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Public Prayer Appeal Dismissed as Untimely

A county’s appeal is dismissed as untimely, and a district court decision will stand in favor of a plaintiff’s challenge to a county’s practice of opening board of supervisors’ meetings with an explicitly Christian invocation; the 4th Circuit also upholds an award of $53,229.92 in attorney’s fees and costs for plaintiff, and remands for an additional fee award.

We agree with plaintiff that the county’s appeal is untimely. On March 27, 2013, the district court entered summary judgment for plaintiff in her 42 U.S.C. § 1983 action, permanently enjoined the county from repeatedly opening its meetings with prayers associated with any one religion, and struck the case from the active docket while retaining jurisdiction for purposes of enforcement of the injunction and consideration of a fee award. We conclude the district court’s March 27 orders constituted a “final decision” within the meaning of 28 U.S.C. § 1291 and a timely notice of appeal was due on or before April 26, 2013.

Because of the dearth of precedent on this issue, we write to provide guidance for future litigants seeking to appeal both a merits judgment and a subsequent attorney’s fee award. A district court’s continuing jurisdiction over its permanent injunction order does not render that order non-final within the meaning of § 1291. The Supreme Court has held that a decision on the merits is a final decision under § 1291 even if the award or amount of attorney’s fees remains to be determined. The March 27 orders were a “final decision” within the meaning of § 1291.

The parties’ post-trial motions did not toll the appeal-filing period. Rule 58(e) of the Federal Rules of Civil Procedure makes clear that a motion for attorney’s fees may, but will not in the absence of action by the district court, toll the running of the appeal filing period. Here, only a part of the course of action necessary to toll the notice of appeal filing period occurred. Although plaintiff timely filed a motion for attorney’s fees, the district court did not enter an order extending the time to appeal pursuant to Rule 58(e). Nor did the county take any of the actions necessary to toll the time for filing an appeal pursuant to FRAP 4(a)(4)(A). The county did not move the district court to extend the time to appeal pursuant to Rule 58(e), or move for reconsideration under Rule 59 following the district court’s final decision on March 27.

The county filed its notice of appeal 145 days after the 30-day appeal window closed. The appeal is dismissed.

The district court did not abuse its discretion in its award of fees and costs to plaintiff. It was proper to award fees to a second lawyer who assisted lead counsel, and lead counsel provided a detailed billing sheet and specific explanations for the hours to which the county objects. Nor did the district court abuse its discretion by failing to make a downward adjustment to the lodestar calculation, which reflected the district court’s determination that the hours expended were reasonable.

Affirmed in part and dismissed in part.

Hudson v. Pittsylvania County, Va. (Duncan) No. 13-2160, Dec. 17, 2014; USDC at Danville, Va. (Urbanski) William M. Stanley Jr. for appellants; Rebecca K. Glenberg, ACLU, for appellee. VLW 014-2-206, 15 pp.

VLW 014-2-206

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