24 Fla. L. Weekly Fed. S517a
fees is based on a statute, contract, or both, the pendency of a ruling on an
award for fees and costs does not prevent, as a general rule, the merits
judgment from becoming final for purposes of appeal — Decision on the merits of
a claim for contributions to union-affiliated benefit funds was a final decision
pursuant to 28 U.S.C. § 1291, despite unresolved motion for attorney’s fees and
costs based on federal statute and parties’ collective bargaining agreement, and
therefore the appeal of that decision was untimely since it was not filed within
30-day deadline of Federal Rules of Appellate Procedure
INTERNATIONAL UNION OF OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS et al.
U.S. Supreme Court. Case No. 12-992. Argued December 9, 2013 — Decided January
15, 2014. On Writ of Certiorari to the U.S. Court of Appeals for the First
Respondents, various union-affiliated benefit funds (Funds), sued
petitioner Ray Haluch Gravel Co. (Haluch) in Federal District Court to collect
benefits contributions required to be paid under federal law. The Funds also
sought attorney’s fees and costs, which were obligations under both a federal
statute and the parties’ collective bargaining agreement (CBA). The District
Court issued an order on June 17, 2011, on the merits of the contribution claim
and a separate ruling on July 25 on the Funds’ motion for fees and costs. The
Funds appealed both decisions on August 15. Haluch argued that the June 17 order
was a final decision pursuant to 28 U.S.C. §1291, and thus, the Funds’ notice of
appeal was untimely since it was not filed within the Federal Rules of Appellate
Procedure’s 30-day deadline. The Funds disagreed, arguing that there was no
final decision until July 25. The First Circuit acknowledged that an unresolved
attorney’s fees issue generally does not prevent judgment on the merits from
being final, but held that no final decision was rendered until July 25 since
the entitlement to fees and costs provided for in the CBA was an element of
damages and thus part of the merits. Accordingly, the First Circuit addressed
the appeal with respect to both the unpaid contributions and the fees and
Held: The appeal of the June 17 decision was untimely. Pp.
(a) This case has instructive similarities to Budinich v.
Becton Dickinson & Co., 486 U.S. 196. There, this Court held a
district court judgment to be a “final decision” for §1291 purposes despite an
unresolved motion for statutory-based attorney’s fees, noting that fee awards do
not remedy the injury giving rise to the action, are often available to the
defending party, and were, at common law, an element of “costs” awarded to a
prevailing party, not a part of the merits judgment. Id., at 200. Even if
laws authorizing fees might sometimes treat them as part of the merits,
considerations of “operational consistency and predictability in the overall
application of §1291” favored a “uniform rule.” Id., at 202. Pp.
(b) The Funds’ attempts to distinguish Budinich fail. Pp.
(1) Their claim that contractual attorney’s fees provisions are
always a measure of damages is unpersuasive, for such provisions often provide
attorney’s fees to prevailing defendants. More basic, Budinich‘s uniform
rule did not depend on whether the law authorizing a particular fee claim
treated the fees as part of the merits, 486 U.S., at 201, and there is no reason
to depart from that sound reasoning here. The operational consistency stressed
in Budinich is not promoted by providing for different jurisdictional
effect based solely on whether an asserted right to fees is based on contract or
statute. Nor is predictability promoted since it is not always clear whether and
to what extent a fee claim is contractual rather than statutory. The Funds urge
the importance of avoiding piecemeal litigation, but the Budinich Court
was aware of such concerns when it adopted a uniform rule, and it suffices to
say that those concerns are counterbalanced by the interest in determining with
promptness and clarity whether the ruling on the merits will be appealed,
especially given the complexity and amount of time it may take to resolve
attorney’s fees claims. Furthermore, the Federal Rules of Civil Procedure
provide a means to avoid a piecemeal approach in many cases. See, e.g.,
Rules 54(d)(2), 58(e). Complex variations in statutory and contractual
fee-shifting provisions also counsel against treating attorney’s fees claims
authorized by contract and statute differently for finality purposes. The
Budinich rule looks solely to the character of the issue that remains
open after the court has otherwise ruled on the merits. The Funds suggest that
it is unclear whether Budinich applies where, as here, nonattorney
professional fees are included in a motion for attorney’s fees and costs. They
are mistaken to the extent that they suggest that such fees will be claimed only
where a contractual fee claim is involved. Many fee-shifting statutes authorize
courts to award related litigation expenses like expert fees, see West
Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 89, n. 4, and
there is no apparent reason why parties or courts would find it difficult to
tell that Budinich remains applicable where such fees are claimed and
awarded incidental to attorney’s fees. Pp. 7-11.
