George Shultz, Secretary of State v. James D. Crowley

SCALIA, Circuit Judge:

The government appeals an order awarding appellees attorney’s fees under § 204 of the Equal Access to Justice Act (“EAJA”), Pub.L. No. 96-481, 94 Stat. 2321, 2325, 2327 (1980), amended by Act of August 5, 1985, Pub.L. No. 99-80, 99 Stat. 183, 184-87 (current version at 28 U.S.C.A. § 2412 (West Supp.1986)). The principal question on appeal is whether this suit was pending on the effective date of the EAJA.

I

In 1974, appellees filed a class action against the Secretary of State, challenging the legality of a State Department employment practice. Plaintiffs requested declaratory, monetary, and injunctive relief, costs including reasonable attorney’s fees, and such further relief as is just and proper. Complaint 23-25. In 1977, the District Court granted partial summary judgment to the class, declaring the challenged practice unlawful and enjoining its continuation. Crowley v. Kissinger, Civil Action No. 74-494 (D.D.C. June 24, 1977) (Memorandum). The parties then stipulated that individual claims would be considered by a Special Master, whose recommendations would be appealable to the District Court. Stipulation of Claim Procedures and Consent Order, Crowley v. Vance, Civil Action No. 74-494 (D.D.C. filed Nov. 1, 1978). On May 22, 1980, the District Court adopted the Special Master’s recommendations as to *500 the entitlement of various class members to monetary relief and his conclusion that class members were eligible for attorney’s fees under the Back Pay Act, 5 U.S.C. § 5596 (b)(l)(A)(ii)(1982). Crowley v. Muskie, 496 F.Supp. 360 (D.D.C.1980). On July 21, 1980, the government filed a notice of appeal from the District Court's decision, but that appeal was later dismissed on the government’s motion. Crowley v. Muskie, No. 80-1849 (D.D.Cir. Sept. 12,1980) (Memorandum). Soon after, appellees filed an application for an award of attorney’s fees and costs. Application for Attorney’s Fees and Expenses, Crowley v. Muskie, Civil Action No. 74-494 (D.D.C. filed Sept. 26, 1980). The District Court eventually granted the application. Crowley v. Haig, Civil Action No. 74-494 (D.D.C. Sept. 15, 1981), amended (D.D.C. Sept. 25, 1981), partial relief granted (D.D.C. Dec. 9, 1981). The government appealed, Crowley v. Haig, Civil Action No. 74-494 (D.D.C. filed Nov. 16 & Dec. 15,1981), and this court reversed the award, holding that appellees were not entitled to attorney’s fees under the Back Pay Act, Crowley v. Shultz, 704 F.2d 1269 (D.C.Cir.1983). Appellees then applied to the District Court for attorney’s fees under the EAJA. Motion for Attorneys Fees and Costs Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d), Crowley v. Shultz, Civil Action No. 74-494 (D.D.C. filed June 13, 1983). The District Court held that appellees were entitled to attorney’s fees, Crowley v. Shultz, Civil Action No. 74-494 (D.D.C. May 16, 1984) (Memorandum), and subsequently fixed the amount of those fees, Crowley v. Shultz, Civil Action No. 74-494 (D.D.C. July 23, 1984) (Memorandum). This appeal followed.

II

The government’s principal argument is that appellees are ineligible for attorney’s fees under the EAJA because their suit was not pending on October 1, 1981, the effective date of the Act. Pub.L. No. 96-481, § 208 , 94 Stat. 2321 , 2330 (1980). The government’s argument is correct if two premises are true. The first is that a suit is not pending within the meaning of the EAJA when it has been finally resolved on the merits and only collateral issues, like the availability or amount of attorney’s fees, remain to be resolved. As appellees concede, this court has already accepted that premise, in Nichols v. Pierce, 740 F.2d 1249 (D.C.Cir.1984), a case decided after the District Court decisions at issue in this appeal. Thus, all that remains is to determine the accuracy of the government’s second premise, i.e., that only collateral issues remained in this case on October 1, 1981.

