                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                      PUBLISH                     June 5, 2014
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                                TENTH CIRCUIT



 MICHAEL L. ZINNA,

             Plaintiff - Appellant,
       v.                                              No. 13-1143
 JUDY CONGROVE, as personal
 representative of the estate of James
 Congrove, deceased,

             Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. NO. 1:05-CV-01016-RPM)


Christopher P. Beall, Levine Sullivan Koch & Schulz, LLP, Denver, Colorado, for
Plaintiff-Appellant.

Patrick D. Tooley (Kevin M. Coates with him on the briefs), Dill, Dill, Carr,
Stonbraker & Hutchings, P.C., Denver, Colorado, for Defendant-Appellee.


Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
I.    Introduction

      In 2012, this court held that the district court abused its discretion when it

awarded Appellant Michael Zinna only $8000 in attorney’s fees. Zinna v.

Congrove, 680 F.3d 1236, 1242 (10th Cir. 2012). We remanded the matter to the

district court to calculate a reasonable fee. Id. In a separate order, we ruled

Zinna was entitled to a reasonable attorney’s fee for the appellate proceedings and

remanded the matter to the district court to calculate that fee also. On remand,

the district court entered two orders—the first awarded Zinna $16,240 in trial fees

and the second awarded him $18,687.50 in appellate fees. A judgment for

$34,927.50 “for legal services of trial and appellate counsel” was entered on

March 15, 2013. Zinna filed a notice of appeal within thirty days of the

judgment.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude Zinna’s

notice of appeal was timely as to both aspects of the fee award. We further

conclude the district court ignored our mandate, thereby abusing its discretion

when it calculated attorney’s fees for the trial court proceedings. Zinna’s

arguments relating to the award of appellate fees are waived due to inadequate

briefing. Accordingly, we affirm in part, reverse in part, and remand the matter

to the district court for further proceedings.




                                          -2-
II.   Background

      The details of Zinna’s underlying lawsuit against Appellee Congrove are

more fully set out in our prior opinion and are not relevant to the issues presented

in this appeal. 680 F.3d at 1237-39. In summary, after a jury awarded Zinna

$1791 as damages for a violation of his First Amendment rights, he sought

approximately $503,000 in attorney’s fees. Id. at 1239-40. Applying the three-

factor test set out in Justice O’Connor’s concurrence in Farrar v. Hobby, 506

U.S. 103, 116-22 (1992), the district court concluded Zinna’s success was merely

technical and awarded him a small fraction of the attorney’s fees he sought. Id.;

see also Lippoldt v. Cole, 468 F.3d 1204, 1222-24 (10th Cir. 2006) (applying

Farrar factors to determine whether plaintiff achieved only technical success).

This court reversed. Id. at 1242. Applying the Farrar factors, we concluded

Zinna’s success was not merely technical. Id. at 1239-42. Accordingly, we

remanded the matter to the district court and ordered the court to calculate a

lodestar and then adjust it “upward or downward to account for the particularities

of the suit and its outcome.” Id. (quotation omitted). In an order dated

approximately two months later, this court granted Zinna’s request for appellate

attorney’s fees and remanded that matter to the district court for a determination

of the amount.

      On remand, the district court ignored this court’s mandate as to trial fees,

reevaluated the Farrar factors, and concluded once again that Zinna’s success

                                        -3-
was merely technical. It then refused to calculate a lodestar. Instead, the district

court determined Zinna’s trial counsel should only be reimbursed for an amount

equal to seven hours work, at an hourly fee of $290, for each of the eight days of

trial. The district court’s order, dated November 8, 2012, stated: “ORDERED,

that the plaintiff Michael Zinna shall recover $16,240.00 for fees incurred in this

case. Because the determination of Zinna’s appellant counsel fees must await

further proceedings, the judgment will not be altered until that is done.” On

March 15, 2013, the district court entered an order explaining why it determined

$18,687.50 was a reasonable appellate attorney’s fee for Zinna’s appeal. On the

same day a judgment was entered “awarding plaintiff Michael Zinna attorney fees

of $34,927.50 for legal services of trial and appellate counsel.”

       Zinna filed a notice of appeal on April 13, 2013, stating his intention to

appeal from the November 2012 order awarding trial fees and the March 2013

order awarding appellate fees. Acting sua sponte, this court ordered the parties to

brief the question of appellate jurisdiction. Specifically, the parties were directed

to file memorandum briefs addressing “[w]hether Appellant’s notice of appeal,

filed on April 13, 2013, was timely as to the district court’s November 8, 2012

award of attorney’s fees.” Thus, the jurisdictional question is now also before

this court.




