George Shultz, Secretary of State v. James D. Crowley

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

Opinion by of the Court filed Circuit Judge SCALIA.

Dissenting Opinion by filed Senior Cir- Judge cuit MacKINNON.

SCALIA, Judge: Circuit appeals an order award- ing appellees attorney’s fees under § the Equal Access to Justice Act (“EAJA”), 96-481, Pub.L. No. 94 Stat. 2321, 2325, (1980), amended Act of August 5, 1985, 99-80, Pub.L. No. 99 Stat. (current 184-87 version 28at U.S.C.A. (West Supp.1986)). The principal is whether this suit was pending on the effective date of the EAJA. I In appellees filed a class action Secretary State, challenging the legality Department a State employ- practice. Plaintiffs declar- atory, relief, monetary, injunctive costs including fees, attorney’s reasonable such just further relief as is and proper. Complaint 23-25. the District granted partial summary judgment class, declaring challenged prac- tice enjoining unlawful and its continua- tion. Crowley Kissinger, v. Civil Action (D.D.C. 1977) No. (Memo- 74-494 June randum). stipulated then individual claims would be considered Special Master, whose recommendations appealable would be to the District Court. Stipulation of Claim Procedures and Con- Order, Vance, sent Civil Action Birch, John Atty., (D.D.C. 1978). Oliver Asst. No. U.S. filed Nov. On diGenova, Joseph whom E. Atty., May adopted District Court Lamberth, Royce Craig Special C. R. Lawrence Master’s recommendations as to pending meaning class members is not within the of various entitlement finally his conclusion that has monetary relief and EAJA when it been resolved eligible issues, members were the merits and collateral like class Back availability or amount of 5596(b)(l)(A)(ii)(1982). Crowley v. Musk- appellees remain to be resolved. As (D.D.C.1980). July ie, On F.Supp. 360 concede, already accepted court has 21, 1980, filed a notice of government Pierce, Nichols v. premise, in that decision, District Court's appeal from (D.C.Cir.1984), a case decided after appeal was later dismissed on but that the District Court decisions at issue this Muskie, Crowley v. government’s motion. Thus, appeal. all that remains is to deter- 12,1980) (D.D.Cir. (Mem- Sept. 80-1849 No. accuracy government’s mine the of the sec- after, orandum). appellees filed an Soon i.e., premise, only issues ond that collateral attorney’s award of fees application for an remained in this case on October Attorney’s Fees Application for and costs. The last order on the in this case merits Muskie, Crowley v. Civil Expenses, 22, 1980, May was issued on when the (D.D.C. Sept. filed Action No. 74-494 adopted District Court conclusions 1980). eventually grant- The District Court Special recommendations Master re- Crowley Haig, v. Civil application. ed the garding the entitlement of various class 1981), (D.D.C. Sept. Action No. 74-494 monetary members to individual relief. 25, 1981), partial (D.D.C. Sept. amended Muskie, (D.D. Crowley v. F.Supp. 9, 1981). (D.D.C. Dec. granted The government appealed, Crowley C.1980). Although government appeal- Haig, v. order, voluntarily ed this it withdrew its (D.D.C. filed Nov. Civil Action No. 12, 1980, September appeal year on over a 15,1981), court & 16 Dec. and this reversed before effective date the EAJA. award, holding appellees that were not Muskie, Crowley v. (D.C.Cir. No. 80-1849 attorney’s fees under the Back entitled to 12,1980). Sept. There has been substantial Shultz, 704 F.2d 1269 Act, Crowley v. Pay then, litigation since it has concerned but (D.C.Cir.1983). Appellees applied then to only attorney’s appear It would thus attorney’s the District Court case, Nichols that controls this and that Attorneys Fees and the EAJA. Motion appellees are not entitled an award Equal Access to Costs Pursuant Appellees attorney’s fees. nevertheless ar- 2412(d), Crowley v. Justice 28 U.S.C. gue pending that this case was on October Shultz, Civil Action No. 74-494 (D.D.C. meaning of the 1981 within the EAJA as 13, 1983). The District filed June Nichols, interpreted in the District because appellees held that were entitled to attor- May order of 1980 left unre- Court’s Shultz, Crowley v. fees, ney’s Civil Action attorney’s solved the amount fees 16, 1984) (Memo- (D.D.C. May No. 74-494 appellees award to which it held were enti- randum), subsequently fixed the the Back Act. tled under Since Shultz, Crowley v. amount of those case,” dispose order did not of the “whole (D.D.C. July Action No. 74-494 Civil reason, appellees merely it was “collat- 1984) (Memorandum). appeal This fol- eral,” government ap- and the could have lowed. pealed sixty days the merits of the case for on after date amount II (and award was fixed thus the “whole government’s principal argument decided). Since the amount of the case” appellees ineligible 15, 1981, September award was fixed on fees under the EAJA because their suit they pending this suit was conclude that 1, 1981, pending was not on October 1, 1981, the effective date of the October Pub.L. No. 96- effective date Act. EAJA. 94 Stat. appeal did not on the government’s argument if two is correct however, merits, appealing instead premises The first is that a suit are true. very question presented Court’s determina- different District Shultz, i.e., 704 F.2d appeal, this on order finally tions. See whether Thus, (D.C.Cir.1983). appellees’ argu- resolving the merits of a case is properly implicit assumption challenged appeal rests on the from a later order finally resolving on the merits pending attorney’s case which an brought after have been the effec- issues. could pending date of the EAJA was on that tive This latter was once the source if on the merits even no date disagreement substantial confusion and brought. Our actually decision in Nichols See, among the federal circuits. generally proposition. doubt on casts substantial Green, From Here Attorney’s Fees: 740 F.2d at 1256. But Massachu- See cf. Certainty, Efficiency, and Fairness in the Housing Union Public Tenants v. setts Courts, 69 Cor- Appellate Journey 177,179-80

Pierce, (D.C.Cir.1985). (1984) (herein- 207, 224-26 L.Rev. nell however, assumption, Green, granting Even after From Here Attorney’s Fees). appellees’ argument upon confusion, however, also the rests This has been that assumption: pendency greatly by the of another reduced the Court’s request for in attorney’s Hampshire an unresolved fees decision White v. New De- of normally appealability partment affects the an Employment Security, 455 of 445, 1162, finally disposing of the of order merits the U.S. 102 71 S.Ct. L.Ed.2d 325 support appellees precise The sole adduce question posed case. Shultz, proposition is Crowley postjudgment v. was whether White a re- (D.C.Cir.1983), quest attorney’s F.2d 1269 our earlier 704 fees under 42 U.S.C. (1982) In Crowley, decision this case. the 1988 was a motion to alter or § appealing from de- the government, judgment subject an order amend to Fed.R. 59(e), termining the of requires amount the fee award to Civ.P. which that such mo- plaintiffs previously held to days which had been tions be filed within ten of entry the Act, sought Pay judgment. be entitled under the Back of The Court answered this challenge only the question negative, relying not amount but also on the plaintiffs following 59(e) argued propositions: the entitlement. The that Rule was in- jurisdiction apply only requests we lacked to consider en- tended to for recon- question, since properly titlement sideration of “matters encom- separate brought passed merits”; not a had a from decision on the “a deciding request attorney’s earlier District Court order 1988 argument, holding legal rejected “sepa- issue. We raises issues to” collateral an determining party order that a is rate from” decision on merits—is- fixing entitled to a fee award but not sues that cannot be until after resolved one challenged of properly party finally prevailed merits; amount is on the award has fixing attorney’s from the later order therefore distin- guishable size of the at 1271-72. That from judicial amount. Id. other forms of re- White, 451-52, simply light conclusion no at all on 102 sheds lief.1 455 U.S. at S.Ct. Although only directly applicable requests Court had before it White White is 1988, request brought attorney’s predicated upon nonstatutory for fees under 42 reasoning applies authority, e.g., agree- its quests with full fee re- of force to sources ments, contractual brought many statutory thought under similar which are to raise issues not See, authorizing provisions statutory requests. e.g., courts to award attor- raised fee F.H. ney's Trustees, prevailing appropriate fees to Krear & Co. v. Nineteen Named 776 1563, (2d Cir.1985) curiam); (per circumstances —like the Back see 5 F.2d 1563-64 (1982), Williams, 5596(b)(1)(A)(ii), 7701(g)(1) Leasing, U.S.C. §§ Bank South Inc. v. 769 F.2d 1497, (11th Cir.1985) (per curiam). provision at issue in this case. 1499-1500 see, Daniels, Subsequent interpreted e.g., uniformly Exchange cases But Bank v. have National statutes, 286, 292-94, fully applicable White to be to such see F.2d 763 on other modified 504-05, Cir.1985). (7th pages agree grounds, gener- 768 F.2d 140 we See with this infra note, Green, however, Fees, interpretation. ally Attorney’s do that a We From Here to 69 expressed number of courts have the view We limit our L.Rev. at 278-301. Cornell 502 White pendency real- unresolved As the itself at 1166-67. See, e.g., for statutory consequence ized, of charac- necessary one Maccoccio, Crossman v. 1, 792 F.2d 2-3 statutory requests terizing Ellender v. (1st Cir.1986) curiam); (per separate from collateral fees as Schweiker, 314, (2d Cir.1986); 781 F.2d 317 penden- merits is that the on the