The last order on the merits in this case was issued on May 22, 1980, when the District Court adopted the conclusions and recommendations of the Special Master regarding the entitlement of various class members to individual monetary relief. Crowley v. Muskie, 496 F.Supp. 360 (D.D. C.1980). Although the government appealed this order, it voluntarily withdrew its appeal on September 12, 1980, over a year before the effective date of the EAJA. Crowley v. Muskie, No. 80-1849 (D.C.Cir. Sept. 12,1980). There has been substantial litigation since then, but it has concerned only attorney’s fees. It would thus appear that Nichols controls this case, and that appellees are not entitled to an award of attorney’s fees. Appellees nevertheless argue that this case was pending on October 1, 1981 within the meaning of the EAJA as interpreted in Nichols , because the District Court’s order of May 22, 1980 left unresolved the amount of the attorney’s fees award to which it held appellees were entitled under the Back Pay Act. Since that order did not dispose of the “whole case,” appellees reason, it was merely “collateral,” and the government could have appealed the merits of the case for sixty days after the date on which the amount of the award was fixed (and thus the “whole case” decided). Since the amount of the award was fixed on September 15, 1981, they conclude that this suit was pending on October 1, 1981, the effective date of the EAJA.

The government did not appeal on the merits, however, instead appealing only the *501 District Court’s attorney’s fees determinations. See Crowley v. Shultz, 704 F.2d 1269 (D.C.Cir.1983). Thus, appellees’ argument rests on the implicit assumption that a case in which an appeal on the merits could have been brought after the effective date of the EAJA was pending on that date even if no appeal on the merits was actually brought. Our decision in Nichols casts substantial doubt on this proposition. See 740 F.2d at 1256 . But cf. Massachusetts Union of Public Housing Tenants v. Pierce, 755 F.2d 177 ,179-80 (D.C.Cir.1985).

Even granting that assumption, however, the appellees’ argument also rests upon another assumption: that the pendency of an unresolved request for attorney’s fees normally affects the appealability of an order finally disposing of the merits of the case. The sole support appellees adduce for this proposition is Crowley v. Shultz, 704 F.2d 1269 (D.C.Cir.1983), our earlier decision in this case. In Crowley, the government, appealing from an order determining the amount of the fee award to which plaintiffs had previously been held to be entitled under the Back Pay Act, sought to challenge not only the amount but also the entitlement. The plaintiffs argued that we lacked jurisdiction to consider the entitlement question, since the government had not brought a separate appeal from the earlier District Court order deciding that issue. We rejected that argument, holding that an order determining that a party is entitled to a fee award but not fixing the amount of the award is properly challenged on an appeal from the later order fixing the size of the amount. Id. at 1271-72. That conclusion simply sheds no light at all on the very different question presented by this appeal, i.e., whether on order finally resolving the merits of a case is properly challenged on appeal from a later order finally resolving pending attorney’s fees issues.

This latter question was once the source of substantial confusion and disagreement among the federal circuits. See, generally Green, From Here to Attorney’s Fees: Certainty, Efficiency, and Fairness in the Journey to the Appellate Courts, 69 Cornell L.Rev. 207, 224-26 (1984) (hereinafter Green, From Here to Attorney’s Fees). This confusion, however, has been greatly reduced by the Supreme Court’s decision in White v. New Hampshire Department of Employment Security, 455 U.S. 445 , 102 S.Ct. 1162 , 71 L.Ed.2d 325 (1982). The precise question posed in White was whether a postjudgment request for attorney’s fees under 42 U.S.C. § 1988 (1982) was a motion to alter or amend the judgment subject to Fed.R. Civ.P. 59(e), which requires that such motions be filed within ten days of the entry of judgment. The Court answered this question in the negative, relying on the following propositions: Rule 59(e) was intended to apply only to requests for reconsideration of “matters properly encompassed in a decision on the merits”; “a request for attorney’s fees under § 1988 raises legal issues collateral to” and “separate from” the decision on the merits — issues that cannot be resolved until after one party has finally prevailed on the merits; and attorney’s fees therefore are distinguishable from other forms of judicial relief. 1 White, 455 U.S. at 451-52 , 102 S.Ct. *502 at 1166-67 . As the White Court itself realized, one necessary consequence of characterizing requests for statutory attorney’s fees as separate from and collateral to judgments on the merits is that the pendency of such requests can have no effect on the finality (and thus the appealability) of a judgment finally disposing of the merits of a case. Id. at 452-53 n. 14, 102 S.Ct. at 1167 n. 14 (“[T]he collateral character of the fee issue establishes that an outstanding fee question does not bar recognition of a merits judgment as ‘final’ and ‘appeal-able.’ ”) (emphasis added) (citing Obin v. District No. 9, International Association of Machinists & Aerospace Workers, 651 F.2d 574, 584 (8th Cir.1981)).

