United States ex rel. Maurice v. Nursing Personnel Home Care

Filing

OPINION, dismissed, by JON, PHW, DAL, FILED.[1192288] [13-1688]

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13-1688-cv (L)
United States ex rel. Maurice Keshner v. Nursing Personnel Home Care

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
Submitted: November 5, 2013

Decided: April 2, 2014

Docket Nos. 13-1688-cv (Lead), 14-251-cv (Con)
- - - - - - - - - - - - - - - - - - - - - MAURICE KESHNER, Individually,
Plaintiff-Appellee,
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-Appellee,
v.
NURSING PERSONNEL HOME CARE, WALTER GREENFIELD,
Defendants-Appellants,
IMMEDIATE HOME CARE, INC., ISAAC SCHWARTZ,
MARY SMALLS, SMALLS TRAINING & COUNSELING SCHOOL,
RENAISSANCE HOME CARE, NACHEM SINGER, ERVIN
RUBENSTEIN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.
Motions to dismiss as untimely two appeals of an award of
attorney’s fees entered by the United States District Court for
the Eastern District of New York (Frederic L. Block, District
Judge).

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In No. 13-1688, motion to dismiss denied as moot and appeal
dismissed as moot in view of pending timely appeal from a partial
judgment entered on the same attorney’s fee award; in No. 14-251,
motion to dismiss denied.

Avrom R. Vann, Avrom R. Vann, P.C.,
New York, NY, for Appellants.
Brian
P.
McCafferty,
Kenney
&
McCafferty, P.C., Blue Bell, PA
(Irwin G. Klein, Hein, Waters &
Klein,
Garden
City,
NY),
for
Appellee Maurice Keshner.
Erin Elizabeth Argo, Assistant U.S.
Attorney, Brooklyn, NY, for Appellee
United States of America.

JON O. NEWMAN, Circuit Judge.
The pending motions to dismiss two appeals from an award of
attorney’s fees requires us to return to the issue considered
last year in Perez v. AC Roosevelt Food Corp., 734 F.3d 175 (2d
Cir. 2013), amended, No. 13-497, 2013 WL 6439381 (2d Cir. Dec.
10, 2013): under what circumstances does the time to appeal such
awards run from the date of entry of the award?

Maurice Keshner

moves to dismiss two appeals of Nursing Personnel Home Care
(“Nursing

Personnel”)

from

an

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interlocutory

order

entered

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November 15, 2010, by the District Court for the Eastern District
of New York (Frederic L. Block, District Judge), awarding Keshner
attorney’s fees.

We conclude that the fee award, entered before

entry of a final judgment or a partial judgment entered pursuant
to Rule 54(b) of the Federal Rules of Civil Procedure, did not
have to be appealed until entry of an appealable judgment, and
that the pending collateral order appeal in No. 13-1688, taken
in the absence of an appealable judgment, has become moot upon
the entry of a Rule 54(b) partial judgment, and that the timely
appeal in No. 14-251 from the Rule 54(b) partial judgment is
timely.

We therefore deny as moot the motion to dismiss the

collateral order appeal in No. 13-1688, dismiss that appeal as
moot, deny the motion to dismiss the appeal in No. 14-251 from
the Rule 54(b) partial judgment and direct briefing of that
appeal in the normal course.
Background
The origin of this controversy is a qui tam action brought
by Keshner in 2006 on behalf of the United States against various
providers

of

home

health-care

services

and

including Nursing Personnel and its president.

their

officers,

That action was

brought pursuant to the False Claims Act (“FCA”), 31 U.S.C.
§ 3729 et seq.

Keshner and the United States settled the claim
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against Nursing Personnel and its president.

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The action remains

pending against other defendants.
The complicated procedural steps concerning the pending
appeal

began

in

May

2010

when

Keshner

filed

a

motion

for

attorney’s fees and costs pursuant to 31 U.S.C. § 3730(d)(1).
That provision entitles a qui tam plaintiff who obtains a
settlement with a defendant in an FCA action to an award of
attorney’s fees and costs against the defendant. On November 15,
2010, the District Court granted Keshner’s motion and ordered
Nursing Personnel to pay Keshner approximately $186,000. Nursing
Personnel then wrote the District Court requesting entry of a
judgment based on the fee award.

Nursing Personnel stated that

it was awaiting a judgment from which an appeal could be taken.
On May 17, 2011, the District Court denied Nursing Personnel’s
request,

citing

Fed.

R.

Civ.

P.

