In petitioner's employment compensation action, which respondent
removed from a Colorado state court to the Federal District Court
on the basis of diversity of citizenship, judgment was entered on
the jury's verdict for petitioner in an amount considerably less
than he had sought. Petitioner timely filed new trial motions and a
motion for attorney's fees under Colorado law. On May 14, 1984, the
court denied the new trial motions, but found that petitioner was
entitled to attorney's fees, and, on August 1, 1984, entered a
final order determining the amount of the fees. On August 29,
petitioner filed notice of appeal to the Court of Appeals, covering
all of the District Court's post-trial orders. Although affirming
the attorney's fees award, the court granted respondent's motion to
dismiss as to all other issues on the grounds that the judgment was
final and immediately appealable upon entry of the May 14 order
denying the new trial motions, and that the appeal notice was not
filed within 30 days of that order as required by Federal Rules of
Appellate Procedure 4(a)(1) and (4).
Held:
1. The question whether the District Court's decision on the
merits was appealable before the attorney's fees determination was
made is governed by federal law -- specifically 28 U.S.C. § 1291,
which provides that all district court "final decisions" are
appealable to the courts of appeals -- and not by Colorado law.
Although state law generally supplies the rules of decision in
federal diversity cases, it does not control the resolution of
issues governed by federal statute. The contention that the
application of § 1291 to diversity cases would violate the Tenth
Amendment to the Federal Constitution is without merit, since §
1291 is "rationally capable of classification" as a procedural
rule, and is therefore necessary and proper for implementing
Congress' Art. III, § 1, power to establish federal courts.
Hanna v. Plumer, 380 U. S. 460,
380 U. S. 472.
Pp.
486 U. S.
198-199.
2. A decision on the merits is a "final decision" for purposes
of § 1291, and is therefore immediately appealable, even though the
recoverability or amount of attorney's fees for the litigation
remains to be determined. The merits order ends the litigation on
the merits, and the remaining fees question does not prevent
finality, since it is collateral to, and separate
Page 486 U. S. 196
from, the order, and resolution of it cannot alter or amend the
order or moot any decisions that the order embodies. According
different treatment to attorney's fees when they are deemed part of
the merits recovery by statutory or decisional law (as petitioner
claims is the case in Colorado) would not serve § 1291's purposes,
and would disserve the interests of courts and litigants because,
since the merits or nonmerits status of a fee provision is often
unclear, the issue of finality, and hence the jurisdictional time
for appeal, would be left in doubt. The argument that the Court of
Appeals' decision constitutes a significant change in the law, and
therefore should be applied only prospectively cannot avail
petitioner, since, regardless of whether such a change has
occurred, the untimely filed notice of appeal did not give the
court jurisdiction to review the merits decision. Pp.
486 U. S.
199-203.
807 F.2d 155, affirmed.
SCALIA, J., delivered the opinion for a unanimous Court.
JUSTICE SCALIA delivered the opinion of the Court.
Petitioner brought this action in Colorado state court to
recover employment compensation allegedly due. Respondent removed
the case to the United States District Court for the District of
Colorado on the basis of diversity of citizenship. 28 U.S.C. §§
1332, 1441. A jury awarded petitioner a verdict of $5,000
(considerably less than had been sought), and judgment was entered
on March 26, 1984. Petitioner timely filed new trial motions,
challenging various rulings by the District Court, and a motion for
attorney's fees. (Colorado law provides that, in a suit to collect
compensation due from employment, "the judgment . . . shall include
a reasonable attorney fee in favor of the winning party, to be
taxed as part of the costs of the action." Colo.Rev.Stat. 8-4-114
(1986).) On May 14, 1984, the District Court denied the new trial
motions, found that petitioner was entitled to attorney's fees, and
requested further briefing and documentation before determining
Page 486 U. S. 198
their amount. The District Court issued its final order
concerning the attorney's fees on August 1, 1984. On August 29,
petitioner filed notice of appeal to the Court of Appeals for the
Tenth Circuit covering all of the District Court's post-trial
orders.
Respondent filed a motion to dismiss the appeal, arguing that
the judgment was final and immediately appealable when the order
denying the new trial motions was entered May 14, 1984, and that
the notice of appeal was not filed within 30 days of that order, as
required by Federal Rules of Appellate Procedure 4(a)(1) and (4).
The Court of Appeals granted the motion to dismiss as to all issues
except the award of attorney's fees, which it affirmed. We granted
certiorari, 484 U.S. 895 (1987), to resolve a conflict in the
Courts of Appeals.
Compare, e.g., Holmes v. J. Ray McDermott
& Co., 682 F.2d 1143, 1146 (CA5 1982),
cert.
denied, 459 U.S. 1107 (1983),
with, e.g., International
Assn. of Bridge, Structural, Ornamental, and Reinforcing
Ironworkers' Local Union 75 v. Madison Industries, Inc., 733
F.2d 656, 658 (CA9 1984).
It is common ground in this case that, if the District Court's
decision on the merits was appealable before its determination of
attorney's fees, then the merits appeal was untimely.