judgments Art Janpol Volkswagen, Mo Inc. v. Fiat can have no effect cy requests such America, Inc., tors North 690, 767 F.2d (and appealability) of a finality thus Exchange Nation (10th Cir.1985); 696-97 finally disposing of the merits Daniels, al Bank v. 292-94, 286, 763 F.2d 14, Id. n. 102 S.Ct. at 452-53 a case. grounds, on other F.2d 140 768 modified (“[T]he collateral character 1167 n. (7th Cir.1985); Morgan v. Metal Union the fee issue establishes that an outstand- Manufacturing, 757 F.2d (6th 794-95 recognition of question not bar ing fee does Sleep, La-Z-Boy World Inc. v. Cir.1985); ‘appeal- ‘final’ and merits Co., Chair (10th Cir.), 756 F.2d v. Obin added) ”) (citing (emphasis able.’ — denied, cert. U.S.-, 9,No. International Association District Gaddis, (1985); EEOC L.Ed.2d 63 Workers, Aerospace Machinists & Inter (10th Cir.1984); F.2d 1375-76 Cir.1981)). (8th Bridge national Association Ironwork signal clear Supreme Court’s Industries, ers v. Madison 733 F.2d unheeded; White one go did not Menard, (9th Cir.1984); Bernstein v. aware,2 every we are exception of which v.West (4th Cir.1984); 728 F.2d subsequent court decision that has Keve, circuit (3d Cir.1983); 721 F.2d (even those Inc., decided faced Abrams v. Interco had reached a different (2d Cir.1983); Smillie v. Park Chemical circuit courts that White) Co., prior has (6th Cox to held that an Cir.1983); conclusion 710 F.2d 274 Flood, v. finally disposing (10th Cir.1982) of a order merits F.2d 683 331 Moreover, (per curiam).3 appealable is final and this circuit has on case notwithstand White, by acknowledged discussion to the raised The Penland court that and issues Co., attorney’s requests statutory for as 271, as Smillie v. Park Chemical 710 F.2d fees. well (6th Cir.1983), White, had decided after attorney’s postjudgment held for that a motion exception County v. 2. The is Penland Warren judgment Jail, Cir.1985) (en fees to (6th banc). was not a motion amend the F.2d Pen- and thus did not toll the time within which an by prisoner challenging a the land was suit a Nevertheless, brought. appeal could be it dis- seeking conditions and de- of his incarceration tinguished grounds attorney’s claratory injunctive White Smillie on the relief and requested try plaintiffs that in those agreed the a the cases had fees. The to case before motion, right postjudgment plaintiff magistrate, fees appeal as of the district while the to trial, magistrate granted requested in the com- court. After some Penland had them the requested plaint; plaintiff had but White and had not in- of the relief the and that Smillie rest, attorney’s including judgment denied the fees. With- to amend that had volved a motion a days plaintiff attorney’s judgment, expressly prior request the filed a in ten after denied a for asking mag- judgment, making any why explain motion to amend the the fees. Without effort to request justified denial of the istrate to reconsider his attorney’s these factual differences a difference eventually magistrate result, fees. The court the Penland held that the unre- days granted the and awarded fees. Ten judgment pro- motion to amend solved motion the to thereafter, entry four months after attorney’s but over had vide for tolled the time with- judgment, appeal plaintiff filed a notice to the on the which an merits could be filed. court, magis- seeking below, reversal of the the district reject approach. As we discuss we this request partial trate’s of his for declarato- denial Gaddis, injunctive Sleep ry In the Tenth Cir- relief. district court took 3. World retroactively jurisdiction mag- apply holdings appeal and cuit to its affirmed the declined the prior appeal, light respects. On Sixth of the fact that to White it had istrate in all Circuit, banc, operated clearly sponte that sitting sua under the established rule en raised statutory attorney’s question plaintiffs appeal to the an unresolved whether untimely, judgment finally resolving district court been since over four rendered a had entry nonappealable. elapsed judgment months nonfinal and had between merits of a case 1471; See, e.g., plaintiffs filing on the 733 F.2d at and the of an F.2d at merits Industries, Gold, Ltd. v. Rockwool the merits. Black agreement its appealable three occasions indicated decision directly was not under with this rule. See Industries v. U.S. 28 U.S.C. because it not finally Co., Blake Construction 203 dispose plaintiffs’ of all of prayers for re (D.C.Cir.1985) (dictum); Nichols, 740 F.2d lief. Id. at 96 S.Ct. at 1205-06. In (characterizing as final a at 1256 district so, doing it those prayers, including listed court that resolved merits of decision a plaintiffs’ requests relief, for injunctive case, notwithstanding pendency of a relief, monetary and attorney’s fees. Id. motion postjudgment statutory attor nothing We see in the Court’s remarks that fees; ney’s unclear holding); whether a (much constitutes even remote indication HHS, (D.C. Webb less a that holding) the district court’s or Cir.1982).4 dissent, conceding while der would have been appealable not under requires that White conclusion as to 28 U.S.C. disposed 1291 had it of all of requests postjudgment attorney’s plaintiffs’ prayers for except argues Supreme nevertheless prayer holding in Liberty Court’s Mutual Insur Nor can we discern such an indication in Wetzel, ance Co. v. U.S. S.Ct. Boeing Court’s decision in Co. (1976), requires 47 L.Ed.2d 435 a dif Gemert, 472,100 v. Van where, case, ferent in this conclusion as case, 62 L.Ed.2d 676 In that plain fees are question was attorney's whether fees that complaint. disagree. tiff’s We In Liberty against were to be assessed a common Mutual, granted partial a district court had fund created class action should be summary judgment plaintiffs to on the is against assessed entire fund or them, liability sue of defendants to but had portion claimed Boeing the fund. addressed what relief was appealing a district court order assess- ought plaintiffs granted. to district ing attorney’s fees the entire fund. as pursu court certified final challenging order, addition to Boe- 54(b), autho ant Fed. R.Civ.P. argue attempted to the district courts, appropriate rizes district where improperly purported court finally had involving multiple parties, cases claims Boeing’s liability determine the extent of certify final a is final prior presentation common fund as to one more or but not all the claims against of individual claims the fund. The or appealed, involved. Defendants Supreme held that Boeing Court could not appeals and the court affirmed. The properly argument, assert latter be- Court, sponte, sua vacated the bring separate cause it had failed a judgment appeals court of and re appeal from the earlier district court order manded the case with to dis instructions that liability. had fixed the amount of its jurisdiction. miss