Petition for Writ of Certiorari — Carruthers v. Duran

87-1325

No. 87-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

GARREY CARRUTHERS, Governor ;

HAL STRATTON, Attorney General;

O. LANE MCCOTTER, Secretary of Corrections;

ROBERT TANSEY, Warden, PNM,

Petitioners,

v.

DWIGHT DURAN #26571, LONNIE DURAN =26293,

SHARON TOWERS, and all others similarly situated ;

JAMES C, GIBSON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PAUL M. SMITH * HAL STRATTON

DAvID A. BONO Attorney General

ONEK, KLEIN & FARR JAMES BROWNING

2550 M Street, N.W. Deputy Attorney General

Washington, D.C. 20037 P.O. Drawer 1508

(202) 775-0184 Santa Fe, NM 87504

(505) 827-6000

* Counse! of Record Counsel for Petitioners

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether an order awarding attorneys’ fees pursuant

to 42 U.S.C. $1988 for post-judgment monitoring and

enforcement of an injunctive decree during a_ specified

time period is shielded from an immediate appeal on the

ground that other fee petitions, covering entirely separate

time periods, are pending in the district court and are

iikely to be filed in the future.

(i)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........

OPINIONS BELOW

JURISDICTION ....

STATUTORY PROVISIONS

STATEMENT

ARGUMENT

I. The Decision Below Is Plainly Incorrect

Il. Absent Review, Petitioners Will Be Left With

No Procedure for ‘nhallenging Post-Judgment

Fee Awards That They Believe are Excessive

or Otherwise Unjustified

CONCLUSION

(iil)

Page

16

iv

TABLE OF AUTHORITIES

Cases: Page

Adams v. Mathis, 752 F.2d 553 (11th Cir. 1985) _.. 7

Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986) .. 7

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

| Re, | aR eect LIE, AR See as SRN y 8, 15

Coopers & Lybrand v. Livesay, 437 U.S. 4163

PURE cca cae. Be On Le eee wt 5, 8-9, 10

Delaware Valley Citizens’ Council for Clean Air v.

Pennsylvania, 762 F.2d 272 (3d Cir. 1984), aff’d

in part and rev'd in part, 106 S.Ct. 3088 (1986),

ff Se 8 eh oe - Tb. de 7,8

Duran v. Anaya, 642 F.Supp. 510 (D. N.M. 1986) . 2

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

Ds) |, emer a Epa Dace GEER DER ME RES AT ERNIE 7,10

Flanagan v. United States, 465 U.S. 259 (1984)...... 10

Fox v. Capital Co., 299 U.S. 105 (1936) ................... 10

Gillespie v. United States Steel Corp., 379 U.S. 148

8} RNR neetvatas ieee BE ee Accs 2 a ARN ahaa ht: 9

Haitian Refugee Center v. Meese, 791 F.2d 1489

pe eA NE ii cinta A ie ORE 12

Hillery v. Rushen, 702 F.2d 848 (9th Cir. 1983)

SE I hss valindic eda ig dsc betanarealascigaeon 12

In re Callister, 673 > F.2d 305 (10th Cir. 1982) .....5, 10, 12

In re Farmers’ Loan & Trust Co., 129 U.S. 206

FRM te een ee Ae A eA: 1 a EN. a TON 11

Joseph F. Hughes & Co. v. United Plumbing &

Heating, Inc., 390 F.2d 629 (6th Cir. 1968)... 13

Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987) _.......... 6, 7,8

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. -737

PRIN = acca eternal uceakaccesumm subsea raatemcaxtoac mine rees 7

Miller v. Carson, 628 F.2d 346 (Sth Cir. 1980) 7

Moses H. Cone Memorial Hosp. v. Mercury Constr.

Care. S60 Uo. 6 (ieee ........................... 56-3)

Northeross v. Board of Edue., 611 F.2d 621 (6th

Cir. 1979), cert. denied, 417 U.S. 911 (1980) ___.. 7

Palmer v. City of Chicago, 806 F.2d 1316 (7th Cir.

1986), cert. denied, 107 S.Ct. 2180 (1987) 12, 13, 15

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 106 S.Ct. 3088 (1986) Ripe 8

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 107 S.Ct. 3078 (1987) -....... ees 8

Plymouth Mut. Life Ins. Co. v. Minois 8 -Mia-

Continent Life Ins. Co., 378 F.2d 389 (5d Cir.

