Petties, Nikita S. v. DC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2000 Decided October 6, 2000

No. 99-7228

Nikita Shonta Petties, et al.,

Appellees

v.

District of Columbia, et al.,

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 95cv00148)

Lutz Alexander Prager, Assistant Deputy Corporation

Counsel, argued the cause for appellants. With him on the

briefs were Robert R. Rigsby, Corporation Counsel, and

Charles L. Reischel, Deputy Corporation Counsel.

James L. Feldesman argued the cause for appellees. With

him on the brief was Tanya A. Harvey. Jennifer P. Rosen-

berg entered an appearance.

Before: Edwards, Chief Judge, Ginsburg, and Tatel,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: The district court issued interim

awards of attorneys' fees to plaintiffs in this ongoing class

action suit against the District of Columbia for failing to

comply with the Individuals with Disabilities Education Act

(IDEA). Pursuant to Federal Rule of Civil Procedure 54(b),

the district court certified two of those interim awards for

immediate appeal. We conclude that this court lacks jurisdic-

tion to review the awards for want of either a final or a

collateral order.

I. Background

The plaintiff children instituted a class action against the

District of Columbia in January, 1995, stating a cause of

action under 42 U.S.C. s 1983 based upon the District's

noncompliance with the IDEA, 20 U.S.C. ss 1400 et seq. In

March, 1995 the district court preliminarily enjoined the

District to fund private school placements that would meet

the special educational needs of the plaintiffs. In July, 1995

the plaintiffs amended their complaint to allege continuing

violations by the District.

Between April and September 1995 the district court issued

a series of injunctions and contempt orders in an effort to

bring the District into compliance with the IDEA. See

Petties v. District of Columbia, 897 F. Supp. 626, 627-28

(D.D.C. 1995). In June, 1995 the plaintiffs, in order to

finance this continuing litigation, began filing quarterly mo-

tions for attorneys' fees. Their first 14 such motions, which

the District did not oppose, were based upon the provision for

attorneys' fees in the IDEA.

In October, 1998 the Congress passed the D.C. Appropria-

tions Act of 1999, s 130 of which limited the attorneys' fees

the District could pay (per hour and per case) under the

IDEA in Fiscal Year 1999. The District then sought to

vacate the order granting the plaintiffs' fourteenth motion for

attorneys' fees, and contested the plaintiffs' fifteenth and

sixteenth such motions, maintaining that the district court

may not award fees in excess of the amounts specified in the

Appropriations Act. The plaintiffs responded that they are

entitled to recover reasonable attorneys' fees pursuant to 42

U.S.C. s 1983 and the Rehabilitation Act of 1973, 29 U.S.C.

s 794, rather than the IDEA.

The district court agreed. The court reasoned that the

plaintiffs' case must have been brought under s 1983, as

stated in the amended complaint, because the suit could not

have been brought under the IDEA; the "plaintiffs were not

aggrieved by decisions that were made .... by the hearing

officers" under the IDEA, but by the District's failure to

discharge its already-adjudicated obligations. Recognizing

the urgency to the parties of the attorneys' fee issue, the

district court opined that "if either side wants to go to the

Court of Appeals, th[en] they ought to be able to do it sooner

rather than later." Pursuant to Rule 54(b), therefore, the

court gave "an express direction for the entry of judgment"

on plaintiffs' fifteenth and sixteenth motions for attorneys'

fees and made an "express determination that there is no just

reason for delay."

The District of Columbia appealed that judgment (No.

99-7228) and separately appealed from the following orders

concerning the fourteenth, fifteenth, and sixteenth motions

for attorneys' fees: the initial orders to pay the awards (No.

99-7109); the order lifting the stay of the District's obli-

gations to pay portions of the awards not in dispute (No.

99-7194); and the order certifying the fifteenth and sixteenth

awards for interlocutory appeal pursuant to 28 U.S.C.

s 1292(b) (No. 99-8004). A motions panel of this court

denied leave to pursue the interlocutory appeal (No. 99-8004)

and dismissed the two appeals (Nos. 99-7109 and 99-7194)

that the district court had not certified under Rule 54(b),

holding that the fourteenth, fifteenth, and sixteenth orders to

pay attorneys' fees "are not final nor do they fall within the

collateral order doctrine, see Coopers & Lybrand v. Livesay,

437 US 463, 468 (1978), because they will be reviewable upon

entry of a final judgment." Petties v. District of Columbia,

1999 U.S. App. LEXIS 34733, at *2. At the same time the

panel directed the parties to brief the question whether this

appeal (No. 99-7228) was properly certified under Rule 54(b).

II. Analysis

Rule 54(b) authorizes the district court to "direct the entry

of a final judgment as to one or more but fewer than all of the

claims [in an action] ... upon an express determination that

there is no just reason for delay." The rule thus permits the

district court to "function[ ] as a 'dispatcher,' determining in

its sound discretion when a claim should proceed on to

appellate resolution and when it should await its fellows."

Taylor v. FDIC, 132 F.3d 753, 760 (D.C. Cir. 1997).

At the same time, the rule "does not relax the finality

required of each decision, as an individual claim, to render it

appealable"; it simply permits the appeal of a claim as to

which the district court has reached a final judgment while

other claims remain to be resolved in the district court.

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956). In

other words, the district court "cannot, in the exercise of its

discretion, treat as 'final' that which is not 'final' within the

meaning of [28 U.S.C.] s 1291." Id. at 437 (emphasis delet-

ed). Nor can this court, notwithstanding the district court's

certification per Rule 54(b), properly review "a judgment that

is not final by ordinary standards." Taylor, 132 F.3d at 760

n.2.

The Supreme Court has recognized but a single variation

on the theme of finality, namely, the collateral order doctrine.

To qualify, an "order must [1] conclusively determine the

disputed question, [2] resolve an important issue completely

separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment." Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

A motions panel of this court has already determined,

however, that the fifteenth and sixteenth orders at issue in

this case "are not final nor do they fall within the collateral

order doctrine, see Coopers & Lybrand v. Livesay, 437 U.S.

463, 468 (1978), because they will be reviewable upon entry of

a final judgment." Petties, 1999 U.S. App. LEXIS 34733, at

*2. Does it matter that this particular appeal has been

certified by the district court under Rule 54(b)? That is the

question the motions panel put to the parties, and we now

answer it in the negative. Indeed, the prior panel's own

decision dooms this appeal. Under this court's practice, a

decision of the motions panel is the law of the case; a later

panel considering the merits is bound by that law. See

Taylor, 132 F.3d at 761. Because the motions panel has

determined that the interim awards of attorneys' fees will be

reviewable when the district court enters a final judgment in

this case, we are bound to conclude that the court lacks

jurisdiction over this appeal.

The District agrees with our account of Circuit practice but

nonetheless argues, along with the plaintiffs, that we should

revisit the decision of the motions panel and assert jurisdic-

tion. While neither party claims the orders under review

have the requisite finality, both parties attempt to show they

will suffer irreparable injury so as to warrant interlocutory

appeal.

For its part, the District argues that the orders harm it

irreparably by frustrating the intent of the Congress that the

District's liability for attorneys' fees be capped as provided in

s 130 of the Appropriations Act; by depriving District stu-

dents, insofar as attorneys' fees exceed the caps, of monies

appropriated for their use; and by diverting funds from their

intended purpose, in violation of the Appropriations Clause,

art. I, s 9, cl. 7 of the Constitution of the United States. To

the extent these arguments take issue with the prior determi-

nation of the motions panel, they are foreclosed. To the

extent they suggest that the Rule 54(b) certification alters our

jurisdictional inquiry under s 1291, they are misconceived.

The cases the District itself cites emphatically confirm this.

See Estate of Drayton v. Nelson, 53 F.3d 165, 167 (7th Cir.

1994) ("Rule 54(b) cannot be used to make the award appeal-

able"); People Who Care v. Rockford Bd. of Educ. Dist. No.

205, 921 F.2d 132, 134 (7th Cir. 1991) ("Rule 54(b) allows the

entry of judgment only with respect to the final disposition of

a claim for relief"); Shipes v. Trinity Industries, Inc., 883

F.2d 339, 342 (5th Cir. 1989) ("Rule 54(b) ... relaxes only the

'judicial unit' aspect of finality principles and otherwise oper-

ates within the constraints of statutory finality"). The plain-

tiffs' arguments fare no better. The precedents cited above

utterly refute their central argument, namely, that Rule 54(b)

certification distinguishes this appeal from those the motions

panel dismissed.

Plaintiffs also argue that even if the collateral order doc-

trine does not apply here, "orders compelling the immediate

transfer of property may be appealable where irreparable

harm will result." In support of this proposition they cite

Forgay v. Conrad, 47 U.S. 201 (1848), in which the Supreme

Court held that an interlocutory appeal may be taken when

an interim order would immediately transfer a party's proper-

ty; they further point to a more recent dictum of the Seventh

Circuit to the effect that an interim award of attorneys' fees

might present a situation like that in Forgay because there

are "chancy prospects of recoupment at the end." People

Who Care, 921 F.2d at 135. While we are not at all sure that

Forgay has continuing vitality apart from the collateral order

doctrine, it is obvious in any event that plaintiffs' showing

falls short of the mark this court has established. See

National Association of Criminal Defense Lawyers, Inc. v.

U.S. Dept. of Justice, 182 F.3d 981, 985 (1999) (irreparable

injury can be shown only where the party awarded fees "will

likely be unable to repay the fees if the award is later

reduced or overturned"). Plaintiffs say they "cannot guaran-

tee to the Court that [plaintiffs'] counsel will not become

judgment proof by the time the litigation is concluded." Of

course, there are precious few guarantees in life and virtually

none when it comes to financial affairs; merely acknowl-

edging this undeniable possibility, however, falls far short of

showing it "will likely" come to pass. On plaintiffs' rationale,

interim awards would be appealable as a matter of course.

That clearly is not the law of this court, much less of this

case.

The plaintiffs advert to the "numerous and complex tax and

accounting dilemmas" they must confront if this court does

not promptly and definitively resolve the propriety of the

attorneys' fees awarded them. The uncertainty surrounding

their right to attorneys' fees in the amounts awarded does

indeed create formidable practical difficulties for them, to

which this court is not unsympathetic. The district court is

free to consider any proposals counsel may make for easing

their predicament. These might include placing interim

awards partially in escrow with the district court until this

litigation is concluded, but they do not include expanding our

appellate jurisdiction beyond the final and collateral orders

that this court is authorized to review.

III. Conclusion

For the foregoing reasons we conclude that the court lacks

jurisdiction over this appeal, which is, therefore,

Dismissed.