(2) The Funds’ claim that fees accrued prior to the commencement of
litigation fall outside the scope of Budinich is also unpersuasive.
Budinich referred to fees “for the litigation in question,” 486 U.S., at
202, or “attributable to the case,” id., at 203, but this Court has
observed that “some of the services performed before a lawsuit is formally
commenced by the filing of a complaint are performed ‘on the litigation,’ ”
Webb v. Dyer County Bd. of Ed., 471 U.S. 234, 243. Here, the fees
for investigation, preliminary legal research, drafting of demand letters, and
working on the initial complaint fit the description of standard preliminary
steps toward litigation. Pp. 11-13.
of United States district courts. 28 U.S.C. §1291. In Budinich v.
Becton Dickinson & Co., 486 U.S. 196 (1988), this Court held that a
decision on the merits is a “final decision” under § 1291 even if the award or
amount of attorney’s fees for the litigation remains to be determined. The issue
in this case is whether a different result obtains if the unresolved claim for
attorney’s fees is based on a contract rather than, or in addition to, a
statute. The answer here, for purposes of §1291 and the Federal Rules of Civil
Procedure, is that the result is not different. Whether the claim for attorney’s
fees is based on a statute, a contract, or both, the pendency of a ruling on an
award for fees and costs does not prevent, as a general rule, the merits
judgment from becoming final for purposes of appeal.
Under a collective-bargaining agreement (CBA) with the International Union of
Operating Engineers, Local 98, Haluch was required to pay contributions to
union-affiliated benefit funds. Various of those funds are respondents here.
Haluch was meeting its obligations under the CBA. Based on the audit, the Funds
demanded additional contributions. Haluch refused to pay, and the Funds filed a
lawsuit in the United States District Court for the District of Massachusetts.
was a violation of the Employee Retirement Income Security Act of 1974 (ERISA)
and the Labor Management Relations Act, 1947. The Funds also sought attorney’s
and auditor’s fees and costs, under §502(g)(2)(D) of ERISA, 94 Stat. 1295, 29
U.S.C. §1132(g)(2)(D) (providing for “reasonable attorney’s fees and costs of
the action, to be paid by the defendant”), and the CBA itself, App. to Pet. for
Cert. 52a (providing that “[a]ny costs, including legal fees, of collecting
payments due these Funds shall be borne by the defaulting Employer”).
submit proposed findings of fact and conclusions of law to allow the court “to
consider both the possibility of enforcing [a] settlement and a decision on the
merits at the same time.” Tr. 50 (Feb. 28, 2011). These submissions were due on
March 14, 2011. The District Court went on to observe that “[u]nder our rules .
. . if there is a judgment for the plaintiffs, typically a motion for attorney’s
fees can be filed” shortly thereafter. Id., at 51. It also noted that,
“[o]n the other hand, attorney’s fees is part of the damages potentially here.”