                                          -4-
III.   Discussion

       A.    Trial Fees

       The jurisdictional issue we must address before proceeding to the merits of

this appeal is whether Zinna’s notice of appeal from the award of attorney’s fees

for the trial proceedings is timely. 1 See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94-95 (1998) (holding jurisdictional challenges are not subject to

waiver or forfeiture and can be raised by the court, or a party, at any time).

Pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a notice

of appeal in a civil case “must be filed . . . within 30 days after entry of the

judgment or order appealed from.” Here, the district court entered an order

awarding trial fees on November 8, 2012. It entered a separate judgment on

March 15, 2013, covering both trial and appellate fees. If the March judgment is

the final appealable order, Zinna’s appeal of the trial fee award is timely because


       1
        Because the only argument as to trial fees Zinna advances in this appeal is
that the district court failed to follow this court’s mandate in Zinna v. Congrove,
680 F.3d 1236, 1242 (10th Cir. 2012), he could have filed a motion asking the
original panel to enforce its mandate. As part of our inherent powers, this court
has the authority to order compliance with our mandate. See City of Cleveland v.
Fed. Power Comm’n, 561 F.2d 344, 346 (D.C. Cir. 1977) (“The decision of a
federal appellate court establishes the law binding further action in the litigation
by another body subject to its authority. The latter is without power to do
anything which is contrary to either the letter or spirit of the mandate construed in
the light of the opinion of the court deciding the case . . . .” (quotation,
alternation, and footnote omitted)). Our prior opinion made clear that Zinna
achieved more than a technical victory at trial. Thus, as we conclude, infra, the
district court violated our mandate by reevaluating the Farrar factors and
determining trial fees without first calculating a lodestar.

                                          -5-
his notice of appeal was filed within thirty days of that judgment. If the

November order is the final appealable order, his appeal of the trial fee award is

untimely. 2

      An order is final if it contains “a complete act of adjudication” and

evidences the district court’s intention that it is the court’s final act in the matter.

United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 234 (1958); United

States v. Evans, 365 F.2d 95, 97 (10th Cir. 1966) (“[I]n determining whether a

judicial act is a final judgment, this court puts importance upon the intention of

the judge.”); see also Century 21 Real Estate Corp. v. Century 21 Real Estate,

Inc., 929 F.2d 827, 830 (1st Cir. 1991) (holding order awarding attorneys fees

was not final because order did not set the amount). Congrove argues Zinna was

required to file his notice of appeal within thirty days of the November order

because that order unambiguously and conclusively settled the issue of trial fees.

Zinna does not dispute that point but argues the matter before the district court on

remand involved both trial and appellate fees. Thus, he argues, the unitary issue

of attorney’s fees was not conclusively settled until the district court awarded

both trial and appellate fees on March 15, 2013.


      2
       The date of entry of judgment depends on whether “a separate document”
is required under Rule 58(a) of the Federal Rules of Civil Procedure. Fed. R.
App. 4(a)(7). Because no separate document is required “for an order disposing
of a motion . . . for attorney’s fees,” Fed. R. Civ. P. 58(a)(3), it is irrelevant for
purpose of our analysis that the November 2012 ruling was denominated an
“order.”

                                           -6-
      We agree with Zinna that, under the unique circumstances of this case, the

final appealable order was not entered until March 2013. When attorney’s fees

are recoverable by a prevailing party, issues surrounding those fees are collateral

to and separate from the merits of the underlying suit. White v. N. H. Dep’t of

Emp’t Sec., 455 U.S. 445, 451-52 (1982). When an appeal is taken from a

decision on trial fees, however, the issue of appellate fees related to that appeal is

not itself a separate matter collateral to the issue of trial fees. Instead, the matter

is properly treated as a singular appeal involving the determination of both trial

and appellate fees.

      The sole issue raised in Zinna’s first appeal was the question of fees for

trial counsel, a matter collateral to the merits of Zinna’s First Amendment claims.

Zinna prevailed in that appeal, the issue of trial fees was remanded to the district

court, and he was awarded appellate fees with the amount to be determined by the

district court. Thus Zinna’s first appeal resulted in this court instructing the

district court to calculate both trial and appellate attorney’s fees on remand.

