A recent NLJ story, “First Circuit Finds Appeal of Fees Timely, Deepening Circuit Split,” reports that the U.S. Court of Appeals for the First Circuit has deepened the circuit split on the deadline for filing civil appeals involving attorney fees.  On September 12, in a case involving a collective bargaining dispute at a landscape supply company, a unanimous panel ruled that an appeal was timely.  The ruling resolved an issue of first impression in the circuit.

The First Circuit revived the union’s appeal, which was filed on August 15, 2001, less than 30 days after the court’s ruling on attorney fees due the plaintiffs for prevailing on a collective bargaining contract.  The defendants claimed the appeal was invalid because it was filed more than 30 days after the District of Massachusetts ruled on the underlying claim, on June 17, 2011. 

The appeals court found that the attorney fees were an element of the plaintiffs’ contractual damages, so the judgment was not final until the court issued the fee award on July 25, 2011.  Senior Judge Bruce Selya wrote the opinion in Central Pension Fund of the International Union of Operating Engineers and Participating Employers v. Ray Haluch Gravel Inc. (pdf)

Ray Haluch Gravel argued that a 1988 Supreme Court case, Budinich v. Becton Dickinson & Co., meant that International Union’s appeal was untimely.  The plaintiff in Budinich sought attorney fees under a state fee-shifting statute after prevailing on an employment claim.  The court rejected the appeal of fees because it was filed more than 30 days after the judgment in the case.

“We do not believe that Budinich should be read mechanically to apply to all claims for attorneys’ fees, whatever their genesis,” Selya wrote.  “This acknowledgement unmistakably signals that, although the Budinich Court determined that attorneys’ fees generally should be considered a collateral matter, they may sometimes be considered as part of the merits,” Selya wrote. 

Selya observed that International Union brought suit at least partly to enforce the collective bargaining agreement, which provided for attorney fees as part of damages for contract breach.  “Viewed through this prism, the attorneys’ fees must be considered an element of the plaintiffs’ contractual damages.”