The Supreme Court’s clear signal in White did not go unheeded; with only one exception of which we are aware, 2 every subsequent circuit court decision that has faced the question (even those decided by circuit courts that had reached a different conclusion prior to White) has held that an order finally disposing of the merits of a case is final and appealable notwithstanding the pendency of an unresolved request for statutory attorney’s fees. See, e.g., Crossman v. Maccoccio, 792 F.2d 1, 2-3 (1st Cir.1986) (per curiam); Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir.1986); Art Janpol Volkswagen, Inc. v. Fiat Motors of North America, Inc., 767 F.2d 690, 696-97 (10th Cir.1985); Exchange National Bank v. Daniels, 763 F.2d 286, 292-94 , modified on other grounds, 768 F.2d 140 (7th Cir.1985); Morgan v. Union Metal Manufacturing, 757 F.2d 792, 794-95 (6th Cir.1985); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1471 (10th Cir.), cert. denied, — U.S.-, 106 S.Ct. 77 , 88 L.Ed.2d 63 (1985); EEOC v. Gaddis, 733 F.2d 1373 , 1375-76 (10th Cir.1984); International Association of Bridge Ironworkers v. Madison Industries, 733 F.2d 656, 659 (9th Cir.1984); Bernstein v. Menard, 728 F.2d 252, 253 (4th Cir.1984); West v. Keve, 721 F.2d 91, 95 (3d Cir.1983); Abrams v. Interco Inc., 719 F.2d 23, 26-27 (2d Cir.1983); Smillie v. Park Chemical Co., 710 F.2d 271, 274 (6th Cir.1983); Cox v. Flood, 683 F.2d 330, 331 (10th Cir.1982) (per curiam). 3 Moreover, this circuit has on *503 three occasions indicated its agreement with this rule. See U.S. Industries v. Blake Construction Co., 765 F.2d 195, 203 (D.C.Cir.1985) (dictum); Nichols, 740 F.2d at 1256 (characterizing as final a district court decision that resolved the merits of a case, notwithstanding the pendency of a postjudgment motion for statutory attorney’s fees; unclear whether a holding); Webb v. HHS, 696 F.2d 101, 104-05 (D.C. Cir.1982). 4 The dissent, while conceding that White requires this conclusion as to postjudgment requests for attorney’s fees, nevertheless argues that the Supreme Court’s holding in Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 , 96 S.Ct. 1202 , 47 L.Ed.2d 435 (1976), requires a different conclusion where, as in this case, attorney’s fees are requested in the plaintiff’s complaint. We disagree. In Liberty Mutual, a district court had granted partial summary judgment to plaintiffs on the issue of defendants liability to them, but had not addressed the question of what relief plaintiffs ought to be granted. The district court certified the judgment as final pursuant to Fed. R.Civ.P. 54(b), which authorizes district courts, where appropriate in cases involving multiple claims or parties, to certify as final a judgment that is final as to one or more but not all of the claims or parties involved. Defendants appealed, and the court of appeals affirmed. The Supreme Court, sua sponte, vacated the judgment of the court of appeals and remanded the case with instructions to dismiss for lack of jurisdiction. The Court rested its disposition on the holding that, although plaintiffs had requested a number of different types of relief, they had brought only one claim for relief, and that Rule 54(b) was therefore inapplicable by its terms. Liberty Mutual, 424 U.S. at 742-44 , 96 S.Ct. at 1205-07 . The Court also noted, however, that the district court’s decision was not appealable directly under 28 U.S.C. § 1291 , because it did not finally dispose of all of plaintiffs’ prayers for relief. Id. at 742 , 96 S.Ct. at 1205-06 . In doing so, it listed those prayers, including plaintiffs’ requests for injunctive relief, monetary relief, and attorney’s fees. Id. We see nothing in the Court’s remarks that constitutes even a remote indication (much less a holding) that the district court’s order would not have been appealable under 28 U.S.C. § 1291 had it disposed of all of plaintiffs’ prayers for relief except the prayer for attorney’s fees.

