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Johnson v. Orr

as amended.: March 1, 1990.

ROY A. JOHNSON AND JOHN J. SHELLER, PLAINTIFFS-APPELLANTS
v.
VERNE ORR, SECRETARY OF THE AIR FORCE, FRANCIS ERARD, MAJOR GENERAL, WILFRED C. MENARD, JR., MAJOR GENERAL, COLONEL JOHN MURPHY, BRIGADIER GENERAL CHARLES YOUNG, AIR COMMANDER LT. COLONEL BILLY MCDANIELS, DEFENDANTS-APPELLEES



Civil Action No. 82-2578 - Dist. of New Jersey.

Becker, Cowen, and Seitz, Circuit Judges.

Author: Seitz

On Motion for Attorneys' Fees

Opinion OF THE COURT

SEITZ, Circuit Judge.

This is the decision on defendants' motion to dismiss plaintiffs' appeal from a district court order granting plaintiffs' allegedly inadequate attorneys' fees on the ground that the notice of appeal is untimely. The extensive history of this case is recounted in two earlier opinions of this court. Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986), cert. denied, 479 U.S. 828, 107 S. Ct. 107, 93 L. Ed. 2d 56 (1986); Johnson v. Orr, 776 F.2d 75 (3d Cir. 1985). We will repeat only those facts necessary to an understanding of the issues raised by defendants' motion.

Plaintiffs Roy A. Johnson and John J. Sheller ("plaintiffs") were civilian technicians employed by the New Jersey Air National Guard. They were discharged from their positions for labor activities alleged to be in violation of federal law. In an administrative hearing, the dismissals were upheld by an Air National Guard hearing examiner, whose findings were in turn adopted by the New Jersey Adjutant General.

Thereafter, plaintiffs filed a complaint in the district court containing three claims: 1) improper discharge in violation of the first and fifth amendments to the United States Constitution, the Bivens claims 2) improper discharge in violation of the provisions of the Administrative Procedure Act (APA) and 3) other constitutional violations remediable under 42 U.S.C. § 1983.

The district court dismissed the first of these claims, the Bivens claims, in December of 1983. On July 2, 1984, the district court granted summary judgment for plaintiffs on their APA claim. The so-called § 1983 claim remained undecided. Defendants moved to have the order granting summary judgment on the APA claim made final pursuant to Federal Rule of Civil Procedure 54(b). This the district court did by order dated October 24, 1985. The defendants then appealed the summary judgment on the APA claim and that judgment was affirmed by this court. Johnson v. Orr, 776 F.2d 75 (3d Cir. 1985).

After the judgment on the APA claim became final in December 1986, plaintiffs renewed their motion in the district court for costs and attorneys' fees on that judgment.*fn1 Upon receipt of the Report and Recommendation of the United States Magistrate, the district court entered an order awarding plaintiffs certain fees and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The order was docketed on April 11, 1988. At this point in time, April 11, 1988, plaintiffs' § 1983 claim remained viable in the district court.

We come next to the critical events relevant to the disposition of the pending motion to dismiss. The plaintiffs did not file a notice of appeal within sixty days after the April 11, 1988, fee order was docketed. See Fed.R.Civ.P. 4 (where government is a party notice of appeal must be filed within sixty days). Rather, after negotiation, the parties settled the § 1983 claim and the court entered an order dated April 3, 1989 dismissing the amended complaint with prejudice. On April 10, 1989, plaintiffs filed a notice of appeal from the district court's fee order that had been docketed April 11, 1988. It is the timeliness of this notice of appeal that we must determine.

The issue is more simply stated than resolved. The district court's judgment for plaintiffs on the APA claim had been appealed and had become final in December 1986. The order fixing the fees and costs with respect to that judgment was docketed on April 11, 1988. Since the fees and costs were based solely on a final judgment, we must decide whether the order fixing such fees and costs likewise became final and thus triggered the running of the time for appeal.

Defendants contend quite simply that the fee order was a final judgment for appeal purposes. Plaintiffs counter that the fact that a final judgment existed with respect to the APA claim, did not render the subsequent fee order final because the § 1983 claim remained outstanding.

Generally speaking, an order unconditionally fixing fees, docketed after the docketing of the final merits judgment, is a separate final judgment, at least where the merits judgment resolved all of the claims before the district court. Such a conclusion is implicit in some of the Supreme Court's analysis in White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982). Indeed, this proposition seems not to be challenged here. Plaintiffs ...


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