Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int'l Union of Operating Eng'rs & Participating Emp'rs

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
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) 3
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.
Cite as: 571 U. S. ____ (2014) 1
Opinion of the Court
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) 3
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.
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
Cite as: 571 U. S. ____ (2014) 5
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) 7
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
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) 9
Opinion of the Court
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) 11
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
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) 13
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.
* * *
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.