PATRICIA E. MCQURTER, PLAINTIFF-APPELLEE, CROSS-APPELLANT,
v.
CITY OF ATLANTA, GEORGIA, ET AL., DEFENDANTS-APPELLANTS, CROSS-APPELLEES
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An order resolving all issues except attorney's fees is a final, appealable order, even if the fees have not yet been awarded.
Plaintiff prevailed in a § 1983 action, but the defendant City of Atlanta filed its notice of appeal one day late. The City argued the judgment was no…
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BY THE COURT:
Plaintiff-Appellee Patricia McQurter prevailed at the district court in this action under 42 U.S.C. § 1983 against the City of Atlanta and the other defendants (collectively referred to as Atlanta). The district court, 572 F.Supp. 1401, entered final judgment on September 12, 1988, and Atlanta did not file its notice of appeal to this court for 31 days, one day beyond the thirty day period of Federal Rules of Appellate Procedure 3 and 4. Atlanta did not move, under Appellate Rule 4(a)(5), for the district court to extend its time to appeal. McQurter now moves that this court dismiss Atlanta’s appeal. Atlanta argues that the appeal should be maintained because the district judge on September 12 did not enter judgment on McQurter’s motion under section 1988 for attorney’s fees (and apparently has not done so yet). Atlanta requests that we hold its appeal premature and allow another notice of appeal later to be filed because, absent a decision on attorney’s fees, the September 12 order was not final and ap-pealable. We hold that the order was final and appealable and dismiss Atlanta’s appeal.
The problem apparent in this case has arisen in several other circuits and may be stated as follows: when the district court enters an order resolving all issues presented in a case except the award of attorney’s fees, has a final, appealable order been entered? We need not review the numerous cases dealing with the issue in detail because we believe our sister circuit in Holmes v. J. Ray McDermott & Co., 682 F. 2d 1143 (5th Cir.1982) properly decided that the answer to the question is: “it depends on the circumstances.” In Holmes, the court held that:
When attorney’s fees are similar to costs (White) or collateral to an action (Obin), a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits. When, however, the attorney’s fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment.
Id. at 1146. As the Holmes court noted, this distinction is in accordance with the holding in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), in which the Court held that attorney’s fees are collateral and independent when claimed under 42 U.S.C. § 1988 and thus not subject to the ten day time limit set forth in Federal Rule of Civil Procedure 59(e). Our own cases are also in accord. See Varnes v. Local 91, 674 F. 2d 1365 (11th Cir.1982). Since the Supreme Court has clearly stated that attorney’s fees are collateral in a section 1983 action, it is clear that Atlanta filed its notice of appeal too late.
DISMISSED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (28 total)
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Budinich v. Becton Dickinson & Co., 486 U.S. 196 (U.S. 1988)…. Some Courts of Appeals have held that the statutes creating liability for attorney’s fees can cause them to be part of the merits relief for purposes of §1291. See, e. g., Holmes v. J. Ray McDermott & Co., 682 F. 2d, at 1146; McQurter v. Atlanta, 724 F. 2d 881, 882 ,(CA11 1984) (per curiam). This Court itself implicitly acknowledged the possibility of such an approach in Boeing Co. v. Van Gemert, 444 U. S. 472 (1980), where, in holding that a judgment on the merits was final and immediately appealable apa…
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Norman v. The Hous. Auth. OF the City OF Montgomery, 836 F.2d 1292 (11th Cir. 1988)…fees • issues. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 451, 102 S.Ct. 1162, 1166, 71 L.Ed. 2d 325 (1982) (attorney’s fees issues are collateral to the merits of civil rights actions); McQurter v. City of Atlanta, 724 F. 2d 881, 882 (11th Cir.1984) (district court order resolving all [*1296] issues except attorney’s fees under section 1988 is final and appealable). Cf. Bank South Leasing, Inc. v. Williams, 769 F. 2d 1497 (11th Cir.1985) (order leaving attorney’s fees issue…
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Exch. Nat'l Bank OF Chicago v. Daniels, 763 F.2d 286 (7th Cir. 1985)…166, the Eleventh Circuit thought contractual fees different. The appealability of an order that leaves fees unresolved “ ‘depends on the circumstances of each case’,” that court concluded. 743 F. 2d at 775, quoting from McQurter v. City of Atlanta, 724 F. 2d 881, 882 (11th Cir.1984). For similar rulings after White see Lewis v. S.L. & E., Inc., 746 F. 2d 141 (2d Cir.1984); Holmes v. J. Ray McDermott & Co., 682 F. 2d 1143 (5th Cir.1982). For post-White decisions that draw no distinctions based on the source…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- White v. N.H. Dep't of Emp. Sec., 455 U.S. 445 (U.S. 1982)
- Holmes v. J. RAY McDERMOTT & Co., Inc., 682 F.2d 1143 (5th Cir. 1982)
- Varnes v. Local 91, 674 F.2d 1365 (11th Cir. 1982)