This column’s main mantra for appeals is to appeal from any decision, order or judgment which could reasonably be construed as “appealable.”
The reason is simple — you never know when the courts will interpret an apparently nonfinal ruling as “final” for purposes of appeal. The relatively minimal time and money spent filing a protective appeal now could save your client’s claim or defense, and your own frustration, later.
On Jan. 15, in Ray Haluch Gravel Co. v. Central Pension Fund of Intern, Union of Operating Engineers and Participating Employers, 134 S.Ct. 773 (2014), the United States Supreme Court “clarified” the notice of appeal rules for federal cases containing statutory attorneys fee claims. That “clarification,” however, was of no solace to the appellant pension fund, which lost its ability to appeal an adverse decision on the merits.
The pension fund filed one notice of appeal from both a substantive judgment against it under ERISA and a subsequent ERISA attorneys fee award. The notice was filed after the fee award, which occurred more than 30 days (the normal appeal time) after the judgment on the merits.
No one disputed that the notice of appeal was timely (within 30 days) as to the fee award. The Supreme Court, however, resolved a conflict within the federal circuits by ruling that the appeal from the substantive judgment was untimely.
The Supreme Court, in a unanimous decision, reasoned that the pendency of the fee motion did not prevent the underlying judgment from being final for purposes of appeal under 28 U.S.C. Sec. 1291. In so holding, the high court equated statutory attorneys fee awards with contractual fee awards. The court had previously held that unresolved contractual fee awards did not prevent a merits judgment from being final in Bucinich v. Becton Dickinson & Co., 486 U.S. 196 (1988). The court in Ray Haluch extended Bucinich to cover contractual and statutory fee awards.
In other words, a substantive judgment is final, for purposes of a federal appeal, even where the issue of attorneys fees—under either a statute or contract—remains. So, if the pension fund wanted to challenge the underlying substantive award to the plaintiff, it should have filed a notice of appeal as to that ruling within 30 days of the judgment’s entry.
The Supreme Court also held that its ruling covered pre-litigation attorneys fees, and applied even if some aspects of the fee issue involved the case’s merits.
The Supreme Court’s holding technically increases the likelihood of piecemeal appeals, since two appeals – one from the underlying award and a second from a fee award – are required. Nonetheless, legal commentators are hailing Ray Haluch’s bright-line ruling for providing needed certainty to appellate practitioners. The decision, indeed, provides guidance for future appeals.
It does not, however, help the pension fund, whose counsel must have believed he was following the allowable procedure in waiting for the fee award before appealing the underlying ruling. The First Circuit even sided with the pension fund. No reasonable attorney, after all, would purposefully blow an appeal deadline.
But that is exactly the point. Just to be on the safe side, the pension fund could have appealed from the substantive judgment, and then appealed from the attorneys fee award. Had it done so, the door to its challenge to the underlying ruling would not have been slammed in its face.
And, had the fund won its appeal from the judgment, the attorneys fee award would have been correspondingly vacated. Ironically, the First Circuit vacated and remanded the case on the merits. That is, until the Supreme Court accepted certiorari.
It is true that the underlying judgment against the fund in Ray Haluch was for the relatively small sum of $26,897. The judgment against your client, however, could be for much, much more.
So, the mantra continues: Appeal now. Avoid aggravation later.