Appellate Decisions

The Appeal Clock for Attorneys Fees

The Seventh Circuit offered a helpful reminder: the time to appeal an award of attorneys fees runs from the order on fees, not the entry any separate document.

August 10, 2024

By Bryan Lammon

In Upchurch v. O’Brien, the Seventh Circuit dismissed as untimely an appeal from a sanction-based award of attorneys fees. The court explained that an award of attorneys fees need not be set out in a separate document to start the appeal clock. Instead, the clock starts when the fees are awarded.

The Fee Award in Upchurch

Simplifying a bit, the plaintiff in Upchurch had “waged a relentless and disturbing campaign of harassment against his neighbors” that included this lawsuit. The district court eventually sanctioned the plaintiff and his attorney under Federal Rules of Civil Procedure 11 and 37, noting that the case “should never have seen the light of day.” And the district court awarded attorneys fees and costs as the sanction.

About a week later, the district court entered a final judgment in the action. Twenty-seven days after that, the plaintiff appealed.

The Timeline for Attorneys-Fees Appeals

The Seventh Circuit concluded that this appeal was untimely.

Civil litigants have 30 days to file their notice of appeal. That clock normally starts running on the entry of the appealed judgment. And under Federal Rule of Appellate Procedure 4(a)(7), most judgments are deemed entered when the judgment is set out in a separate document.

But not all judgments require a separate document to start the appeal clock. These judgments are instead deemed entered when they are themselves entered on the docket.

The question, then, was whether the district court’s award of fees and costs required a separate judgment to start the appeal clock. If it did, the plaintiff’s appeal was untimely. If no separate judgment was necessary, the appeal was fine.

Federal Rule of Civil Procedure 58(a)(3) states that “a separate document is not required for an order disposing of a motion … for attorney’s fees under Rule 54.” And the Seventh Circuit has held that a “request for attorney’s fees need not arise under Rule 54 expressly for the Rule 58(a)(3) exception to apply.” In Feldman v. Olin Corp., the Seventh Circuit explained that Rule 54 itself does not create right to attorneys fees. That right comes from other statutes and rules. Rule 54 is instead “the rule on judgments,” and it “makes awards of attorneys’ fees one type of judgment.”

So even though the fee order in Upchurch came under Rules 11 and 37 (rather than “under Rule 54”), no separate document was required to start the appeal clock. The appeal was thus untimely, and the Seventh Circuit lacked jurisdiction to review the fee order.

Upchurch v. O’Brien, 2024 WL 3659327 (7th Cir. Aug. 6, 2024), available at the Seventh Circuit and Westlaw

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