     Case: 09-30731     Document: 00511044969          Page: 1    Date Filed: 03/08/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            March 8, 2010
                                     No. 09-30731
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk



BELLA MARIE PECHON,

                            Plaintiff - Appellant

v.

LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS; ALAN LEVINE,
individually and in his official capacity as Secretary of the Louisiana Department
of Hospitals,

                            Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 2:08-cv-664


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Bella Marie Pechon sued Louisiana and one of its officials in federal court
for money damages.        The district court dismissed the case as frivolous and
awarded attorney’s fees to the state official. Pechon filed a motion for relief from




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-30731       Document: 00511044969 Page: 2              Date Filed: 03/08/2010
                                    No. 09-30731

the judgment – which the court denied. Pechon appeals, and we affirm in part
and dismiss in part for lack of appellate jurisdiction.


                                               I.
       Pechon alleges that her boss fired her for being too old. She sued her
former employer – the Louisiana Department of Health and Hospitals – and its
Secretary – Alan Levine – in federal district court.                Pechon sought money
damages from all defendants, including from Levine in both his official and
personal capacities. She asserted causes of action under the Due Process Clause
of the Fourteenth Amendment, 42 U.S.C. § 1983, and the Age Discrimination in
Employment Act.1
       The defendants filed a motion to dismiss for lack of jurisdiction and for
failure to state a claim, which the court, through a magistrate judge,2 granted.
It found that the Eleventh Amendment shielded from suit in federal court the
Department 3 and Levine in his official capacity. Because Pechon did not allege
any facts to show that Levine personally had wronged her, the court dismissed
the § 1983 action against him for failure to state a claim. Finally, the court



       1
        29 U.S.C. §§ 621 et seq. Pechon originally complained under both the federal Age
Discrimination in Employment Act and the age-based portions of the Louisiana Employment
Discrimination Law. LA . REV . STAT . AN N . §§ 23:311 et seq. Penchon does not mention the
state cause of action in her brief, so she has abandoned any claim thereunder. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
       2
        Before the district court, both parties consented to the magistrate judge’s jurisdiction
pursuant to 28 U.S.C. § 636(c). See 28 U.S.C. § 636(c)(1) (“Upon the consent of the parties, a
full-time United States magistrate judge or a part-time United States magistrate judge who
serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury
civil matter and order the entry of judgment in the case, when specially designated to exercise
such jurisdiction by the district court or courts he serves.”). Under these circumstances, the
magistrate judge may “conduct proceedings and enter final judgment in a case; such judgment
is then appealable to the circuit court directly.” Trufant v. Autocon, Inc., 729 F.2d 308, 309
(5th Cir. 1984).
       3
       We have found the Department to be an “alter ego” of the state. See Darlak v. Bobear,
814 F.2d 1055, 1059 (5th Cir. 1987).

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dismissed the age discrimination claim because the Act requires plaintiffs first
to exhaust administrative remedies, which Pechon concedes she did not do. For
having to defend against Pechon’s frivolous lawsuit, each defendant requested
– and the court granted – attorney’s fees under 42 U.S.C. § 1988.
       Pechon filed motions under Federal Rules of Civil Procedure 59(a)(1)(B),
59(e), and 60(b)(6) – seeking a new trial, an alteration to the judgment, or relief
from the operation of the judgment. As Pechon did not establish a manifest
error of law or other extraordinary circumstances to justify disturbing the earlier
order, the court denied her motions. The court did, however, move sua sponte
to clarify its previous order, explaining that only Levine in his personal capacity
– not the other defendants – would receive attorney’s fees under § 1988. The
court left for future decision the amount of those fees and instructed Levine to
submit a detailed calculation of his legal expenses.
       Pechon filed a notice of appeal, in which she challenges three of the
magistrate judge’s decisions: 1) the dismissal of her claims;4 2) the denial of relief
from that judgment; and 3) the imposition of attorney’s fees.


                                              II.
       We must pause to verify our jurisdiction. Pechon urges that we have it
under 28 U.S.C. § 1291, which vests the circuit courts with authority to hear
“appeals from all final decisions of the district courts of the United States.”
       “In most cases, an order is final only when it ends the litigation on the


       4
        The notice of appeal expressly challenges only the denial of Pechon’s Rules 59 and 60
motions and the imposition of attorney’s fees. That is, Pechon did not in the notice of appeal
question the underlying decision to dismiss her case, even though Federal Rule of Appellate
Procedure 3 requires appellants to “designate” on their notices of appeal the “judgment, order,
or part thereof being appealed.” FED . R. APP . P. 3(c)(1)(B). While Pechon “has breached the
formal requirements of Rule 3(c), this error does not defeat [her] right to appeal the entire
case. Interpreting notices of appeal liberally, this Court often has exercised its appellate
jurisdiction – despite an improper designation under Rule 3(c) – where it is clear that the
appealing party intended to appeal the entire case.” Trust Co. Bank v. United States Gypsum
Co., 950 F.2d 1144, 1147-48 (5th Cir. 1992).

