Campanioni v. Barr ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-4704
EBEL GAITAN CAMPANIONI, ET AL.,
Plaintiffs-Appellees,
versus
WILLIAM BARR, Acting Attorney General,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(May 27, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
The Attorney General attempts to appeal a district court order
appointing counsel for Cuban detainees under the Criminal Justice
Act. We find that the order is an unappealable collateral order,
and dismiss for lack of jurisdiction. We deny the government's
alternative petition for mandamus because the request for relief is
best addressed on appeal from a final judgment in the case.
I.
Appellees are five Cubans who entered this country during the
Mariel Boatlift of 1980 and were detained by the INS. Pending
their "exclusion hearing," the INS granted the detainees
administrative parole. This parole allowed the detainees to remain
in the United States until the INS determined whether they should
be excluded. The detainees were convicted of drug offenses
committed while on parole, and were released after serving their
prison terms.
The INS denied detainees parole after their release from
prison and placed the detainees in administrative detention. These
five detainees filed a pro se habeas petition in federal district
court to challenge the INS detention. The district court
consolidated the five petitions and, over the government's
objection, appointed counsel to represent the five detainees
relying upon the Criminal Justice Act.
The district court denied the government's request to certify
its order appointing counsel pursuant to 28 U.S.C. § 1292. The
Attorney General asserted that the CJA does not authorize payment
of the detainees' counsel with public monies. Appointed counsel
have not been paid and no order awarding fees has been entered.
The CJA authorizes such pay only after the counsel submits vouchers
to the district court detailing his expenses, and none have been
submitted. The government filed a notice of appeal and petition
for mandamus. The detainees moved to dismiss for lack of
jurisdiction and urge denial of mandamus. Detainees argue that the
order appointing counsel is not an appealable order and is
reviewable on the appeal of a final judgment in the case. They
also urge that the petition for mandamus should be denied as
unnecessary.
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II.
Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541(1949) created a narrowly defined class of appealable interlocutory
orders. The order appointing defense counsel must (1) conclusively
determine the disputed question; (2) resolve an important issue
completely separate from the merits of the action; and (3) be
effectively unreviewable on appeal from a final judgment. Coopers
& Lybrand, 437 U.S. 463, 468-69 (1978). See also 15A C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure, § 3911 at 329-
35 (1992); Jeffery Hanslick, Decisions Denying the Appointment of
Counsel and the Final Judgment Rule in Civil Rights Litigation, 86
Nw. L. Rev. 782, 801-06 (1992) (describing post-Cohen development
of collateral order doctrine). "If the order fails to satisfy any
one of the requirements, it cannot be appealed under the collateral
order doctrine." Rauscher Pierce Refsnes, Inv. v. Birenbaum, 860
F.2d 169, 171 (5th Cir. 1988) (emphasis added).
The Attorney General purports to appeal from an order
appointing counsel for the detainees. However, the Attorney
General does not object to the appointment of counsel itself. He
objects only to the payment of fees that appointment of counsel
under the CJA may eventually authorize. Practically, the issue in
this case is whether the district court's authorization for payment
of attorney's fees under the CJA is immediately appealable.
In other contexts, this court has consistently held that a
district court's interim award of attorney's fees is not appealable
under the Cohen doctrine, in part because the fee award is
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effectively reviewable after final judgment on the merits of the
case is entered. Shipes v. Trinity Industries, Inc., 883 F.2d 339,
344 (5th Cir. 1989); Darder v. Lafourche Realty Co., Inc., 849 F.2d
955, 959 (5th Cir. 1988); Ruiz v. Estelle, 609 F.2d 118, 119 (5th
Cir. 1980). The Shipes court noted that the interim award of fees
would be immediately appealable only where the "'mere payment of
the fees would make them unrecoverable.'" Shipes, 883 F.2d at 344(quoting Ruiz, 609 F.2d at 119). Such a situation might arise, for
instance, if the fees were to be paid directly to a client in
danger of becoming judgment-proof. Palmer v. City of Chicago, 806
F.2d 1316, 1317-20 (7th Cir. 1986), cert. denied, 481 U.S. 1049(1987).