Ibid. It gave the plaintiffs the option to offer a submission with regard
to fees along with their proposed findings of fact and conclusions of law, or to
“wait to see if I find in your favor and submit the fee petition later on.”
as their proposed findings of fact and conclusions of law, but they later
changed course. They requested an extension of time to file their “request for
reimbursement of attorneys’ fees and costs in the above matter.” Motion to
Extend Time to Submit Request for Attorneys’ Fees in No. 09-cv-11607-MAP (D
Mass.), p. 1. The District Court agreed; and on April 4, the Funds moved “for an
[o]rder awarding the total attorneys’ fees and costs incurred . . . in
attempting to collect this delinquency, in obtaining the audit, in protecting
Plaintiffs’ interests, and in protecting the interests of the participants and
beneficiaries.” App. 72. The motion alleged that “[t]hose fees and costs . . .
amount to $143,600.44,” and stated that “[d]efendants are liable for these
monies pursuant to” ERISA, “and for the reasons detailed in the accompanying”
affidavit. Ibid. The accompanying “affidavit in support of [the]
application for attorneys’ fees and costs,” in turn, cited the parties’
agreements (including the CBA, as well as related trust agreements) and §502(g)
(2)(D) of ERISA. Id., at 74.
the District Court issued a memorandum and order ruling that the Funds were
entitled to certain unpaid contributions, though less than had been requested.
International Union of Operating Engineers, Local 98 Health and Welfare,
Pension and Annuity Funds v. Ray Haluch Gravel Co., 792 F. Supp. 2d
129 (Mass.). A judgment in favor of the Funds in the amount of $26,897.41 was
issued the same day. App. to Pet. for Cert. 39a-40a. The District Court did not
rule on the Funds’ motion for attorney’s fees and costs until July 25, 2011. On
that date it awarded $18,000 in attorney’s fees, plus costs of $16,688.15, for a
total award of $34,688.15. 792 F. Supp. 2d 139, 143. On August 15, 2011, the
Funds appealed from both decisions. Haluch filed a cross-appeal a week later.
from the June 17 decision on the merits. In its view, the June 17 decision was a
final decision under §1291, so that notice of appeal had to be filed within 30
days thereafter, see Fed. Rule App. Proc. 4(a)(1)(A). The Funds disagreed. They
argued that there was no final decision until July 25, when the District Court
rendered a decision on their request for attorney’s fees and costs. In their
view the appeal was timely as to all issues in the case. See Digital
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994).
acknowledged this Court’s holding that an unresolved issue of attorney’s fees
generally does not prevent judgment on the merits from being final. But it held
that this rule does not “mechanically . . . apply to all claims for attorneys’
fees, whatever their genesis,” and that, instead, “[w]here, as here, an
entitlement to attorneys’ fees derives from a contract . . . the critical
question is whether the claim for attorneys’ fees is part of the merits.”
Id., at 6. Interpreting the CBA in this case as “provid[ing] for the
payment of attorneys’ fees as an element of damages in the event of a breach,”
the Court of Appeals held that the June 17 decision was not final. Ibid.
Concluding that the appeal was timely as to all issues, the Court of Appeals
addressed the merits of the dispute with respect to the amount of unpaid
remittances as well as the issue of fees and costs, remanding both aspects of
the case to the District Court. Id., at 11.
in the Courts of Appeals over whether and when an unresolved issue of attorney’s
fees based on a contract prevents a judgment on the merits from being final. 570
U.S. __ (2013). Compare O & G Industries, Inc. v. National
Railroad Passenger Corporation, 537 F. 3d 153, 167, 168, and n. 11 (CA2
2008); United States ex rel. Familian Northwest, Inc. v. RG & B
Contractors, Inc., 21 F. 3d 952, 954-955 (CA9 1994); Continental Bank, N.
A. v. Everett, 964 F. 2d 701, 702-703 (CA7 1992); and First
Nationwide Bank v. Summer House Joint Venture, 902 F. 2d 1197,
1199-1200 (CA5 1990), with Carolina Power & Light Co. v. Dynegy
Marketing & Trade, 415 F. 3d 354, 356 (CA4 2005); Brandon,
Jones, Sandall, Zeide, Kohn, Chalal & Musso, P. A. v. MedPartners,
Inc., 312 F. 3d 1349, 1355 (CA11 2002) [22 Fla. L. Weekly Fed. C1077a]
(per curiam); Gleason v. Norwest Mortgage, Inc., 243 F. 3d
130, 137-138 (CA3 2001); and Justine Realty Co. v. American Nat. Can
Co., 945 F. 2d 1044, 1047-1049 (CA8 1991). For the reasons set forth, the
decision of the Court of Appeals must be reversed.
jurisdiction of appeals from all final decisions of the district courts of the
United States . . . .” “[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” Bowles
v. Russell, 551 U.S. 205, 214 (2007) [20 Fla. L. Weekly Fed.
