Seventh Circuit rules attorney fees must be set before review.

Byline: David Ziemer

Unless attorney fees owing under Rule 37 have been quantified, the decision whether to award fees in the first instance is unreviewable, the Seventh Circuit held on Feb. 13.

Abraham V. Sonii and Rufus Jones brought an employment discrimination case against General Electric Company, in Illinois federal court, and the parties settled the case in October 2000.

At that time, it was widely believed that settlement made the plaintiff a "prevailing party" entitled to attorneys' fees. Seven months later, however, the United States Supreme Court disapproved that view in Buckhannon Board & Care Home, Inc., v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). The court stated in a footnote that achieving a settlement falls short of prevailing unless the settlement yields a consent decree or some equivalent form of judicial imprimatur.

Subsequently, the Seventh Circuit held in T.D. v. LaGrange School District, 349 F.3d 469, 478-79 (7th Cir. 2003), that a disposition similar to a consent decree - mandatory language entered as a judgment, or the judge's signature in lieu of the litigants' - may suffice to confer prevailing-party status, but that a private settlement followed by dismissal of the lawsuit does not.

The district judge denied the plaintiffs' request for legal fees, as prevailing parties, but held they were entitled to fees for discovery abuse, without setting an amount. The plaintiffs appealed the denial of fees as prevailing parties, but the Seventh Circuit dismissed the appeal for lack of jurisdiction in a decision by Judge Frank Easterbrook.

No Final Judgment

The court first held that jurisdiction was lacking because the district court has yet to enter a final judgment. The court found that, while the settlement contemplated the complaint would be dismissed with prejudice, that step has not been accomplished.

The court acknowledged that postjudgment decisions on requests for attorneys' fees are appealable independently of the merits, but noted that appellate review of pre-judgment decisions about fees is deferred until the litigation is over.

The court also acknowledged that, sometimes a court will proceed as if a promised disposition had been entered, but found, "this is not an appropriate occasion for that treatment, because we cannot be sure what the dismissal order would have provided, yet its details could affect the question whether plaintiffs are prevailing parties."

The court added...