United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000 Decided October 6, 2000
No. 99-7228
Nikita Shonta Petties, et al.,
Appellees
v.
District of Columbia, et al.,
Appellants
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00148)
Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, argued the cause for appellants. With him on the
briefs were Robert R. Rigsby, Corporation Counsel, and
Charles L. Reischel, Deputy Corporation Counsel.
James L. Feldesman argued the cause for appellees. With
him on the brief was Tanya A. Harvey. Jennifer P. Rosen-
berg entered an appearance.
Before: Edwards, Chief Judge, Ginsburg, and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The district court issued interim
awards of attorneys' fees to plaintiffs in this ongoing class
action suit against the District of Columbia for failing to
comply with the Individuals with Disabilities Education Act
(IDEA). Pursuant to Federal Rule of Civil Procedure 54(b),
the district court certified two of those interim awards for
immediate appeal. We conclude that this court lacks jurisdic-
tion to review the awards for want of either a final or a
collateral order.
I. Background
The plaintiff children instituted a class action against the
District of Columbia in January, 1995, stating a cause of
action under 42 U.S.C. s 1983 based upon the District's
noncompliance with the IDEA, 20 U.S.C. ss 1400 et seq. In
March, 1995 the district court preliminarily enjoined the
District to fund private school placements that would meet
the special educational needs of the plaintiffs. In July, 1995
the plaintiffs amended their complaint to allege continuing
violations by the District.
Between April and September 1995 the district court issued
a series of injunctions and contempt orders in an effort to
bring the District into compliance with the IDEA. See
Petties v. District of Columbia, 897 F. Supp. 626, 627-28
(D.D.C. 1995). In June, 1995 the plaintiffs, in order to
finance this continuing litigation, began filing quarterly mo-
tions for attorneys' fees. Their first 14 such motions, which
the District did not oppose, were based upon the provision for
attorneys' fees in the IDEA.
In October, 1998 the Congress passed the D.C. Appropria-
tions Act of 1999, s 130 of which limited the attorneys' fees
the District could pay (per hour and per case) under the
IDEA in Fiscal Year 1999. The District then sought to
vacate the order granting the plaintiffs' fourteenth motion for
attorneys' fees, and contested the plaintiffs' fifteenth and
sixteenth such motions, maintaining that the district court
may not award fees in excess of the amounts specified in the
Appropriations Act. The plaintiffs responded that they are
entitled to recover reasonable attorneys' fees pursuant to 42
U.S.C. s 1983 and the Rehabilitation Act of 1973, 29 U.S.C.
s 794, rather than the IDEA.
The district court agreed. The court reasoned that the
plaintiffs' case must have been brought under s 1983, as
stated in the amended complaint, because the suit could not
have been brought under the IDEA; the "plaintiffs were not
aggrieved by decisions that were made .... by the hearing
officers" under the IDEA, but by the District's failure to
discharge its already-adjudicated obligations. Recognizing
the urgency to the parties of the attorneys' fee issue, the
district court opined that "if either side wants to go to the
Court of Appeals, th[en] they ought to be able to do it sooner
rather than later." Pursuant to Rule 54(b), therefore, the
court gave "an express direction for the entry of judgment"
on plaintiffs' fifteenth and sixteenth motions for attorneys'
fees and made an "express determination that there is no just
reason for delay."
The District of Columbia appealed that judgment (No.
99-7228) and separately appealed from the following orders
concerning the fourteenth, fifteenth, and sixteenth motions
for attorneys' fees: the initial orders to pay the awards (No.
99-7109); the order lifting the stay of the District's obli-
gations to pay portions of the awards not in dispute (No.
99-7194); and the order certifying the fifteenth and sixteenth
awards for interlocutory appeal pursuant to 28 U.S.C.
s 1292(b) (No. 99-8004). A motions panel of this court
denied leave to pursue the interlocutory appeal (No. 99-8004)
and dismissed the two appeals (Nos. 99-7109 and 99-7194)
that the district court had not certified under Rule 54(b),
holding that the fourteenth, fifteenth, and sixteenth orders to
pay attorneys' fees "are not final nor do they fall within the
collateral order doctrine, see Coopers & Lybrand v. Livesay,
437 US 463, 468 (1978), because they will be reviewable upon
entry of a final judgment." Petties v. District of Columbia,
1999 U.S. App. LEXIS 34733, at *2. At the same time the
panel directed the parties to brief the question whether this
appeal (No. 99-7228) was properly certified under Rule 54(b).
II. Analysis
Rule 54(b) authorizes the district court to "direct the entry
of a final judgment as to one or more but fewer than all of the
claims [in an action] ... upon an express determination that
there is no just reason for delay." The rule thus permits the
district court to "function[ ] as a 'dispatcher,' determining in
its sound discretion when a claim should proceed on to
appellate resolution and when it should await its fellows."
Taylor v. FDIC, 132 F.3d 753, 760 (D.C. Cir. 1997).
At the same time, the rule "does not relax the finality
required of each decision, as an individual claim, to render it
appealable"; it simply permits the appeal of a claim as to
which the district court has reached a final judgment while
other claims remain to be resolved in the district court.
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956). In
other words, the district court "cannot, in the exercise of its
discretion, treat as 'final' that which is not 'final' within the
meaning of [28 U.S.C.] s 1291." Id. at 437 (emphasis delet-
ed). Nor can this court, notwithstanding the district court's
certification per Rule 54(b), properly review "a judgment that
is not final by ordinary standards." Taylor, 132 F.3d at 760
n.2.
The Supreme Court has recognized but a single variation
on the theme of finality, namely, the collateral order doctrine.
To qualify, an "order must [1] conclusively determine the
disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment." Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
A motions panel of this court has already determined,
however, that the fifteenth and sixteenth orders at issue in
this case "are not final nor do they fall within the collateral
order doctrine, see Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978), because they will be reviewable upon entry of
a final judgment." Petties, 1999 U.S. App. LEXIS 34733, at
*2. Does it matter that this particular appeal has been
certified by the district court under Rule 54(b)? That is the
question the motions panel put to the parties, and we now
answer it in the negative. Indeed, the prior panel's own
decision dooms this appeal. Under this court's practice, a
decision of the motions panel is the law of the case; a later
panel considering the merits is bound by that law. See
Taylor, 132 F.3d at 761. Because the motions panel has
determined that the interim awards of attorneys' fees will be
reviewable when the district court enters a final judgment in
this case, we are bound to conclude that the court lacks
jurisdiction over this appeal.
The District agrees with our account of Circuit practice but
nonetheless argues, along with the plaintiffs, that we should
revisit the decision of the motions panel and assert jurisdic-
tion. While neither party claims the orders under review
have the requisite finality, both parties attempt to show they
will suffer irreparable injury so as to warrant interlocutory
appeal.
For its part, the District argues that the orders harm it
irreparably by frustrating the intent of the Congress that the
District's liability for attorneys' fees be capped as provided in
s 130 of the Appropriations Act; by depriving District stu-
dents, insofar as attorneys' fees exceed the caps, of monies
appropriated for their use; and by diverting funds from their
intended purpose, in violation of the Appropriations Clause,
art. I, s 9, cl. 7 of the Constitution of the United States. To
the extent these arguments take issue with the prior determi-
nation of the motions panel, they are foreclosed. To the
extent they suggest that the Rule 54(b) certification alters our
jurisdictional inquiry under s 1291, they are misconceived.
The cases the District itself cites emphatically confirm this.
See Estate of Drayton v. Nelson, 53 F.3d 165, 167 (7th Cir.
1994) ("Rule 54(b) cannot be used to make the award appeal-
able"); People Who Care v. Rockford Bd. of Educ. Dist. No.
205, 921 F.2d 132, 134 (7th Cir. 1991) ("Rule 54(b) allows the
entry of judgment only with respect to the final disposition of
a claim for relief"); Shipes v. Trinity Industries, Inc., 883
F.2d 339, 342 (5th Cir. 1989) ("Rule 54(b) ... relaxes only the
'judicial unit' aspect of finality principles and otherwise oper-
ates within the constraints of statutory finality"). The plain-
tiffs' arguments fare no better. The precedents cited above
utterly refute their central argument, namely, that Rule 54(b)
certification distinguishes this appeal from those the motions
panel dismissed.
Plaintiffs also argue that even if the collateral order doc-
trine does not apply here, "orders compelling the immediate
transfer of property may be appealable where irreparable
harm will result." In support of this proposition they cite
Forgay v. Conrad, 47 U.S. 201 (1848), in which the Supreme
Court held that an interlocutory appeal may be taken when
an interim order would immediately transfer a party's proper-
ty; they further point to a more recent dictum of the Seventh
Circuit to the effect that an interim award of attorneys' fees
might present a situation like that in Forgay because there
are "chancy prospects of recoupment at the end." People
Who Care, 921 F.2d at 135. While we are not at all sure that
Forgay has continuing vitality apart from the collateral order
doctrine, it is obvious in any event that plaintiffs' showing
falls short of the mark this court has established. See
National Association of Criminal Defense Lawyers, Inc. v.
U.S. Dept. of Justice, 182 F.3d 981, 985 (1999) (irreparable
injury can be shown only where the party awarded fees "will
likely be unable to repay the fees if the award is later
reduced or overturned"). Plaintiffs say they "cannot guaran-
tee to the Court that [plaintiffs'] counsel will not become
judgment proof by the time the litigation is concluded." Of
course, there are precious few guarantees in life and virtually
none when it comes to financial affairs; merely acknowl-
edging this undeniable possibility, however, falls far short of
showing it "will likely" come to pass. On plaintiffs' rationale,
interim awards would be appealable as a matter of course.
That clearly is not the law of this court, much less of this
case.
The plaintiffs advert to the "numerous and complex tax and
accounting dilemmas" they must confront if this court does
not promptly and definitively resolve the propriety of the
attorneys' fees awarded them. The uncertainty surrounding
their right to attorneys' fees in the amounts awarded does
indeed create formidable practical difficulties for them, to
which this court is not unsympathetic. The district court is
free to consider any proposals counsel may make for easing
their predicament. These might include placing interim
awards partially in escrow with the district court until this
litigation is concluded, but they do not include expanding our
appellate jurisdiction beyond the final and collateral orders
that this court is authorized to review.
III. Conclusion
For the foregoing reasons we conclude that the court lacks
jurisdiction over this appeal, which is, therefore,
Dismissed.