for lack The Court Boeing, 444 479-80 disposition that, U.S. n. 100 S.Ct. at holding rested its on the noting 750 n. 5. In although that that earlier order plaintiffs had a number relief, appealable had been final types they different had notwith- relief, standing brought ongoing dispute only one over attor- claim for that 54(b) ney’s that, inapplicable by merely Rule the Court noted was therefore its Mutual, Mutual, Liberty terms. unlike Liberty at 742- the case before it 44, 96 at The Court did not prayer 1205-07. also involve unresolved for however, noted, against opposing party. that the district court’s relief Id. (10th Cir.1981) curiam); (per apply holding 4. Webb declined to its to the case Wilson, (10th it, however, Gurule v. concluding before the case that reasons, Cir.1980). For similar the Third Cir- presented "unique justifying circumstances” for- adopted approach cuit the same in West. 721 "unique bearance. Id. at 105-06. No such cir- F.2d at This Circuit has never had such a present cumstances” are in this case. rule, appellees suggest- see—and have we applying ed—no barrier our to the present case. added), separate that this from and collateral to appears to believe The dissent merits, distinguish Liberty judgment intended to on the and distin- remark was of when were guishable types on the basis other of relief. Mutual from i.e., complaint Liberty in in the requested, Thus, urged by the distinction the dissent by postjudgment (apparently) Mutual and by upon supported is not the authorities like- Boeing. It seems far more motion in Moreover, which the dissent relies. it is distinguish- however, Boeing was ly, that flatly rejected by other authori substantial on the basis who Liberty Mutual ty. plain language addition fees, i.e., the common fund pay the was to White, decisions of at least three circuits in and the plaintiffs Boeing created judgments appealable final and hold be party Liberty in Mutual. The opposing though request they even did not resolve a former, distinction, has unlike latter attorney’s for fees contained the com largely in the debate about the figured See, Schweiker, plaint. e.g., Ellender v. of re- procedural treatment appropriate 317; Janpol Volkswagen, 781 F.2d at Art attorney’s generally fees. See quests for America, Inc. v. Fiat North Motors of Fees, Green, Attorney’s Here to From 696-97; Inc., Sleep, 767 F.2d at World of at 282-97. Even if the Cornell L.Rev. Co., La-Z-Boy Inc. v. 756 F.2d at Chair distinguish Liberty meant to Boeing Court 1471; Gaddis, 733 F.2d 1375- EEOC v. at basis of when fees were on the Mutual 76; Inc., Abrams v. Interco 719 F.2d at however, that would indicate requested, 26-27; cf., e.g., Exchange National Bank Boeing regarded the neither that the Daniels, (unclear 763 F.2d at 292-94 to have held that an Liberty Mutual Court request whether was made the com prayer leaving order Menard, plaint); 728 F.2d at Bernstein v. nonappealable was nonfinal and unresolved (categorically stating pending at Boeing Court believed that nor that the torney’s judg fees issues do not render a appropriate have been the reso- that would nonfinal). ment on the merits question had it at issue been lution most, At it would have Liberty Mutual. urged Finally, the distinction the dis- recognition indicated logic policy. sent has no basis What- need to decided and a arguments ever the for and pretermit therefore better to it. that it was pendency rule that of a statutory attorney’s fees does not affect agree the dissent that Nor can we with finality judgment disposing of a apply is inconsistent with the the rule we suit, White, compare merits of a 455 U.S. principle that a final venerable 1166-68, 452-54, 102 S.Ct. at requests monetary dispose must of all Green, Fees, 69 Attorney’s From Here to complaint. dis- contained 207 (arguing Cornell assuming requests L.Rev. sent errs decided), wrongly the dissent White requests fees are statutory (as must) Supreme it concedes that the meaning of this monetary relief within the authoritatively has that de- Court resolved requests They are no more so than rule. bate, postjudgment at least as to motions costs,5 which, unresolved, pre- if do not for Thus, statutory attorney’s for the final, being vent a merits from resolution, whether, given question is that (as case) frequently they if the are even is any there is accord different reason to complaint. made in the Fed.R.Civ.P. Cf. requests statutory attor- treatment to for White, rested its 58. In the complaint. can ney’s fees made the We “regardless decision on the fact none, and, argu- apart think of from the attorney’s requested,” fees are 455 when requires 451, (emphasis precedent such treat- at 1166 U.S. at S.Ct. White, any By saying imply See 54(d), 5. do not intend to this we of Fed.R.Civ.P. 58. purposes 17, ongoing 102 S.Ct. at 1168 n. 17. dispute view whether re- 455 U.S. at 454-55 n. on the over Green, quests generally Attorney’s statutory attorney’s From Here to for fees are in fact See Fees, always properly requests L.Rev. at 259-68. as for costs for 69 Cornell treated rejected— already immediately appealable, we have final ment—which and notwith- standing any the Sixth disposi- neither the dissent nor the absence of final Circuit Moreover, tion suggested any. appellees’ request for attorney’s has Penland by fees. As of the approach proposed the effective date the dissent of the EAJA, 1, 1981, uncertainty appeal create October no certain to and of that would be pending order was the litigation bring on at time trigger to least two fronts: to such an long passed. had appropriate requests treatment See Nich- on the ols, 740 F.2d at 1256. This attorney’s suit was there- statutory fees made neither pending fore not on that date by within the complaint postjudgment nor the mo- meaning EAJA, of the and appellees are (how, example, prejudgment tion would entitled of attorney’s award fees and motions interim motions under Act. In disposi- virtue of this treated?); specificity and on the fees be tion, we need not reach the other issues fees have to with which would parties. by raised complaint in order to fall within the dissent’s rule (for example, would ubiq- ^{[*] [*] [*] [*] [*] [*]} request “such uitous other as awarding order District Court just proper” request would be made —a attorney’s fees to appellees is reversed. plaintiffs both this case and So ordered. suffice?). White — here, We think elsewhere where a MacKINNON, (dis- Senior Circuit Judge fixing jurisdiction rule courts is senting): issue, clarity simplicity are chief In a class action De- State determining wheth principles virtues. partment, al., Crowley, prevailed et already er final is more their Department claim that im- had complex enough than to bedevil both the properly positions. They abolished certain attorneys who must follow them and the Equal now seek under them,

