In Deering v. Lockheed Martin Corp., No. 23-2853 (8th Cir. Sept. 17, 2024), the Eighth Circuit dismisses in part an appeal of sanctions against an employment-discrimination plaintiff because she filed the notice of appeal before the judge below calculated the attorney’s fees, then failed to amend the notice to appeal the fee award.
According to the opinion, during her deposition (and in a subsequent declaration) the plaintiff misstated her current employer and understated her income, material facts in determining a remedy for employment discrimination. When the defendant uncovered the truth in the weeks leading up to trial, it moved for sanctions. The district court judge dismissed the action under the court’s implied powers, finding the plaintiff’s misstatements “intentional, willful, and in bad faith,” and – after further briefing – awarded defendant $93,193 in attorney fees.
The Eighth Circuit affirms in part and dismisses in part the plaintiff’s appeal. It affirms the sanction, holding that the district court did not abuse its discretion in imposing the highest penalty, dismissal with prejudice. “As a lawyer [herself, plaintiff] should have known better. She would have been aware, for example, that continuing to claim a lower salary would have increased her potential recovery at trial. The less she earned, the greater the lost wages she could recover.”
The panel, though, dismisses the appeal of the fee award on prematurity grounds.
“Her notice of appeal . . . came too early to ‘encompass[]’ the fee award. Fed. R. App. P. 3(c)(4). She filed it on August 14, 2023, before the district court had decided whether to grant attorney fees. On August 29, two things happened. First, the court decided that it would award attorney fees to Lockheed. And second, Deering filed her statement of issues with us, which identified whether the ‘district court further err[ed] in also granting [Lockheed’s] motion for attorney’s fees’ as one of her ‘issues on appeal.’ It then took the court more than a month, until October 2, to set the amount of the award at $93,193.”
The panel holds that the August 14 notice was too early. And while the August 29 statement of issues mentioned the fee award, it was nevertheless premature. “[T]he problem, once again, is timing. Even though a filing like this one can substitute for a notice of appeal, . . . the attorney-fee award had not yet become appealable . . . . The award in this case did not become final until the district court ‘quantifi[ed]’ it a month later, . . . meaning Deering’s appeal was still premature even if we construe her statement of issues as a notice of appeal.”
The panel observes that plaintiff “needed to wait at least until October 2, the day the court ‘announce[d]’ its decision, to file a separate or amended notice of appeal if she wanted us to review the attorney-fee award. Fed. R. App. P. 4(a)(2) . . . . We accordingly dismiss the appeal in part . . . and affirm the judgment of the district court.”
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