1967) ; JRE ANN A ke py Se CE OLED 13

Richardson-Merrel, Inc. v. Koller, 472 U.S. 424

(1985) | Pes wet 10

Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980) _....... 12

Trustees v. Greenough, 105 U.S. 527 (1881) 11

Turner v. Orr, 785 F.2d 1498 (11th Cir. 1986) —.... 7

United States v. Ryan, 402 U.S. 530 (1971) -_.. 15

United States v. Washington, 761 F.2d 1404 (9th

Cir. 1985), cert. denied, 174 U.S. 1100 (1986) 13

White v. New Hampshire Dep’t of Employment

Sec., 455 U.S. 445 (1982) a 9

Willie M. v. Hunt, 732 F.2d 383 (4th Cir. 1984) -..... 7

Yakowicz v. Commonwealth of Pennsylvania, 683

F.2d 778 (3d Cir. 1962) ..............-. GARORS FIPS AEN 12

Statutes

, Bte vote Gt” See aann Nl emanate eben e No SEEN 15 2

28 U.S.C. § 1291 ..... cone sas __.._ passim

7 2th Toa SRS aeROANR MR Abani MN es Ieee AYE Se 3,9

Fed. R. App. P. 4 (a) - spiatasasenaas! sapvaieBacpbesonexne 14

Fed. R. Civ. P. 54 (a)........ PRI PREIS Ph REET A 9

Other Authorities

9 J. Moore, W. Taggart & J. Wicker, Moore’s Fed-

eral Practice § 110.14 [1] (2d ed. 1987 10

15 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure §& 3916 (1976) _................. i Pe

Green, From Here To Attorney's Fees: Certainty,

Efficiency, and Fairness in the Journey to the

Appellate Court, 69 Corn. L. Rev. 207 (1984) 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

GARREY CARRUTHERS, Governor;

HAL STRATTON, Attorney General;

O. LANE McCOTTER, Secretary of Corrections;

ROBERT TANSEY, Warden, PNM,

Petitioners.

v.

DWIGHT DURAN =26571, LONNIE DURAN =26293,

SHARON TOWERS, and all others similarly situated;

JAMES C, GIBSON,

Re sponde nts.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners—the Governor and other executive officials

of the State of New Mexico—hereby ask this Court to

grant a writ of certiorari to review a judgment of the

United States Court of Appeals for the Tenth Circuit dis-

missing their appeal from an order directing them to pay

attorneys’ fees and costs relating to post-judgment moni-

toring and enforcement of a consent decree.’

1 The parties in the courts below were those listed in the captior

or their official predecessers, plus Robert Montoya and Jose Lujan

2

OPINIONS BELOW

The per curiam order of the United States Court of

Appeals for the Tenth Circuit is unreported and is re-

printed here as Appendix A. The opinion of the United

States District Court for the District of New Mexico is

unreported and is reprinted as Appendix B. The order

of the Tenth Circuit denying rehearing and rehearing

en bane is reprinted as Appendix C.

JURISDICTION

The order dismissing petitioners’ appeal was entered

by the United States Court of Appeals for the Tenth

Circuit on August 27, 1987. Petitioners’ timely petition

for rehearing was denied on November 10, 1987. The

jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 125411).

STATUTORY PROVISIONS

28 U.S.C. § 1291 states in relevant part:

The courts of appeals . . . shall have jurisdiction

of appeals from all final decisions of the district

courts of the United States....

STATEMENT -

This case is a class action covering virtually every

aspect of the services and conditions provided in medium

and maximum security prisons in New Mexico. Suit was

filed in 1977 and the parties in 1980 agreed to a compre-

hensive 206-page consent decree setting detailed stand-

ards for the operation of the then-existing Penitentiary

of New Mexico as well as three later-constructed facili-

ties. As in many cases of this breadth and complexity,

the implementation of the consent decree has involved

significant monitoring efforts by counsel for the plaintiffs,

including various motions for contempt.? Petitiorers—

2 See, e.g., Duran v. Anaya, 642 F. Supp. 510 (D. N.M. 1986).

3

the defendants in this matter—have also filed several mo-

tions for modification of the decree. At present, the end

of this “implementation phase” of the case is nowhere

in sight.

The ruling at issue here is an order of the district

court that both granted respondents’ motion for attor-

neys’ fees and costs under 42 U.S.C. § 1988 for litigation

activities during July and August of 1985 and directed

the State of New Mexico to nay $54,389.41. Pet. App. B.

The plaintiffs had previously received several hundred

thousand dollars in fees and costs in the case,’ and the

court now has under consideration requests for several

hundred thousand dollars in additional compensation for

activities undertaken in September-October 1985, No-

vember 1985-June 1986 and July-May 1987. During the

two-month period at issue in this petition, counsel for

respondents were engaged in two types of activities.

First. they were continuing their usual monitoring of

compliance with the decree. Second, at the request of the

court, they were conducting negotiations with the defend-

ants coneerning allegations of noncompliance with the

decree as well as requests for modification of the decree

being contemplated by defendants. Pet. App. 4a.*

The district court did not rule on the fee application

for this two-month period (July-August 1985) until

April 28, 1987. On that date, the court awarded re-

* Defendant’s Response to Plaintiff’s Motion And Application Fo1

Attorneys’ Fees and Expenses for the Period of July and August,

1985, at 5.

‘When these negotiations proved unsuccessful, respondents moved

for contempt and petitioners filed their requests for modification.

