Pending Attorney’s Fees Claim Does Not Prevent Order From Being Final

Under 28 U.S.C. § 1291, federal appellate courts have jurisdiction over appeals from “final decisions.” Until recently, the Eleventh Circuit did not consider decisions “final” if certain claims for attorney’s fees remained pending. A claim for fees “pursuant to a contractual clause” was “substantive,” and an order leaving such a claim unresolved was not final. Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1355 (11th Cir. 2002) (citing Ierna v. Arthur Murray Int’l, Inc., 833 F.2d 1472, 1476 (11th Cir. 1987)). But the pendency of other claims for attorney’s fees, such as those pursuant to a fee-shifting statute, did not prevent an order from being final. See, e.g., Gonzales v. Rivkind, 858 F.2d 657, 659-60 (11th Cir. 1988) (holding judgment final and appealable despite pending claims for attorney’s fees under Equal Access to Justice Act).

Earlier this year, the United States Supreme Court decided Ray Haluch Gravel Co. v. Central Pension Fund of International Union of Operating Engineers, __ U.S. __, 134 S. Ct. 773 (2014). Resolving a circuit split, the Court held that an outstanding claim for attorney’s fees under a contract did not prevent an order from being final. Thus, the rule is the same whether a pending fees claim is contractual, statutory, or other: it does not prevent an order from being final and appealable. In a decision filed September 5, the Eleventh Circuit acknowledged that Ray Haluch Gravel abrogated the distinction between different types of fee claims for purposes of finality. Pandita Charm-Joy Seaman v. John Kennedy Peterson, No. 11-10243.

The rule of Ray Haluch Gravel requires appellants to be vigilant. Orders that withhold decision on attorney’s fees claims do not always look very final. In Seaman, for example, the district court’s order “deferred entry of a separate final judgment pending an assessment of Seaman’s ‘fees and expenses.’” Slip op. at 3. Nonetheless, this order was a “final decision” under 28 U.S.C. § 1291, and the appellant properly appealed it by filing a notice of appeal five days later. Id. If the appellant had waited until after the district court’s “separate final judgment” to file a notice of appeal, the appeal would have been dismissed as untimely.