IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 91-4704

 

EBEL GAITAN CAMPANIONI, ET AL.,

Plaintiffs-Appellees,

versus

WILLIAM BARR, Acting Attorney General,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Eastern District of Texas 

 

 (May 27, 1992)

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The Attorney General attempts to appeal a district court order

appointing counsel for Cuban detainees under the Criminal Justice

Act. We find that the order is an unappealable collateral order,

and dismiss for lack of jurisdiction. We deny the government's

alternative petition for mandamus because the request for relief is

best addressed on appeal from a final judgment in the case.

I.

Appellees are five Cubans who entered this country during the

Mariel Boatlift of 1980 and were detained by the INS. Pending

their "exclusion hearing," the INS granted the detainees

administrative parole. This parole allowed the detainees to remain

in the United States until the INS determined whether they should
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be excluded. The detainees were convicted of drug offenses

committed while on parole, and were released after serving their

prison terms.

The INS denied detainees parole after their release from

prison and placed the detainees in administrative detention. These

five detainees filed a pro se habeas petition in federal district

court to challenge the INS detention. The district court

consolidated the five petitions and, over the government's

objection, appointed counsel to represent the five detainees

relying upon the Criminal Justice Act.

The district court denied the government's request to certify

its order appointing counsel pursuant to 28 U.S.C. § 1292. The

Attorney General asserted that the CJA does not authorize payment

of the detainees' counsel with public monies. Appointed counsel

have not been paid and no order awarding fees has been entered.

The CJA authorizes such pay only after the counsel submits vouchers

to the district court detailing his expenses, and none have been

submitted. The government filed a notice of appeal and petition

for mandamus. The detainees moved to dismiss for lack of

jurisdiction and urge denial of mandamus. Detainees argue that the

order appointing counsel is not an appealable order and is

reviewable on the appeal of a final judgment in the case. They

also urge that the petition for mandamus should be denied as

unnecessary.
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II.

Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541

(1949) created a narrowly defined class of appealable interlocutory

orders. The order appointing defense counsel must (1) conclusively

determine the disputed question; (2) resolve an important issue

completely separate from the merits of the action; and (3) be

effectively unreviewable on appeal from a final judgment. Coopers

& Lybrand, 437 U.S. 463, 468-69 (1978). See also 15A C. Wright, A.

Miller, & E. Cooper, Federal Practice and Procedure, § 3911 at 329-

35 (1992); Jeffery Hanslick, Decisions Denying the Appointment of

Counsel and the Final Judgment Rule in Civil Rights Litigation, 86

Nw. L. Rev. 782, 801-06 (1992) (describing post-Cohen development

of collateral order doctrine). "If the order fails to satisfy any

one of the requirements, it cannot be appealed under the collateral

order doctrine." Rauscher Pierce Refsnes, Inv. v. Birenbaum, 860

F.2d 169, 171 (5th Cir. 1988) (emphasis added).

The Attorney General purports to appeal from an order

appointing counsel for the detainees. However, the Attorney

General does not object to the appointment of counsel itself. He

objects only to the payment of fees that appointment of counsel

under the CJA may eventually authorize. Practically, the issue in

this case is whether the district court's authorization for payment

of attorney's fees under the CJA is immediately appealable.

In other contexts, this court has consistently held that a

district court's interim award of attorney's fees is not appealable

under the Cohen doctrine, in part because the fee award is
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effectively reviewable after final judgment on the merits of the

case is entered. Shipes v. Trinity Industries, Inc., 883 F.2d 339,

344 (5th Cir. 1989); Darder v. Lafourche Realty Co., Inc., 849 F.2d

955, 959 (5th Cir. 1988); Ruiz v. Estelle, 609 F.2d 118, 119 (5th

Cir. 1980). The Shipes court noted that the interim award of fees

would be immediately appealable only where the "'mere payment of

the fees would make them unrecoverable.'" Shipes, 883 F.2d at 344

(quoting Ruiz, 609 F.2d at 119). Such a situation might arise, for

instance, if the fees were to be paid directly to a client in

danger of becoming judgment-proof. Palmer v. City of Chicago, 806

F.2d 1316, 1317-20 (7th Cir. 1986), cert. denied, 481 U.S. 1049

(1987). 