The contempt issues were later dismissed by the plaintiffs with

prejudice in return for withdrawal by the defendants of some of

their modification requests without prejudice, as well as creation of

a committee to deal with the issue of inmate “good time” credits.

The district court has yet to rule on defendants’ proposed modi-

fications.

4

spondents the full amount that they requested in their

fee motion. Petitioners then filed a timely notice of ap-

peal to the Tenth Circuit. Thev intended to argue on

appeal, as thev had in the district court, that the fee

award as a whole was excessive and that the plaintiffs

should have been required to show concrete results from

their activities—at least with respect to the negotiations

on noncompliance and the proposed modifications to the

decree.

Before these issues could be briefed, however, respond-

ents filed a motion to dismiss the appeal. They argued

that the fee award was an unappealable “interim or-

der” because there remained pending in the district court

subsecuent fee petitions covering later periods of time.

They added that these later fee requests covered activi-

ties that were related to those undertaken in July and

August 1985. The did not, however, suggest that the

award at issue was in any sense tentative or subject to

revision.

Petitioners responded to this motion by arguing that

the award was both collateral to the merits of the case

and “final” in the sense that it resolved fully the plain-

tiffs’ right to fees and costs for the relevant time period.

Tney distinguished the cases cited by the plaintiffs on

the ground that they involved interim awards of fees for

activities prior to the entry of judgment, which were

subject to later modification at the time of judgment

and thus arguably not sufficiently final to allow an im-

mediate appeal. In the instant case, by contrast, the

fee award came seven years after the entry of a judg-

ment in the form of a consent decree, was not subject

to modification at the time of some later “final” award

and, indeed, could never be reviewed on appeal if not

reviewed at this time. Respondents argued in reply that

the fee award was somehow inherently subject to later

modification at such time as the district court entered

a “final” fee award. They did not, however, suggest how

5

the overall issue of petitioners’ liability for post-judgment

fees would ever, in the context of this case, be recon-

sidered in such a “final” order.

A panel of the Tenth Circuit granted the motion to

dismiss on August 27, 1987. It held that the district

court’s ruling was not properly subject to an immediate

appeal because petitioners had “not shown that this in-

terim award is ‘effectively unreviewable’ after entry of

the final award.” Pet. App. 3a (quoting Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978) :. In sup-

port of this proposition, the court cited its earlier ruling

in In re Callister, 673 F.2d 305, 306-07 (10th Cir. 1982),

which held that a pre-judgment award of fees as an ad-

ministration expense in a bankruptcy case was not im-

mediately appealable because such an award was subject

to modification at the time of a final award in connec-

tion with the final judgment in the case. See Pet. App.

3a.

Petitioners sought a rehearing from the panel, point-

ing out that the court appeared to have misunderstood

the factual setting of this case when it suggested that

the fee award at issue could be appealed when the dis-

trict court later enters a “final award.” As noted above,

by the nature of the post-judgment implementation proc-

ess in this case, there will never be a fee ruling that is

any more ‘final’ than the present order; the district

court merely considers fee requests for specified periods

of time and rules on them one by one. Petitioners also

suggested a need for a rehearing en banc in the event

that the panel had accurately understood the relevant

facts. They argued that the panel’s treatment of this

fee award as “interim” and unappealable meant, in effect,

that all post-judgment awards attributable to monitor-

ing or enforcement of previous judgments could be per-

manently insulated from appellate review.

On November 10, 1987, the panel denied rehearing,

stating that it had reviewed petitioners’ factual presenta-

6

tion and remained convinced that “[a]s of the date of

the entry of the order appealed from, no final judgment

had been entered by the district court.” Pet. App. 7a

(citing 28 U.S.C. § 1291). The request for rehearing

en banc was also denied on the same date.

ARGUMENT

This case warrants review for two reasons. First, the

Tenth Circuit’s ruling—that post-judgment fee awards

for particular periods of time during the implementation

of a complex injunctive decree are not appealable until

the entry of a “final” award—is clearly indefensible. It

conflicts with the handling of similar appeals in at least

seven other Circuits and, more fundamentally, is irrec-

oncilable with the general principles of appealability.

Second, in the absence of some action by this Court, the

State of New Mexico will be left in the untenable posi-

tion of being subject to numerous orders to pay hundreds

of thousands of dollars in fees and costs without any

realistic chance that these awards will ever become ap-

pealable. Thus, even though the ruling below is unpub-

lished, this case is nonetheless of sufficient importance to

merit review. Indeed, in light of this serious practical

problem and the clarity of the legal issues raised here,

we believe that this is an appropriate case for a sum-

mary reversal.

I. The Decision Below Is Plainly Incorrect.

The Tenth Circuit’s ruling dismissing petitioners’ appeal

from a post-judgment order directing them to pay attor-

neys’ fees and costs—an order that was neither tentative

on its face nor likely ever to be reconsidered by the dis-

trict court at any later date—is without any legal basis.