58(a)(3),

which

generally

requires that a judgment be set out in a separate document, but
exempts from this requirement an order disposing of a motion .
. . for attorneys’ fees under Rule 54.”

On June 14, 2011,

Nursing Personnel filed a notice of appeal from both the November
15, 2010, fee award and the May 17, 2011, denial of the request
for entry of a judgment.

That appeal was No. 11-2433 in this

Court. Nursing Personnel contended that the May 17, 2011, denial
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of its request for a judgment had amended the November 15, 2010,
order for a fee award.
In July 2011, Keshner moved to dismiss Nursing Personnel’s
appeal in No. 11-2433 on the ground that the notice of appeal of
the fee award was untimely because it was filed more than 60 days
after entry of the award and that the May 17, 2011, denial did
not amend the order for a fee award.

Nursing Personnel opposed

the motion and filed a petition for a writ of mandamus to compel
the District Court to enter a separate judgment on the attorney’s
fee award.

Nursing Personnel contended that it properly awaited

entry of a judgment on the fee award before appealing the award
because Keshner’s motion for fees was filed pursuant to 31 U.S.C.
§ 3730(d)(1) and not Rule 54, thereby requiring entry of a
separate judgment under Rule 58(a).

Nursing Personnel also

contended that the District Court had construed its request for
a separate judgment as a motion to amend the order for the fee
award, which, Nursing Personnel argued, reset the time for filing
a notice of appeal until after the District Court decided the
request for a separate judgment.
In May 2012, this Court dismissed the appeal in No. 11-2433
by granting Keshner’s motion to dismiss the appeal from the fee
award

order

and

nostra

sponte
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dismissing,

for

lack

of

an

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appealable order, Nursing Personnel’s attempt to appeal the May
2011 order denying its request for entry of a separate judgment.
We explained our ruling as follows:
In dismissing [Nursing Personnel’s] untimely appeal
from the district court’s order awarding attorneys’
fees, we express no opinion as to whether that order is
immediately appealable under the collateral order
doctrine; we note only that the notice of appeal was
filed well beyond any time within which a notice of
appeal from that order would have to have been filed.
We also denied Nursing Personnel’s petition for a writ of
mandamus for lack of a clear and indisputable right to issuance
of the writ.
Keshner then moved in the District Court for enforcement of
the fee award order.

On March 15, 2013, the District Court

entered an order that granted Keshner’s motion, ruled that the
fee award was enforceable without a separate judgment, directed
Nursing Personnel either to pay Keshner $187,024.13 or show cause
why a writ of execution should not be issued and why Nursing
Personnel should not be required to pay Keshner attorney’s fees
for bringing the enforcement motion.
On May 1, 2013, Nursing Personnel filed a notice of appeal
from the March 15, 2013, order and the previous orders that had
made the fee award (November 15, 2010, order) and had denied the
request for a separate judgment (May 17, 2011, order).
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That

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appeal is No. 13-1688 in this Court.

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In April 2013, despite the

filing of Nursing Personnel’s notice of appeal, Keshner moved in
the District Court for a writ of execution, which the District
Court issued in July 2013.1

In August 2013, the District Court

directed the United States to determine by September 12, 2013,
whether

it

will

intervene

against

defendants in the qui tam action.

the

remaining

individual

The Government subsequently

declined to intervene in the claims against remaining defendants
Nachem Singer and Ervin Rubenstein.
In July 2013, Keshner filed the pending motion to dismiss
the appeal in No. 13-1688 and a motion for sanctions under Rule
38 of the Federal Rules of Appellate Procedure. Upon our initial
consideration of Keshner’s motion, we deferred a decision and
directed the District Court either to enter a partial judgment
under Rule 54(b) or place on the record an explanation why a
partial judgment should not be entered.

In response to that

directive, the District Court entered a partial judgment under
Rule 54(b) on January 7, 2014. The District Court explained that
it has previously declined to enter a separate judgment on the
assumption that the settlement had disposed of the case, but now

1

We express no view as to whether the filing of Keshner’s notice
of appeal deprived the District Court of jurisdiction to issue a writ
of execution.
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realized that the case remained pending against some defendants.
Nursing Personnel filed a timely notice of appeal from that
partial judgment on January 24, 2014.

That appeal has been

docketed in this Court as No. 14-251 and consolidated with No.
13-1688. After argument on the motion to dismiss in No. 13-1688,
Keshner filed a motion to dismiss the appeal in No. 14-251, to
which Nursing Personnel has responded.
Thus, the current state of affairs with respect to Nursing
Personnel’s various attempts to appeal the fee award is as
follows.

