Appealability, Class Actions: Ninth Circuit Decides It Has Pendent Appellate Jurisdiction To Review A Non-appealable Interim Fee Award Inextricably Intertwined With The Merits Of The Appealable Orders

Judicial Economy Seemed To Be The “Flavor” Here.

            In Bowerman v. Field Asset Services, Inc., Nos. 18-16303/18-17275 (9^th Cir. July 5, 2022) (published), a “first impression,” narrow appellate pendent jurisdictional issue was under consideration by the Ninth Circuit.  (Appellate practitioners might salivate, others not so much—but we post on it nevertheless.)  However, we can report that the Ninth Circuit lined up consistently with sister circuit courts on the issue.

            This was a situation where a district judge entered an interim $5 million fee award for the class after a class certification order and partial summary judgment orders in favor of the class, most of which were appealable.  Defendants appealed the non-fee appealable orders and the interim fee order.  Many of the appealable orders were reversed on appeal.

            So, could the Ninth Circuit also entertain the defense appeal of the interim fee order, which might be deemed non-appealable?  Answer:  You betcha.  Because the fee order was inextricably intertwined with other appealable district court orders, it only made sense that the Ninth Circuit could exercise pendent appellate jurisdiction in connection with the fee award.  The Ninth Circuit sided with other sister circuit courts coming to the same result.  Once this legal issue was decided, the federal Court of Appeals vacated the fee award to await what happens on later in the case in further proceedings—a result driven by judicial economy, we think.