S352a]. Rule 4 of the Federal Rules of Appellate Procedure provides, as a
general matter and subject to specific qualifications set out in later parts of
the Rule, that in a civil case “the notice of appeal . . . must be filed . . .
within 30 days after entry of the judgment or order appealed from.” Rule
4(a)(1)(A). The parties in this case agree that notice of appeal was not given
within 30 days of the June 17 decision but that it was given within 30 days of
the July 25 decision. The question is whether the June 17 order was a final
decision for purposes of §1291.
the merits and leaves nothing for the court to do but execute the judgment.
Catlin v. United States, 324 U.S. 229, 233 (1945). In Budinich,
this Court addressed the question whether an unresolved issue of attorney’s
fees for the litigation prevents a judgment from being final. 486 U.S., at 202.
There, a District Court in a diversity case had entered a judgment that left
unresolved a motion for attorney’s fees based on a Colorado statute providing
attorney’s fees to prevailing parties in certain cases. Id., at 197. The
Court held that the judgment was final for purposes of §1291 despite the
unresolved issue of attorney’s fees. Id., at 202.
at least, . . . a claim for attorney’s fees is not part of the merits of the
action to which the fees pertain.” Id., at 200. The Court noted that
awards of attorney’s fees do not remedy the injury giving rise to the action,
are often available to the party defending the action, and were regarded at
common law as an element of “costs” awarded to a prevailing party, which are
generally not treated as part of the merits judgment. Ibid. Though the
Court acknowledged that the statutory or decisional law authorizing the fees
might sometimes treat the fees as part of the merits, it held that
considerations of “operational consistency and predictability in the overall
application of §1291” favored a “uniform rule that an unresolved issue of
attorney’s fees for the litigation in question does not prevent judgment on the
merits from being final.” Id., at 202.
both cases, a plaintiff sought to recover employment-related payments. In both
cases, the District Court entered a judgment resolving the claim for unpaid
amounts but left outstanding a request for attorney’s fees incurred in the
course of litigating the case. Despite these similarities, the Funds offer two
arguments to distinguish Budinich. First, they contend that unresolved
claims for attorney’s fees authorized by contract, unlike those authorized by
statute, are not collateral for finality purposes. Second, they argue that the
claim left unresolved as of June 17 included fees incurred prior to the
commencement of formal litigation and that those fees, at least, fall beyond the
scope of the rule announced in Budinich. For the reasons given below, the
Court rejects these arguments.
that a district court decision that does not resolve a fee claim authorized by
contract is not final for purposes of §1291, because it leaves open a claim for
contract damages. They argue that contractual provisions for attorney’s fees or
costs of collection, in contrast to statutory attorney’s fees provisions, are
liquidated-damages provisions intended to remedy the injury giving rise to the
of damages is unpersuasive, for contractual fee provisions often provide
attorney’s fees to prevailing defendants. See 1 R. Rossi, Attorneys’ Fees §9:25,
p. 9-64 (3d ed. 2012); cf. Gleason, supra, at 137, n. 3. The Funds’
argument fails, however, for a more basic reason, which is that the Court in
Budinich rejected the very distinction the Funds now attempt to draw.
announced did not depend on whether the statutory or decisional law authorizing
a particular fee claim treated the fees as part of the merits. 486 U.S., at 201.