We see little danger that payment of fees will make them

unrecoverable in this case. In Ruiz v. Estelle, 609 F.2d 118, 119

(5th Cir. 1980), we found that an order awarding interim legal

fees under 42 U.S.C. § 1988 reviewable after final judgment. In

reaching this conclusion, the Ruiz court noted that the counsel for

the plaintiffs--the party who received the interim fees--"stated

unequivocally during oral argument that, should the fees awards be

paid and should the court later decide that all . . . of the amount

paid was not due, the appropriate amount would be refunded." Ruiz,

609 F.2d at 120. The appointed counsel has made similar assurances

here.

The Attorney General would distinguish on the grounds that

Ruiz and other cases find interim fee awards unappealable because

such orders did not conclusively determine the issue of whether
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attorneys' fees should be awarded. As the Ruiz court noted, at

least some of the award of fees under 28 U.S.C. § 1988 depended on

which party ultimately prevailed in the litigation and therefore

was subject to reconsideration.

This is true, as far as it goes. The Ruiz court, however,

also noted that the award of interim fees was practically

reviewable after final judgment had been entered on the merits

because any interim fees paid could be reimbursed. See also

Shipes, 883 F.2d at 345; Dardar, 849 F.2d at 959 ("after a truly

final order, appellate review of any prior attorney's fee

determination will be available"). The Attorney General cannot

show that the order here is appealable merely by showing that it is

conclusive and collateral to the merits. He must also show that he

will suffer some irrevocable harm if appeal is delayed. Richardson

v. Penfold, 900 F.2d 116, 118 (7th Cir. 1990) ("irrevocable harm"

from delayed appeal "rightly regarded as essential"). As in

Shipes, Dardar, and Ruiz, there has been no such showing here.

The government contends that case might become moot should the

detainees be deported or paroled by INS. We are not persuaded that

such mootness necessarily moots the issue of counsel fees. A case

becomes moot when the issues presented are no longer "live" or the

parties lack a legally cognizable interest in the outcome. Murphy

v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982). Assuming

arguendo that the government has standing to challenge appointment

of counsel under the CJA, that legally cognizable interest in

recovering fees paid to the appointed counsel remains after the
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underlying controversy about the detainees' confinement detention

became moot. Dahlem v. Bd. of Education of Denver Public Schools,

901 F.2d 1508, 1511 (11th Cir. 1990) ("the expiration of the

underlying cause of action does not moot a controversy over

attorney's fees already incurred"); cf. Wilfred Academy of Hair and

Beauty Culture v. The Southern Assoc. of Colleges and Schools, Slip

Op. 90-2958, at 3608 (5th Cir. April 6, 1992) (award of attorney's

fees can preserve live case or controversy under Texas law).

Relatedly, the possibility that the underlying case may fall away

does not meet the third element of Cohen. That possibility exists

in many cases. As a class, such orders are not unreviewable. 

Significantly, the order here does not actually award any

specific amount of fees. It is undisputed that the detainees'

counsel has not yet been reimbursed or submitted any claim for

reimbursement. This court has held that an order granting fees is

not reviewable independent of the merits prior to the calculation

of the amount of fees. Rodriguez v. Handy, 802 F.2d 817, 821 (5th

Cir 1986). Therefore, this order is nonappealable even apart from

the fact that the Attorney General can obtain effective review

after judgment on the merits.

We express no opinion on the merits of the detainees' argument

that the Attorney General lacks standing to challenge the district

court's order, an argument best addressed in any appeal from a

final judgment resolving this case on the merits. 

III.
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Mandamus is extraordinary relief that should not issue if

"other means of obtaining relief is available." In Re W.R. Grace

& Co.--Conn, 923 F.2d 42, 44 (5th Cir. 1991); In Re Fibreboard

Corp., 893 F.2d 706, 707 (5th Cir. 1990). Where an interest can be

vindicated through direct appeal after a final judgment, this court

will ordinarily not grant a writ of mandamus. In Re Fibreboard,

803 F.2d at 708. 

The case is DISMISSED for want of jurisdiction and the

petition for mandamus is DENIED.