James K.J. Cheng v. Gaf Corporation

FEINBERG, Chiеf Judge: Cheng K.J. from a decision appeals James Court for of the States District York, F.Supp. District of New Southern Owen, J., awarding appellee Richard expenses fees and costs of “un- against appellant’s allegedly defending to dis- attempts reasonable vexatious” For the reasons appellee’s counsel. qualify below, we reverse the decision stated district court. History

I. Procedural understanding proce- of the unusual An both important of this case is history dural threshold issue respect the merits and with pealability, respect Accordingly, we detail appeal. length. at some history below employ- appellant Cheng filed In appellee suit ment discrimination repre- (GAF). was Corp. Appellant GAF Elderly Legal Services for sented (LSEP), appellee represented Poor Becker, Borsody Epstein, law firm of by the Green, firm). (the Epstein P.C. left lawyer Philip named Gassel an LSEP Cheng firm. joined Epstein LSEP firm disqualify then moved in this representing GAF from further to con- privy been alleging that Gassel had information regarding fidential motion, The district denied suit. reversed August this court but the American of the Canons of the basis Re- Code of Professional Bar Association finding there existed sponsibility, appearance and at of taint least danger Cheng v. impropriety. II. Jurisdiction In February F.2d 1052 matter, As an initial appellee GAF Court vacated this jurisdiction asserts that this court lacks remanded, hear disagree. We has long It 67 L.Ed.2d 327 citing intervening been established small class of orders case of Firestone Tire and Rubber Co. v. do not terminate underlying litiga 368, Risjord, 669, 449 101 U.S. 66 S.Ct. tion are as collateral orders de L.Ed.2d 571 which held denials spite finality 28 requirement of U.S.C. disqualify of motions to not be re- 1291, provides courts of “[t]he on apрeal viewed until after trial except in ... appeals jurisdiction shall have ap special warranting circumstances writ of peals all final decisions of the district mandamus. Before the remand reached except courts ... where direct review court, this appellant moved to have this be had in the Supreme Court.” See Cohen court consider his nunc pro tunc as a v. Beneficial Industrial Loan 337 Corp., mandamus; request for this motion was 541, 546-47, 1221, 1225-26, 93 L.Ed. summarily denied. (1949). 1528 appealable, To be immediately 1981, In May again moved for a an order must meet three criteria: “[T]he order the district court. order conclusively must determine dis When the district motion, court denied this puted question, resolve an important plaintiff sought a writ of mandamus from completely separate from the merits of the this court. petition This was denied in Sep- action, and be effectively unreviewable on tember and plaintiff’s subsequent pe- appeal from a judgment.” Coopers tition for writ of certiorari was also de- Lybrand 463, 468, v. Livesay, 437 U.S. 98 nied. 2454, 2458, S.Ct. (1978). 57 L.Ed.2d 351 GAF then moved the district court contexts, other this court has held attor pursuant to 28 for an award nеys’ fee awards to be collateral of attorneys’ fees and costs incurred in de- orders. Merrick, As we in Seigal stated against Cheng’s fending most recent efforts Cir.1980): 164 n. 7 GAF, to disqualify beginning with An attorney’s award of fees does fall May 1981 in the attempt district court to 54(b) within ambit of Rule certifica- his original disqualification renew motion. tion, which is directed toward determina- The district court stated that it was “not tions the parties’ claims. See Swanson prepared to plaintiff” again fault seek- Industries, Inc., American Consumer ing to disqualify firm in (7 Cir.1975). How- Nonetheless, district court. the district ever, jurisdiction we have appellate court found that “the subsequent manda- the collateral mus order doctrine. Cohen v. circuit ... and the sub- [to court] sequent Industrial Loan application for ‍‌​​‌​‌​​​‌​‌​‌‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌​​‌​‍a writ certiorari to the S.Ct. (1949); L.Ed. Lowe v. its denial were Co., Pate Stevedoring (5 frivolous in the extreme and ‘unreasonably . Indeed, and vexatiously’ multiplied early permit- case the costs to de- ting fendant in this with from order genuine awarding case no fees chance Thus, success.” the district before conclusion judge underlying-litiga- as- $1,000 fees, sessed tion attorneys’ precursor costs collat- and Cohen expenses against appellant’s lawyer, eral not for order doctrine. See Trustees v. court, motion before the district Greenough, but for L.Ed. the petitions filed in appellate courts. provides bly vexatiously may 28 U.S.C. § 1927 as follows: costs, Any satisfy personally person court the excess or admitted to any expenses, reasonably conduct cases in court of the in- any Territory States thereof who multi- curred because of such conduct. plies any case unreasona- dilatory tactics, fees in allegedly litigation

