The Appeal Clock for Attorneys Fees
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
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
A ruling on liability is not final until the court specifies a remedy. But what if that remedy consists entirely of attorney fees? The Supreme Court has long held that a decision on the merits is final despite any unresolved issues regarding attorney fees. So is a ruling on liability final when the remedy is […]
Continue reading....
In Hanover American Insurance Co. v. Tattooed Millionaire Entertainment, LLC, the Sixth Circuit held that failure to file a pre-verdict Rule 50(a) motion for judgment as a matter of law forfeits the right to renew that motion via Rule 50(b). At the close of evidence, the plaintiff in Hanover Insurance moved for judgment as a matter […]
Continue reading....Recent Posts
In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.
Continue reading....
In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]
Continue reading....
I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]
Continue reading....
Yesterday, I filed an amicus brief in support of the petitioner in Parrish v. United States, which is currently pending before the Supreme Court. The case asks if an appellant must file a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). Both the […]
Continue reading....
Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.
Continue reading....