The Court acknowledged that not all statutory or decisional law authorizing
attorney’s fees treats those fees as part of “costs” or otherwise not part of
the merits; and the Court even accepted for purposes of argument that the
Colorado statute in that case “ma[de] plain” that the fees it authorized “are to
be part of the merits judgment.” Ibid. But this did not matter. As the
Court explained, the issue of attorney’s fees was still collateral for finality
purposes under §1291. The Court was not then, nor is it now, “inclined to adopt
a disposition that requires the merits or nonmerits status of each attorney’s
fee provision to be clearly established before the time to appeal can be clearly
known.” Id., at 202. There is no reason to depart here from this sound
reasoning. By arguing that a different rule should apply to fee claims
authorized by contract because they are more often a matter of damages and thus
part of the merits, the Funds seek in substance to relitigate an issue already
decided in Budinich.
to depend on whether the entitlement to fees is asserted under a statute, as
distinct from a contract, the operational consistency and predictability
stressed in Budinich would be compromised in many instances. Operational
consistency is not promoted by providing for different jurisdictional effect to
district court decisions that leave unresolved otherwise identical fee claims
based solely on whether the asserted right to fees is based on a contract or a
Although sometimes it may be clear whether and to what extent a fee claim is
contractual rather than statutory in nature, that is not always so. This case
provides an apt illustration. The Funds’ notice of motion itself cited just
ERISA; only by consulting the accompanying affidavit, which included an oblique
reference to the CBA, could it be discerned that a contractual fee claim was
being asserted in that filing. This may explain why the District Court’s July 25
decision cited just ERISA, without mention or analysis of the CBA provision or
any other contractual provision. 792 F. Supp. 2d, at 140.
point is well taken, yet, in the context of distinguishing between different
sources for awards of attorney’s fees, quite inapplicable. The Court was aware
of piecemeal litigation concerns in Budinich, but it still adopted a
uniform rule that an unresolved issue of attorney’s fees for the litigation does
not prevent judgment on the merits from being final. Here it suffices to say
that the Funds’ concern over piecemeal litigation, though starting from a
legitimate principle, is counterbalanced by the interest in determining with
promptness and clarity whether the ruling on the merits will be appealed. This
is especially so because claims for attorney’s fees may be complex and require a
considerable amount of time to resolve. Indeed, in this rather simple case, the
fee-related submissions take up well over 100 pages in the joint appendix. App.
piecemeal approach in the ordinary run of cases where circumstances warrant
delaying the time to appeal. Rule 54(d)(2) provides for motions claiming
attorney’s fees and related nontaxable expenses. Rule 58(e), in turn, provides
that the entry of judgment ordinarily may not be delayed, nor may the time for
appeal be extended, in order to tax costs or award fees. This accords with
Budinich and confirms the general practice of treating fees and costs as
collateral for finality purposes. Having recognized this premise, Rule 58(e)
further provides that if a timely motion for attorney’s fees is made under Rule
54(d)(2), the court may act before a notice of appeal has been filed and become
effective to order that the motion have the same effect as a timely motion under
Rule 59 for purposes of Federal Rule of Appellate Procedure 4(a)(4). This delays
the running of the time to file an appeal until the entry of the order disposing
of the fee motion. Rule 4(a)(4)(A)(iii).
that in their case this procedure would not have been applicable. Brief in
Opposition 34. Rule 54(d)(2) provides that “[a] claim for attorney’s fees and
related nontaxable expenses must be made by motion unless the substantive law
requires those fees to be proved at trial as an element of damages.” The
Advisory Committee Notes to Rule 54(d)(2) state that the procedure outlined in
that Rule “does not . . . apply to fees recoverable as an element of damages, as
when sought under the terms of a contract; such damages typically are to be
claimed in a pleading and may involve issues to be resolved by a jury.” Advisory
Committee’s 1993 Note on subd. (d), par. (2) of Fed. Rule Civ. Proc. 54, 28
U.S.C. App., pp. 240-241.
Committee Notes as a basis for their argument that the June 17 decision was not
final under § 1291. And this is not a case in which the parties attempted to
invoke Rule 58(e) to delay the time to appeal. Regardless of how the Funds’ fee
claims could or should have been litigated, however, the Rules eliminate
concerns over undue piecemeal appeals in the vast range of cases where a claim
for attorney’s fees is made by motion under Rule 54(d)(2). That includes some
cases in which the fees are authorized by contract. See 2 M. Derfner & A.