The order of has clearly a conclusive determination. no connection the merits the under- ap was based on unsuccessful The award suit. lying age discrimination to the peals appears Appellee GAF to concede that appeals Since those have been re Court. in this case two satisfies first jected, grounds there can be no new out appealability criteria of set above. modification of contends, however, that the court; paid has appellant’s lawyer after final effectively reviewable $1,000 оnly appellate and can look to currently appealable. therefore Indeed, judge for relief. the district appar Distributors, Eastern Maico Quoting from ently this when he declared that recognized Inc. v. Maico-Fahrzeugfabrik, the award was final and appealable.2 (3d Cir.1981), GAF contends that after the in quite this is unlike situation “the final to the order Hastings v. Maine-Endwell Central School court, will before the and retain the still be District, (2d Cir.1982), in 676 F.2d in the challenging same interest order as fees attorneys’ an interim award was they today.” Maico Eastern involved against party, assessed a and was found to part pursuant not in immediately be be several fee awards to Fed.R.Civ.P. subject it to adjustment by 37, cause was the attorney an an including award in its award. district court final 37(a)(4). The pursuant to Rule Third Cir- permit cuit an appeal, refused immediate is also clear that the fee It award theory to do would under- the merits of the completely separate from 37, mine of Rule de- purpose the which is case. As the in Court stated signed, among things, prevent de- Hampshire Department White v. New 445, 451, lays discovery. But the Eastern Maico Emplоyment Security, 455 in 1166, 1162, 325 (1982), L.Ed.2d court an for penalizing noted request attorney’s “a for fees § may quan- conduct him a dilatory place the legal raises issues collateral to main dary, lawyer may penalized a be for since cause action.... The Court was “filing lawyer a motion which the believes context speaking post-judgment of a client’s protect his interest.” necessary attorneys’ prevailing award of fees to Id. at 949. action, rights a civil but went on party placed We think the sanctions in this case questions to add “fee generally in a He Cheng’s lawyer quandary. similar inherently necessarily are subsumed for penalized filing motion he be- 13; n. by a decision on merits.” Id. see interest, lieved in his client’s a belief to be Heublein, Inc., 44, 682 F.2d Goodman understandably strengthened quite by (2d Cir.1982)(fee separate questions case reversing decision in this court’s merits); Hastings v. Maine-Endwell court to disqualify the refusal of district District, at supra, Central School appellant’s firm. If lawyer (same); cf. v. American Swanson Con- forced await final before ob- Industries, 555, (7th sumer of an appellate review taining Cir.1975) (award of fees be burdensome, his position persоnally termina- collateral and difficult. If the fee may become even more Cinerama, case); tion of the main Inc. v. negotiations, linked settlement Music, S.A., 70 n. Sweet ethi- here, lawyer may placed in an appellant’s The fee award which was however, appellee question, as also since In an order filed December the dis- notes, apply to this did not award “is final trict court stated the fee days permission interlocutory appeal.” Ap- within to take an ten and certified for an order, by satisfy pellee court’s that this order did not сontends rely requirements 1292(b). must § for certification of inter- jurisdictional locutory appeal, pursuant basis for 1291 as U.S.C. § immediate appeal. 1292(b). to 28 U.S.C. need decide We dilemma; his view of any cal settlement An order to pay ex- attorney’s proposal certainly penses 37(b)(2) would almost be colored under Rule is similar in handling purpose its fee issue. both its and effect to fines im- posed contempt civil which are made Although like Rule payable to an opponent compensate prevent is intended unnecessary delay latter for loss sustained as result of litigation, H.R.Conf.Rep. see 96th contemnor’s conduct. Com- Advisory See Cong., 2d reprinted Sess. mittee Note of 1970 to Amended Rule 37. Cong. Code & Ad.News we think the order, As case of civil contempt problems posed by postponing review out- cannot non-party argue propriety weigh possibility delay raised 37(b)(2) of the Rule sanction for attor- In this ney’s fees in an fee apparently has not judgment as a to the suit would be delayed underlying litigation; accord- able to do. Unless he can obtain a review ing to appellant, discovery has рroceeded of the order and sanction at the time it is independently appeal. Moreover, imposed, non-party will have no think the fee award in this case is distin- review all. guishable from the Rule 37 situation in- Ltd., Hooker, David v. volved in Eastern Maico. The fee award (9th Cir.1977). here bears no relation anything that oc- We recognize Independent that in Inves- court, curred in district ‍‌​​‌​‌​​​‌​‌​‌‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌​​‌​‍the