UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PETTIES, NIKITA S.

v.

DC


99-7228a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: The district court issued interim  awards of
attorneys' fees to plaintiffs in this ongoing class  action suit
against the District of Columbia for failing to  comply with the
Individuals with Disabilities Education Act  (IDEA). Pursuant to
Federal Rule of Civil Procedure 54(b),  the district court certified
two of those interim awards for  immediate appeal. We conclude that
this court lacks jurisdic- tion to review the awards for want of
either a final or a  collateral order.


I. Background


The plaintiff children instituted a class action against the  District
of Columbia in January, 1995, stating a cause of  action under 42
U.S.C. s 1983 based upon the District's  noncompliance with the IDEA,
20 U.S.C. ss 1400 et seq. In  March, 1995 the district court
preliminarily enjoined the  District to fund private school placements
that would meet  the special educational needs of the plaintiffs. In
July, 1995  the plaintiffs amended their complaint to allege
continuing  violations by the District.


Between April and September 1995 the district court issued  a series of
injunctions and contempt orders in an effort to  bring the District
into compliance with the IDEA. See  Petties v. District of Columbia,
897 F. Supp. 626, 627-28  (D.D.C. 1995). In June, 1995 the plaintiffs,
in order to  finance this continuing litigation, began filing
quarterly mo- tions for attorneys' fees. Their first 14 such motions,
which  the District did not oppose, were based upon the provision for 
attorneys' fees in the IDEA.


In October, 1998 the Congress passed the D.C. Appropria- tions Act of
1999, s 130 of which limited the attorneys' fees  the District could
pay (per hour and per case) under the  IDEA in Fiscal Year 1999. The
District then sought to  vacate the order granting the plaintiffs'
fourteenth motion for 


attorneys' fees, and contested the plaintiffs' fifteenth and  sixteenth
such motions, maintaining that the district court  may not award fees
in excess of the amounts specified in the  Appropriations Act. The
plaintiffs responded that they are  entitled to recover reasonable
attorneys' fees pursuant to 42  U.S.C. s 1983 and the Rehabilitation
Act of 1973, 29 U.S.C.  s 794, rather than the IDEA.


The district court agreed. The court reasoned that the  plaintiffs'
case must have been brought under s 1983, as  stated in the amended
complaint, because the suit could not  have been brought under the
IDEA; the "plaintiffs were not  aggrieved by decisions that were made
.... by the hearing  officers" under the IDEA, but by the District's
failure to  discharge its already-adjudicated obligations. Recognizing
 the urgency to the parties of the attorneys' fee issue, the  district
court opined that "if either side wants to go to the  Court of
Appeals, th[en] they ought to be able to do it sooner  rather than
later." Pursuant to Rule 54(b), therefore, the  court gave "an express
direction for the entry of judgment"  on plaintiffs' fifteenth and
sixteenth motions for attorneys'  fees and made an "express
determination that there is no just  reason for delay."


The District of Columbia appealed that judgment (No.  99-7228) and
separately appealed from the following orders  concerning the
fourteenth, fifteenth, and sixteenth motions  for attorneys' fees: the
initial orders to pay the awards (No.  99-7109); the order lifting the
stay of the District's obli- gations to pay portions of the awards not
in dispute (No.  99-7194); and the order certifying the fifteenth and
sixteenth  awards for interlocutory appeal pursuant to 28 U.S.C.  s
1292(b) (No. 99-8004). A motions panel of this court  denied leave to
pursue the interlocutory appeal (No. 99-8004)  and dismissed the two
appeals (Nos. 99-7109 and 99-7194)  that the district court had not
certified under Rule 54(b),  holding that the fourteenth, fifteenth,
and sixteenth orders to  pay attorneys' fees "are not final nor do
they fall within the  collateral order doctrine, see Coopers & Lybrand
v. Livesay,  437 US 463, 468 (1978), because they will be reviewable
upon  entry of a final judgment." Petties v. District of Columbia, 


, at *2. At the same time the  panel directed the parties to brief the
question whether this  appeal (No. 99-7228) was properly certified
under Rule 54(b).


II. Analysis


Rule 54(b) authorizes the district court to "direct the entry  of a
final judgment as to one or more but fewer than all of the  claims [in
an action] ... upon an express determination that  there is no just
reason for delay." The rule thus permits the  district court to
"function[ ] as a 'dispatcher,' determining in  its sound discretion
when a claim should proceed on to  appellate resolution and when it
should await its fellows."  Taylor v. FDIC, 132 F.3d 753, 760 (D.C.


At the same time, the rule "does not relax the finality  required of
each decision, as an individual claim, to render it  appealable"; it
simply permits the appeal of a claim as to  which the district court
has reached a final judgment while  other claims remain to be resolved
in the district court.  Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,
435 (1956). In  other words, the district court "cannot, in the
exercise of its  discretion, treat as 'final' that which is not
'final' within the  meaning of [28 U.S.C.] s 1291." Id. at 437
(emphasis delet- ed). Nor can this court, notwithstanding the district
court's  certification per Rule 54(b), properly review "a judgment
that  is not final by ordinary standards." Taylor, 132 F.3d at 760 


The Supreme Court has recognized but a single variation  on the theme
of finality, namely, the collateral order doctrine.  To qualify, an
"order 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 v. Livesay, 437 U.S. 463, 468 (1978).