judges see, e.g., apply who must Dic (the “Act”), Access to Justice Act 28 U.S.C. Corp., kinson v. Conversion Petroleum (1982 1985Supp.).1 & The effective 322, 324, 338 U.S. 70 S.Ct. date of the Act is October our (1950); Line, L.Ed. 299 Pabellon Grace Pierce, decision in Nichols v. (2d (Frank, J., Cir.) (D.C.Cir.1984), prohibits fee concurring), denied, cert. awards under the Act if the matters 96 L.Ed. decline We “pending” solely on October relate complicate the dissent’s them invitation to attorney fees. Thus this case turns on further. “pending” whether the case was re- spect any matters other than

Ill On October the effective reasons, Act, i.e., For date these we hold that a October judgment finally disposing appealed of the merits of have dis- could both the a suit is final and notwithstand trict court’s award of appealable statutory pendency fee-shifting of a statute other than the Act and pending pay. re the district court’s whether award back quest by pre complaint, was made in Thus the time the merits since judgment motion, postjudgment expired pending. mo had not case was still addition, my it Applying opinion tion. to the facts of district case, correctly Crowley court determined that this we conclude that the district 22, 1980, timely application attorney May finally court order of filed the for suit, Act, disposed permissibly the merits of this fees under the and award- 1984, 99-80, 30, Amendments, expired September 1. see No. 99 The Act on 28 Justice Pub.L. (note), but was reenacted and Stat. 183 5, August Equal on 1985. See Access amended judgment. granted The upward that district court twenty-five percent Crowley a ed 9, Crowley’s motion on December 1981. I therefore the lodestar. adjustment of from the reversal respectfully dissent government appealed The the awards of attorney fees. court’s award the district attorney appealed fees and could have the pay

back award but not. This court court, holding reversed the district I. Crowley attorney fees was not entitled to (here- Crowley, al. Plaintiffs-Appellees et Pay Crowley under the Back Act. v. action com- “Crowley”), in a 1974 class /”), (D.C. Shultz 704 F.2d 1269 (“Crowley relief, damages, injunctive seeking plaint Cir.1983). motion, By timely Crowley ap- attorney complained reasonable plied attorney Equal fees under the Department improperly the State Access to Act. The Justice district court overcomplement placed civil servants Crowley attorney held that was entitled to status, posi- certain thereby abolished case, spent litigating fees for time ex- employees at other retained tions but cept litigating spent for time the issue of In compensation. the same positions with attorney Pay fees under the Back Act. district and Order the Memorandum a 1977 16, May 1984. Memorandum and Order of partial summary granted appellees court subsequently The district court awarded the district court’s judgment. After $114,044.81 Crowley fees and order, was not on the merits the decision twenty-five costs. The award contained a necessary identify final; it was still percent upward adjustment in the lodestar. placed in over- had been individuals who July Memorandum and Order of 1984. status, appropri- determine the complement court, government appealed to this for attor- adjudicate claim ate relief and contending Crowley eligible was not parties subsequently en- ney fees. Act, application under the that the for fees authorizing decree into a consent tered filed, timely fees had not been damage determine the Special Master to upward adjustment was con- and that eight members of the individual claims trary to the Act. 22, 1980 May the district court class. On findings Special affirmed in toto II. entitled to Master class members were “civil or adver- Act covers actionfs] eligible pay

back and were [involving sary adjudication[s] the United Muskie, F.Supp. 360 Crowley on, or government] pending ... States (D.D.C.1980). commenced on after [October 1981].” Equal Act Pub.L. Access to Justice Spe- Following the determination 96-481, (1980) (emphasis No. Stat. Master, Crowley cial filed a motion added). necessary It is therefore to deter- attorney fees under Service Civil Crowley’s ac- mine at the outset whether Pay Back Reform Act amendments to the “pending” on 1981. tion was October Act, 5596(b)(l)(A)(ii)(1982). The 5 U.S.C. § May decision filed district court’s After the district court awarded adopted Special Act, Master’s recommenda- Memorandum and see eligible for attor- appellees tion that were court May Order of decided (D.C.Cir. Pay Pierce, Act. 496 ney fees under the Back 740 F.2d 1249 Nichols v. timely 1984). F.Supp. meaning at 362-63. The This decision clarified district “pending” from the the context of Act. filed notice granted decision, voluntarily plaintiffs withdrew were sum- court’s Nichols but September year mary judgment A on September Housing later, Department of 1981 the September order of challenging Development, a suit attorney fees under Urban district court awarded housing sub- procedures related September various Back 7, 1980 the Nichols from sidies. On October partial moved petitioned for plaintiffs was entitled to all request- the of relief of the in the fee-shifting provisions complaint. Freedom ed Because appeal the no (“FOIA”), prosecuted, from that decision of Information Act was no 522(a)(4)(E)(1982). marginally The district de- issue even to court related the mer- attorney fees, its has subsequently rea- suit petition nied been Nichol’s subject litigation to or played claim otherwise contest- that the FOIA such a soning longer ed. Since there was any no unde- plaintiffs’ in case that the case minor role cided or unsettled issue the original to not considered have been could lawsuit, pend- that lawsuit has not been appeal FOIA. On of the brought under the ing from the time the fees, district court’s court’s we remanded district denial final order was entered. to the district court reconsider- the case intervening light passage of ation in added). Thus, (emphasis at 1256 to Justice Act. The dis- Equal Access according Nichols, to our decision in when plaintiffs’ denied motion for at- trict court “pending” matter on October Act, and plaintiffs fees under that torney dispute 1981 was a over again appealed. having merits all been fully subject resolved and not to further interpreting applicable provisions appeal, provisions then the of the Act are Equal Access to Justice applicable. not 740 F.2d at 1257-58. See applied panel Nichols well-estab- also Commissioners Highways v. Unit- sovereign principle that waivers of lished States, (7th ed 684 F.2d Cir. immunity strictly must be construed. “As 1982). sovereign immunity, a waiver the Act’s affirmatively liability, must terms establish III. preclude Nichols, merely fail to it.” not The issue in threshold this case is wheth- (citation omitted). 740 F.2d at 1256 any disputes er on October were Congress noted The Nichols court i.e., “pending,” appealable, still other than Equal to Act not Access Justice relating those to dis- “pending,” define and therefore concluded May trict court’s adopted, decision Congress “pending” in used the word alia, Special inter Master’s recommen- ordinary its “A sense. court stated: dation was entitled attor- undecided, pending matter one is is (the decision”) ney fees “entitlement under settlement; awaiting a decision lawsuit the Civil Service Reform Act amendments pending inception through is from its government Back Act. The (citations omitted); judgment.” final Id. timely appeal following filed notice of Massachusetts Union Public Hous- cf decision, September but on 1980 volun- Tenants, Pierce, ing Inc. tarily appeal. withdrew its No was reason curiam) (“a (D.C.Cir.1985) (per judg- given continuing appeal, with its appeal is ment becomes final because government could have been but it that the Thus, foregone”). completed or cause premature. considered its On pending time for until from the 17,1981 September grant- the district court expires. final the cause Writ- ed in the of approxi- amount Nichols, Judge Wilkey for the court $160,000. court, mately The district stated: plaintiffs government, and all referred many complaint raised substantive “judgment.” this as D.C. District See legal merits of 239, 241, 242, 244, issues related Court File Nos. case, finally all but these issues were 253. The on Novem- resolved the district court’s memoran- appealed to this court “from ber September of 12 dum and order Court entered on essentially day September, That ended the law- decision 17th favor suit, (em- longer any plaintiffs____” since was no File No. there Dist.Ct. added). appellant phasis “judg- whether the This was the first about