To our knowledge, no other Circuit has followed that ap-

proach. On the other hand, at least seven Circuits, when

faced with immediate appeals of post-judgment fee

awards comparable to that involved here, have reached

the merits of the fee award. See Keith v. Volpe, 833 F.2d

2 #=#=#=+—-—««#@ii4 i ——_—_————s

7

850 (9th Cir. 1987); Brewster v. Dukakis, 786 F.2d 16

(1st Cir. 1986); Turner v. Orr, 785 F.2d 1498 (11th

Cir. 1986); Adams v. Mathis, 752 F.2d 553 (11th Cir.

1985); Delaware Valley Citizens’ Council for Clean Air

v. Pennsylvania, 762 F.2d 272 (3d Cir. 1984), aff'd in

part and rev’d in part on other grounds, 106 S. Ct. 3088

(1986), rev’d on other grounds, 107 8S. Ct. 3078 (1987) ;

Willie M. v. Hunt, 732 F.2d 383 (4th Cir. 1984) ; Miller

v. Carson, 628 F.2d 346 (5th Cir. 1980); Northcross v.

Board of Educ., 611 F.2d 624 (6th Cir. 1979), cert. de-

nied, 447 U.S. 911 (1980).

The Eleventh Cireuit’s ruling in Turner v. Orr, supra,

provides a good example of the prevailing rule. That

case involved a consent decree aimed at curing problems

of racial discrimination at a military base. The decree

established a process for employees and applicants to

complain of alleged violations of the decree first to a

Plaintiff’s Monitoring Committee and then, via the Com-

mittee, to a special master. Counsel for the Committee

filed what the circuit court acknowledged was an initial

request for post-judgment fees, 785 F.2d at 1500, which

the district court awarded. The defendants appealed and

the court of appeals, unlike the Tenth Circuit in this

case, reviewed the award on the merits.

To be sure, in Turner v. Orr and most of the other

cases cited above, there was no express discussion of jur-

isdiction.* The sole exception on the list is Keith v. Volpe,

supra, where the Ninth Circuit explicitly found that it

had “jurisdiction under 28 U.S.C. § 1291” to review

fees awarded for post-judgment monitoring of an earlier

consent decree. 833 F.2d at 851. It did so despite the

5 This silence is itself telling. Because of the jurisdictional na-

ture of finality, Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

368 (1981), even where the parties do not contest the appealability

of an order, a court is “obligated to do so on [its] own motion if a

question thereto exists.” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S.

737, 740 (1976).

8

fact that it was clear that the fee petition in dispute was

not the last that was to be entertained in the case. Not

only had the district court begun to require quarterly fee

applications from plaintiffs’ attorneys, id. at 860 n.6,

but an appeal of a separate award, for other monitoring

activities, was also pending at the time, id. at 853 n.2.

This approach is fully supported by the rulings of this

Court. As an initial matter, we note that immediate

appealability of post-judgment fee awards was given at

least implicit support in both Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 106 S. Ct. 3088

(1986), and Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 107 S. Ct. 8078 (1987). In each

instance, the Court reviewed an award of fees for mon-

itoring compliance with a consent decree over a dis-

crete time period. The award, which “relate[d] only to

work performed after entry of the consent decree,” 762

F.2d at 274 (emphasis in original), had been appealed

immediately to the Third Circuit, which reached the

merits. This Court, like the court of appeals before it,

did not question the finality of the fee order or even ask,

as the Tenth Circuit did here, whether later fee petitions

might be filed. Indeed, in view of the bitter and pro-

tracted history of non-compliance with the consent decree

at issue in Delaware Valley, it seems apparent that there

may be future issues that might well lead to subsequent

fee awards.

More fundamentally, the prevailing rule on immediate

appealability of post-judgment fee awards derives di-

rectly from the basie principles governing appealability

of district court orders in general. See generally Cohen

v. Beneficial Industrial Loan Corp., 387 U.S. 541 (1949).

A district court order, although not the “final judgment”

in a case, may nevertheless be appealed as a “final deci-

sion” under 28 U.S.C. $1291 if it “conclusively deter-

mine/s] the disputed question, resolve{s] an important

issue completely separate from the merits of the action,

9

and [is] effectively unreviewable on appeal from a final

judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463,

468 (1978). This test fully supports jurisdiction for im-

mediate appeals of post-judgment fee awards covering

particular time periods during the implementation of in-

junctive decrees.

First, as the Tenth Circuit seemed to acknowledge,

there can be no doubt that such a fee order is “separate

from the merits of the action.” This Court held in White

v. New Hampshire Dept of Employment Sec., 455 U.S.

445, 451, (1982), that a claim “for attorney’s fees under

42 U.S.C. $ 1988 raises legal issues collateral to the main

cause of action” and “uniquely separable” from it.® Sec-

ond, it is clear that such an order may have “conclusively

determined” a disputed issue. Indeed, the Tenth Circuit

here did not and could not find that the present order—

directing immediate payment of a sum certain—was

somehow tentative or that it was an issue that would

later be revisited and then be subject to modification.