Nor can we discern such an indication in the Supreme Court’s decision in Boeing Co. v. Van Gemert, 444 U.S. 472 , 100 S.Ct. 745 , 62 L.Ed.2d 676 (1980). In that case, the question was whether attorney's fees that were to be assessed against a common fund created by a class action should be assessed against the entire fund or only the claimed portion of the fund. Boeing was appealing a district court order assessing attorney’s fees against the entire fund. In addition to challenging that order, Boeing attempted to argue that the district court had improperly purported finally to determine the extent of Boeing’s liability to the common fund prior to the presentation of individual claims against the fund. The Supreme Court held that Boeing could not properly assert the latter argument, because it had failed to bring a separate appeal from the earlier district court order that had fixed the amount of its liability. Boeing, 444 U.S. 479 -80 n. 5, 100 S.Ct. at 750 n. 5. In noting that that earlier order had been final and appealable notwithstanding the ongoing dispute over attorney’s fees, the Court merely noted that, unlike Liberty Mutual, the case before it did not involve an unresolved prayer for relief against an opposing party. Id.

*504 The dissent appears to believe that this remark was intended to distinguish Liberty Mutual on the basis of when fees were requested, i.e., in the complaint in Liberty Mutual and (apparently) by postjudgment motion in Boeing. It seems far more likely, however, that Boeing was distinguishing Liberty Mutual on the basis of who was to pay the fees, i.e., the common fund created by the plaintiffs in Boeing and the opposing party in Liberty Mutual. The latter distinction, unlike the former, has figured largely in the debate about the appropriate procedural treatment of requests for attorney’s fees. See generally Green, From Here to Attorney’s Fees, 69 Cornell L.Rev. at 282-97. Even if the Boeing Court meant to distinguish Liberty Mutual on the basis of when fees were requested, however, that would indicate neither that the Boeing Court regarded the Liberty Mutual Court to have held that an order leaving a prayer for attorney’s fees unresolved was nonfinal and nonappealable nor that the Boeing Court believed that that would have been the appropriate resolution of the question had it been at issue in Liberty Mutual. At most, it would have indicated a recognition that the question did not need to be decided and a judgment that it was therefore better to pretermit it.

Nor can we agree with the dissent that the rule we apply is inconsistent with the venerable principle that a final judgment must dispose of all requests for monetary relief contained in the complaint. The dissent errs in assuming that requests for statutory attorney’s fees are requests for monetary relief within the meaning of this rule. They are no more so than requests for costs, 5 which, if unresolved, do not prevent a merits judgment from being final, even if (as is frequently the case) they are made in the complaint. Cf. Fed.R.Civ.P. 58. In White , the Supreme Court rested its decision on the fact that “regardless of when attorney’s fees are requested,” 455 U.S. at 451 , 102 S.Ct. at 1166 (emphasis added), are separate from and collateral to the judgment on the merits, and distinguishable from other types of relief.