Wolf, Court Awarded Attorney Fees ¶18.01[c], pp. 18-7 to 18-8 (2013)
(remarking that Rule 54(d)(2) applies “regardless of the statutory, contractual,
or equitable basis of the request for fees,” though noting inapplicability where
attorney’s fees are an element of damages under the substantive law governing
also counsel against making the distinction the Funds suggest for purposes of
finality. Some fee-shifting provisions treat the fees as part of the merits;
some do not. Some are bilateral, authorizing fees either to plaintiffs or
defendants; some are unilateral. Some depend on prevailing party status; some do
not. Some may be unclear on these points. The rule adopted in Budinich
ignores these distinctions in favor of an approach that looks solely to the
character of the issue that remains open after the court has otherwise ruled on
the merits of the case.
claims alike the Funds suggest, nevertheless, that it is unclear whether
Budinich still applies where, as here, auditor’s fees (or other
nonattorney professional fees) are included as an incidental part of a motion
for attorney’s fees and costs. (In this case, auditor’s fees accounted for
$6,537 of the $143,600.44 requested in total.) To the extent the Funds suggest
that similar fees will be claimed alongside attorney’s fees only where a
contractual fee claim is involved, they are incorrect. Statutory fee claims are
not always limited to attorney’s fees per se. Many fee-shifting statutes
authorize courts to award additional litigation expenses, such as expert fees.
See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 89,
n. 4 (1991) (listing statutes); cf. Fed. Rule Civ. Proc. 54(d)(2)(A) (providing
mechanism for claims by motion for “attorney’s fees and related nontaxable
expenses”). Where, as here, those types of fees are claimed and awarded
incidental to attorney’s fees, there is no apparent reason why parties or courts
would find it difficult to tell that Budinich remains applicable.
their motion claimed some $8,561.75 in auditor’s and attorney’s fees (plus some
modest additional expenses) incurred prior to the commencement of litigation.
These included fees for the initial audit to determine whether Haluch was
complying with the CBA, as well as attorney’s fees incurred in attempting to
obtain records from Haluch, researching fund auditing rights, drafting a letter
demanding payment, and working on the initial complaint. Brief for Respondents
4-5; App. 64-67, 81-88. The Funds argue that these fees do not fall within the
scope of Budinich, because the Court in Budinich referred only to
fees “for the litigation in question,” 486 U.S., at 202, or, equivalently,
“attributable to the case,” id., at 203.
is inconsequential. As this Court has observed, “some of the services performed
before a lawsuit is formally commenced by the filing of a complaint are
performed ‘on the litigation.’ ” Webb v. Dyer County Bd. of Ed.,
471 U.S. 234, 243 (1985). “Most obvious examples” include “the drafting of
the initial pleadings and the work associated with the development of the theory
of the case.” Ibid. More generally, pre-filing tasks may be for the
litigation if they are “both useful and of a type ordinarily necessary to
advance the . . . litigation” in question. Ibid.
legal research, drafting of demand letters, and working on the initial complaint
are standard preliminary steps toward litigation. See id., at 250
(Brennan, J., concurring in part and dissenting in part) (“[I]t is settled that
a prevailing party may recover fees for the time spent before the formal
commencement of the litigation on such matters as . . . investigation of the
facts of the case, research on the viability of potential legal claims, [and]
drafting of the complaint and accompanying documents . . . .”); 2 Derfner,
supra, ¶16.02[b], at 16-15 (“[H]ours . . . spent investigating facts
specific to the client’s case should be included in the lodestar, whether [or
not] that time is spent prior to the filing of a complaint”). To be sure, the
situation would differ if a party brought a freestanding contract action
asserting an entitlement to fees incurred in an effort to collect payments that
were not themselves the subject of the litigation. But that is not this case.
Here the unresolved issue left open by the June 17 order was a claim for fees
for the case being resolved on the merits.
* * *
judgment of the Court of Appeals is reversed. The case is remanded for further
proceedings consistent with this opinion.
* * *