Appeal from the United State District Court for the Northern District of Illinois, Eastern Division. No. 79 C 4541- Charles P. Kocoras, Judge.
Before CUMMINGS, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. This is the tail end of Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986), in which the Supreme Court held that Eugene Diamond, a physician, Supreme court held that Eugene Diamond, a physician, had no business prolonging a suit field by Allan Charles to challenge a statute dealing with abortion. Diamond, together with Jasper Williams (another physician) and David Campbell, a putative father, had intervened to defend the statute and, when the district court held the statute unconstitutional, took the case to this court and the Supreme Court. They lost on the merits in this court, and Diamond, who alone sought further review, lost on jurisdictional grounds in the Supreme Court. meanwhile, the district court entered an award of more than $200,000 (counting interest to date) in attorneys' fees under 42 (counting interest to date) in attorneys' fees under 42 U.S.C. § 1988 to Charles and the other prevailing plaintiffs. The award was entered on October 1, 1984, and was immediately appealable. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982); Exchange National Bank v. Daniels, 763 F.2d 286, 291-94 (7th Cir.), reheard in part on other grounds, 768 F.2d 140 (1985). The appeal was not filed until April 1986, and the plaintiffs say that this comes too late.
The order of October 1, 1984, awarded fees but did not say who was to pay them. The accompanying opinion said that the "defendants" would pay, but the opinion also referred to the three intervenor-defendants as "intervenors." On one reading of the order the intervening defendants had become jointly and severally liable for $200,000. On another they were not liable at all. On October 9, 1984, the intervenors filed a motion under Fed. R. Civ. P. 59(e) asking both for clarification of the order and, if they were included as "defendants", for alteration. This timely motion suspended the finality of the judgment and precluded appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982); cf. Acosta v. Louisiana Department of Health and Human Resources, 478 U.S. 251, 106 S. Ct. 2876, 92 L. Ed. 2d 192 (1986).
On April 22, 1985, the district court entered an order stating: "The intervenor-defendants' motion to clarify and amend the Memorandum Opinion [sic] issued September 28, 1984 is denied. plaintiffs [sic] fees and costs will be borne equally by the defendants: half by the State defendants and half by the intervenors." This contradictory order both "denied" the motion and amended the judgment. moreover, an accompanying opinion stated that the court viewed the Americans United for Life Legal Defense Fund as one of the intervening defendants. The Fund is a law firm, which represented the three intervenors and had not itself intervened as a party (although some of the documents in the district court erroneously showed it to be one).
The order of April 22, read in conjunction with the opinion, was the first award of fees against the Fund, and it probably made the three actual intervenors worse off too. They might plausibly have supposed that the plaintiffs would collect the $200,000 from the government of Illinois, whose pockets are deeper than those of two physicians and a putative father. The amendment to the judgment ensured that the intervenors would pay at least $100,000. On May 2, 1985, the Fund served a document styled "motion to Amend the Judgment Pursuant to Fed. R. Civ. P. 59(e)." The Fund asked the district court to make it a full-fledged defendant and to relieve the three intervenors of liability. The Fund represented that it had solicited the three intervenors to participate and that it would therefor by unjust to require them to pay fees. It also represented that it was "prepared to accept financial responsibility for any award of attorney's fees which is ultimately assessed against it by this or any other court on the basis of its status as an Intervening Defendant."
This was the Fund's first effort to seek relief from anything. The Fund had not been identified as a defendant in the order of October 1, 1984, for the plausible reason that the Fund was not one. But the three individual intervenors did not complain of the alteration of the judgment that arguably injured them; they simply recited (as they had back in October 1984) that they should not pay anything. Theirs was a successive request for the same relief. And the Fund's request was most curious. It could have "accept[ed] financial responsibility" without an alteration of the judgment. All it had to do was tender payment to the plaintiffs, thereby discharging the intervenors' liability. If the plaintiffs would not accept the Fund's check, preferring to hector the intervenors, the Fund was free to reimburse whichever intervenor was called on to pay. So the Fund's request did not seek from the court anything-for itself or for the intervenors-that the court alone was in a position to provide.
The only thing to be said for the Fund at least asked the court to "alter or amend" the judgment, the operative words in Rule 59(e). The plaintiffs complicated things still further by opposing the Fund's motion. They contended in open court on May 9 that the intervenors were the only parties and that the Fund should be confined to its role as law firm. Counsel for the plaintiffs asked the court for 21 days to file a written opposition to the motion; the court granted the time. This led counsel for the intervenors to express concern about the effect of further deliberations on appellate jurisdiction:
[Counsel for the intervenors]: . . . .Since this could technically be considered the second clarification of your original order . . . on the attorneys' fees, I just wanted to ask if it is clear to everybody here-including your Honor-that the time for filing a Notice of Appeal, that may or may not be filed from your ultimate decision, is stayed until you have ruled on this motion -until we are clear who the parties are.
THE COURT: I suppose it would. I do not see why it should not await a final, final resolution; although, I suppose, you have to quit coming in to amend the matter . . . . I think that it would be a fair conclusion to be drawn . . . that any appeal clock does not run until we finally dispose of this particular motion. That is my sense of the matter.
The district judge took the Fund's motion under advisement. In July 1985, before the court had acted, the Fund tried to file still another motion to alter the judgment. the new motion called the court's attention to Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985), which had been decided two weeks before. The Fund maintained that under Graham only parties liable on the merits may be required to pay attorneys' fees. Because only the governmental defendants were answerable on the merits, the Fund asserted, neither it nor the intervenors could be required to pay the plaintiffs' attorneys' fees. The plaintiffs disagreed with the Fund's interpretation of Graham. In open court on July 12, 1986, the district court stated:
Here is what we will do. I do not think I am going to give you leave to file this motion. There is not any additional briefing necessary. All it is, is for me to evaluate Kentucky vs. Graham and see if, indeed, its holding applies here of it is inopposite [sic], as counsel has argued, and that is all we need to do. No briefing is necessary.
the judge later changed his mind. A minute order dated October 21, 1985, and entered the next day, states: "The Court clarifies the order of April 22, 1985. The [sic] sets a briefing schedule on intervenors' motion to amend in light of Kentucky v. Graham . . .The Court will rule by mail." An accompanying opinion explained that the Fund had not intervened and that any earlier papers naming it as a party had been clerical errors. The Fund could not intervene, the court held, because as a law firm it had no interest in the outcome of the case. Fed. R. Civ. P. 24, which governs intervention, would not allow the Fund to be a party given its lack of interest in the merits. The court then stated that it would correct earlier papers under Fed. R. Civ. P. 60 (a), which allows the correction of clerical errors at any time, and that the order of April 22 also would be corrected under Rule 60(a) to read: "Plaintiffs' fees and costs will be borne equally by the defendants: half by the State defendants and half by the intervenors-Williams, Diamond, and Campbell." As for the Fund's willingness to cover the intervenors' liability, the court wrote: "The intervenors and their counsel may make whatever private arrangements they wish to satisfy the judgment."
This was the second alteration of the order. (The first apportioned the fees; the second deleted the Fund as a party and explicitly named the three intervenors.) But the alteration was not embodied in a separate document under Fed. R. Civ. P. 58. The minute order referred to the opinion, but judgments must be self-contained. More, the court asked for briefs on the application of Kentucky v. Graham. So as of October 1985 the court had not finally disposed of the Fund's motion. It had moved on to a new issue- an issue that we must ...