Thus, the distinction urged by the dissent is not supported by the authorities upon which the dissent relies. Moreover, it is flatly rejected by other substantial authority. In addition to the plain language of White , decisions of at least three circuits hold judgments to be final and appealable even though they did not resolve a request for attorney’s fees contained in the complaint. See, e.g., Ellender v. Schweiker, 781 F.2d at 317 ; Art Janpol Volkswagen, Inc. v. Fiat Motors of North America, Inc., 767 F.2d at 696-97 ; World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d at 1471 ; EEOC v. Gaddis, 733 F.2d at 1375-76 ; Abrams v. Interco Inc., 719 F.2d at 26-27 ; cf., e.g., Exchange National Bank v. Daniels, 763 F.2d at 292-94 (unclear whether request was made in the complaint); Bernstein v. Menard, 728 F.2d at 253 (categorically stating that pending attorney’s fees issues do not render a judgment on the merits nonfinal).

Finally, the distinction urged by the dissent has no basis in logic or policy. Whatever the arguments for and against the rule that the pendency of a request for statutory attorney’s fees does not affect the finality of a judgment disposing of the merits of a suit, compare White, 455 U.S. at 452-54 , 102 S.Ct. at 1166-68 , with Green, From Here to Attorney’s Fees, 69 Cornell L.Rev. 207 (arguing that White was wrongly decided), the dissent concedes (as it must) that the Supreme Court has authoritatively resolved that debate, at least as to postjudgment motions for statutory attorney’s fees. Thus, the question is whether, given that resolution, there is any reason to accord different treatment to requests for statutory attorney’s fees made in the complaint. We can think of none, and, apart from the argument that precedent requires such treat *505 ment — which we have already rejected— neither the dissent nor the Sixth Circuit in Penland has suggested any. Moreover, the approach proposed by the dissent would be certain to create uncertainty and to trigger litigation on at least two fronts: on the appropriate treatment of requests for statutory attorney’s fees made neither in the complaint nor by postjudgment motion (how, for example, would prejudgment motions and motions for interim attorney’s fees be treated?); and on the specificity with which fees would have to be requested in the complaint in order to fall within the dissent’s rule (for example, would the ubiquitous request for “such other relief as would be just and proper” — a request made by the plaintiffs both in this case and in White — suffice?).

We think that here, as elsewhere where a rule fixing the jurisdiction of the courts is at issue, clarity and simplicity are the chief virtues. The principles determining whether a judgment is final are already more than complex enough to bedevil both the attorneys who must follow them and the judges who must apply them, see, e.g., Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 , 70 S.Ct. 322, 324 , 94 L.Ed. 299 (1950); Pabellon v. Grace Line, 191 F.2d 169, 179-81 (2d Cir.) (Frank, J., concurring), cert. denied, 342 U.S. 893 , 72 S.Ct. 201 , 96 L.Ed. 669 (1951). We decline the dissent’s invitation to complicate them further.

Ill

For these reasons, we hold that a judgment finally disposing of the merits of a suit is final and appealable notwithstanding the pendency of a request for statutory attorney’s fees, whether the pending request was made in the complaint, by prejudgment motion, or by postjudgment motion. Applying this holding to the facts of this case, we conclude that the district court order of May 22, 1980, which finally disposed of the merits of this suit, was immediately final and appealable, notwithstanding the absence of any final disposition of appellees’ request for attorney’s fees. As of the effective date of the EAJA, October 1, 1981, no appeal of that order was pending and the time to bring such an appeal had long passed. See Nichols, 740 F.2d at 1256 . This suit was therefore not pending on that date within the meaning of the EAJA, and appellees are not entitled to an award of attorney’s fees under that Act. In virtue of this disposition, we need not reach the other issues raised by the parties.

* * * * * *

The order of the District Court awarding attorney’s fees to appellees is reversed.

So ordered.

