West v. Keve

721 F.2d 91, 37 Fed. R. Serv. 2d 1258
CourtCourt of Appeals for the Third Circuit
DecidedNovember 9, 1983
DocketNo. 83-1085
StatusPublished
Cited by120 cases

This text of 721 F.2d 91 (West v. Keve) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West v. Keve, 721 F.2d 91, 37 Fed. R. Serv. 2d 1258 (3d Cir. 1983).

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal presents two questions. First, whether a party dissatisfied with the disposition of the cause on the merits in a federal civil rights suit must appeal after the resolution of the case in chief or may wait until the determination of the attorney’s fee award. Second, whether the district court has properly used Rule 60(b), Federal Rules of Civil Procedure, to reinstate a previously issued final judgment solely for the purpose of giving appellant an extension of time within which to file a timely notice of appeal, when such an extension would be barred by Rule 4(a), F.R. A.P.

I.

The procedural posture of this case is uncomplicated. Appellant, a Delaware prison inmate who was represented by counsel, sued state prison officials in federal court under a federal civil rights statute. A final decision on the merits was rendered by the district court and reduced to judgment on June 11,1982, 541 F.Supp. 534. On June 21, appellant moved for an award of attorney’s fees and, by October 13,1982, entered into a stipulation with defendants as to the amount. The district court has never formally endorsed this stipulation.1

Plaintiff became concerned that the time to appeal the June 11, 1982 decision on the merits may have run, and filed a Rule 60(b) motion2 in the district court on December 7, 1982 for the purpose of establishing a new final judgment date to allow for a timely appeal.3 The district court granted [93]*93the motion, purporting to vacate the June 11 order and then reinstated it immediately as a January 6, 1983 final judgment. It entered no order in the motion for attorneys’ fees, simply noting that it had been withdrawn.4 The notice of appeal was filed February 2, 1983.

II.

Although represented by counsel both at trial and on appeal, appellant failed to file a notice of appeal within 30 days of the June 11, 1982 judgment. He was of the view that the June 11 order was not final, and therefore not appealable, under Croker v. The Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir.1981) (in banc). Croker held that whenever there was a request for attorney’s fees following a decision on the merits, so long as even the amount of the award remained unresolved, there was no final, appealable order in the case. Id. at 983. Thus, where an attorney’s fee motion followed a judgment on the merits, that judgment could be appealed only after proper resolution of the fee petition. Subsequent to Croker the Supreme Court, in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), decided that attorney’s fee petitions were actions collateral to the case in chief and not Rule 59, F.R.Civ.P., motions to alter or amend the judgment. Thus, according to the Court, an otherwise final decision on the merits of a case is an appealable order even though an attorney’s fee petition may be filed subsequently. This ruling, as recognized in Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 644 (3d Cir.1982) (Opinion sur Petition For Rehearing), sufficiently undercut the decisional basis of Croker so that the

Croker rule no longer has any vitality, [and] litigants in this circuit should rely on our previous holdings [citing cases] that orders disposing finally of the merits are appealable even though the questions relating to attorney’s fees have been left undetermined.

Id.

Although White, as illuminated by Hald-erman, establishes that an appeal may be lodged after final judgment on the merits, and prior to adjudication on an attorney’s fee petition, the question remains whether the appeal from the decision on the merits must be lodged within the requisite time period following entry of judgment thereon.

A.

This court is no stranger to the agony of deciding when the appeal should be filed. In a struggle to accommodate competing considerations, we decided as early as 1976 that reserving the determination of costs and attorney’s fees did not affect the finality of the merits judgment for the purposes of a final appeal under 28 U.S.C. § 1291. Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n. 2 (3d Cir.1976). In 1980 we reiterated this rule in DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1138 n. 3 (3d Cir.1980). But by 1981, we decided that the full court should examine the problem, and in Croker v. The Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir.1981) (in banc), we announced a preference [94]*94for a unitary rule; we decided that where attorney’s fees had to be adjudicated, there was no finality to the earlier judgment on the merits and that only a decision on the attorney’s fee triggered the finality requirements of 28 U.S.C. § 1291. As we have noted, a year later the Supreme Court in White thought otherwise, as we explained in Halderman.

It is not necessary to detail myriad aspects of troublesome finality-of-judgment problems that affect both judges and litigants in the circumstances presented here. We do not exaggerate when we observe that today no specific guidance appears; that the careful appellate advocate will file two appeals in each case where attorney fee adjudication is implicated — one after the merits judgment and one after the resolution of the attorney’s fee dispute. We have decided to “bite the bullet.” We now decide the issue with no little reluctance, in full recognition that reasonable arguments could support a different conclusion.

B.

We are alerted to what the Supreme Court, speaking through Justice Jackson, stated on a kindred issue of finality:

Half a century ago this Court lamented, “Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees.. .. The cases, it must be conceded, are not altogether harmonious.” McGourkey v. Toledo & Ohio Cent. R. Co., 146 U.S. 536, 544-45 [13 S.Ct. 170, 172, 36 L.Ed. 1079]. This lamentation is equally fitting to describe the intervening struggle of the courts; sometimes to devise a formula that will encompass all situations and at other times to take hardship cases out from under the rigidity of previous declarations; sometimes choosing one and sometimes another of the considerations that always compete in the question of appealability, the most important of which are the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.

Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950).

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721 F.2d 91, 37 Fed. R. Serv. 2d 1258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-keve-ca3-1983.