When bringing an appeal to a federal appellate court, one of the initial determinations counsel must make is whether the appeal is timely. A party generally must file a notice of appeal within 30 days after the entry of the judgment or order appealed from for the appeal to be timely (FRAP 4(a)(1)(A)). Although seemingly straightforward, a determination of timeliness may become complicated depending on the nature of the order entered by the district court. An issue that illustrates this complication is when a district court enters an award of attorneys' fees in accordance with the terms of a contract at issue in litigation after entering an order or judgment determining the merits of the case.

Determining the nature of the order awarding contractual attorneys' fees depends on whether the appellate court considers the award to be either:

There is currently a split among the circuits about how to treat these orders that should be resolved when the US Supreme Court hears argument on this issue during its current term.

In a case originating in the US District Court for the District of Massachusetts, the court entered an order on the merits of the case and stated it would rule on the plaintiffs' claims for attorneys' fees in a separate order (Cent. Pension Fund of Int'l Union of Operating Eng'rs & Participating Emp'rs v. Ray Haluch Gravel, Co., 695 F.3d 1, 4 (1st Cir. 2012)). Approximately one month later, the district court entered an award for attorneys' fees in favor of the plaintiffs (Cent. Pension, 695 F.3d at 5). After the order for attorneys' fees was entered, the plaintiffs filed a notice of appeal appealing both decisions to the US Court of Appeals for the First Circuit.

The defendants argued that the plaintiffs' appeal of the district court's order on the merits of the case was untimely because the plaintiffs waited until after the court had issued its award of attorneys' fees, more than 30 days after the court had issued its decision on the merits of the action (Cent. Pension, 695 F.3d at 5). The defendants argued that the US Supreme Court had created a bright-line rule that an award of attorneys' fees was always collateral to an order addressing the merits of the plaintiffs' claims, and therefore, the plaintiffs had to notice their appeal of the district court's original order within 30 days after its entry (Cent. Pension, 695 F.3d at 5, citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988)).

The First Circuit disagreed and held that when attorneys' fees derive from the contract at issue rather than a statute, the primary inquiry is whether the plaintiff's claim for attorneys' fees is an element of the damages sought by the plaintiff (Cent. Pension, 695 F.3d at 6). The collective bargaining agreement at issue provided for attorneys' fees as an element of damages available to a party if there was a breach of the agreement (Cent. Pension, 695 F.3d at 6). The district court's initial order determining the merits of the plaintiffs' claims was incomplete until it resolved the attorneys' fees issue (Cent. Pension, 695 F.3d at 7). Therefore, the time period to file an appeal of the court's first order began when the court entered its award for attorneys' fees, and plaintiffs' appeal of the district court's first decision was timely.

In reaching its conclusion, the First Circuit examined how the other circuits treated awards of contractual attorneys' fees differently:

The defendants appealed the First Circuit's decision to the Supreme Court. By granting the petition for a writ of certiorari in this case, the Supreme Court should resolve this circuit split. By doing so, the Court should clarify whether an award for contractual attorneys' fees is part of the calculation of damages or is a collateral order, thereby providing guidance on the timeliness of filing an appeal of such an order.

For more information about bringing a timely appeal in the federal appellate courts, see: