throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2013
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` RAY HALUCH GRAVEL CO. ET AL. v. CENTRAL
`
`
`
`PENSION FUND OF INTERNATIONAL UNION OF
`
`OPERATING ENGINEERS AND PARTICIPATING
`
`
` EMPLOYERS ET AL.
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE FIRST CIRCUIT
` No. 12–992. Argued December 9, 2013—Decided January 15, 2014
`
`Respondents, various union-affiliated benefit funds (Funds), sued peti-
`
`tioner Ray Haluch Gravel Co. (Haluch) in Federal District Court to
`
`
`collect benefits contributions required to be paid under federal law.
`The Funds also sought attorney’s fees and costs, which were obliga-
`tions under both a federal statute and the parties’ collective bargain-
`ing agreement (CBA). The District Court issued an order on June 17,
`2011, on the merits of the contribution claim and a separate ruling on
`July 25 on the Funds’ motion for fees and costs. The Funds appealed
`both decisions on August 15. Haluch argued that the June 17 order
`was a final decision pursuant to 28 U. S. C. §1291, and thus, the
`Funds’ notice of appeal was untimely since it was not filed within the
`Federal Rules of Appellate Procedure’s 30-day deadline. The Funds
`disagreed, arguing that there was no final decision until July 25. The
`First Circuit acknowledged that an unresolved attorney’s fees issue
`generally does not prevent judgment on the merits from being final,
`
`but held that no final decision was rendered until July 25 since the
`entitlement to fees and costs provided for in the CBA was an element
`
`
`of damages and thus part of the merits. Accordingly, the First Cir-
`cuit addressed the appeal with respect to both the unpaid contribu-
`tions and the fees and costs.
`
`Held: The appeal of the June 17 decision was untimely. Pp. 5–13.
`
`(a) This case has instructive similarities to Budinich v. Becton
`Dickinson & Co., 486 U. S. 196. There, this Court held a district
`court judgment to be a “final decision” for §1291 purposes despite an
`
`
`
`
`
`
`
`

`
`2 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Syllabus
`
`unresolved motion for statutory-based attorney’s fees, noting that fee
`
`awards do not remedy the injury giving rise to the action, are often
`
`available to the defending party, and were, at common law, an ele-
`ment of “costs” awarded to a prevailing party, not a part of the merits
`judgment. Id., at 200. Even if laws authorizing fees might some-
`times treat them as part of the merits, considerations of “operational
`
`consistency and predictability in the overall application of §1291” fa-
`
`vored a “uniform rule.” Id., at 202. Pp. 5–7.
`(b) The Funds’ attempts to distinguish Budinich fail. Pp. 7–13.
`
`(1) Their claim that contractual attorney’s fees provisions are al-
`ways a measure of damages is unpersuasive, for such provisions often
`provide attorney’s fees to prevailing defendants. More basic, Budi-
`nich’s uniform rule did not depend on whether the law authorizing a
`particular fee claim treated the fees as part of the merits, 486 U. S.,
`
`at 201, and there is no reason to depart from that sound reasoning
`here. The operational consistency stressed in Budinich is not pro-
`moted by providing for different jurisdictional effect based solely on
`
`whether an asserted right to fees is based on contract or statute. Nor
`
`is predictability promoted since it is not always clear whether and to
`
`
`what extent a fee claim is contractual rather than statutory. The
`Funds urge the importance of avoiding piecemeal litigation, but the
`
`Budinich Court was aware of such concerns when it adopted a uni-
`form rule, and it suffices to say that those concerns are counterbal-
`anced by the interest in determining with promptness and clarity
`whether the ruling on the merits will be appealed, especially given
`the complexity and amount of time it may take to resolve attorney’s
`
`fees claims. Furthermore, the Federal Rules of Civil Procedure pro-
`vide a means to avoid a piecemeal approach in many cases. See, e.g.,
`Rules 54(d)(2), 58(e). Complex variations in statutory and contractu-
`al fee-shifting provisions also counsel against treating attorney’s fees
`
`claims authorized by contract and statute differently for finality pur-
`
`poses. The Budinich rule looks solely to the character of the issue
`that remains open after the court has otherwise ruled on the merits.
`The Funds suggest that it is unclear whether Budinich applies
`where, as here, nonattorney professional fees are included in a mo-
`tion for attorney’s fees and costs. They are mistaken to the extent
`that they suggest that such fees will be claimed only where a contrac-
`tual fee claim is involved. Many fee-shifting statutes authorize
`courts to award related litigation expenses like expert fees, see West
`
`
`Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 89, n. 4, and
`there is no apparent reason why parties or courts would find it diffi-
`cult to tell that Budinich remains applicable where such fees are
`
`claimed and awarded incidental to attorney’s fees. Pp. 7–11.
`
`
`(2) The Funds’ claim that fees accrued prior to the commence-
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`Cite as: 571 U. S. ____ (2014)
`
`
`Syllabus
`
`ment of litigation fall outside the scope of Budinich is also unpersua-
`sive. Budinich referred to fees “for the litigation in question,” 486
`
`U. S., at 202, or “attributable to the case,” id., at 203, but this Court
`
`has observed that “some of the services performed before a lawsuit is
`formally commenced by the filing of a complaint are performed ‘on
`the litigation,’ ” Webb v. Dyer County Bd. of Ed., 471 U. S. 234, 243.
`Here, the fees for investigation, preliminary legal research, drafting
`of demand letters, and working on the initial complaint fit the de-
`scription of standard preliminary steps toward litigation. Pp. 11–13.
`
`695 F. 3d 1, reversed and remanded.
` KENNEDY, J., delivered the opinion for a unanimous Court.
`
`
`
`
`
`3
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 12–992
`_________________
` RAY HALUCH GRAVEL COMPANY, ET AL., PETI-
`
`
`
`
`TIONERS v. CENTRAL PENSION FUND OF
`
`
`THE INTERNATIONAL UNION OF OPER-
`
`ATING ENGINEERS AND PARTICI-
`
`PATING EMPLOYERS ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE FIRST CIRCUIT
`
`
`[January 15, 2014]
`
` JUSTICE KENNEDY delivered the opinion of the Court.
`
`Federal courts of appeals have jurisdiction of appeals
`from “final decisions” of United States district courts. 28
`
`U. S. C. §1291. In Budinich v. Becton Dickinson & Co.,
`486 U. S. 196 (1988), this Court held that a decision on the
`merits is a “final decision” under §1291 even if the award
`or amount of attorney’s fees for the litigation remains to
`be determined. The issue in this case is whether a differ­
`ent result obtains if the unresolved claim for attorney’s
`fees is based on a contract rather than, or in addition to, a
`statute. The answer here, for purposes of §1291 and the
`
`Federal Rules of Civil Procedure, is that the result is not
`different. Whether the claim for attorney’s fees is based
`on a statute, a contract, or both, the pendency of a ruling
`on an award for fees and costs does not prevent, as a
`general rule, the merits judgment from becoming final for
`purposes of appeal.
`
`
`
`
`
`
`
`
`
`

`
`2 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Opinion of the Court
`I
`
`Petitioner Ray Haluch Gravel Co. (Haluch) is a land­
`scape supply company. Under a collective-bargaining
`agreement (CBA) with the International Union of Operat­
`ing Engineers, Local 98, Haluch was required to pay con­
`tributions to union-affiliated benefit funds. Various of
`those funds are respondents here.
`
`In 2007, respondents (Funds) commissioned an audit to
`determine whether Haluch was meeting its obligations
`under the CBA. Based on the audit, the Funds demanded
`additional contributions. Haluch refused to pay, and the
`Funds filed a lawsuit in the United States District Court
`for the District of Massachusetts.
`
`
`The Funds alleged that Haluch’s failure to make the
`required contributions was a violation of the Employee
`Retirement Income Security Act of 1974 (ERISA) and the
`Labor Management Relations Act, 1947. The Funds also
`sought attorney’s and auditor’s fees and costs, under
`
`§502(g)(2)(D) of ERISA, 94 Stat. 1295, 29 U. S. C.
`§1132(g)(2)(D) (providing for “reasonable attorney’s fees
`and costs of the action, to be paid by the defendant”),
`and the CBA itself, App. to Pet. for Cert. 52a (providing
`that “[a]ny costs, including legal fees, of collecting pay­
`ments due these Funds shall be borne by the defaulting
`Employer”).