508 appeal precluded government from ap- The notice of appealed from. ment” 21, 1980 government July pealing appeal stated if by the decision an was not from “the order of this filed sixty days. it was taken within Id. To have held 22, File No. 132 1980....” Dist.Ct. May in Crowley otherwise I would have re- added). in termi- This difference (emphasis quired piecemeal appellate review of attor- significance. not without 28 nology is ney contrary fee awards policy to sound Cf. by 1291 and 1292. The action U.S.C. §§ requirements procedural and the our of 17, September 1981 was obvi- court on See, e.g., States, rules. Catlin v. United in the case2 ously the “final decision” 229, 631, 233-34, 633-34, 324 U.S. 65 S.Ct. all is- thereupon, procedures, under settled (1945); 54(b); 911 89 L.Ed. Fed.R.Civ.Pro. for review on open in the cause were sues (1982). 1291 28 U.S.C. § appeal. appeal In this we must decide a related However, government challenged appealability: question Whether issues amount of entitlement to and the only the in the of May involved district court’s order attorney fees awarded the district court. 22,1980 appealable were when the amount Crowley argued that opposition In attorney fees Pay under the Back Act appealed timely had not government 17, September determined was 1981. decision, ren- court’s entitlement district import inquiry present in the 22, May According to Crow- dered 1980. clear, relating only case is if issues to ap- argument could ley’s attorney fees appealable were on the Octo- 17, September decision peal only the Act, ber effective date of then fees, attorney to the amount because our decision counsels that Nichols noth- appeal govern- its dropping earlier “pending” was that would allow an challenge foregone right to ment had recovery. attorney fee court’s decision as May the district Court decision White v. entitlement. Hampshire Department Employ- New contention, rejected Crowley’s court This Security, 455 U.S. S.Ct. holding thus effect that interim decisions (1982), 71 L.Ed.2d discussed a appealable were not and that the question appealability of the related judgment opened the from the entire final application attorney fee under review, i.e., aspects of record to both charging case arose a a attorney fee award—entitlement Security of the Social Act. The violation appealed amount—could be within the stat- specifically para- in the first court noted period filing appeals, dating utory from opinion: complaint graph of its “His district court’s made determination a specifically request fees.” year of the attorney later amount of the at 1164. In Id. White the I, 1271- Crowley fee award. 704 F.2d at Court addressed the whether a Specifically, May we held that the fees, post-judgment attorney motion for court, 1980 decision the district specifically case which did not attorney was entitled to was a motion to amend the partial under the Back required to be judgment, which was filed decision since the amount determined, ten-day time limit of Federal remained and thus was within 59(e).4 In appealable not a final and order in the case Rule of Civil Procedure White a States, prevailing party, subsequent the United 2. There was one minor modifica- other than 16, 1981). (Dec. part File a reasonable fee as tion. Dist.Ct. No. 250 costs. provides: 3. The statute 42 U.S.C. 1988 any proceeding pro- action or enforce a 59(e) provides: 4. Rule vision of sections title, 1986 of this Public Law 92- A motion alter or amend title IX of days Rights VI of Act of shall be served not later than after title the Civil court, discretion, judgment. may entry in its allow litigant successful had moved for pealable regardless of the status of the — plain- fees four and one-half months after petition. Green, fee See From judgment redressing tiff had obtained a Here to Attorney’s Fees: Certainty, Effi- Security violations of the Social Act and ciency, and Fairness in the Journey to the Due Process the Fourteenth Clause of Courts, Appellate 69 Cornell L.Rev. held, Amendment. The First Circuit how- 207, The decision on the ever, attorney that the motion for fees was may merits therefore be severable from a timely not because it was not made within post-judgment motion for attorney fees for days entry judgment required ten of of as purpose of determining appealability 59(e). 697, (1st by Rule 699 Cir. issues, where the complaint did request 1980). reversed, Supreme The Court hold- attorney fees. post-judgment attorney peti- fee picture clouded, however, is by the 59(e)’s governed by tions were not Rule long-standing principle that a “final deci- ten-day time limit on motions to alter or sion” under 28 does not exist § judgment typically amend a which have until all elements plaintiff’s contained in a encompassed those matters within the mer- prayer for relief have been decided i.e., judgment, its of the elements of tradi- district court. Liberty See Mutual Insur- 451, tional relief. 455 U.S. 102 S.Ct. at Wetzel, ance Co. v. Instead, Supreme implicit- Court 1202, 1205-06, (1976); L.Ed.2d 435 ly post-judgment attorney treated the fee States, Catlin v. United 324 U.S. petition in as collateral and indepen- White 631, 632-33, 65 S.Ct. (1945) 89 L.Ed. 911 litigation dent from the merits of the (“A ‘final purposes generally decision’ appellate jurisdiction. is one which litigation ends the on the merits and leaves This conclusion follows from considera- nothing for the court to do but execute the 59(e) tion interplay of Rule (ten-day judgment.”); American Federation period for motion to or judg- alter amend Employees Government v. Federal Labor ment), 54(a) (defining Rule “judgment”), Relations Authority, 111 F.2d (final decision). 28 U.S.C. (D.C.Cir.1985). In Liberty plain- Mutual “Judgment” 54(a) defined Rule as “a tiffs had partial received summary judg- any decree or order from which an establishing liability defendant’s 54(a) lies.” requires Rule in turn reference arising claims under Title VII on a com- to 28 U.S.C. only which states that plaint its a “final may appealed decision” ad damnum clause. addressing Without Thus, appeals. courts of if the motion for relief, the district court attorney fees is not a “motion to alter or judgment entered liability as to judgment,” pursu- amend the then the district 54(b).5 ant to disposition court’s Civil Rule peti- Third Circuit fee tion will have no affirmed the district finality effect on the court’s decision on the the validly “judgment.” By (3d entered merits. 508 Cir.1975). neces- sary implication reversed, on the mer- The holding that its ap- becomes a final plaintiff decision—and hence presented had not separate 59(e). Fed.R.Civ.P. entry judgment. rection for the In the direction, absence of such determination and 54(b): 5. Rule decision, any order or other form of however (b) Judgment Upon Multiple Claims or In- designated, adjudicates fewer than all volving Multiple Parties. When more than rights the claims or the and liabilities of fewer action, presented one claim for relief is in an than all the shall not terminate the claim, counterclaim, cross-claim, whether as a any parties, action as to of the claims or claim, third-party multiple parties or when subject the order or other form of decision is involved, may entry the court direct the anytime entry to revision at before the a final as to one or more but fewer judgment adjudicating all the claims and the parties only upon than all of the claims or rights parties. and liabilities of all the express just determination that there is no 54(b). delay Fed.R.Civ.P. upon express reason for di- part lowed fees “as of the costs.” 54(b) requires, but rather as Rule “claims” White, requests variant 455 U.S. at 102 S.Ct. at 1164. merely presented had stat- claim. As single flowing from With these considerations in mind we Mutu- Liberty Supreme Court ed repeat complaint Crowley’s filed al: requested specifically reasonable at- Court’s the District from It is obvious Complaint May torney fees. at 25. On having although respondents, order that judg- received a favorable ruling on the issue a favorable received all ment from the district court issues them, received liability to petitioner’s except for the amount of they expressly relief which none of the timely ap- filed notice of of their com- portion in the prayed for peal, voluntarily but withdrew its They forth above. plaint set 12, 17, September September 1980. On one; get they did not injunction, but an district court determined the the damages, were not award- but requested attorney fees under the Back amount of attorneys’ fees, requested they any; ed point given in the Act. At that time — none. received but Liberty of Mutual —the district order Court’s ... ... District [T]he previous year, court’s decision from the respondent’s of one of disposed finally Muskie, (D.D. Crowley v. F.Supp. prayers for relief. C.1980), appealable became an final deci- 742, (empha- 96 S.Ct. at 424 U.S. at I conclusion, Crowley supports sion. added). held that the district The Court sis recognition reviewability for its of the of merely liability was not court’s decision year the entitlement decision made over a decision” under the appealable “final an the amount of fees was determined before had not ruled on the court statute because recognition is tantamount to a that the time attorney damages and fees injunction, the expired appeal had not on other deci- —i.e., no final decision on the there was prior to determination of the sions made cause, “pending,” judg- the it still was fee amount. Id. yet appealable. not ment therefore was Boeing 1206-07; Co. at 96 S.Ct. cf. September 1981 is therefore date Gemert, v. 480 n. Van appeal- from which both could have (1980) 62 L.Ed.2d 676 750 n. fee award and the award attorney ed the Liberty Mutual (characterizing as a case pay. government That the did not of back against prayer attorney’s fees “where a appeal pay does not alter the back award unanswered”). opposing party remains time the merits the fact that the Mutual, Liberty case, present In the as in government had not been exhausted. included prayer specifically for relief timely appealed pay could have the back herein, including reason- “costs incurred attorney following entry of the award Complaint at 25. able fees.” fee award as the final on the [$160,000] “quantum fees Moreover the of requested complaint. in Until I, Crowley major is a in this case. issue” filing expiration statutory period for of the 704 F.2d at 1272. see appeal, Fed.R.App.P. the notice finality judg- These cases indicate that 4(a)(1), the entire cause of action between purposes is to be deter- ment for “pend- government Crowley and the was included in mined on the basis of what was ing” as to the merits of the case on all The Su- plaintiff’s prayer for relief. issues, Therefore, including attorney fees. v. New decision White preme Court’s effective date of the October Hampshire Department Employment govern- the civil action Security is not White contrary. pending. rights ac- attorney allowed fees in a civil similarity between this case The facial not include a complaint tion where Pierce, supra, v. misleading, Nichols fees,” specific prayer “attorney be- statute, request al- fees cause the because U.S.C. §

