(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 petitioner 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 obligations under both a federal statute and the parties’ collective bargaining 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 Circuit addressed the appeal with respect to both the unpaid contributions 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 element of “costs” awarded to a prevailing party, not a part of the merits

judgment. Id., at 200. Even if laws authorizing fees might sometimes treat them as part of the merits, considerations of “operational

consistency and predictability in the overall application of §1291” favored 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 always a measure of damages is unpersuasive, for such provisions often 

provide attorney’s fees to prevailing defendants. More basic, Budinich’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 promoted 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 uniform rule, and it suffices to say that those concerns are counterbalanced 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 provide a means to avoid a piecemeal approach in many cases. See, e.g., 

Rules 54(d)(2), 58(e). Complex variations in statutory and contractual fee-shifting provisions also counsel against treating attorney’s fees 

claims authorized by contract and statute differently for finality purposes. 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 motion for attorney’s fees and costs. They are mistaken to the extent

that they suggest that such fees will be claimed only where a contractual 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 difficult 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-
 

 

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Syllabus 

ment of litigation fall outside the scope of Budinich is also unpersuasive. 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 description 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, Washington, 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., PETITIONERS v. CENTRAL PENSION FUND OF 

THE INTERNATIONAL UNION OF OPERATING ENGINEERS AND PARTICIPATING 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 different 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 landscape supply company. Under a collective-bargaining

agreement (CBA) with the International Union of Operating Engineers, Local 98, Haluch was required to pay contributions 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 payments 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 conclusions 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 delinquency, in obtaining the audit, in protecting Plaintiffs’ 

interests, and in protecting the interests of the participants 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 “affidavit 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 underpaid, on June 17, 2011, the District Court issued a memorandum 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 

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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 appealed 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 decision 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 attorneys’ fees derives from a contract . . . the critical question 

is whether the claim for attorneys’ fees is part of the merits.” Id., at 6. Interpreting the CBA in this case as

“provid[ing] for the payment of attorneys’ fees as an element 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 attorney’s fees for the litigation prevents a judgment from being 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 pertain.” Id., at 200. The Court noted that awards of attorney’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 “operational consistency and predictability in the overall application 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 authorized 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 beyond 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 provisions for attorney’s fees or costs of collection, in contrast

to statutory attorney’s fees provisions, are liquidateddamages 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 

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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 relitigate 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 contract, 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 reference 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 provision 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 attorney’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 starting 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 appendix. 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 delaying 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 appeal 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 provides 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 Procedure 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 Committee Notes to Rule 54(d)(2) state that the procedure outlined 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 resolved 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 attempted 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 substantive law governing the action). 

The complex variations in statutory and contractual feeshifting provisions also counsel against making the distinction 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 depend 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 contractual 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. Statutory 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 additional 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 litigation 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., concurring 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, research 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 freestanding 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 reversed. The case is remanded for further proceedings 

consistent with this opinion. 

It is so ordered.