Posted: April 4, 2014

Second Circuit Clarifies Rules for Time to Appeal Non-Final Orders

On April 2, 2014, the Second Circuit issued a decision in United States ex rel. Maurice Keshner v. Nursing Personnel Home Care, Docket Nos. 13-1688-cv (Lead), 14-251-cv (Con), addressing the question of when the time to appeal non-final fee awards begins to run.

In Keshner, the Second Circuit addressed a motion to dismiss an appeal from an order issued by the EDNY awarding a qui tam plaintiff attorney’s fees because the appeal had been filed more than 60 days after the initial decision granting the fees was issued.  The Court held that a “fee award, entered before entry of a final judgment or a partial judgment entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, did not have to be appealed until entry of an appealable judgment.” It explained that:

because the fee award against [the appealing defendant] was a collateral order in a case that remained pending because of open claims against other defendants, the entry of the fee award did not trigger [the defendant’s] obligation to file a notice of appeal. Failure to take an available collateral order appeal does not forfeit the right to review the order on appeal from a final judgment. Indeed, we would not expect an appellate court to require an interlocutory appeal of a pre-judgment or pre-final order fee award because review of a fee award would normally be intertwined with the merits of an appeal from a final judgment or final order. Of course, once the District Court in the pending case entered a partial judgment under Rule 54(b), the time to appeal that judgment began upon its entry.

(Internal quotations and citations omitted).

This decision adds clarity to what can be the confusing question of whether/when interlocutory appeals need be taken under the Federal Rules of Civil Procedure.  The Keshner Court noted that four months ago, in Perez v. AC Roosevelt Food Corp., 734 F.3d 175 (2d Cir. 2013), amended, No. 13-497, 2013 WL 6439381 (2d Cir. Dec. 10, 2013), the Second Circuit reached a different conclusion on different facts, so in assessing the question of when/whether to appeal a non-final order awarding attorney’s fees, one might want to consult Perez as well as Keshner.

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