It does not matter, in this regard, that this is not the

last fee petition in the post-judgment phase of the case.

It is clear that ‘a decision ‘final’ within the meaning of

s 1291 does not necessarily mean the last order possible

to be made in a case.” Gillespie v. United States Steel

Corp., 379 U.S. 148, 152 (1964). Rather, an order is

® Although White held only that a motion for attorneys’ fees was

not a motion to amend a judgment under Federal Rule of Civil

Proe@iure 59(e), its analysis clearly applies to the present issue.

See generally, Green, From Here to Attorney's Fees: Certainty,

Efficiency, and Fairness in the Journey to the Appellate Court, 69

Corn. L. Rev. 207, 221-223 (1984). Rule 59(e) only applies where

a supplemental motion amends a judgment; judgments, in turn, are

defined only by their appealability. See Fed. R. Civ. P. 54(a)

(““‘Judgment’ as used in these rules includes a decree and any order

from which an appeal lies.”). The Court in White held that the

merits judgment is appealable without the fee issue being deter-

mined because a motion for fees does not amend the judgment on

the merits. If it is to be appealable at all, therefore, a fee award

arising after final judgment must be separately appealable.

10

final when the district court contemplates no future

modification of it. Moses H. Cone Memorial Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 12 (1983).

In the face of these settled principles, the Tenth Cir-

cuit based its ruling on the conclusion that “|t]his order

does not meet the third prong of Coopers & Lybrand,

437 U.S. 463. Defendants have not shown that this in-

terim award is ‘effectively unreviewable’ after entry of

the final award.” Pet. App. 3a (citing In re Callister,

673 F.2d 305 (10th Cir. 1982)). This conclusion is un-

supportable. We recognize, of course, that there are many

types of pretrial orders that, although definitive, are not

properly subject to review until the time of a final merits

determination.‘ Moreover, even certain types of post-

judgment orders are insulated from immediate review

because they will predictably be followed by appealable

orders that fully resolve the particular post-judgment

dispute.* But this is not such a case.

To the contrary, where, as here, the district court’s

order has conclusively determined liability for fees re-

lated to a particular post-judgment time period, and later

fee orders will involve only later time periods, it is vir-

tually certain that review of each fee order will be fore-

closed if not allowed immediately. -Such later review

could only be obtained if the district court were, at some

point, to undertake a “global” review of its various post-

judgment fee awards covering separate time periods.

7 See, e.g., Richardson-Merrel, Inc. v. Koller, 472 U.S. 424 (1985)

(pretrial order dismissing counsel in civil case not separately ap-

pealable); Flanagan v. United States, 465 U.S. 259 (1984) (same

for pretrial order in criminal case); Firestone Tire & Rubber Co.

v. Risjord, 449 U.S. 368 (1981) (same for pretrial denial of motion

to dismiss counsel in civil case).

8 See, e.g., Fox v. Capital Co., 299 U.S. 105 (1936) (post-judgment

order fining party for refusal to testify); 9 J. Moore, W. Taggart

& J. Wicker, Moore’s Federal Practice © 110.14[1], at 198 (2d ed.

1987).

11

But, in a post-judgment context, there is no reason to

anticipate some sort of ‘final’ fee order that would ex-

tend back over many periods for which fees had pre-

viously been ordered. The district court here has never

indicated any intent to undertake such a review. More-

over, it is difficult to see how the occasion for such a

review would arise since, in the post-judgment context,

it is seldom possible to be sure that all necessary moni-

toring and enforcement efforts have been completed so

that the issue of overall fee liability can be conclusively

determined.

In sum, the Tenth Circuit’s ruling apparently rests on

the mere possibility that the district court may someday

reconsider its otherwise definitive fee order. But the

mere fact that the court has the theoretical power to

change its ruling does not preclude collateral review ab-

sent some clearer indication that such a revision is con-

templated. Moses H. Cone Memorial Hosp., supra, 460

U.S. at 12. In a post-judgment fee context, there is no

reason for believing that this will occur. Thus, once an

issue is resolved by the district court, “appellate review

is desirable, and cannot reasonably be left to depend

upon the hazards of opportunity to appeal from some

other final decision.” 15 C. Wright, A. Miller & E.

Cooper, Federal Practice and Procedure §$ 3916, at 610.

In light of these general principles, the numerous de-

cisions of the courts of appeals cited above—allowing

immediate appeals of fee awards for post-judgment ac-

tivities during ongoing implementation of injunctions—

are clearly correct. Indeed, the appropriateness of such a

procedure was recognized by this Court as early as the

decision in Trustees v. Greenough, 105 U.S. 527 (1881).

See also In re Farmers’ Loan & Trust Co., 129 U.S. 206

(1889). There, the Court held that an award of fees and

costs out of a common fund was immediately appealable

even though it was clear that administration of the fund

would continue for some time. 105 U.S. at 531.