Although that instruction was contained in two separate orders, the July 25, 2012

order awarding appellate fees was a supplement to the mandate originally issued

by this court on June 27, 2012, and was docketed as such. Mandates from single

appeals are not separable and, thus, the mandate in Zinna’s first appeal

encompassed both trial and appellate fees. The issue of attorney’s fees related to

Zinna’s lawsuit was not fully and finally adjudicated until March 15, 2013, when

                                           -7-
the district court satisfied our singular mandate by completing the calculation of

all the fees to which Zinna was entitled. See S.L. ex rel. Loof v. Upland Unified

Sch. Dist., Nos. 12-55715, -56796, 2014 WL 1303638, at *5 (9th Cir. April 2,

2014) (“[A] disposition is final if it contains a . . . full adjudication of the issues

at bar, and clearly evidences the judge’s intention that it be the court’s final act in

the matter.” (quotation omitted)). Because Zinna’s notice of appeal was filed

within thirty days from entry of that judgment, this court has jurisdiction over the

issue of both trial and appellate fees.

      Having concluded we have jurisdiction over the trial fee issue, we have no

hesitation further concluding the district court acted in contravention of the law of

the case doctrine when it determined Zinna was entitled to trial attorney’s fees of

$16,240.00. Under the law of the case doctrine, “once a court decides an issue,

the same issue may not be relitigated in subsequent proceedings in the same

case.” Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d

1513, 1520 (10th Cir. 1997). “An important corollary of the doctrine, known as

the ‘mandate rule,’ provides that a district court must comply strictly with the

mandate rendered by the reviewing court.” Id. at 1520-21 (quotation omitted). In

Zinna’s first appeal, this court concluded his “victory was not merely technical.”

Zinna, 680 F.3d at 1242. On remand, however, the district court reached the

contrary conclusion after conducting its own analysis of the Farrar factors. The

court then premised its award of trial fees on its conclusion “only a technical

                                           -8-
violation” of the First Amendment was proven by Zinna at trial, failing to first

calculate a lodestar as required by our mandate.

      “[W]hen a case is appealed and remanded, the decision of the appellate

court establishes the law of the case and ordinarily will be followed by both the

trial court on remand and the appellate court in any subsequent appeal.”

Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). Congrove

concedes the district court’s fee award must be reversed unless an exception to

the law of the case doctrine applies. She argues this court has the power to ignore

the prior panel’s opinion because it was “clearly erroneous and would work a

manifest injustice.” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.

1998) (setting out three circumstances in which this court will not apply the law

of the case doctrine). That exception, however, is exceedingly narrow and

Congrove has failed to cite any case from this court in which it was invoked to set

aside the explicit and fully reasoned decision of an earlier appeal. See id.

(“[T]his panel is not an en banc panel and, thus, is not in the business of

overturning prior panels’ decisions.”).

      The district court’s analysis of the trial fee issue on remand contravened the

law of the case doctrine and the mandate rule. Accordingly, the court abused its

discretion when it awarded Zinna trial attorney’s fees of $16,240.00.




                                          -9-
      B.     Appellate Fees

      Although Zinna also purports to challenge the district court’s award of

$18,687.50 in appellate fees, the issue is mentioned only twice in his opening

brief. In the summary of the argument section, he generally asserts the district

court incorrectly concluded the prior appeal was simple and straightforward. In

the section of his opening brief addressing the law of the case doctrine and the

mandate rule, Zinna asserts “the trial court . . . simply picked a number out of the

air for the amount of time that should be compensated for the appellate work.”

Because there is no argument, authority, or record citations supporting these

assertions, the appellate fee issue is not sufficiently raised on appeal.

Accordingly, the issue of appellate fees is waived. See United States v. Cooper,

654 F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled that arguments

inadequately briefed in the opening brief are waived.” (quotation and alteration

omitted)).

      C.     Costs

      In its initial fee award dated September 24, 2010, the district court ordered

the judgment entered on December 10, 2009, to be increased by “costs of

$9,464.51.” Neither party appealed this cost award. Although this court vacated

the district court’s fee order in the prior appeal, it did not disturb the cost award

and the district court has, likewise, never eliminated those costs from the




                                          -10-
December 2009 judgment. Accordingly, we accept Congrove’s concession that

the order awarding costs remains valid and enforceable.

IV.   Conclusion

      We affirm the district court’s judgment insofar as it awards Zinna

$18,687.50 in attorney’s fees for appellate proceedings in Appeal No. 10-1482.

The court’s judgment awarding Zinna $16,240.00 in attorney’s fees for the trial

proceedings is reversed and the matter remanded for further proceedings

consistent with this opinion and the prior opinion of this court in Appeal No.

10-1482. Zinna’s request that the matter be reassigned to a different district court

judge is granted.




                                        -11-