since the sanc- tor League Co., Protective v. Touche Ross & tion was imposed for appellant’s efforts in (2d Cir.1976), F.2d this court appellate courts. The propriety dictum thаt suggested a non-party attorney award here will not be affected subse- may in some circumstances “so allied ease; quent the it developments in is thus party preclude as to interlocutory unlike an of fees frivolous dis- of an order to pay compensatory covery motions, “may which not be com- expenses.” But there is no indication pletely the separable from merits of the this Cheng case that his are in underlying action.” Eastern Maico Distrib- collusion to delay create or are in utors, Inc. v. Maico-Fahrzeugfabrik, supra, way clоsely tied Cheng’s lawyer that 658 F.2d at 951. We note further that after should not be considered a bona fide third Maico, decision in Eastern the Ninth party of purposes this Accord- Circuit against has held sanctions an attor- ingly, persuasive we find Ninth Circuit’s ney under 37(a)(4) immediately Rule analogy to civil contempt pealable. Reygo See Pacific v. Corp. John- against a non-party, generally which are Co., ston Pump (9th Cir.1982). immediately appealable. IBM v. United us, Since this issue is not express States, (2d Cir.1973), 115 n. 1 opinion no on appealability of sanctions denied, cert. 416 U.S. that section against the attorney L.Ed.2d 774 We conclude that on rather than represents. he the unusual of facts this district An additional reason for permitting an court’s order is under the Cohen possibil- is the Schandler, doctrine. See Pomerantz v. that ity appellant’s lawyer, as a non-party, (2d Cir.1983). may never appellate receive any review of III. The Fee Award the fee he is denied opportu- that nity settled, now. If the case is or if appel- predicated The court its district merits, lant succeeds on the it is not clear award of fees on its that finding appellant’s lawyer will be to ap- able after the Court’s decision in Fire peal. As the Ninth stone, supra, Circuit noted with re- S.Ct. spect to an assessment of expenses and 571 appellant’s attorneys L.Ed.2d should an officer of a cor- have known the efforts to obtain a manda porate party under 37(b)(2): hope Rule mus “were without and would sup- new facts claims that vexatiously Appellant unreasonably of the effect disqualify efforts to his renewed ported The to the defendant.” increasing costs to the dis- Appellant refers firm. Epstein decisionseems to be bаsed district court’s in a simi- firm qualification proce misunderstanding part on Blum, case, Yaretsky F.Supp. lar opinion be history case. dural of this and the citation (S.D.N.Y.1981), to overturn attempt low refers merits with decision on the prior court’s 1981 denial July district court’s cases, see, e.g., in other Glueck approval “in disqualify motion to Cheng’s renewed Inc., Logan, Jonathan the second mandamus to the Court fact lend These “new facts” Thus, the same on record.” Appeals appellant’s press support some decision court was unable to “understand district efforts. аhead with his expect should Court why plaintiff this court’s important, But more we think having denied mandamus Appeals, itself on the merits was prior decision should way down appellant’s efforts. The enough justify (empha up again” reverse itself on way vacated that decision Supreme Court the district original). Apparently, sis in grounds, but it did not address procedural be appellant’s mistook earlier motion Thus, treatment the merits. this court’s us, prior was fore to convert not bound although judge was to a petition, to this court mandamus decision, previous puzzling our we find it fact, petition. for an actual mandamus ignore reasoning he chose to denied, convert and the the motion to again denied that decision manda was not considered as a disqualify. significantly, More motion surprising we do it mus. not find that he should extraordinary we find man should thereafter seek penalize appellant’s lawyer attempting court, denial, given have this court review that light of the Su damus from appel- ruled in already that this court preme suggestion in Firestone Court’s opinion. might favor in its earlier It lant’s under ex appropriate mandamus if at least plaintiff have been better had circumstances, 449 at 378 n. ceptional alternatives attempted pursue one of the 13,101 676n. of this light and in S.Ct. Firestone, supra, mandamus listed in prior appellant’s court’s decision in favor. 