12

The sole authority cited by the Tenth Circuit to sup-

port its departure from this body of precedent was Jn re

Callister, 673 F.2d 305 (10th Cir. 1982), a case concern-

ing a pre-judgment award of fees. Pet. App. 3a. As we

have suggested, the relevant considerations are quite dif-

ferent when a district court enters an “interim” fee

order prior to judgment. Finality has been made a pre-

requisite to appealability in order to guard against the

possibility of both piecemeal review and interference by

an appellate court in ongoing district court proceedings.

In a pre-judgment context, these goals are often served

by delaying appeals of interim orders until the entry of

a fina] judgment.

For these reasons, it may be proper to deny immediate

appeal of a fee order that, unlike the one here, is en-

tered prior to judgment. We note, however, that the de-

cisions of the courts of appeals even on this question are

difficult to reconcile. While some Circuits appear to bar

pre-judgment appeals in most or all cases,® at least two

Circuits have authorized such appeals. In Haitian Ref-

ugee Center v. Meese, 791 F.2d 1489 (11th Cir. 1986),

for example, the Eleventh Circuit concluded that a fee

award under the Equal Access to Justice Act, which was

related to successful efforts to secure an interim injunc-

tion prior to entry of a final judgment, had “finally

dispose[d] of the issue of attorneys’ fees for litigating

the case unti! this point’? and thus could be appealed.

791 F.2d at 1494. Likewise, in Palmer v. City of Chi-

cago, 806 F.2d 1316 (7th Cir. 1986), cert. denied, 107

S. Ct. 2180 (1987)—a prison class action similar to the

present case—the Seventh Circuit allowed an immediate

appeal of a fee order related to the entry of a preliminary-

injunction. It reasoned that the order created a final

obligation to pay and that, in such a case, the defendants

® See, e.g., Hillery v. Rushen, 702 F.2d 848 (9th Cir. 1983) (per

curiam); Yakowicez v. Commonwealth of Pennsylvania, 683 F.2d 778

(3d Cir. 1982); Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980).

13

could not be assured of restitution of the payment if their

appeal were delayed. 806 F.2d at 1317-20.

Clearly, the Tenth Circuit’s dismissal of a post-judg-

ment fee appeal cannot be squared with these two rul-

ings. In any event, regardless of the correct rule gov-

erning pre-judgment orders, there is simply no argu-

ment for denying petitioners an immediate appeal in

this post-judgment setting. After judgment, “[t]he pol-

icy against and the probability of piecemeal review is

not as decisive a consideration . . . since the underlying

dispute is already settled.” '’ United States v. Washing-

ton, 761 F.2d 1404, 1406 (9th Cir. 1985), cert. denied,

474 U.S. 1100 (1986); see also Joseph F. Hughes & Co.

v. United Plumbing & Heating, Inc., 390 F.2d 629, 630

(6th Cir. 1968); Plymouth Mut. Life Ins. Co. v. Illinois

Mid-Continent Life Ins. Co., 378 F.2d 389, 391 (3d Cir.

1967). Moreover, after judgment, concerns about inter-

ference with the trial court’s consideration of the case

are far less salient. See 15 C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure §$ 3916, at 607

(1976). Most importantly, as noted above, in a post-

judgment setting like the present one, there is often no

assurance that there will ever be a later event reviving

a right to appeal prior orders.

II. Absent Review, Petitioners Will Be Left With No Pro-

cedure for Challenging Post-Judgment Fee Awards

That They Believe are Excessive or Otherwise Un-

justified.

We recognize that the decision below is not a published

order and therefore under Tenth Circuit Rule 36.3 does

not create a formal conflict among governing precedents

in the Cireuits. This fact does not, however, mean that

10 Tt is true that in the present case petitioners may ultimately

be forced to bring several appeals of separate post-judgment fee

awards relating te separate time periods. But this danger is en-

tirely the result of the district court’s decision to consider applica-

tion for post-judgment fees and costs one at a time.

14

it would be appropriate for this Court to deny review

here. The practical difficulties and basic unfairness cre-

ated by the Tenth Circuit’s erroneous ruling for peti-

tioners—and potentially other litigants as well—require

correction. In our view, the appropriate action in this

situation would be a summary reversal.

There can be no doubt that the Tenth Circuit’s order

puts petitioners, the State of New Mexico, in an un-

tenable position. Rather than allowing an immediate ap-

peal from each post-judgment order to pay fees, the

court of appeals has required an aggrieved party to

await a “final award.” Pet. App. 3a. There are two

possible, but equally senseless, interpretations of this

order. First, the order may mean that petitioners must

hold all appeals of fee awards—potentially reaching hun-

dreds of thousands of dollars—until such a time as the

district court has made the last discrete award of fees

in this case. If so, this rule is clearly unworkable. Be-

cause of the possibility of continued monitoring, con-

tempt motions, and even the defendant’s own prerogative

to bring a motion to modify the injunction, any partic-

ular fee award can only be deemed the last of a series

after the fact, with the hindsight that can only be

gained long after the expiration of the thirty days in

which an appeal can be noticed. Fed. R. App. P. 4/a).