5H White, Nichols, was presented [Ajttorney fees shall as not be awarded in Indeed, given the prayer for relief. per excess of hour unless $75 the court finality principle vitality of the continued determines that an increase in the cost of Insurance Co. Liberty Mutual stated living special factor, or a such as the Wetzel, supra, this court’s holding in see v. availability qualified limited attorneys only when the Nichols Pierce is sensible proceedings involved, for the justifies a is not included in higher fee. under Liber- relief, prayer for because 2412(d)(2)(A)(ii)(1982) 28 U.S.C. (empha- ty prayer in the Mutual all relief added). sis The district court awarded disposed byof complaint must be upward adjustment twenty- prerequisite of a review- district court as a percent lodestar, five based on the decision. able final quality representation delay argues government further payment. July Memorandum and Order of motion, 13, 1983, for Crowley’s filed June government at 9-10. The con- under the Act was invalid any adjustment tends that such is forbid- untimely Applications it was filed. because as a matter law den above-quot- the Act must be of the Act. See Government provision ed thirty days of final filed “within not, Brief at 14. The does 2412(d)(1)(B) 28 U.S.C. in the action.” however, contend that the district court recently This court held that finding committed an abuse of discretion in period “begins to run when thirty-day Crowley deserving of upward adjust- an longer is ‘no contestable ” twenty-five percent. ment of Massa- through appellate process.’ Housing chusetts Public Ten- Union of Supreme The Court’s recent decision in Pierce, (D.C.Cir. 755 F.2d ants v. — Shaw, Library Congress v. of Schweiker, 1985) McDonald v. (quoting -, (1986), 106 S.Ct. L.Ed.2d 250 (7th Cir.1983)). Congress requirement strictly reiterates of con- adopted interpretation explicitly of struing permitting monetary statutes 2412(d)(1)(B)in its recent reenactment of § against govern- awards the United States May the Act. See Pub.L. 99-80 § at---, ment.6 Id. 106 S.Ct. at (defining judgment” judg- “final as “a Moreover, 2963-65. the traditional rule appealable”) and not ment is final against permitting awards of interest (codified 2412(d)(2)(G)) (em- at 28 U.S.C. § sovereign requires according added). I phasis agree with the district majority opinion, Blackmun’s Justice “an court that the date of final in gloss upon added of strictness these usual 10, 1983, this case the date was June we Id. Shaw opinion rules.” The in Court’s I, issued our in 704 F.2d mandate that, purpose for the further stated of a (D.C.Cir.1983), reversing the district sovereign immunity, of waiver award ending proceeding appellate court and delay payment “functionally equiv- in is arising original complaint. from the Crow- alent” to an award for interest: “Interest ley’s motion for fees filed June delay share an and a factor identical func- days three the issuance of after They designed compensate mandate, tion. timely. was therefore receipt at-, Id. money.” belated IV. added). (emphasis 106 S.Ct. at 2965 held The Act restricts Court therefore that “the force of the the court’s discretion respect simply fees as follows: no-interest rule cannot be avoided Congress prevailing party, 6. Shaw held that had not waived sov- other than the or the [EEOC] States, ereign immunity part of interest an award ac- United a reasonable fee as costs, companying grant United and the [EEOC] 706(k) provided of Title VII. That section States shall be liable for costs the same as a § court, discretion, 2000e-5(k). may private person.” "the in its allow the availability qualified attorneys name for an old institu- devising a new proceedings involved.” 28 U.S.C. Id. tion.” 2412(d)(2)(A). An award interest/de- decision in Shaw Supreme Court’s lay, invariably present which would in equation of interest —particularly Shaw’s case, every special is not a factor such as question part of this into delay —calls availability qualified the limited attor- holding Smoking in Action court’s neys, present only which will be in unusual (D.C.Cir. C.A.B., 724 F.2d Health analysis cases. This is the most sensible “ASH’). In that case 1984) (hereinafter way to reconcile Supreme Court’s hold- Equal Access to held that this court Shaw, remaining parts in of this the district court to con- Act allows Justice ASH, statutory court’s decision in and the “other, special unenumerated sider language Equal Access to Justice determining to increase in whether factors” Act. per from the maximum hour $75 the award much specified in the Act. Id. at 218. This case, present In the the district court readily apparent from the text of the upward adjustment twenty-five based an quoted Act above. portion of the ASH percent delay payment7 on two factors: in incorporate in the proceeded to therefore quality representation. Memoran- traditionally special inquiry factor elements July and Order of dum at 9-10. awarding attorney by courts in considered analysis The district court’s thus used one factors, delay pay- among those quality representation explicit- fees— ment and factor— — representation. quality ASH, ly approved by this court in Marshall, (citing Copeland v. F.2d at 218 218-20, delay pay- and one factor— (D.C.Cir.1980)(en banc)). 641 F.2d 880 Supreme ment—rendered invalid Court’s decision Shaw. The district delay pay- of ASH that apportion the twenty-five per- court did may fee be considered upward adjustment cent between the two Equal under the Access to Justice award my opinion factors. Therefore the case Act cannot survive the Court’s must be remanded to the district court to This from the decision Shaw. follows portion upward which ad- determine delay- in Shaw that interest and a — justment quality is attributable to the “functionally equivalent,” factor are representation, delay payment. at-, 106 S.Ct. at and that the portion may attributable to the former sovereign immunity ex- waiver of must be stand, may that attributable to the latter press permit upward adjust- in order to not. ment of fees for either interest or