13; 13,101 it 378 n. at 676 n. U.S. at S.Ct. that under Appellee recognizes been had might plaintiff also have better in appropriate Firestone mandamus peti- clearly in his mandamus detailed interlocutory to review an rare cases justified the circumstances he felt tion motion to Nonethe- denying disqualify. a extraordinary of mandamus. remedy less, argues apрellant’s efforts appellee Nonetheless, while the for manda- petition a mandamus were frivolous be- to obtain ultimately denied, hardly it was mus was new facts presented, cause no were lawyer for appellant’s unreasonable Cheng’s “failed petition Indeed, because mandamus in earlier bring light it. of our favor, his on the merits in allege any extraordinary circum- decision obliged attorney may ethically been which would authorize the issuance stances efforts.3 pursue addition, argues, appellee of the writ.” In of the less dras- Cheng pursuе any failed to surprised also the district We are Firestone suggested tic relief measures in willingness appellant’s to sanction judge’s such as seeking appeal, as alternatives a made in the not for motion attorney, court, but for taken to this appeals a district obtaining protective order. conduct, argues. appellant’s appellee In addi- not as we think did sonable 3. Since tion, appellant’s unreasonably multiply need not resolve claim in this we case, a court was to hold hear- need not a fee award the district we decide whether fees, finding awarding attorneys’ requires ing since we 28 U.S.C. a contends, conduct, favor on other faith have decided bad merely requires showing grounds. of unrea- whether A per- court and the Court. rule arguendo Assuming mitting requirements court to sanction an attor- first two district have been satis- here, fied I am ney appealing ruling might adverse convinced the third requirement has not been courageous lawyer deter even from seek- satisfied. ing the of a district court reversal decision. The through number of clarified decisions has the circumstances un- sanctions were particularly think such .We der which of a appellate review collateral light in this inappropriate of our order is appropriate right ensure that a after opinion. Accordingly, consider- lost, will irrepar- not “have been probably ing arguments parties, all of the Cohen, ably”. supra, 337 at 546. decision For judge reverse the of the district example, Ryan, in United States v. $1,000 fees, awarding expenses 530 (1971), the Court a production held that appellee, and costs to and remand to the order was where the respon- not district сourt for further proceedings con- dent experienced would have a “substantial opinion.4 sistent burden” in complying subpoena with a duc- appellant’s appeal GAF contends that es tecum. Id. at 532. Noting that the fee award was frivolous because it respondent option resisting basis, jurisdictional clearly lacked and be- (and production order exposing thus himself cause did not act to contempt), emphasized the Court court’s 1292(b) 28 U.S.C. certification. the test whether a collateral order is seeks appellee damages pursuant appealable is terms measured in Fed.R.App.P. and 28 1927. As U.S.C. § imposes party; rather, difficulties it on a above, however, indicated this court has must focus inquiry on whether “denial jurisdiction to consider the Since would render imposs- successful, the appeal plainly it was ible any review of an whatsoever individu- frivolous; appellee’s request damages al’s claims.... Id. at (emphasis add- denied. ed). MacDonald, In United States v. U.S. 850 the Court characterized the TIMBERS, Circuit Judge, dissenting: requirement third as involving Cohen way surest to undermine long “an practical asserted legal standing rule —the corner- value destroyed of which would be if it stone of appellate jurisdiction federal to—is were not vindicated before trial.” Id. at sanction the corrosive erosion of particular (footnote omitted). More recently, exceptions. majority, Here the in its rush Firestone the Court held that the “effec- merits, to reach the has strained to create tively requirement unreviewable” was not an exception and, which is not necessary petitioner satisfied where the claimed that view, my contrary controlling is to law. I an оrder denying would be therefore dissent. respectfully effectively appeal unreviewable on final be- As the majority recognizes, there are cause of possibility “the that the course of three requirements discrete before the col- the indelibly ‍‌​​‌​‌​​​‌​‌​‌‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌​​‌​‍be stamped lateral rule order of Cohen v. Beneficial shaped or the fruits of a breach of Industrial Loan 337 U.S. 546-47 confidence acts or or omissions prompted (1949), may (1) be invoked: the order must Firestone, loyalty....” divided supra, conclusively disputed determine the ques- 449 U.S. at 376. that the Observing peti- tion; (2) the must rеsolve an impor- “fail[edj tioner supply single to con- tant completely separate from the crete of the example stamp indelible or action; (3) merits of the order must id., warns,” taint of which it the Court be effectively appeal unreviewable on from concluded ... require that cases “[o]ur a final judgment. Coopers Lybrand & v. much a ruling may more before be con- Livesay, 468 See Fire- ‘effectively sidered unreviewable’ absent stone Risjord, Tire Rubber & Co. v. 449 appeal.” U.S. Id. Appellant requests case, however, appellant that the case be transfer- transfer the as has not judge. specified adequate red to another district We decline to basis such a an transfer. appeal whether he will be light

