After entering judgment on the underlying claims, a federal district court grants the prevailing party’s motion for attorney fees, but does not amend its prior judgment in the case. You represent the potential fees appellant. When does your time to appeal from the attorney-fees order start to run?
Believe it or not, it started to run as soon as the fees order was entered, because under Fed. R. App. P. 4(a)(7)(A)(i) and Fed. R. Civ. P. 58(a)(3), no “separate document” was required to trigger the fees appeal clock.
The first appellate case to address the interplay of these rules was Bennett v. City of Holyoke, 362 F.3d 1 (1st Cir. 2004), where the First Circuit held that the entry of award of attorney fees “started the running of the thirty-day period” for appeal, and no separate judgment was required.
A number of more recent cases also hold that the appeal must be filed within 30 days of the fees order. E.g. Feldman v. Olin Corp., 673 F.3d 515, 516 (7th Cir. 2012) (Posner, J.) (dismissing appeal from attorney fees award as untimely when appeal filed more than 30 days after entry of fees order); S.L. ex rel. Loof v. Upland Unified School Dist., 747 F.3d 1155, 1161 (9th Cir. 2014) (citing the rules discussed above and finding fees appeal untimely); Perez v. AC Roosevelt Food Corp., 744 F.3d 39, 42-43 (2d Cir. 2013) (citing Feldman and finding fees appeal untimely). See also Credit Card Reseller, LLC v. Security Credit Services, LLC, No. 10-3760 (8th Cir. Mar. 11, 2011) (dismissing an appeal from an order awarding attorney fees, where the party had waited more than three months after entry of the order before filing its notice of appeal).
Given the overwhelming weight of this authority, litigants who wait for the entry of a fees-related judgment before appealing from attorney-fees orders do so at their peril.
Josh Jacobson is with the Law Office of Josh Jacobson, P.A. in Minneapolis, Minnesota.