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merits and leaves nothing for the court to do but execute the judgment.” 5 Here,
the dismissal of Pechon’s claims and the denial of post-judgment relief are final.
Nothing left to do but execute the judgment.
       The imposition of attorney’s fees is another story. Indeed, a claim for
attorney’s fees is seen as a separate action from one on the merits,6 and we have
held that an order imposing attorney’s fees that leaves “for a later determination
the amount” is not a “‘final order’ for purposes of appellate review.” 7 In this case,
the district court expressly set for future decision the amount of the attorney’s

       5
        Club Retro LLC v. Hilton, 568 F.3d 181, 214 (5th Cir. 2009) (citing Coopers & Lybrand
v. Livesay, 437 U.S. 463, 467 (1978); Catlin v. United States, 324 U.S. 229 (1945)) (quotation
marks omitted).
       6
           White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 451-52 (1982)
(explaining that a “court’s decision of entitlement to fees [under § 1988] will . . . require an
inquiry separate from the decision on the merits”); Echols v. Parker, 909 F.2d 795, 798 (5th
Cir. 1990) (“Additionally, attorney’s fees are considered collateral to the merits, so that final
judgments as to attorney’s fees can be appealed separately from the ‘merits’ judgment.
Because a judgment is not final until both liability and damages are determined, a judgment
awarding an unspecified amount of attorney’s fees is interlocutory in nature.” (citing Deloach
v. Delchamps, Inc., 897 F.2d 815, 826 (5th Cir. 1990))); Dardar v. Lafourche Realty Co., 849
F.2d 955, 957 (5th Cir. 1988) (“[A]wards of attorney’s fees may be appealed separately as final
orders after a final determination of liability on the merits.”); 10 JAM ES WM . MOORE ET AL .,
MOORE ’S FEDERAL PRACTICE ¶ 54.158 (3d. ed.) (“A judgment awarding or denying attorney’s
fees . . . may be appealed separately from the merits judgment.”). Note, too, the inverse: the
Supreme Court has held that questions about the “recoverability or amount of attorney’s fees
for the litigation” do not bear on the finality of the underlying case. Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 199 (1988); see also Cadle Co. v. Pratt (In re Pratt), 524 F.3d
580, 585 (5th Cir. 2008) (“The Supreme Court has made clear that ‘a decision on the merits
is a ‘final decision’ for purposes of § 1291 whether or not there remains for adjudication a
request for attorney’s fees attributable to the case.’” (quoting Budinich, 486 U.S. at 202-03)).
       7
         Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976); Southern Travel Club v.
Carnival Air Lines, 986 F.2d 125, 131 (5th Cir. 1993) (holding “that an order awarding
attorney’s fees or costs is not reviewable on appeal until the award is reduced to a sum certain”
– even though “this requirement may result in some ‘diseconomy’”). See 10 JAM ES WM . MOORE
ET AL ., MOORE ’S FEDERAL PRACTICE ¶ 54.158 (3d. ed.) (“A judgment awarding a fee is not
appealable until the amount of the fee has been established. When the court chooses to
bifurcate the issues of liability and amount . . . it may rule that the fee movant is entitled to
fees and may actually enter a judgment to that effect. Nevertheless, that judgment is not
appealable until later proceedings have been held in which the exact amount of the fee is
determined. Once the amount is set, an appeal from the judgment brings up for review both
the amount and the earlier decision as to the right to the fee.” (citing Travelers Ins. Co. v. St.
Jude Hosp., 38 F.3d 1414 (5th Cir. 1994))).

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fees.8        We DISMISS for lack of jurisdiction the portion of Pehcon’s appeal
challenging the imposition of attorney’s fees.