See
Fed.Rules App.Proc. 4(a)(1), (4), (6); Fed.Rules Civ.Proc. 54(a),
58. Petitioner contends that Colorado law governs this question,
and that "[u]nder Colorado law, a claim is not final and appealable
until attorneys' fees are fully determined." Brief for Petitioner
13. We do not agree that Colorado law governs.
Although state law generally supplies the rules of decision in
federal diversity cases,
see 28 U.S.C. § 1652;
Erie R.
Co. v. Tompkins, 304 U. S. 64,
304 U. S. 78
(1938), it does not control the resolution of issues governed by
federal statute,
see U.S.Const., Art. VI, cl. 2 (Supremacy
Clause); 28 U.S.C. § 1652;
Prima Paint Corp. v. Flood &
Conklin Mfg. Co., 388 U. S. 395,
388 U. S.
404-405 (1967). Under 28 U.S.C. § 1291, "all final
Page 486 U. S. 199
decisions of the district courts" are appealable to the courts
of appeals. In using the phrase "final decisions," Congress
obviously did not mean to borrow or incorporate state law. "Final
decisions" is not a term like "property," which naturally suggests
a reference to state law concepts,
cf. Board of Regents v.
Roth, 408 U. S. 564,
408 U. S. 577
(1972), and the context of its use in § 1291 makes such a reference
doubly implausible, since that provision applies to all federal
litigation, and not just diversity cases. Nor is it possible to
accept petitioner's contention that § 1291 does not apply to
diversity cases because that would violate the Tenth Amendment to
the Constitution. We have held that enactments "rationally capable
of classification" as procedural rules are necessary and proper for
carrying into execution the power to establish federal courts
vested in Congress by Article III, § 1.
Hanna v. Plumer,
380 U. S. 460,
380 U. S. 472
(1965);
see also Burlington Northern R. Co. v. Woods,
480 U. S. 1,
480 U. S. 5, and
n. 3 (1987). A statute mandating when an appeal may be taken from
one federal court to another certainly meets this test.
Cf.
Cohen v. Beneficial Industrial Loan Corp., 337 U.
S. 541 (1949) (treating appealability as an issue of
federal law in a case brought under diversity jurisdiction).
The question before us, therefore, is whether a decision on the
merits is a "final decision" as a matter of federal law under §
1291 when the recoverability or amount of attorney's fees for the
litigation remains to be determined.
"A 'final decision' generally is one which ends the litigation
on the merits and leaves nothing for the court to do but execute
the judgment."
Catlin v. United States, 324 U.
S. 229,
324 U. S. 233
(1945). A question remaining to be decided after an order ending
litigation on the merits does not prevent finality if its
resolution will not alter the order or moot or revise decisions
embodied in the order.
See, e.g., Brown Shoe Co. v. United
States, 370 U. S. 294,
370 U. S.
308-309 (1962);
Dickinson v. Petroleum Conversion
Corp., 338 U. S. 507,
338 U. S.
513-516 (1950). We have all but held that an attorney's
fees determination
Page 486 U. S. 200
fits this description. In
White v. New Hampshire Dept. of
Employment Security, 455 U. S. 445
(1982), we held that a request for attorney's fees under 42 U.S.C.
§ 1988 is not a motion "to alter or amend the judgment" within the
meaning of Federal Rule of Civil Procedure 59(e), because it does
not seek "reconsideration of matters properly encompassed in a
decision on the merits." 455 U.S. at
455 U. S. 451.
This holding was based on our conclusion that "a request for
attorney's fees under § 1988 raises legal issues collateral to" and
"separate from" the decision on the merits.
Id. at
455 U. S.
451-452. We went so far as to observe in dicta that
"[t]he collateral character of the fee issue establishes that an
outstanding fee question does not bar recognition of a merits
judgment as 'final' and 'appealable.'"
Id. at
455 U. S.
452-453, n. 14.
See also Sprague v. Ticonic National
Bank, 307 U. S. 161,
307 U. S. 170
(1939) (observing that a petition for attorney's fees in equity is
"an independent proceeding supplemental to the original proceeding,
and not a request for a modification of the original decree").
The foregoing discussion is ultimately question-begging,
however, since it assumes that the order to which the fee issue was
collateral
was an order ending litigation on the merits.
If one were to regard the demand for attorney's fees as
itself part of the merits, the analysis would not apply.
The merits would then not have been concluded, and § 1291 finality
would not exist.
See Liberty Mutual Insurance Co. v.
Wetzel, 424 U. S. 737,
424 U. S.
740-742 (1976). As a general matter, at least, we think
it indisputable that a claim for attorney's fees is not part of the
merits of the action to which the fees pertain. Such an award does
not remedy the injury giving rise to the action, and indeed is
often available to the party defending against the action. At
common law, attorney's fees were regarded as an element of "costs"
awarded to the prevailing party,
see 10 C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure: Civil § 2665
(1983), which are not generally treated as part of the merits
judgment,
cf. Fed.Rule Civ.Proc. 58 ("Entry of the
judgment
Page 486 U. S. 201
shall not be delayed for the taxing of costs"). Many federal
statutes providing for attorney's fees continue to specify that
they are to be taxed and collected as "costs,"
see Marek v.
Chesny, 473 U. S. 1,
473 U. S. 43-48
(1985) (BRENNAN, J., dissenting) (citing 63 such statutes) -- as
does, in fact, the Colorado statute at issue here.
Petitioner contends, however, that the general status of
attorney's fees for § 1291 purposes must be altered when the
statutory or decisional law authorizing them makes plain (as he
asserts Colorado law does) that they are to be part of the merits
judgment. This proposition is not without some support. Some Courts
of Appeals have held that the statutes creating liability for
attorney's fees can cause them to be part of the merits relief for
purposes of § 1291.
See, e.g., Holmes v. J. Ray McDermott &
Co., 682 F.2d at 1146;
McQurter v. Atlanta, 724 F.2d
881, 882 (CA11 1984) (per curiam). This Court itself implicitly
acknowledged the possibility of such an approach in
Boeing Co.
v. Van Gemert, 444 U. S. 472
(1980), where, in holding that a judgment on the merits was final
and immediately appealable apart from the question of attorney's
fees, we expressly distinguished cases in which the plaintiff had
specifically requested attorney's fees as part of the prayer in his
complaint.
Id. at
444 U. S. 479-480, n. 5. Now that we are squarely
confronted with the question, however, we conclude that the § 1291
effect of an unresolved issue of attorney's fees for the litigation
at hand should not turn upon the characterization of those fees by
the statute or decisional law that authorizes them.
We have said elsewhere that
"[t]he considerations that determine finality are not
abstractions, but have reference to very real interests -- not
merely those of the immediate parties, but, more particularly,
those that pertain to the smooth functioning of our judicial
system."
Republic Natural Gas Co. v. Oklahoma, 334 U. S.
62,
334 U. S. 69
(1948). Indeed, in the context of the finality provision governing
appealability of matters from state courts to this Court, 28 U.S.C.
§ 1257,
Page 486 U. S. 202
we have been willing in effect to split the "merits," regarding
a claim for an accounting to be sufficiently "dissociated" from a
related claim for delivery of physical property that,
"[i]n effect, such a controversy is a multiple litigation
allowing review of the adjudication which is concluded because it
is independent of, and unaffected by, another litigation with which
it happens to be entangled."
Radio Station WOW, Inc. v. Johnson, 326 U.
S. 120,
326 U. S. 126
(1945). This practical approach to the matter suggests that what is
of importance here is not preservation of conceptual consistency in
the status of a particular fee authorization as "merits" or
"nonmerits," but rather preservation of operational consistency and
predictability in the overall application of § 1291. This requires,
we think, a uniform rule that an unresolved issue of attorney's
fees for the litigation in question does not prevent judgment on
the merits from being final.
For all practical purposes, an appeal of
merits-without-attorney's-fees when there is a statute deeming the
attorney's fees to be part of the merits is no more harmful to the
trial process than an appeal of merits-without-attorney's-fees when
there is no such statute. That "deeming" does not render the appeal
more disruptive of ongoing proceedings, more likely to eliminate a
trial judge's opportunity for reconsideration, more susceptible to
being mooted by settlement, or in any way (except nominally) a more
piecemeal enterprise. In short, no interest pertinent to § 1291 is
served by according different treatment to attorney's fees deemed
part of the merits recovery, and a significant interest is
disserved. The time of appealability, having jurisdictional
consequences, should above all be clear. We are not inclined to
adopt a disposition that requires the merits or nonmerits status of
each attorney's fee provision to be clearly established before the
time to appeal can be clearly known. Courts and litigants are best
served by the bright-line rule, which accords with traditional
understanding, that a decision on the merits is a "final decision"
for purposes of § 1291 whether or not
Page 486 U. S. 203
there remains for adjudication a request for attorney's fees
attributable to the case.
Finally, petitioner argues that, even if the Court of Appeals
properly decided the question of appealability, the decision
constitutes a significant change in the law, and therefore should
only be applied prospectively. Regardless of whether today's
decision works a change, our cases hold that
"[a] court lacks discretion to consider the merits of a case
over which it is without jurisdiction, and thus, by definition, a
jurisdictional ruling may never be made prospective only."
Firestone Tire & Rubber Co. v. Risjord,
449 U. S. 368,
449 U. S.
379-380 (1981). Since the Court of Appeals properly held
petitioner's notice of appeal from the decision on the merits to be
untimely, and since the taking of an appeal within the prescribed
time is mandatory and jurisdictional,
see Fed.Rules
App.Proc. 2, 3(a), 4(a)(1), 26(b);
United States v.
Robinson, 361 U. S. 220,
361 U. S. 229
(1960);
Farley Transportation Co. v. Santa Fe Trail
Transportation Co., 778 F.2d 1365, 1368-1370 (CA9 1985), the
Court of Appeals was without jurisdiction to review the decision on
the merits.
"
* * * *"
The Tenth Circuit correctly concluded that federal law governed
the question of appealability and that petitioner's judgment on the
merits was final and appealable when entered. Accordingly, its
judgment is
Affirmed.