81-2481 | 10th Cir. | Jul 15, 1982
683 F.2d 330" date_filed="1982-07-15" court="10th Cir." case_name="Leonard E. Cox v. Steven P. Flood, Jerry D. Fairbanks, Vernon E. Vincent">683 F.2d 330
Leonard E. COX, Plaintiff-Appellant,
v.
Steven P. FLOOD, Jerry D. Fairbanks, Vernon E. Vincent,
Defendants-Appellees.
No. 81-2481.
United States Court of Appeals,
Tenth Circuit.
Submitted on the briefs pursuant to Tenth Circuit Rule 9.
Decided July 15, 1982.
Leonard E. Cox, pro se.
Before BARRETT, McKAY and LOGAN, Circuit Judges.
PER CURIAM.
This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of these appeals. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The causes are therefore ordered submitted without oral argument.
The parties were notified that this court was considering summary dismissal for lack of a final order in accordance with this court's decisions in Glass v. Pfeffer, 657 F.2d 252" date_filed="1981-08-03" court="10th Cir." case_name="George A. Glass and Nona Glass v. Ron Pfeffer, Walt Mosby, Joe Iarossi, Robert Robinson, Ray Vines, Jim Weckwerth, James Gilchrist, and Dean Forester">657 F.2d 252 (10th Cir. 1981) and Black Gold, Ltd. v. Rockwool Industries, 666 F.2d 1308" date_filed="1981-12-09" court="10th Cir." case_name="Black Gold, Ltd., a Colorado Corporation, and Cross-Appellant v. Rockwool Industries, Inc., a Delaware Corporation, and Cross-Appellee">666 F.2d 1308 (10th Cir. 1981). In those cases we held that a district court's disposition on the merits is not reviewable under 28 U.S.C. § 1291 until the claim for attorney's fees has been resolved.
While this appeal was pending, the Supreme Court held in White v. New Hampshire, --- U.S. ----, 102 S. Ct. 1162" date_filed="1982-04-19" court="SCOTUS" case_name="White v. New Hampshire Department of Employment Security">102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) that a post-judgment request for attorney's fees does not constitute a motion under Fed.R.Civ.P. 59(e) which must be filed within ten days after the final decision. The Supreme Court, however, did not address the precise finality issue raised in the present case, i.e., whether there are inherent finality problems when a motion for attorney's fees is pending on the date of an otherwise final judgment, but is expressly reserved for further consideration by the trial court.
Despite the narrow ruling in White v. New Hampshire, --- U.S. ----, 102 S. Ct. 1162" date_filed="1982-04-19" court="SCOTUS" case_name="White v. New Hampshire Department of Employment Security">102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), in which the Court also declined to find that requests for attorney's fees are covered as costs under either Rule 54(d) or Rule 58, there are sufficient indications that the Court regards attorney fee requests as raising legal issues "collateral to the main cause of action" requiring "an inquiry separate from the decision on the merits-an inquiry that cannot even commence until one party has 'prevailed.' " White v. New Hampshire, 102 S. Ct. 1162" date_filed="1982-04-19" court="SCOTUS" case_name="White v. New Hampshire Department of Employment Security">102 S.Ct. at 1166. We thus conclude that judgments finally disposing of the merits are appealable even though questions relating to attorney's fees have been left undecided. Halderman v. Pennhurst, 673 F.2d 628" date_filed="1982-03-23" court="3rd Cir." case_name="Terri Lee Halderman v. Pennhurst State School & Hospital Appeal of Helen O'Bannon">673 F.2d 628, 644 (3d Cir. 1982) (en banc), overruling in part, Croker v. Boeing, Inc., 662 F.2d 975" date_filed="1981-09-30" court="3rd Cir." case_name="26 Fair empl.prac.cas. 1569, 27 Empl. Prac. Dec. P 32,160">662 F.2d 975 (3d Cir. 1981) (en banc).
To the extent this court's prior opinions are inconsistent with this holding, they are to be disregarded. See, e.g., Black Gold, Ltd. v. Rockwool Industries, Inc., 666 F.2d 1308" date_filed="1981-12-09" court="10th Cir." case_name="Black Gold, Ltd., a Colorado Corporation, and Cross-Appellant v. Rockwool Industries, Inc., a Delaware Corporation, and Cross-Appellee">666 F.2d 1308 (10th Cir. 1981); EEOC v. St. Louis-San Francisco Railway, 651 F.2d 718" date_filed="1981-06-16" court="10th Cir." case_name="EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellee">651 F.2d 718 (10th Cir. 1981); Glass v. Pfeffer, 657 F.2d 252" date_filed="1981-08-03" court="10th Cir." case_name="George A. Glass and Nona Glass v. Ron Pfeffer, Walt Mosby, Joe Iarossi, Robert Robinson, Ray Vines, Jim Weckwerth, James Gilchrist, and Dean Forester">657 F.2d 252 (10th Cir. 1981); Gurule v. Wilson, 635 F.2d 782" date_filed="1981-02-13" court="10th Cir." case_name="Charles Gurule v. Alex Wilson">635 F.2d 782 (10th Cir. 1981).
The parties were previously advised to address the issue of this court's jurisdiction only. Accordingly, the clerk shall advise the parties of the requirements for filing memoranda addressing the merits in accordance with Tenth Circuit Rule 10(d). The motion for an order of remand is denied.
IT IS SO ORDERED.