                                                 III.
         We review de novo the district court’s dismissal for lack of subject matter
jurisdiction 9 and for failure to state a claim.10 Pechon has given up trying to sue
either the Department or the Secretary – each an arm of the state of Louisiana
– for money damages. She maintains, however, that Levine is vulnerable to a
suit for money damages in his personal capacity. No doubt, but to recover under
§ 1983 Pechon has to prove that Levine was either “personally involved in the
constitutional violation” or “causally connected to the constitutional violation
alleged.” 11 To do this, she might show that Levine has implemented “a policy so
deficient that the policy itself is a repudiation of constitutional rights and is the
moving force of the constitutional violation.”12 Pechon has not so alleged – and
certainly has not presented enough to “raise [her] right to relief above the
speculative level.”13


         8
        Pechon urges that – after she filed her appeal – the magistrate judge set the attorney’s
fees. The record on appeal does not so indicate, and, in any event, “a premature notice of
appeal operates as a valid one ‘only when a district court announces a decision that would be
appealable if immediately followed by the entry of judgment,’” which is not here the case.
United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998) (quoting FirsTier Mortgage Co. v.
Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991)).
         9
             Hager v. NationsBank, N.A., 167 F.3d 245, 247 (5th Cir. 1999).
         10
              Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
         11
        Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995); see Kohler v. Englade, 470 F.3d
1104, 1115 (5th Cir. 2006).
         12
         Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (citing Grandstaff v. City of
Borger, 767 F.2d 161, 169 (5th Cir. 1985) (citing Monell v. Department of Soc. Servs., 436 U.S.
658 (1978))) (quotation marks omitted).
         13
        Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Even in her motion for post-
judgment relief, the best Pechon can muster is: “Presumably, the actions and failures to act
respecting Ms. Pechon were under some sort of departmental policy . . . .” R. at 146. Bald

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       That leaves only Pechon’s federal age discrimination claim. She admits
that she cannot recover directly under the Act, because she did not exhaust
administrative remedies.14 Instead, she tries to shoehorn her age discrimination
claim into a § 1983 cause of action – based on a violation of equal protection for
the elderly. But we have held that “§ 1983 age discrimination claim[s] [are]
preempted by the ADEA.” 15 We hold that the magistrate judge rightly dismissed
each of Pechon’s claims.
       In her motions for relief from judgment, Pechon tried to relitigate her
dismissed causes of action. Because the magistrate judge correctly dismissed the
claims in the first instance, it necessarily follows that the magistrate judge did
not   abuse         her     discretion 16   in   denying   relief   from    the    judgment.


presumptions will not do. We further note, in response to a contrary argument in Pechon’s
appellate brief, that a court deciding a motion to dismiss must rely on the complaint and
documents specifically referenced therein. See Dorsey v. Portfolio Equities, Inc, 540 F.3d 333,
338 (5th Cir. 2008) (“Generally, a court ruling on a motion to dismiss may rely on only the
complaint and its proper attachments. A court is permitted, however, to rely on documents
incorporated into the complaint by reference, and matters of which a court may take judicial
notice. Because the court reviews only the well-pleaded facts in the complaint, it may not
consider new factual allegations made outside the complaint, including those made on appeal.”
(citing Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006);
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007)) (quotation marks
omitted)).
       14
            See R. at 61.
       15
        Lafleur v. Texas Dep’t of Health, 126 F.3d 758, 760 (5th Cir. 1997). Additionally,
Pechon has not stated sufficient facts to “independently support a § 1983 claim” of, say, racial
or gender discrimination. Id.
       16
         Regarding Pechon’s Rule 59(a) motion: “Ordinarily, a district court’s decision not to
grant a new trial under Rule 59(a) is not appealable. An appeal of the denial of a Rule 59(a)
motion for a new trial merely restates the attack on the merits of the final judgment. . . . The
only exception to this rule is when new matters arise after the entry of the judgment.”
Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986) (citations and quotation marks omitted).
Pechon did not present new matters that arose after judgment. As to her Rule 59(e) motion:
“A district court’s decision not to amend or alter judgment may be overturned only for an
abuse of discretion.” Id. (citation omitted). A Rule 59(e) motion “serves the narrow purpose
of allowing a party to correct manifest errors of law or fact or to present newly discovered
evidence. Reconsideration of a judgment after its entry is an extraordinary remedy that
should be used sparingly.” Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir. 2004)
(citations and quotation marks omitted). And Pechon’s Rule 60(b) motion: We will reverse

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       The district court did not err in dismissing Pechon’s case, so we AFFIRM
both the dismissal and the denial of motions seeking a new trial, an alteration
to the judgment, and relief from the operation of the judgment.


       AFFIRMED IN PART; APPEAL DISMISSED IN PART FOR LACK OF
JURISDICTION.




“only for abuse of . . . discretion. A district court abuses its discretion if it bases its decision
on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Hesling
v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (citations and quotation marks
omitted).

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