compensation delay. this exact- Given V. standard, ing it is clear that an interest/de- my opinion the court should hold that lay award cannot come within the unenu- Crowley’s motion for “special merated considered faetor[s]” Equal Equal pend- Ac- Access to Justice Act was fee awards under the timely only cess Justice clarification on October and was Act. The “special thirty days judgment. of final factor” within the statute is the filed within apportion limited Because the district court did not reference to factors “such as the (or inflation), living easily specifically upward adjust- cost of verifiable 7. The Act allows an ordinarily proven by should be use ment of the fee for "an increase factor award 2412(d)(2)(A). living.” of a reliable reference such as the consumer in the cost of U.S.C. § index, price compensates for the loss due to the But the district court indicated a re- nowhere change est, money. Delay part or inter- on that instead re- in the value of liance hand, compensates primarily delay permitted by ASH on the other ferred factor money, "special for the loss of the use of and would as an unenumerated factor.” While extensive, different, perhaps proof delay change living more in the cost of are involve rigorous Library they compensate for the at trial. Due to the standard of similar in that change both overtime, Shaw, money they Congress v. such distinctions are of in the value of of more than semantic change significance. analytically distinguishable. A in the percent upward adjustment twenty-five quality permissible factor between impermissible representation I remand delay payment, would

factor of proceedings not inconsistent

the cause opinion. INC.,

TELEMUNDO, Appellant,

FEDERAL COMMUNICATIONS

COMMISSION, Appellee, Broadcasting Corporation,

Television

WPRV-TV, Inc., Intervenors.

No. 85-1494. Appeals,

United States Court Circuit.

District Columbia

Argued May 1986. Sept.

Decided Fels, Gregory

Nicholas W. with whom M. D.C., Schmidt, Washington, was on the brief, appellant. Preskill, Counsel, F.C.C., Ann

Sue Smith, Counsel, D. General whom Jack Armstrong, M. Associate Daniel General Counsel, F.C.C., D.C., Washington, were on brief, appellee.

Case Details

Case Name: George Shultz, Secretary of State v. James D. Crowley

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 12, 1986

Citation: 802 F.2d 498

Docket Number: 84-5667

Court Abbreviation: D.C. Cir.