`
`
`At the conclusion of a bench trial, the District Court
`asked the parties to submit proposed findings of fact and
`conclusions of law to allow the court “to consider both the
`possibility of enforcing [a] settlement and a decision on the
`
`merits at the same time.” Tr. 50 (Feb. 28, 2011). These
`submissions were due on March 14, 2011. The District
`Court went on to observe that “[u]nder our rules . . . if
`there is a judgment for the plaintiffs, typically a motion
`for attorney’s fees can be filed” shortly thereafter. Id., at
`51. It also noted that, “[o]n the other hand, attorney’s fees
`is part of the damages potentially here.” Ibid. It gave the
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`plaintiffs the option to offer a submission with regard to
`fees along with their proposed findings of fact and conclu­
`sions of law, or to “wait to see if I find in your favor and
`
`submit the fee petition later on.” Ibid.
`
`The Funds initially chose to submit their fee petition
`at the same time as their proposed findings of fact and
`conclusions of law, but they later changed course. They
`requested an extension of time to file their “request for
`reimbursement of attorneys’ fees and costs in the above
`
`matter.” Motion to Extend Time to Submit Request for
`
`Attorneys’ Fees in No. 09–cv–11607–MAP (D Mass.), p. 1.
`The District Court agreed; and on April 4, the Funds
`
`moved “for an [o]rder awarding the total attorneys’ fees
`and costs incurred . . . in attempting to collect this delin­
`quency, in obtaining the audit, in protecting Plaintiffs’
`interests, and in protecting the interests of the partici­
`pants and beneficiaries.” App. 72. The motion alleged
`that “[t]hose fees and costs . . . amount to $143,600.44,”
`
`and stated that “[d]efendants are liable for these monies
`pursuant to” ERISA, “and for the reasons detailed in the
`accompanying” affidavit. Ibid. The accompanying “affida­
`vit in support of [the] application for attorneys’ fees and
`costs,” in turn, cited the parties’ agreements (including the
`
`CBA, as well as related trust agreements) and §502(g)
`(2)(D) of ERISA. Id., at 74.
`
`As to the merits of the claim that Haluch had under­
`paid, on June 17, 2011, the District Court issued a memo­
`randum and order ruling that the Funds were entitled to
`
`certain unpaid contributions, though less than had been
`requested. International Union of Operating Engineers,
`
`Local 98 Health and Welfare, Pension and Annuity Funds
`v. Ray Haluch Gravel Co., 792 F. Supp. 2d 129 (Mass.). A
`judgment in favor of the Funds in the amount of
`$26,897.41 was issued the same day. App. to Pet. for Cert.
`39a–40a. The District Court did not rule on the Funds’
`
`motion for attorney’s fees and costs until July 25, 2011.
`
`
`
`
`
`3
`
`
`
`
`
`

`
`4 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Opinion of the Court
` On that date it awarded $18,000 in attorney’s fees, plus
`
`costs of $16,688.15, for a total award of $34,688.15. 792
`F. Supp. 2d 139, 143. On August 15, 2011, the Funds ap-
`
`pealed from both decisions. Haluch filed a cross-appeal a
`week later.
`
`In the Court of Appeals Haluch argued that there had
`
`
`been no timely appeal from the June 17 decision on the
`merits. In its view, the June 17 decision was a final deci­
`
`sion under §1291, so that notice of appeal had to be filed
`within 30 days thereafter, see Fed. Rule App. Proc.
`4(a)(1)(A). The Funds disagreed. They argued that there
`
`was no final decision until July 25, when the District
`Court rendered a decision on their request for attorney’s
`
`fees and costs. In their view the appeal was timely as to
`all issues in the case. See Digital Equipment Corp. v.
`Desktop Direct, Inc., 511 U. S. 863, 868 (1994).
`
`The Court of Appeals agreed with the Funds. 695 F. 3d
`1, 7 (CA1 2012). It acknowledged this Court’s holding that
`an unresolved issue of attorney’s fees generally does not
`
` prevent judgment on the merits from being final. But it
`
`
` held that this rule does not “mechanically . . . apply to all
`claims for attorneys’ fees, whatever their genesis,” and
`that, instead, “[w]here, as here, an entitlement to attor­
`neys’ fees derives from a contract . . . the critical question
`is whether the claim for attorneys’ fees is part of the mer­
`its.”