Thus. in deciding whether to appeal, petitioners would

be left to guess about whether a particular award is the

last one. And they would make this guess subject to the

risk that an error could lead to loss of their right to

challenge all fee awards previously entered.

Second, the Tenth Circuit may have been assuming

that there would one day be a plenary review of a'l

post-judgment fees by the district court—leading to a

“final award” covering the entire implementation pe-

riod. If so, the problem is that there is no reason to ex-

pect that this will ever occur. As noted above, the dis-

trict court has never indicated any such plan. Moreover,

15

the court itself would have great difficulty in determin-

ing precisely when it would be appropriate to conduct

such a final review of post-judgment fees. The continu-

ing obligations imposed on petitioners will always create

a potential for further litigation and therefore addi-

tional fee liability.

Because, in this context, “denial of immediate review

would render impossible any review whatsoever,” United

States v. Ryan, 402 U.S. 530, 533 (1971), there is a real

need for action by this Court. Indeed, under either inter-

pretation of the Tenth Circuit’s ruling, it could be years

before an appeal on post-judgment fees might be had,

assuming it could ever be had at all. At that point,

there is the very real danger that, as a practical matter,

the defendants will simply be unable to recoup payments

that were made many years earlier. Cf. Cohen, supra

‘denial of defendant’s bond motion appealable because

of danger of never recovering costs of suit); Palmer,

supra, 806 F.2d at 1319 (‘allowing appeal because of

“danger ... that the fees would disappear into insol-

vent hands’’).

For these reasons, this Court should either grant certi-

orari and set the case for preliminary review or, alter-

natively, summarily reverse the decision below. In light

of the clarity of the errors in the Tenth Circuit’s ap-

proach, summary reversal is the preferable disposition.

CONCLUSION

The petition for a writ of certiorari should be granted.

PAUL M. SMITH *

DAvip A. BONO

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

* Counsel of Record

Respectfully submitted,

HAL STRATTON

Attorney General

JAMES BROWNING

Deputy Attorney General

P.O. Drawer 1508

Santa Fe, NM 87504

(505) 827-6000

Counsel for Petitioners

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 87-1755

(D.C. No. CV-77-0721JB)

(D. N.M.)

DWIGHT DURAN, #26571; LONNIE DURAN, #26293;

SHARON TOWERS, and all others similarly situated;

JAMES C. GIBSON,

Plaintiffs-A ppellees,

V.

GARREY CARRUTHERS, Governor; HAL STRATTON, Attorney

General; ED MAHR, Secretary of Corrections; CHARLES

BECKNELL, Secretary of Criminal Justice; LEVI ROMERO,

Warden, PNM: ROBERT MONTOYA; JOSE LUJAN,

Defendants-A ppellants.

[Filed Aug. 27, 1987]

ORDER AND JUDGMENT

Before MOORE and SETH, Circuit Judges, and ALLEY,

District Judge.*

* The Honorable Wayne FE. Alley, United States District Judge

for the Western District of Oklahoma, sitting by designation.

2a

After examining the briefs and the appellate record,

this three-judge panel has determined unanimously that

oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a) ;

10th Cir. R. 34.1.8(ce) and 27.1.2. The cause is therefore

ordered submitted without oral argument.

This matter is before the court on plaintiffs’ motion to

dismiss this appeal for lack of jurisdiction.

Defendants have appealed from an order of the dis-

trict court awarding plaintiffs interim attorney’s fees for

work performed in monitoring a court approved consent

decree during the months of July and August, 1985. See

Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986).

This court has jurisdiction only over final orders of

the district court. 28 U.S.C. § 1291. However, an order

may be appealable even though not final if it fits within

the “collateral order doctrine.” See Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949). To be deemed

final under the collateral order doctrine and thus im-

mediately appealable, “the order must conclusively deter-

mine the disputed question, resolve an important issue

completely separate from the merits of the action, and be

effectively unreviewable on appeal from a final judgment.”

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

Both parties admit that this order is not final. De-

fendants argue that it is appealable under the collateral

order doctrine. The Supreme Court has held that a re-

quest for attorney’s fees “raises legal issues collateral! to

the main cause of action—issues to which | Fed. R. Civ.

P.| Rule 59(e) was never intended to apply.” White v.

New Hampshire Dep’t of Employment Security, 455 U.S.

445 (1982). Contrary to defendants’ arguments, how-

ever, this holding does not mean that al! awards of at-

torney’s fees are collateral and, therefore, immediately

appealable.

