Failure to File Timely Supplemental Notice of Appeal from Fee Order Was Fatal.
Here is an ouch!
It reinforces a lesson that we have reminded our readers out there to observe time and time again: whether at the state or federal level, separately appeal any adverse attorney’s fees orders. It cannot hurt and may avoid what happened to the City of L.A. in the next case.
In Hunt v. City of Los Angeles, Case Nos. 09-55750/09-55765 (9th Cir. Mar. 22, 2011) (for publication), City of Los Angeles lost its defense of the constitutionality of some Venice Beach Boardwalk ordinances in plaintiff’s civil rights action, with the district judge awarding plaintiff $207,285 in attorney’s fees on July 10, 2009. City subsequently filed an untimely notice of appeal from the fee order, one that was withdrawn. City challenged the fee award in its appeal from the underlying merits judgment.
Too late, said the Ninth Circuit. It had no jurisdiction to consider the challenge to the fee order because City failed to timely file a supplemental notice of appeal from separate fee order. (E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999); Doughtery v. Lehman, 711 F.2d 555, 558-559 (3d Cir. 1983).) Again, for emphasis, avoid this ouch! by separately appealed fee orders.