`Id., at 6. Interpreting the CBA in this case as
`“provid[ing] for the payment of attorneys’ fees as an ele­
`ment of damages in the event of a breach,” the Court of
`Appeals held that the June 17 decision was not final. Ibid.
`Concluding that the appeal was timely as to all issues, the
`
`Court of Appeals addressed the merits of the dispute with
`respect to the amount of unpaid remittances as well as the
`issue of fees and costs, remanding both aspects of the case
`to the District Court. Id., at 11.
`
`
`Haluch sought review here, and certiorari was granted
`to resolve a conflict in the Courts of Appeals over whether
`
`
`
`
`
`
`
`
`
`

`
`5
`
`
`
`
`
`
`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
` and when an unresolved issue of attorney’s fees based on a
`
`contract prevents a judgment on the merits from being
`final. 570 U. S. ___ (2013). Compare O & G Industries,
`Inc. v. National Railroad Passenger Corporation, 537 F. 3d
`153, 167, 168, and n. 11 (CA2 2008); United States ex rel.
`Familian Northwest, Inc. v. RG & B Contractors, Inc., 21
`
`
`F. 3d 952, 954–955 (CA9 1994); Continental Bank, N. A. v.
`Everett, 964 F. 2d 701, 702–703 (CA7 1992); and First
`Nationwide Bank v. Summer House Joint Venture, 902
`F. 2d 1197, 1199–1200 (CA5 1990), with Carolina Power &
`Light Co. v. Dynegy Marketing & Trade, 415 F. 3d 354,
`356 (CA4 2005); Brandon, Jones, Sandall, Zeide, Kohn,
`Chalal & Musso, P. A. v. MedPartners, Inc., 312 F. 3d
`
`
`1349, 1355 (CA11 2002) (per curiam); Gleason v. Norwest
`Mortgage, Inc., 243 F. 3d 130, 137–138 (CA3 2001); and
`Justine Realty Co. v. American Nat. Can Co., 945 F. 2d
`
`1044, 1047–1049 (CA8 1991). For the reasons set forth,
`the decision of the Court of Appeals must be reversed.
`II
`
` Title 28 U. S. C. §1291 provides that “[t]he courts of
`
`
`appeals . . . shall have jurisdiction of appeals from all final
`
` decisions of the district courts of the United States . . . .”
`“[T]he timely filing of a notice of appeal in a civil case is a
`jurisdictional requirement.” Bowles v. Russell, 551 U. S.
`205, 214 (2007). Rule 4 of the Federal Rules of Appellate
`Procedure provides, as a general matter and subject to
`
`specific qualifications set out in later parts of the Rule,
`that in a civil case “the notice of appeal . . . must be filed
`
`. . . within 30 days after entry of the judgment or order
`appealed from.” Rule 4(a)(1)(A). The parties in this case
`agree that notice of appeal was not given within 30 days of
`the June 17 decision but that it was given within 30 days
`
`of the July 25 decision. The question is whether the June
`17 order was a final decision for purposes of §1291.
`
`
`In the ordinary course a “final decision” is one that ends
`
`
`
`
`
`

`
`6 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Opinion of the Court
`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, 233 (1945). In Budinich, this Court
`addressed the question whether an unresolved issue of at-
`torney’s fees for the litigation prevents a judgment from be­
`
`ing final. 486 U. S., at 202. There, a District Court in a
`diversity case had entered a judgment that left unresolved
`a motion for attorney’s fees based on a Colorado statute
`providing attorney’s fees to prevailing parties in certain
`cases. Id., at 197. The Court held that the judgment was
`final for purposes of §1291 despite the unresolved issue of
`attorney’s fees. Id., at 202.
`The Court in Budinich began by observing that “[a]s a
`
`
`
`general matter, at least, . . . a claim for attorney’s fees is
`not part of the merits of the action to which the fees per­
`tain.” Id., at 200. The Court noted that awards of at-
`torney’s fees do not remedy the injury giving rise to the
`action, are often available to the party defending the action,
`
`and were regarded at common law as an element of “costs”
`awarded to a prevailing party, which are generally not
`treated as part of the merits judgment. Ibid. Though the
`Court acknowledged that the statutory or decisional law
`authorizing the fees might sometimes treat the fees as
`part of the merits, it held that considerations of “opera­
`tional consistency and predictability in the overall applica­
`tion of §1291” favored 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.” Id.,
`at 202.
`
`The facts of this case have instructive similarities to
`Budinich. In both cases, a plaintiff sought to recover
`employment-related payments. In both cases, the District
`Court entered a judgment resolving the claim for unpaid
`amounts but left outstanding a request for attorney’s fees
`incurred in the course of litigating the case. Despite these
`similarities, the Funds offer two arguments to distinguish
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`Budinich. First, they contend that unresolved claims for
`attorney’s fees authorized by contract, unlike those au­
`thorized by statute, are not collateral for finality purposes.
`
`Second, they argue that the claim left unresolved as of
`
`June 17 included fees incurred prior to the commencement
`of formal litigation and that those fees, at least, fall be­
`yond the scope of the rule announced in Budinich. For the
`reasons given below, the Court rejects these arguments.
`
`III
`
`
`A
`
`The Funds’ principal argument for the nonfinality of the
`
`
`June 17 decision is that a district court decision that does
`not resolve a fee claim authorized by contract is not final
`
`for purposes of §1291, because it leaves open a claim for
`
`contract damages. They argue that contractual provi­
`sions for attorney’s fees or costs of collection, in contrast
`to statutory attorney’s fees provisions, are liquidated­
`damages provisions intended to remedy the injury giving
`rise to the action.
`The premise that contractual attorney’s fees provisions
`
`are always a measure of damages is unpersuasive, for
`contractual fee provisions often provide attorney’s fees to
`prevailing defendants. See 1 R. Rossi, Attorneys’ Fees
`§9:25, p. 9–64 (3d ed. 2012); cf. Gleason, supra, at 137,
`n. 3. The Funds’ argument fails, however, for a more basic
`reason, which is that the Court in Budinich rejected the
`
`very distinction the Funds now attempt to draw.
` The decision in Budinich made it clear that the uniform
`
`
`rule there announced did not depend on whether the
`statutory or decisional law authorizing a particular fee
`claim treated the fees as part of the merits. 486 U. S., at
`
`201. The Court acknowledged that not all statutory or
`decisional law authorizing attorney’s fees treats those fees
`as part of “costs” or otherwise not part of the merits; and
`the Court even accepted for purposes of argument that the
`
`
`
`
`
`7
`
`
`
`
`
`
`
`
`
`

`
`8 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Opinion of the Court
`Colorado statute in that case “ma[de] plain” that the fees
`it authorized “are to be part of the merits judgment.” Ibid.
`But this did not matter. As the Court explained, the issue
`of attorney’s fees was still collateral for finality purposes
`under §1291. The Court was not then, nor is it now,
`“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.” Id., at 202. There is no reason to depart here
`from this sound reasoning. By arguing that a different
`rule should apply to fee claims authorized by contract
`because they are more often a matter of damages and thus
`part of the merits, the Funds seek in substance to reliti­
`gate an issue already decided in Budinich.
`
`Were the jurisdictional effect of an unresolved issue of
`attorney’s fees to depend on whether the entitlement to
`fees is asserted under a statute, as distinct from a con­
`tract, the operational consistency and predictability
`
` stressed in Budinich would be compromised in many
`instances. Operational consistency is not promoted by
`providing for different jurisdictional effect to district court
`decisions that leave unresolved otherwise identical fee
`claims based solely on whether the asserted right to fees is
`based on a contract or a statute.
`
`The Funds’ proposed distinction also does not promote
`predictability. Although sometimes it may be clear
`whether and to what extent a fee claim is contractual
`rather than statutory in nature, that is not always so.
`This case provides an apt illustration. The Funds’ notice
`of motion itself cited just ERISA; only by consulting the
`accompanying affidavit, which included an oblique refer­
`ence to the CBA, could it be discerned that a contractual
`fee claim was being asserted in that filing. This may
`explain why the District Court’s July 25 decision cited
`just ERISA, without mention or analysis of the CBA provi-
`
`sion or any other contractual provision. 792 F. Supp. 2d,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`
`9
`
`at 140.
`
`The Funds urge the importance of avoiding piecemeal
`litigation. The basic point is well taken, yet, in the context
`of distinguishing between different sources for awards of
`attorney’s fees, quite inapplicable. The Court was aware
`of piecemeal litigation concerns in Budinich, but it still
`adopted a uniform rule that an unresolved issue of attor­
`ney’s fees for the litigation does not prevent judgment on
`the merits from being final. Here it suffices to say that
`the Funds’ concern over piecemeal litigation, though start­
`ing from a legitimate principle, is counterbalanced by the
`interest in determining with promptness and clarity
`whether the ruling on the merits will be appealed. This
`is especially so because claims for attorney’s fees may be
`complex and require a considerable amount of time to
`
`resolve. Indeed, in this rather simple case, the fee-related
`submissions take up well over 100 pages in the joint ap­
`pendix. App. 64–198.
`
`The Federal Rules of Civil Procedure, furthermore,
`provide a means to avoid a piecemeal approach in the
`ordinary run of cases where circumstances warrant delay­
`
`ing the time to appeal. Rule 54(d)(2) provides for motions
`
`claiming attorney’s fees and related nontaxable expenses.
`Rule 58(e), in turn, provides that the entry of judgment
`ordinarily may not be delayed, nor may the time for ap­
`peal be extended, in order to tax costs or award fees. This
`
`
`accords with Budinich and confirms the general practice of
`
`treating fees and costs as collateral for finality purposes.
`Having recognized this premise, Rule 58(e) further pro­
`vides that if a timely motion for attorney’s fees is made
`under Rule 54(d)(2), the court may act before a notice of
`appeal has been filed and become effective to order that
`the motion have the same effect as a timely motion under
`Rule 59 for purposes of Federal Rule of Appellate Proce­
`dure 4(a)(4). This delays the running of the time to file an
`appeal until the entry of the order disposing of the fee
`
`
`
`
`
`
`
`

`
`
` 10 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Opinion of the Court
`
` motion. Rule 4(a)(4)(A)(iii).
`In their brief in opposition to the petition for certiorari,
`
`the Funds argued that in their case this procedure would
`not have been applicable. Brief in Opposition 34. Rule
`54(d)(2) provides that “[a] claim for attorney’s fees and
`related nontaxable expenses must be made by motion
`unless the substantive law requires those fees to be proved
`at trial as an element of damages.” The Advisory Commit­
`tee Notes to Rule 54(d)(2) state that the procedure out­
`lined in that Rule “does not . . . apply to fees recoverable
`as an element of damages, as when sought under the
`terms of a contract; such damages typically are to be
`claimed in a pleading and may involve issues to be re­
`solved by a jury.” Advisory Committee’s 1993 Note on
`
`subd. (d), par. (2) of Fed. Rule Civ. Proc. 54, 28 U. S. C.
`App., pp. 240–241.
`The Funds no longer rely on their reading of Rule 54
`
`and the Advisory Committee Notes as a basis for their
`argument that the June 17 decision was not final under
`§1291. And this is not a case in which the parties at­
`tempted to invoke Rule 58(e) to delay the time to appeal.
`
`Regardless of how the Funds’ fee claims could or should
`have been litigated, however, the Rules eliminate concerns
`over undue piecemeal appeals in the vast range of cases
`where a claim for attorney’s fees is made by motion under
`Rule 54(d)(2). That includes some cases in which the fees
`are authorized by contract. See 2 M. Derfner & A. Wolf,
`Court Awarded Attorney Fees ¶18.01[1][c], pp. 18–7 to 18–8
`(2013) (remarking that Rule 54(d)(2) applies “regardless
`of the statutory, contractual, or equitable basis of the
`request for fees,” though noting inapplicability where
`attorney’s fees are an element of damages under the sub­
`stantive law governing the action).
`
`The complex variations in statutory and contractual fee­
`shifting provisions also counsel against making the dis­
`tinction the Funds suggest for purposes of finality. Some
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`fee-shifting provisions treat the fees as part of the merits;
`
`some do not. Some are bilateral, authorizing fees either
`to plaintiffs or defendants; some are unilateral. Some de­
`pend on prevailing party status; some do not. Some may
`be unclear on these points. The rule adopted in Budinich
`ignores these distinctions in favor of an approach that
`looks solely to the character of the issue that remains open
`after the court has otherwise ruled on the merits of the
`case.
`
`In support of their argument against treating contrac­
`tual and statutory fee claims alike the Funds suggest,
`
`nevertheless, that it is unclear whether Budinich still
`applies where, as here, auditor’s fees (or other nonattorney
`professional fees) are included as an incidental part of a
`
`motion for attorney’s fees and costs. (In this case, auditor’s
`fees accounted for $6,537 of the $143,600.44 requested
`in total.) To the extent the Funds suggest that similar
`fees will be claimed alongside attorney’s fees only where a
`contractual fee claim is involved, they are incorrect. Stat­
`utory fee claims are not always limited to attorney’s fees
`per se. Many fee-shifting statutes authorize courts to
`
`award additional litigation expenses, such as expert fees.
`See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S.
`83, 89, n. 4 (1991) (listing statutes); cf. Fed. Rule Civ.
`
`Proc. 54(d)(2)(A) (providing mechanism for claims by
`
`motion for “attorney’s fees and related nontaxable expenses”).
`Where, as here, those types of fees are claimed and
`awarded incidental to attorney’s fees, there is no apparent
`
`reason why parties or courts would find it difficult to tell
`that Budinich remains applicable.
`B
`
`The Funds separately contend that the June 17 decision
`
`was not final because their motion claimed some $8,561.75
`in auditor’s and attorney’s fees (plus some modest addi­
`tional expenses) incurred prior to the commencement of
`
`
`
`
`
`
`
` 11
`
`
`
`
`
`
`
`

`
`
` 12 RAY HALUCH GRAVEL CO. v. CENTRAL PENSION FUND OF
`OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS
`
`Opinion of the Court
`litigation. These included fees for the initial audit to
`determine whether Haluch was complying with the CBA,
`as well as attorney’s fees incurred in attempting to obtain
`records from Haluch, researching fund auditing rights,
`drafting a letter demanding payment, and working on the
`initial complaint. Brief for Respondents 4–5; App. 64–67,
`81–88. The Funds argue that these fees do not fall within
`the scope of Budinich, because the Court in Budinich
`referred only to fees “for the litigation in question,” 486
`U. S., at 202, or, equivalently, “attributable to the case,”
`id., at 203.
`The fact that some of the claimed fees accrued before the
`
`complaint was filed is inconsequential. As this Court has
`observed, “some of the services performed before a lawsuit
`is formally commenced by the filing of a complaint are
`performed ‘on the litigation.’” Webb v. Dyer County Bd. of
`
`Ed., 471 U. S. 234, 243 (1985). “Most obvious examples”
`include “the drafting of the initial pleadings and the work
`
`associated with the development of the theory of the case.”
`Ibid. More generally, pre-filing tasks may be for the liti­
`gation if they are “both useful and of a type ordinarily
`
`necessary to advance the . . . litigation” in question. Ibid.
`
`The fees in this case fit that description. Investigation,
`preliminary legal research, drafting of demand letters, and
`working on the initial complaint are standard preliminary
`steps toward litigation. See id., at 250 (Brennan, J., con­
`curring in part and dissenting in part) (“[I]t is settled that
`a prevailing party may recover fees for the time spent
`before the formal commencement of the litigation on such
`matters as . . . investigation of the facts of the case, re­
`search on the viability of potential legal claims, [and]
`drafting of the complaint and accompanying documents
`
`. . . .”); 2 Derfner, supra, ¶16.02[2][b], at 16–15 (“[H]ours
`. . . spent investigating facts specific to the client’s case
`should be included in the lodestar, whether [or not] that
`time is spent prior to the filing of a complaint”). To be
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`sure, the situation would differ if a party brought a free­
`standing contract action asserting an entitlement to fees
`incurred in an effort to collect payments that were not
`themselves the subject of the litigation. But that is not
`this case. Here the unresolved issue left open by the June
`17 order was a claim for fees for the case being resolved on
`the merits.
`
`
`
` 13
`
`
`
`
`
`*
`*
`*
`
`There was no timely appeal of the District Court’s June
`17 order. The judgment of the Court of Appeals is re­
`versed. The case is remanded for further proceedings
`consistent with this opinion.
`
`
`It is so ordered.

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