. Although the White Court had before it only a request for fees brought under 42 U.S.C. § 1988 , its reasoning applies with full force to fee requests brought under the many similar statutory provisions authorizing courts to award attorney's fees to prevailing parties in appropriate circumstances — like the Back Pay Act, see 5 U.S.C. §§ 5596 (b)(1 )(A)(ii), 7701(g)(1) (1982), which is the provision at issue in this case. Subsequent cases have uniformly interpreted White to be fully applicable to such statutes, see infra pages 504-05, and we agree with this interpretation. We do note, however, that a number of courts have expressed the view that White is not directly applicable to requests for attorney’s fees predicated upon nonstatutory sources of authority, e.g., contractual agreements, which are thought to raise issues not raised by statutory fee requests. See, e.g., F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1563-64 (2d Cir.1985) (per curiam); Bank South Leasing, Inc. v. Williams, 769 F.2d 1497, 1499-1500 (11th Cir.1985) (per curiam). But see, e.g., Exchange National Bank v. Daniels, 763 F.2d 286, 292-94 , modified on other grounds, 768 F.2d 140 (7th Cir.1985). See generally Green, From Here to Attorney’s Fees, 69 Cornell L.Rev. at 278-301. We limit our *502 discussion and holding to the issues raised by requests for statutory attorney’s fees.

. The exception is Penland v. Warren County Jail, 759 F.2d 524 (6th Cir.1985) (en banc). Pen-land was a suit by a prisoner challenging the conditions of his incarceration and seeking declaratory and injunctive relief and attorney’s fees. The parties agreed to try the case before a magistrate, with appeal as of right to the district court. After trial, the magistrate granted some of the relief the plaintiff had requested but denied the rest, including attorney’s fees. Within ten days after judgment, the plaintiff filed a motion to amend the judgment, asking the magistrate to reconsider his denial of the request for attorney’s fees. The magistrate eventually granted the motion and awarded fees. Ten days thereafter, but over four months after entry of judgment, the plaintiff filed a notice of appeal to the district court, seeking reversal of the magistrate’s partial denial of his request for declaratory and injunctive relief. The district court took jurisdiction of the appeal and affirmed the magistrate in all respects. On appeal, the Sixth Circuit, sitting en banc, sua sponte raised the question whether the plaintiffs appeal to the district court had been untimely, since over four months had elapsed between entry of judgment on the merits and the plaintiffs filing of an appeal on the merits.

The Penland court acknowledged that White , as well as Smillie v. Park Chemical Co., 710 F.2d 271, 274 (6th Cir.1983), decided after White , had held that a postjudgment motion for attorney’s fees was not a motion to amend the judgment and thus did not toll the time within which an appeal could be brought. Nevertheless, it distinguished White and Smillie on the grounds that the plaintiffs in those cases had requested fees by postjudgment motion, while the plaintiff in Penland had requested them in the complaint; and that White and Smillie had not involved a motion to amend a judgment that had expressly denied a prior request for attorney’s fees. Without making any effort to explain why these factual differences justified a difference in result, the Penland court held that the unresolved motion to amend the judgment to provide for attorney’s fees had tolled the time within which an appeal on the merits could be filed. As we discuss below, we reject this approach.

. In World of Sleep and Gaddis, the Tenth Circuit declined to apply its holdings retroactively in light of the fact that prior to White it had operated under the clearly established rule that an unresolved request for statutory attorney’s fees rendered a judgment finally resolving the merits of a case nonfinal and nonappealable. 756 F.2d at 1471 ; 733 F.2d at 1376 . See, e.g., Black Gold, Ltd. v. Rockwool Industries, 666 *503 F.2d 1308, 1309 (10th Cir.1981) (per curiam); Gurule v. Wilson, 635 F.2d 782, 786-88 (10th Cir.1980). For similar reasons, the Third Circuit adopted the same approach in West. 721 F.2d at 95 . This Circuit has never had such a rule, and we see — and appellees have suggested — no barrier to applying our holding to the present case.

. Webb declined to apply its holding to the case before it, however, concluding that the case presented "unique circumstances” justifying forbearance. Id. at 105-06 . No such "unique circumstances” are present in this case.

. By saying this we do not intend to imply any view on the ongoing dispute over whether requests for statutory attorney’s fees are in fact always properly treated as requests for costs for purposes of Fed.R.Civ.P. 54(d), 58. See White, 455 U.S. at 454 -55 n. 17, 102 S.Ct. at 1168 n. 17. See generally Green, From Here to Attorney’s Fees, 69 Cornell L.Rev. at 259-68.