3a

This order does not meet the third prong of Coopers

& Lybrand, 437 U.S. 463. Defendants have not shown

that this interim award is “effectively unreviewable” af-

ter entry of the final award. See in re Callister, 673

F.2d 305 (10th Cir. 1982).

Defendants argue that this court has allowed prior

appeals from an interim award of attorney’s fees with-

out questioning jurisdiction. See Ramos v. Lamm, 713

F.2d 546 (10th Cir. 1983). Defendants have misread

Ramos. Although the plaintiffs in Ramos submitted a re-

quest for interim attorney’s fees to the district court,

appeal to this court was taken from the district court’s

final award.

We hold that this order does not finally determine the

claim for attorney’s fees and is not immediately appeal-

able.

The appeal is DISMISSED.

The mandate shail issue forthwith.

ENTERED FOR THE COURT

PER CURIAM

4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Civil No. 77-0721-JB

DWIGHT DURAN, et al.,

Plaintiffs,

v.

GARREY CARRUTHERS, et al.,

Defendants.

[Filed April 28, 1987]

ORDER

THIS MATTER having come on for consideration of

Plaintiffs’ Motion for an order directing the State of

New Mexico to make payments to Plaintiffs’ counsel in

conformity with the Summary attached thereto, and the

Court having reviewed the same, the Defendants’ re-

sponse thereto, and Plaintiffs’ reply, with affidavits at-

tached, the Court finds that a hearing thereon is unneces-

sary and finds as follows:

1. The Court has reviewed the affidavits of Plaintiffs’

counsel in support of the professional services rendered

and, further, has reviewed the services rendered and the

time devoted thereto; that the activities, aimed at resolv-

ing major issues on modification of the Consent Decree

as well as the monitoring required in connection with the

allegations that Defendants were in non-compliance with

the Consent Decree, are reasonable in time and amount.

5a

2. Although Defendants expressed concern that the

fees and expenses are unnecessary and unwarranted, De-

fendants have failed to specify with particularity claimed

deficiencies and have made only generalized objections

thereto.

3. The documentation submitted by Plaintiffs consist-

ent with the procedures previously agreed to between the

parties fully supports the claim for attorney fees.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that

Defendants pay Plaintiffs’ attorneys’ fees and expenses

for the period from July 1, 1985, through August 31,

1985, as follows:

DEATON & TWOHIG, LTD.

Professional Services $11,385.23

Expenses : 1,006.36

$12,391.59 $12,391.59

ROTHSTEIN, BAILEY, BENNETT, DALY & DONATELLI

Professional Services $25,125.42

Expenses 2,019.78

$27,145.20 $27,145.20

PETER CUBRA

Professional Services $ 5,997.53

Expenses 1,162.62

$ 7,160.15 $ 7,160.15

NATIONAL PRISON PROJECT

Professional Services $4,149.00

Expenses 1,331.74

$ 5,480.74 $ 5,480.74

DWIGHT DURAN

Professional Services $ 2,150.13

Expenses 61.60

$ 2,211.73 $ 2,211.73

DATED this 28th day of April, 1987.

‘s/ [Illegible]

United States District Judge

—

6a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SEPTEMBER TERM—November 10, 1987

Before Honorable William J. Holloway, Jr., Chief

Judge, Honorable Oliver Seth, Honorable Monroe G. Me-

Kay, Honorable James K. Logan, Honorable Stephanie

K. Seymour, Honorable John P. Moore, Honorable Stephen

H. Anderson, Honorable Deanell Reece Tacha, and Hon-

orable Bobby R. Baldock, Circuit Judges, United States

Court of Appeals, and Honorable Wayne E. Alley, Dis-

trict Judge, United States District Court for the West-

ern District of Oklahoma*

No. 87-1755

DWIGHT DURAN, #26571; LONNIE DURAN, #26293;

SHARON TOWERS, and all others similarly situated ;

JAMES C. GIBSON,

Plaintiffs-A ppellees,

v.

GARREY CARRUTHERS, Governor; HAL STRATTON, Attorney

General: Ep MAnR, Secretary of Corrections; CHARLES

BECKNELL, Secretary of Criminal Justice; LEVI ROMERO,

Warden, PNM; RoBerT MonToyYA; JOSE LUJAN,

Defendants-A ppellants.

This matter is before the court on appellant’s petition

for rehearing with suggestion for rehearing en bance.

* The Honorable Wayne E. Alley, United States District Judge

for the Western District of Oklahoma, sitting by designation.

7a

The materials submitted by appellant have been re-

viewed by the members of the hearing panel, who con-

clude that the original disposition was correct. As of

the date of the entry of the order appealed from, no final

judgment had been entered by the district court. See 28

U.S.C. $1291. Accordingly, the petition is denied on

the merits.

The petition having been denied on the merits by the

panel to whom the case was submitted and no member

of the panel or judge in regular active service on the

court having requested that the court be polled, the sug-

gestion for rehearing en banc is denied.

‘'s Robert L. Hoecker

ROBERT L. HOECKER

Clerk