district liability phase. Attorney’s Certainty, From Here to Fees: court’s decision See Wetzel, Liberty Efficiency, Journey Mutual Insurance v. and Fairness in the Courts, Appellate 47 L.Ed.2d L.Rev. 435 to the Cornell (1976) (Rule 54(b) (arguing certification of decision 269-72 that interim fee

remedy juncture. issues have been determined. As the ate at that 446 U.S. at 100S.Ct. at Hanrahan, Congress clearly Court noted in templated con- 1989. appropri- that interim fees would be awards should Cohen recoupment

where of fees doubt and also The SOMMERS DRUG STORES COMPA suggesting posting of bonds as alterna- NY EMPLOYEE PROFIT SHARING tive). TRUST, Plaintiff-Appellant Cross-Ap pellee,

Trinity alleged, proven, has not let alone paid

that the fees are coun- sel, Trinity will be unable recover them Corrigan N. should the of the district court be Walter CORRIGAN and En point. reversed at some later terprises, Inc., Consequent- Defendants-Appellees ly, we cannot conclude that this interim fee Cross-Appellants. award constitutes a final decision within No. 88-1494. of sec. 1291 collateral order doctrine. If the district court’s order United Appeals, States Court of

was indeed intended to a Rule Fifth Circuit. certification, it would improp- therefore be er. Aug. note, emphasize

As a final we wish to

that in way our no intended to policy favoring

undermine the the award of rights civil cases.

Indeed, although holding may subject our uncertainty, to additional by permitting awards,

note that interim fee

Congress intended to alleviate the burden lengthy costly litigation imposes rights

on civil depend upon counsel who pursue practice.

awards to their An addi-

tional of a

impede objective. Moreover, some un-

certainty is inherent an interim award of

fees—until the case gauntlet has run the

appellate review on the merits.

III. reasons, foregoing

For the

DISMISSED.

GARWOOD, Judge, Circuit specially

concurring:

I concur in all Judge King’s opinion

save may speak the extent it circumstances, when, how,

under what

in what form attorneys’ “interim”

properly “awarded,” being it sufficient- that,

ly clear for the reasons stated

Judge King, jurisdiction we have no of this

appeal and thus no occasion to consider the

propriety of the attorney’s fees award.