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Appeal Case Analysis

By: dmc-admin//February 18, 2004//

Appeal Case Analysis

By: dmc-admin//February 18, 2004//

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In the wake of this decision, a question arises how much, if any, of the holding in Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984), remains valid law.

In that case, Bittner was an employee of Sadoff & Rudoy. Bittner’s son became mentally disabled, and received benefits pursuant to an ERISA plan. The benefits were terminated, however, and Sadoff invited Bittner to file a “friendly lawsuit” to establish coverage.

Instead, Bittner sued for benefits and punitive damages, as well. Sadoff fired Bittner, and Bittner brought a second action, for retaliation in violation of ERISA.

The district court dismissed the suit, and held Sadoff was entitled to attorney’s fees. The amount was not set, but Bittner appealed.

The court acknowledged it may have to subsequently decide whether the amount of fees is proper, but nonetheless addressed whether Sadoff was entitled to fees. Id. 728 F.2d at 826.

The court stated, “The judgment dismissing the complaint is properly before us, independently of the attorney fee award. … We might as well decide at the same time what are likely to be the dispositive issues relating to the award of attorney’s fees.” Id.

The court added, “There would be no net judicial economy, but if anything a net diseconomy, if we held that we could not consider the merits of the fee order until the amount of fees to be awarded is fixed.” Id.

In the 20 years since Bittner was decided, it has not fared well. The court declined to exercise jurisdiction over a decision regarding attorney’s fees when they were not fixed in Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d 123 (7th Cir.1997).

In that case, the court acknowledged Bittner “has not played to universal acclaim,” citing decisions from other circuits declining to follow Bittner, but stated, “[Bittner] represents the law of this court still.” Cleveland Hair Clinic, Inc., 104 F.3d at 125.

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7th Circuit Court of Appeals

Related Article

Fees must be set before review

Admittedly, there are factual differences between Bittner and the case at bar. Also, in the case at bar, the court found judicial economy would not be served by hearing the appeal.

Nevertheless, the absence of any citation to Bittner, even if merely to distinguish it, as the court did in Cleveland Hair Clinic, suggests the decision may have fallen even more out of favor in recent years.

Furthermore, the court could have decided the case solely on the basis that it could not tell whether the district court considered the plaintiffs to be prevailing parties.

Yet, it went on to specifically hold that there are two reasons why it lacked jurisdiction — one being that fees must be quantified before the decision whether to award them can be reviewed.

Effectively, Bittner can probably be considered limited to its facts, if not overruled sub silentio.

– David Ziemer

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David Ziemer can be reached by email.

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