Opening a Trap for the Unwary, the Eighth Circuit Holds That the Fourteen-Day Period to File a Fee Petition Under Fed. R. Civ. P. 54 Applies to Preliminary Injunctions

In Spirit Lake Tribe  v. Jaeger, No. 20-2142 (8th Cir. July 16, 2021), the Eighth Circuit holds that a fee petition for work performed on a preliminary injunction must be submitted within 14 days of the interlocutory order, rather than waiting until the final judgment, contrary to the Advisory Committee Note’s commentary.

“The plaintiffs sued the North Dakota Secretary of State in January 2016, alleging that the State’s voter identification requirements violated the Constitution of the United States and the North Dakota Constitution, as well as Section 2 of the Voting Rights Act. In August 2016, the district court granted the plaintiffs’ motion for a preliminary injunction. The court enjoined the Secretary from enforcing the State’s voter identification laws in the upcoming election without providing a ‘fail-safe’ voting option for those who could not produce the required identification. The Secretary did not appeal.” (A second preliminary injunction was later entered, then vacated by the Eighth Circuit. The parties thereafter entered a consent decree.)

Only in April of 2017 did the plaintiffs move under 42 U.S.C. § 1988 for fees for counsel’s work on the preliminary judgment. The Secretary argued that the plain language of Fed. R. Civ. P. 54(d)(2)(B)(i) required that such a petition must “be filed no later than 14 days after the entry of judgment,” and thus petition was filed out of time, eight months later. “The district court concluded that Rule 54 requires motions for attorney’s fees to be filed within fourteen days of the entry of a final judgment at the conclusion of a case, and that the plaintiffs’ motion was timely. In the alternative, the court determined that public policy and ‘excusable neglect’ provided a basis for reaching the same result.” It awarded fees and costs of $452,983.76.

The Eighth Circuit holds that “the entry of judgment” in Fed. R. Civ. P. 54(d)(2)(B)(i) includes entry of a preliminary judgment. “Because preliminary injunctions are orders from which an appeal lies, 28 U.S.C. § 1292(a)(1), a plain reading of Rule 54 shows that the entry of a preliminary injunction triggers the fourteen-day deadline to move for attorney’s fees, unless a statute or a court order provides otherwise.” (The panel nevertheless upholds the fee award on grounds of “excusable neglect.”)

Plaintiffs pointed to language in the Advisory Committee Note to Rule 54 that “states that the rule establishes ‘deadline for motions for attorneys’ fees—14 days after final judgment unless the court or a statute specifies some other time’ . . . ” But the panel holds that “[a]n advisory committee note … cannot change the meaning of the plain language of a federal rule of procedure.”

The plaintiffs also noted “that the Secretary’s interpretation of Rule 54 would require a ‘flurry of meaningless make-work motion practice,’ because fee motions following a preliminary injunction typically will be premature. But the timely filing of a motion complies with the text of Rule 54 and serves one purpose of the provision—namely, ‘to assure that the opposing party is informed of the claim [for fees] before the time for appeal has elapsed.’ Fed. R. Civ. P. 54 advisory committee’s note to 1993 amendment. The notice-giving function of the rule is important, because a defendant’s ‘potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits.’ Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 608 (2001) (internal quotation omitted).”

Finally, the panel addresses the problem that the plaintiff is not yet a “prevailing party” under the standards of Buckhannon simply by obtaining interlocutory relief. “Even if a request for an award of fees would be premature in a particular case, however, a plaintiff can still file an appropriate motion and comply with the time limit of Rule 54. Such a motion would specify the order granting a preliminary injunction as the judgment, and would identify the injunction as the grounds entitling the plaintiff to the award, because the injunction could ripen into a ruling that makes the plaintiff a ‘ prevailing party. ’ If the district court deems the motion premature, then the court has discretion to defer a ruling on the motion, or to dismiss the motion without prejudice and order a new deadline for filing. See Fed. R. Civ. P. 6(b)(1)(A) [and] 54(d)(2)(B).”

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: