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Posted: December 16, 2013

Deadline For Making Claim For Attorneys’ Fees In FRCP 54 Does Not Apply To Claims For Appellate Fees

In Long Island Head Start Child Development Services, Inc., v. Economic Opportunity Commission, 00 CV 7394 (E.D.N.Y. Dec. 5, 2013), Judge Arthur Spatt held that a claim for appellate attorneys’ fees under ERISA’s fee shifting provisions is not governed by the 14-day deadline set forth in Federal Rule of Civil Procedure 54(d)(2)(B).  Under that Rule, a motion for an award of attorneys’ fees must be brought “no later than 14 days after the entry of judgment.”  The defendant had appealed an adverse judgment to the Second Circuit and lost.  The Circuit issued its mandate on June 10, 2013.  Two and a half months later, on August 29, 2013, the plaintiffs moved under ERISA to recover their appellate attorneys’ fees.

The defendants argued that the motion was out of time under Rule 54(d)(2)(B), and should be denied, because it was made more than 14 days after “the entry of judgment.”  The court examined whether the word “judgment” used in the Rule includes an appellate judgment.  The court noted that Rule 54(a) defines judgment as a “decree and any order from which an appeal lies,” and that, as a Northern District of Texas court had ruled, an appellate judgment could qualify because “a judgment from the Court of Appeals can be appealed to the United States Supreme Court.”  Slip op. at 5.  The court ultimately rejected that view, however, based on an earlier Eastern District case that decided the same question under the fee-shifting provisions of Title VII, and held that since Title VII contained no deadline, and since neither the Federal Rules of Appellate Procedure nor the Second Circuit’s local rules contained a deadline, the fee motion had only to be made within a reasonable period.

Reasoning that ERISA also had no deadline for making a motion for appellate fees, the Court ruled that motions under ERISA’s fee-shifting provisions likewise had only to be made “within a reasonable of time after the circuit’s entry of final judgment.”  Slip op. at 8.  Other fee shifting statutes are unlikely to be far behind.  (As for the two and a half months it took plaintiffs to make their motion, the Court held the time was not unreasonable because it was only two days after the defendants’ right to petition for U.S. Supreme Court review had lapsed.)

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