Asse International, Inc. v. Rex Tillerson

FILED
NOT FOR PUBLICATION
JAN 12 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSE INTERNATIONAL, INC., No. 16-56742
Plaintiff-Appellant, D.C. No.
8:14-cv-00534-CJC-JPR
v.
REX TILLERSON, Secretary of State of MEMORANDUM*
the United States; UNITED STATES
DEPARTMENT OF STATE; JENNIFER
ZIMDAHL GALT, Deputy Assistant
Secretary of State for Private Sector
Exchange, Bureau of Educational and
Cultural Affairs,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted January 9, 2018**
San Francisco, California
Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ASSE International, Inc., appeals the district court’s denial of interim
attorney’s fees and costs. “Generally the grant or denial of interim attorney’s fees
by a district court pending litigation on the merits is not a final appealable order for
purposes of 28 U.S.C. § 1291.” Thompson v. Potashnick Constr. Co., 812 F.2d
574, 576 (9th Cir. 1987); see also Webb v. Ada County, 195 F.3d 524, 526 (9th Cir.
1999) (“Interim awards of attorney’s fees made prior to a final judgment on the
merits are generally not appealable under 28 U.S.C. § 1291.”); Gates v. Rowland,
39 F.3d 1439, 1450 (9th Cir. 1994) (“Interim attorneys’ fees awards . . . prior to
entry of a final judgment on the merits are not appealable under section 1291.”).
We see no reason to depart from this general rule, where the underlying litigation
regarding the State Department’s sanction is ongoing, and indeed, ASSE concedes
it may move for additional fees in the future. Nor does the collateral order doctrine
apply, given that the “fee award itself determines neither the total amount of fees”
due to ASSE nor ASSE’s “absolute entitlement to attorney’s fees,” Rosenfeld v.
United States, 859 F.2d 717, 720 (9th Cir. 1988), and the fee award is not
“effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978).
Accordingly, Appeal No. 16-56742 is DISMISSED for lack of jurisdiction.
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