The appeal in No. 11-1433 has been dismissed as

untimely, and the appeals in No. 13-1688 and No. 14-251 remain
pending and are the subject of the pending motions.
Discussion
Keshner initially contends that Nursing Personnel has lost
its opportunity to appeal the fee award because our Court
dismissed as untimely its initial appeal in No. 11-1433.
disagree.

We

In dismissing that appeal we explained that we were

doing so only because the notice of appeal was filed beyond the
allowable time for taking an appeal from the fee award order.
But we explicitly declined to determine whether the fee award was
immediately appealable as a collateral order.

If it was not

immediately appealable, an untimely notice of appeal would have

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been a nullity.

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If it was immediately appealable, an untimely

notice of appeal would bar further attempts to appeal the fee
award only if Nursing Personnel was required to appeal the fee
award when entered.
Our

To that issue we now turn.

consideration

decision in Perez.

must

begin

with

our

Court’s

recent

A divided panel there ruled that, in the

circumstances of that case, the time to appeal a fee award began
upon entry of the award order on the docket of the District Court
and not from the later entry of a judgment.

However, in Perez

the District Court’s order making the fee award also approved the
parties’ settlement and directed the Clerk of the Court to close
the case. See Perez, 2013 WL 6438381, at *1.

In fact, a judgment

(which was “identical in every way” to the order approving the
settlement and awarding the attorney’s fees) was not entered on
the District Court docket in Perez until the defendant failed to
comply with the terms of the settlement and the plaintiff,
therefore, moved to reopen the case and have judgment entered,
see id. at *1, *3, ostensibly to permit execution.

Thus, unlike

our case, at the time the fee award was entered in Perez, that
award was not a collateral order entered in a case that was still
pending.

Given the fact of the settlement, the fee award was

part of the last order that needed to be entered, and it would
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have remained as such had the defendant not later defaulted on
the settlement, thereby precipitating additional proceedings and
ultimately the entry of the judgment against it.

Here, by

contrast, because the fee award against Nursing Personnel was a
collateral order in a case that remained pending because of open
claims against other defendants, the entry of the fee award did
not trigger Nursing Personnel’s obligation to file a notice of
appeal.

“[F]ailure to take an available collateral order appeal

does not forfeit the right to review the order on appeal from a
final

judgment.”

15A

Wright

&

Miller,

Federal

Practice

&

Procedure § 3911, at 359 (2d ed. 1991); see In re “Agent Orange”
Products Liability Litigation MDL No. 381, 818 F.2d 179, 181 (2d
Cir. 1987) (“We do not believe that appellants were faced with
the choice of appealing from the [interlocutory] order or not at
all. . . . Even if the [interlocutory] order was appealable under
Cohen [v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)],
there is still no reason to bar an appeal from the [later] order,
which was clearly intended by the district court to be final.”).
Indeed, we would not expect an appellate court to require an
interlocutory appeal of a pre-judgment or pre-final order fee
award because review of a fee award would normally be intertwined
with the merits of an appeal from a final judgment or final

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Of course, once the District Court in the pending case

entered a partial judgment under Rule 54(b), the time to appeal
that judgment began upon its entry.

The notice of appeal from

the Rule 54(b) partial judgment was timely.
In light of the entry of the Rule 54(b) partial judgment and
the pendency of a timely appeal from that judgment in No. 14-251,
we conclude that the appeal in No. 13-1688 has become moot and
that we should therefore dismiss that appeal and also deny as
moot the pending motion to dismiss the appeal of the fee award
in No. 13-1688.

Arguably we could consider the notice of appeal

in No. 13-1688 to have ripened into a timely appeal from the Rule
54(b) partial judgment on an analogy to FRAP 4(a)(2), but there
is no need to consider that possibility in light of the entirely
valid appeal of the fee award in No. 14-251.

To the extent that

Nursing Personnel’s appeal in No. 13-1688 sought to appeal the
District Court’s refusal to enter a Rule 54(b) partial judgment,
that aspect of the appeal has also become moot.
Conclusion
The motion to dismiss the appeal in No. 13-1688 is denied as
moot, and that appeal is dismissed as moot.

The motion for

sanctions is denied. The motion to dismiss the appeal in No. 14251 is denied, and that appeal will proceed to briefing in the

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A motion to consolidate the appeals in Nos. 13-

1688 and 14-251, which this Court already consolidated nostra
sponte, is denied as moot.

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