We see little danger that payment of fees will make them
unrecoverable in this case. In Ruiz v. Estelle, 609 F.2d 118, 119
(5th Cir. 1980), we found that an order awarding interim legal
fees under 42 U.S.C. § 1988 reviewable after final judgment. In
reaching this conclusion, the Ruiz court noted that the counsel for
the plaintiffs--the party who received the interim fees--"stated
unequivocally during oral argument that, should the fees awards be
paid and should the court later decide that all . . . of the amount
paid was not due, the appropriate amount would be refunded." Ruiz,
609 F.2d at 120. The appointed counsel has made similar assurances
here.
The Attorney General would distinguish on the grounds that
Ruiz and other cases find interim fee awards unappealable because
such orders did not conclusively determine the issue of whether
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attorneys' fees should be awarded. As the Ruiz court noted, at
least some of the award of fees under 28 U.S.C. § 1988 depended on
which party ultimately prevailed in the litigation and therefore
was subject to reconsideration.
This is true, as far as it goes. The Ruiz court, however,
also noted that the award of interim fees was practically
reviewable after final judgment had been entered on the merits
because any interim fees paid could be reimbursed. See also
Shipes, 883 F.2d at 345; Dardar, 849 F.2d at 959 ("after a truly
final order, appellate review of any prior attorney's fee
determination will be available"). The Attorney General cannot
show that the order here is appealable merely by showing that it is
conclusive and collateral to the merits. He must also show that he
will suffer some irrevocable harm if appeal is delayed. Richardson
v. Penfold, 900 F.2d 116, 118 (7th Cir. 1990) ("irrevocable harm"
from delayed appeal "rightly regarded as essential"). As in
Shipes, Dardar, and Ruiz, there has been no such showing here.
The government contends that case might become moot should the
detainees be deported or paroled by INS. We are not persuaded that
such mootness necessarily moots the issue of counsel fees. A case
becomes moot when the issues presented are no longer "live" or the
parties lack a legally cognizable interest in the outcome. Murphy
v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982). Assuming
arguendo that the government has standing to challenge appointment
of counsel under the CJA, that legally cognizable interest in
recovering fees paid to the appointed counsel remains after the
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underlying controversy about the detainees' confinement detention
became moot. Dahlem v. Bd. of Education of Denver Public Schools,
901 F.2d 1508, 1511 (11th Cir. 1990) ("the expiration of the
underlying cause of action does not moot a controversy over
attorney's fees already incurred"); cf. Wilfred Academy of Hair and
Beauty Culture v. The Southern Assoc. of Colleges and Schools, Slip
Op. 90-2958, at 3608 (5th Cir. April 6, 1992) (award of attorney's
fees can preserve live case or controversy under Texas law).
Relatedly, the possibility that the underlying case may fall away
does not meet the third element of Cohen. That possibility exists
in many cases. As a class, such orders are not unreviewable.
Significantly, the order here does not actually award any
specific amount of fees. It is undisputed that the detainees'
counsel has not yet been reimbursed or submitted any claim for
reimbursement. This court has held that an order granting fees is
not reviewable independent of the merits prior to the calculation
of the amount of fees. Rodriguez v. Handy, 802 F.2d 817, 821 (5th
Cir 1986). Therefore, this order is nonappealable even apart from
the fact that the Attorney General can obtain effective review
after judgment on the merits.
We express no opinion on the merits of the detainees' argument
that the Attorney General lacks standing to challenge the district
court's order, an argument best addressed in any appeal from a
final judgment resolving this case on the merits.
III.
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Mandamus is extraordinary relief that should not issue if
"other means of obtaining relief is available." In Re W.R. Grace
& Co.--Conn, 923 F.2d 42, 44 (5th Cir. 1991); In Re Fibreboard
Corp., 893 F.2d 706, 707 (5th Cir. 1990). Where an interest can be
vindicated through direct appeal after a final judgment, this court
will ordinarily not grant a writ of mandamus. In Re Fibreboard,
803 F.2d at 708.
The case is DISMISSED for want of jurisdiction and the
petition for mandamus is DENIED.
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