In Court’s unmis- able from prevails in the that he on to the lower federal courts fee order event message takable merits, implications fairness meaning “effectively to the unre- explored. this “possibility” I should be requirement, think it is manda- viewable” appellant for us determine whether tory underly Even in the prevails if presented compelling instant case has in the action, ing it is cleаr that an from appeal review of the postponing evidence that granting the order 1927 award will § entry 1927 fee award until the § general not be under the rule that barred underlying employment in the standing “the successful below has no will “render discrimination action either im- appeal from the de [district court’s] whatsoever”, Ryan, su- possible cree . Public Commission v. ... Service pra, destroy “legal 402 U.S. at Lines, (1939); Brashear right practical value” 203.06, ¶ Moore’s Federal Practice at challenge district court’s order (2 1983). ed. This is so for several reasons. MacDonald, рeal. supra, 435 U.S. 860. First, indepen- the fact a fee is merits dent of the White arguments in Appellant presents three Hampshire Department Employ- New will support of his claim the order Security, ment 451 n. 13 effectively unreviewable unless interlocuto- that, if appellant pre- indicates even First, suggests he review allowed. ry merits, vails on the he still lose on a at the close of appellee might contend fees.1 motion for This would appeal action “the underlying ‍‌​​‌​‌​​​‌​‌​‌‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌​​‌​‍bring provide opportunity him with the Second, suggests taken too late.” he up for review interim fee award § if appel- award will not be simultaneously appeal with the from Third, suggests he prevails lant at trial. application. his fee denying final order will not be if the that the award Furthermore, Congress did intend settle. whom place attorney an sanctions argument may be Appellant’s first dis- imposed jeopar- have been under § Appellee has quickly. expressly posed an forfeiting dy object that it to an stated would adverse 1927 fee award. While § § allowing from the order af- “distinguish between winners does not ter final has been entered. Such losers, defend- plaintiffs or between appellee from contend- statement forecloses ants,” Roadway Piper, Inc. Express, to the ing contrary. (1980),2in its focus on deter- suggested tactics, scenario— Appellant’s second an ring dilatory permitting presented the situation that would be adverse 1927 order prevail though prevailed should merits in even his client has the in- gives rise to more action consistent with underlying underlying action— attor- Although appellant Congress tent of that the sanctioned argument. substantial inquire appropriate protection “all rhetorically ney done no more than afforded has Congress underlying employment dis amended 1. The action brought Age (1976 1980) Supp. Dis crimination one IV after (ADEA), Roadway Employment that, Express Act crimination in held absent Supp. 1978). appel (1976 623 II If U.S.C. action, § congressional the reference to “costs” action, prevail underlying in the he lant should include in could not be construed to § 1927 an will be entitled to seek attorneys’ award of reasonable 757-63, 447 at reasonable fees. U.S. Syvock v. Milwaukee Boiler fees. added 767. 1980 amendment therefore Co., 149, Mfg. Cir.1981) (7 162-65 665 fees to the list of sanc- reasonable (fees pursuant 42 awarded in ADEA action to dilatory upon judge may impose tions that (1976)); Frith v. Eastern Air 1988 § H.R.Conf.Rep. attorney No. 1927. § under Lines, Inc., 950, (4 But 951 reprinted in 1980 1234, 8, Cong., 2d Sess. 96th Lubbock, Texas, City of see Alford v. Cong. 2782-83. U.S.Code & Ad.News modified, (N.D.Tex.1979), F.Supp. denied, (5 Cir.), cert. 664 F.2d 1263 U.S. available process due under law”. right appeal reserve the to the fee note H.R.Conf.Rep. supra at award if a In any settlement reached. 2783.3 event, possible discussion of scenarios with respect potential settlement of the case is Moreover, attorney if were an reminiscent of the reference to the possibili- interlocutory appeal an order to take ty indelibly tainting proceeding trial from an preserve right his that Supreme Court Firestone found awarding him § insufficient to render a collateral order de- imposes time a court 1927 sanc- every § “ nying disqualification unre- ‘effectively tion, apparent purpose that viewable’ absent appeal.” Congress reducing litigation delays by U.S. at 376. amending 1927 to include reasonable at- § torneys’ fees would be undermined I am pre-Firestone mindful that in a very sought statute which to rеduce unwar- we suggested that an interim award fee delays. ranted might be under the Cohen doc- Merrick, Seigal trine. v. Hence, although possibility appel- 7 (2 Cir.1980). however, n. Seigal, arose in on prevailing lant’s the merits be of an procedural unusual context where the an appellate concern his counsel that district court had underlying dismissed the might or conclude complaint ruling our pursuing counsel would be barred from an fee award. Id. at 164. On the appeal merely prevailed because the client hand, in circumstances analo- action, undеrlying the merits in the gous to the instant we have held that hardly rendering rises to the level of “im- an appeal pre-judgment from a fee whatsoever,” possible any Ryan, review su- where engaged counsel conduct dilatory pra, at the “le- destroying is not appealable under the Cohen doctrine. gal practical value” of counsel’s Alart Associates v. Aptaker, 402 F.2d challenge the fee order on MacDo- (2 Cir.1968); 780-81 Hastings see also nald, supra, 435 On the con- District, Maine-Endwell Central School trary, overriding policy Supreme (2 Cir.1982) (interim avoiding “piecemeal Court fee deter- litigation”, Gillespie satisfy mination does not finality U.S. Steel and effec- (1964), waiting tively mandates until entry requirements). unreviewable More- over, of final appealing from the distinguished while author our 1927 fee award. Seigal decision has pointed century- out the precursor old collateral order Cohen Finally, suggests that fee doctrine, Trustees v. Greenough, not be event Supreme recent de- Court that the The majority settle. raises velopments suggest might that we be act- the spectre appel- of an ethical dilemma for ing peril at our if we ignore were attorney. Speculating lant’s on the course numerous decisions after negotiations, of settlement the majority Cohen They clearly referred to above. indi- conjectures that, the fee linked to cate effectively re- unreviewable negotiations, settlement appellant’s attor- quirement imposes heavy burden on a ney may placed in an untenable ethical party seeking interlocutory review must, quandary. speculate If the ma- Clearly collateral order. ignores jority equally logical рossibility, Court, using when language such as render- namely, parties might agree ing any “impossible” or “destroying” the settlement does not determine the a party’s right rights appeal, did not contem- respect either to an Indeed, from the 1927 fee award. plate court of appeals would find the appellee has suggested that appellant collateral apposite could order doctrine when the Although Report the House clearly Congress Conference intended that an speaks “affordpng] appro- all given opportunity challenge propriety priate protections process of due available un- imposed against ‍‌​​‌​‌​​​‌​‌​‌‌​‌‌‌​​‌‌​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌​​‌​‍of a sanction him der the law” imposed, before the sanction § 1927. H.R.Conf.Rep. supra note of a prospect party losing

peal entry from a collateral order after speculation is mere es- —and when it is pecially probable that no will occur

injury postponed if an entry

until after under- Appellant action. here has

lying failed to harm irreparable

establish will oc-

cur if the 1927fee appeal from the temporarily postponed. appellant has failed to

Since establish interim fee order is “effectively

unreviewable”, I the appeal would dismiss appellate jurisdiction.

for lack of From the so, refusal

majority’s respectfully to do I

dissent.4 America,

UNITED STATES of

Plaintiff-Appellant, ASSOCIATES,

BEDFORD Partnership,

Doris K. Ades, Carver and Samuel indi

vidually partners and as of Bedford As

sociates, Management and Amcar

Defendants-Appellees, Bowery

The Savings Bank,

Intervenor-Appellee. BANK, BOWERY SAVINGS

Plaintiff-Appellee, ASSOCIATES, Partnership,

BEDFORD Ades,

Doris K. Carver and Samuel indi

vidually partners and as As Bedford

sociates, Defendants-Appellees, America, States of

Defendant-Appellant. 967, 1107, 82-6307,

Nos. Dockets 83-6003.

United States Appeals, Court of

Second Circuit.

Argued March

Decided July my appellate juris- 4. Since in view so. we have no I to do reach the merits and decline diction, necessary appropriate it is neither nor

Case Details

Case Name: James K.J. Cheng v. Gaf Corporation

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 23, 1983

Citation: 713 F.2d 886

Docket Number: 1116, Docket 82-7956

Court Abbreviation: 2d Cir.