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)

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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.
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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    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   their   officers,

including Nursing Personnel and its president.          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.             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    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).        That

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appeal is No. 13-1688 in this Court.        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   the   remaining   individual

defendants in the qui tam action.        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.      We

disagree.   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.   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.   To that issue we now turn.

    Our    consideration   must   begin   with   our   Court’s   recent

decision in Perez.    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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order.   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. 14-

251 is denied, and that appeal will proceed to briefing in the


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normal course.   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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