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No. 03-5079

May 14, 2004


Appeals from the United States District Court for the District of Columbia (No. 97cv01978) (No. 98cv01693)

Before: Ginsburg, Chief Judge, and Henderson, Circuit Judge, and Williams, Senior Circuit Judge.

The opinion of the court was delivered by: Ginsburg, Chief Judge

Argued February 17, 2004

The Secretary of Agriculture appeals an order of the district court requiring the Department of Agriculture to advance $500,000 against attorneys' fees due counsel representing a class of black farmers in an antidiscrimination suit against the Department. The Government contends the district court abused its discretion because it failed to support the order with any findings regarding the hours claimed and the hourly rates sought by class counsel. Class counsel argue we lack jurisdiction to entertain the Government's appeal because the order to pay is not a "final decision" within the meaning of 28 U.S.C. § 1291. We agree with class counsel and dismiss the appeal for want of jurisdiction.

I. Background

In 1997 a class of black farmers filed a lawsuit alleging the Department of Agriculture discriminated against them on account of their race, in violation of the Fifth Amendment to the Constitution of the United States, the Administrative Procedure Act, 5 U.S.C. § 551 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq. See Pigford v. Glickman, 206 F.3d 1212, 1215 (D.C. Cir. 2000). In 1999 the Government and the plaintiff class agreed upon the terms of a consent decree settling the lawsuit. The Consent Decree established a two-track system for resolving the claims of individual class members: Each class member chose either arbitration or mediation as the process for obtaining the relief available under the Consent Decree. Class counsel continue to work to implement the Consent Decree and to represent class members in both types of proceedings.

The Consent Decree also provided (¶ 14(a)) that class counsel shall be entitled to reasonable attorney's fees and costs under [the] ECOA, 15 U.S.C. § 1691e(d), and to reasonable attorney's fees, costs, and expenses under the APA, 28 U.S.C. § 2412(d) (as appropriate), that are generated in connection with the filing of this action and the implementation of this Consent Decree.

The Government and class counsel have since settled for $14.9 million all claims for attorneys' fees, costs, and expenses incurred from the filing of the case in 1997 through June 30, 2001.

The present appeal arises out of class counsel's November 2002 petition for attorneys' fees, costs, and expenses for the year ended June 30, 2002. Class counsel seek $858,685 for work in "implementation" of the Decree generally, and $836,000 for "nonimplementation work," which is the parties' term for work representing a claimant in either arbitration or mediation.

In December 2002 the district court ordered the Government to advance class counsel "$500,000 for implementation fees and costs." The Government paid the advance and now appeals the order to pay.

II. Analysis

The Government argues its appeal presents an issue of first impression in this circuit, to wit: Whether "an advance of fees or an `interim' fee award in the post-judgment period of litigation is immediately appealable" as a "final decision" within the meaning of 28 U.S.C. § 1291. (Emphasis in original.) The Government argues the post-judgment phase "should be treated as legally different from the pre-judgment period" for purposes of § 1291 because "the post-judgment period can theoretically extend indefinitely," creating substantial uncertainty as to whether and when a party may appeal an adverse order.

Class counsel respond that we resolved this issue in Trout v. Garrett, 891 F.2d 332, 333 (1989). Trout was an appeal from an order requiring an advance of $276,044 in attorneys' fees. A motions panel of this court, following the lead of the Ninth Circuit in Rosenfeld v. United States, 859 F.2d 717 (1988), had "dismissed the appeal for want of a final or otherwise appealable order," and upon rehearing a merits panel did the same. 891 F.2d at 333 ("the sum and substance of the particular interlocutory order before us is not immediately appealable"). Because the appeal in Trout did not arise, however, after entry of a final judgment upon the merits of all the claims advanced against the appellant, Trout did not decide the precise jurisdictional issue presented here.

The Government argues Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994), "supports the proposition that all postjudgment orders to pay fees are immediately appealable." Class counsel maintain Gates does not support the rationale for jurisdiction advanced by the Government, and we quite agree. In that case the Ninth Circuit had appellate jurisdiction pursuant to ยง 1291 because the orders of the district court disposing of several petitions for attorneys' fees "follow[ed] a final judgment on the merits, and they [did] dispose of the issue of attorneys' fees for monitoring work performed during the first period of the consent decree." Id. at 1450 (emphasis added). Where an order does not finally ...

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