A motions panel of this court has already determined,  however, that
the fifteenth and sixteenth orders at issue in  this case "are not
final nor do they fall within the collateral  order doctrine, see
Coopers & Lybrand v. Livesay, 437 U.S.  463, 468 (1978), because they
will be reviewable upon entry of 


a final judgment." Petties, 1999 U.S. App. LEXIS 34733, at  *2. Does it
matter that this particular appeal has been  certified by the district
court under Rule 54(b)? That is the  question the motions panel put to
the parties, and we now  answer it in the negative. Indeed, the prior
panel's own  decision dooms this appeal. Under this court's practice,
a  decision of the motions panel is the law of the case; a later 
panel considering the merits is bound by that law. See  Taylor, 132
F.3d at 761. Because the motions panel has  determined that the
interim awards of attorneys' fees will be  reviewable when the
district court enters a final judgment in  this case, we are bound to
conclude that the court lacks  jurisdiction over this appeal.


The District agrees with our account of Circuit practice but 
nonetheless argues, along with the plaintiffs, that we should  revisit
the decision of the motions panel and assert jurisdic- tion. While
neither party claims the orders under review  have the requisite
finality, both parties attempt to show they  will suffer irreparable
injury so as to warrant interlocutory  appeal.


For its part, the District argues that the orders harm it  irreparably
by frustrating the intent of the Congress that the  District's
liability for attorneys' fees be capped as provided in  s 130 of the
Appropriations Act; by depriving District stu- dents, insofar as
attorneys' fees exceed the caps, of monies  appropriated for their
use; and by diverting funds from their  intended purpose, in violation
of the Appropriations Clause,  art. I, s 9, cl. 7 of the Constitution
of the United States. To  the extent these arguments take issue with
the prior determi- nation of the motions panel, they are foreclosed.
To the  extent they suggest that the Rule 54(b) certification alters
our  jurisdictional inquiry under s 1291, they are misconceived.  The
cases the District itself cites emphatically confirm this.  See Estate
of Drayton v. Nelson, 53 F.3d 165, 167 (7th Cir.  1994) ("Rule 54(b)
cannot be used to make the award appeal- able"); People Who Care v.
Rockford Bd. of Educ. Dist. No.  205, 921 F.2d 132, 134 (7th Cir.
1991) ("Rule 54(b) allows the  entry of judgment only with respect to
the final disposition of  a claim for relief"); Shipes v. Trinity


F.2d 339, 342 (5th Cir. 1989) ("Rule 54(b) ... relaxes only the 
'judicial unit' aspect of finality principles and otherwise oper- ates
within the constraints of statutory finality"). The plain- tiffs'
arguments fare no better. The precedents cited above  utterly refute
their central argument, namely, that Rule 54(b)  certification
distinguishes this appeal from those the motions  panel dismissed.


Plaintiffs also argue that even if the collateral order doc- trine does
not apply here, "orders compelling the immediate  transfer of property
may be appealable where irreparable  harm will result." In support of
this proposition they cite  Forgay v. Conrad, 47 U.S. 201 (1848), in
which the Supreme  Court held that an interlocutory appeal may be
taken when  an interim order would immediately transfer a party's
proper- ty; they further point to a more recent dictum of the Seventh 
Circuit to the effect that an interim award of attorneys' fees  might
present a situation like that in Forgay because there  are "chancy
prospects of recoupment at the end." People  Who Care, 921 F.2d at
135. While we are not at all sure that  Forgay has continuing vitality
apart from the collateral order  doctrine, it is obvious in any event
that plaintiffs' showing  falls short of the mark this court has
established. See  National Association of Criminal Defense Lawyers,
Inc. v.  U.S. Dept. of Justice, 182 F.3d 981, 985 (1999) (irreparable 
injury can be shown only where the party awarded fees "will  likely be
unable to repay the fees if the award is later  reduced or
overturned"). Plaintiffs say they "cannot guaran- tee to the Court
that [plaintiffs'] counsel will not become  judgment proof by the time
the litigation is concluded." Of  course, there are precious few
guarantees in life and virtually  none when it comes to financial
affairs; merely acknowl- edging this undeniable possibility, however,
falls far short of  showing it "will likely" come to pass. On
plaintiffs' rationale,  interim awards would be appealable as a matter
of course.  That clearly is not the law of this court, much less of


The plaintiffs advert to the "numerous and complex tax and  accounting
dilemmas" they must confront if this court does  not promptly and
definitively resolve the propriety of the 


attorneys' fees awarded them. The uncertainty surrounding  their right
to attorneys' fees in the amounts awarded does  indeed create
formidable practical difficulties for them, to  which this court is
not unsympathetic. The district court is  free to consider any
proposals counsel may make for easing  their predicament. These might
include placing interim  awards partially in escrow with the district
court until this  litigation is concluded, but they do not include
expanding our  appellate jurisdiction beyond the final and collateral
orders  that this court is authorized to review.


III. Conclusion


For the foregoing reasons we conclude that the court lacks 
jurisdiction over this appeal, which is, therefore,


Dismissed.