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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 17, 2004 Decided May 14, 2004
No. 03-5079
TIMOTHY C. PIGFORD, ET AL.,
APPELLEES
v.
ANN M. VENEMAN, SECRETARY,
THE UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLANT
Consolidated with
03–5080
Appeals from the United States District Court
for the District of Columbia
(No. 97cv01978)
(No. 98cv01693)
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard S. Scher, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Roscoe C. How-
ard, Jr., U.S. Attorney, and Robert M. Loeb, Attorney, U.S.
Department of Justice.
Alexander J. Pires, Jr. argued the cause and filed the brief
for appellees.
Before: GINSBURG, Chief Judge, and HENDERSON, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Secretary of Agriculture ap-
peals 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 anti-
discrimination suit against the Department. The Govern-
ment 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 jurisdic-
tion.
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 Pig-
ford 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
3
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 coun-
sel
shall be entitled to reasonable attorney’s fees and costs
under [the] ECOA, 15 U.S.C. § 1691e(d), and to reason-
able 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 Govern-
ment 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 origi-
nal.) 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
4
period can theoretically extend indefinitely,’’ creating sub-
stantial 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 immedi-
ately 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 post-
judgment 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 jurisdic-
tion pursuant to § 1291 because the orders of the district
court disposing of several petitions for attorneys’ fees ‘‘fol-
low[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 dispose of
a fee petition even for a finite part of the post-judgment
period, it is irrelevant that, as the Government points out, the
post-judgment phase may be of indefinite duration.
The fee order here simply could not be a final decision
under § 1291 regardless when issued because it ‘‘determines
neither the total amount of fees due TTT nor [the] absolute
entitlement to attorney’s fees.’’ Rosenfeld, 859 F.2d at 720;
see Trout, 891 F.2d at 335 (‘‘The award does not even
dispositively determine fees due up to this stage of the
litigation’’). In fact, the district court ‘‘clearly contemplates
5
revising [the] fee award’’ at a later time. Rosenfeld, 859 F.2d
at 722. The district court would hardly have encouraged the
parties to settle if the order finally had resolved counsel’s
claim for attorneys’ fees for the year ended June 30, 2002.
Cf. Catlin v. United States, 324 U.S. 229, 233 (1945) (a final
decision ‘‘leaves nothing for the court to do but execute the
judgment’’).
In a more practical and discriminating vein, the Govern-
ment also argues a post-judgment order to pay attorneys’
fees ‘‘should be immediately appealable where counsel is
unlikely to be able to repay an overpayment.’’ The sugges-
tion is that ‘‘irreparable harm to the government fisc TTT
bolsters the finality of orders like the one[ ] at issue here.’’
The courts of appeal have considered ‘‘irreparable harm’’
relevant in determining whether jurisdiction is available pur-
suant to the collateral order doctrine — which the Govern-
ment does not invoke — but not pursuant to § 1291 itself.
See Trout, 891 F.2d at 335; Rosenfeld, 859 F.2d at 721–22;
Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.
1986). Although the Government does not cite the case, its
irreparable harm argument finds some support in Forgay v.
Conrad, 47 U.S. (6 How.) 201, 204 (1848), which held an
interlocutory appeal will lie from an order that ‘‘directs the
property in dispute to be delivered to the complainant’’ and
‘‘subject[s the appellant] to irreparable injury.’’ We have
questioned, however, whether ‘‘Forgay has continuing vitality
apart from the collateral order doctrine.’’ Petties v. District
of Columbia, 227 F.3d 469, 472 (D.C. Cir. 2000) (‘‘The Su-
preme Court has recognized but a single variation on the
theme of finality, namely the collateral order doctrine’’). If
Forgay indeed has been overtaken by the collateral order
doctrine, then the Government’s present argument is surely
foreclosed.
Be that as it may, the Government has failed to establish it
is likely to suffer irreparable harm as a result of the fee order
in this case. See Rosenfeld, 859 F.2d at 721–22 (government
bears burden of proving it could not obtain repayment). The
Government can be deemed irreparably harmed ex ante only
6
if the party and counsel awarded fees will ‘‘likely be unable to
repay the fees if the award is later reduced or overturned.’’
National Ass’n of Criminal Defense Lawyers, Inc. v. U.S.
Dep’t of Justice, 182 F.3d 981, 985 (D.C. Cir. 1999); see
Trout, 891 F.2d at 335 (requiring ‘‘real prospect of irreparable
harm’’ to permit exercise of appellate jurisdiction pursuant to
collateral order doctrine). The Government does not present
any evidence from which we could infer that class counsel
‘‘will likely’’ be unable to repay any amount advanced in error.
Before the district court the Government disputed class coun-
sel’s entitlement to $413,500 of the $500,000 it was required to
advance. When the Government filed this appeal, however,
class counsel had pending petitions for almost $1.7 million in
fees. Although some of the $1.2 million not here at issue may
be disputed as well, we think it unlikely counsel will not
ultimately be awarded at least enough to cover the amount
now in dispute. In fact, the district court explicitly stated, ‘‘It
is inconceivable that the Court would disallow as much as
$792,000 of the fees sought based on poor record keeping,
unreasonable hourly rates[,] or too many hours (or too many
lawyers) spent on a given task.’’
Of course, if the district court were to continue to award
class counsel additional advances against fees disputed by the
Government, then at some point the amount in dispute may
become so large in relation to counsel’s fee petitions (and
other assets) that the risk of default, should the Government
prevail on its objections, would indeed constitute irreparable
harm to the Government. The Government has not, however,
made such a showing at this time.
Finally, the Government argues that, if the order at issue is
not deemed final, then the district court may become inclined
to issue a series of ‘‘interim’’ advances rather than to address
and to resolve in a timely fashion the multiple attorneys’ fees
petitions pending before it. We cannot merely assume, how-
ever, the district court will shirk its responsibility to decide
fee questions. The district court now has before it petitions
for attorneys’ fees covering a period of more than two years,
which petitions it will, we trust, resolve soon, and not in a
7
piecemeal fashion, lest the Government’s fears of irreparable
harm acquire some substance.
III. Conclusion
For the foregoing reasons, the appeal is
Dismissed.