Pechon v. Louisiana Department of Health & Hospitals

PER CURIAM: * Bella Marie Pechón sued Louisiana and one of its officials in federal court for money damages. The district court dismissed the case as frivolous and awarded attorney’s fees to the state official. Pe-chón filed a motion for relief from the judgment — which the court denied. Pe-chón appeals, and we affirm in part and dismiss in part for lack of appellate jurisdiction. I. Pechón alleges that her boss fired her for being too old. She sued her former employer — the Louisiana Department of Health and Hospitals — and its Secretary— Alan Levine — in federal district court. Pe-chón sought money damages from all defendants, including from Levine in both his official and personal capacities. She asserted causes of action under the Due Process Clause of the Fourteenth Amendment, 42 U.S.C. § 1983, and the Age Discrimination in Employment Act. 1 The defendants filed a motion to dismiss for lack of jurisdiction and for failure to state a claim, which the court, through a magistrate judge, 2 granted. It found that the Eleventh Amendment shielded from suit in federal court the Department 3 and Levine in his official capacity. Because Pechón did not allege any facts to show that Levine personally had wronged her, the court dismissed the § 1983 action against him for failure to state a claim. Finally, the court dismissed the age discrimination claim because the Act requires plaintiffs first to exhaust administrative remedies, which Pechón concedes she did not do. For having to defend against Pe-chon’s frivolous lawsuit, each defendant requested — and the court granted — attorney’s fees under 42 U.S.C. § 1988. Pechón filed motions under Federal Rules of Civil Procedure 59(a)(1)(B), 59(e), and 60(b)(6) — seeking a new trial, an alteration to the judgment, or relief from the operation of the judgment. As Pechón did not establish a manifest error of law or other extraordinary circumstances to justify disturbing the earlier order, the court denied her motions. The court did, howev *609 er, move sua sponte to clarify its previous order, explaining that only Levine in his personal capacity — not the other defendants — would receive attorney’s fees under § 1988. The court left for future decision the amount of those fees and instructed Levine to submit a detailed calculation of his legal expenses. Pechón filed a notice of appeal, in which she challenges three of the magistrate judge’s decisions: 1) the dismissal of her claims; 4 2) the denial of relief from that judgment; and 3) the imposition of attorney’s fees. II. We must pause to verify our jurisdiction. Pechón urges that we have it under 28 U.S.C. § 1291, which vests the circuit courts with authority to hear “appeals from all final decisions of the district courts of the United States.” “In most cases, an order is final only when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” 5 Here, the dismissal of Pechon’s claims and the denial of post-judgment relief are final. Nothing left to do but execute the judgment. The imposition of attorney’s fees is another story. Indeed, a claim for attorney’s fees is seen as a separate action from one on the merits, 6 and we have held that an order imposing attorney’s fees that leaves “for a later determination the amount” is not a “ ‘final order’ for pur *610 poses of appellate review.” 7 In this case, the district court expressly set for future decision the amount of the attorney’s fees. 8 We DISMISS for lack of jurisdiction the portion of Pechon’s appeal challenging the imposition of attorney’s fees. III. We review de novo the district court’s dismissal for lack of subject matter jurisdiction 9 and for failure to state a claim. 10 Pechón has given up trying to sue either the Department or the Secretary— each an arm of the state of Louisiana — -for money damages. She maintains, however, that Levine is vulnerable to a suit for money damages in his personal capacity. No doubt, but to recover under § 1983 Pechón has to prove that Levine was either “personally involved in the constitutional violation” or “causally connected to the constitutional violation alleged.” 11 To do this, she might show that Levine has implemented “a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” 12 Pechón has not so alleged — and certainly has not presented enough to “raise [her] right to relief above the speculative level.” 13 *611 That leaves only Pechon’s federal age discrimination claim. She admits that she cannot recover directly under the Act, because she did not exhaust administrative remedies. 14 Instead, she tries to shoehorn her age discrimination claim into a § 1983 cause of action — based on a violation of equal protection for the elderly. But we have held that “§ 1983 age discrimination claim[s] [are] preempted by the ADEA.” 15 We hold that the magistrate judge rightly dismissed each of Pechon’s claims. In her motions for relief from judgment, Pechón tried to relitigate her dismissed causes of action. Because the magistrate judge correctly dismissed the claims in the first instance, it necessarily follows that the magistrate judge did not abuse her discretion 16 in denying relief from the judgment. The district court did not err in dismissing Pechon’s case, so we AFFIRM both the dismissal and the denial of motions seeking a new trial, an alteration to the judgment, and relief from the operation of the judgment. AFFIRMED IN PART; APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that tills opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. [1] 29 U.S.C. §§ 621 et seq. Pechón originally complained under both the federal Age Discrimination in Employment Act and the age-based portions of the Louisiana Employment Discrimination Law. La.Rev.Stat. Ann. §§ 23:311 et seq. Pechón does not mention the state cause of action in her brief, so she has abandoned any claim thereunder. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). [2] Before the district court, both parties consented to the magistrate judge's jurisdiction pursuant to 28 U.S.C. § 636(c). See 28 U.S.C. § 636(c)(1) ("Upon the consent of the parties, a full-time United States magistrate judge or a part-time United States magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves.”). Under these circumstances, the magistrate judge may "conduct proceedings and enter final judgment in a case; such judgment is then appealable to the circuit court directly.” Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). [3] We have found the Department to be an "alter ego” of the state. See Darlak v. Bobear, 814 F.2d 1055, 1059 (5th Cir.1987). [4] The notice of appeal expressly challenges only the denial of Pechon's Rules 59 and 60 motions and the imposition of attorney's fees. That is, Pechón did not in the notice of appeal question the underlying decision to dismiss her case, even though Federal Rule of Appellate Procedure 3 requires appellants to "designate" on their notices of appeal the "judgment, order, or part thereof being appealed.” Fed. R.App. P. 3(c)(1)(B). While Pechón "has breached the formal requirements of Rule 3(c), this error does not defeat [her] right to appeal the entire case. Interpreting notices of appeal liberally, this Court often has exercised its appellate jurisdiction — despite an improper designation under Rule 3(c) — where it is clear that the appealing party intended to appeal the entire case.” Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1147-48 (5th Cir.1992). [5] Club Retro LLC v. Hilton, 568 F.3d 181, 214 (5th Cir.2009) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945)) (quotation marks omitted). [6] White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 451-52, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (explaining that a "court's decision of entitlement to fees [under § 1988] will ... require an inquiry separate from the decision on the merits”); Echols v. Parker, 909 F.2d 795, 798 (5th Cir.1990) ("Additionally, attorney's fees are considered collateral to the merits, so that final judgments as to attorney’s fees can be appealed separately from the ‘merits' judgment. Because a judgment is not final until both liability and damages are determined, a judgment awarding an unspecified amount of attorney’s fees is interlocutory in nature.” (citing Deloach v. Delchamps, Inc., 897 F.2d 815, 826 (5th Cir. 1990))); Dardar v. Lafourche Realty Co., 849 F.2d 955, 957 (5th Cir.1988) ("[A]wards of attorney’s fees may be appealed separately as final orders after a final determination of liability on the merits.”); 10 James Wm. Moore et al„ Moore's Federal Practice ¶ 54.158 (3d. ed.) ("A judgment awarding or denying attorney's fees ... may be appealed separately from the merits judgment.”). Note, too, the inverse: the Supreme Court has held that questions about the "recovera-bility or amount of attorney's fees for the litigation” do not bear on the finality of the underlying case. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); see also Cadle Co. v. Pratt (In re Pratt), 524 F.3d 580, 585 (5th Cir.2008) ("The Supreme Court has made clear that ‘a decision on the merits is a "final decision” for purposes of § 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case.' " (quoting Budinich, 486 U.S. at 202-03, 108 S.Ct. 1717)). [7] Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976); Southern Travel Club v. Carnival Air Lines, 986 F.2d 125, 131 (5th Cir.1993) (holding "that an order awarding attorney’s fees or costs is not reviewable on appeal until the award is reduced to a sum certain” — even though "this requirement may result in some 'diseconomy' "). See 10 James Wm. Moore et al„ Moore’s Federal Practice 54.158 (3d. ed.) (“A judgment awarding a fee is not appeal-able until the amount of the fee has been established. When the court chooses to bifurcate the issues of liability and amount ... it may rule that the fee movant is entitled to fees and may actually enter a judgment to that effect. Nevertheless, that judgment is not ap-pealable until later proceedings have been held in which the exact amount of the fee is determined. Once the amount is set, an appeal from the judgment brings up for review both the amount and the earlier decision as to the right to the fee.” (citing Travelers Ins. Co. v. St. Jude Hosp., 38 F.3d 1414 (5th Cir.1994))). [8] Pechón urges that — after she filed her appeal — the magistrate judge set the attorney’s fees. The record on appeal does not so indicate, and, in any event, "a premature notice of appeal operates as a valid one 'only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment,' ” which is not here the case. United Stales v. Cooper, 135 F.3d 960, 963 (5th Cir.1998) (quoting FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991)). [9] Hager v. NationsBank, N.A., 167 F.3d 245, 247 (5th Cir.1999). [10] Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999). [11] Woods v. Edwards, 51 F.3d 577, 583 (5th Cir.1995); see Kohler v. Englade, 470 F.3d 1104, 1115 (5th Cir.2006). [12] Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987) (citing Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th Cir. 1985) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))) (quotation marks omitted). [13] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Even in her motion for post-judgment relief, the best Pechón can muster is: "Presumably, the actions and failures to act respecting Ms. Pechón were under some sort of departmental policy....” R. at 146. Bald presumptions will not do. We further note, in response to a contrary argument in Pechon’s appellate brief, that a court deciding a motion to dismiss must rely on the complaint and documents specifically referenced therein. See Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008) ("Generally, a court ruling on a motion to dismiss may rely on only the complaint and its proper attachments. A court is permitted, however, to rely on documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. Because the court reviews only the well-pleaded facts in the complaint, it may not consider new factu *611 al allegations made outside the complaint, including those made on appeal." (citing Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir.2006); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)) (quotation marks omitted)). [14] See R. at 61. [15] Lafleur v. Texas Dep’t of Health, 126 F.3d 758, 760 (5th Cir.1997). Additionally, Pechón has not stated sufficient facts to “independently support a § 1983 claim” of, say, racial or gender discrimination. Id. [16] Regarding Pechon's Rule 59(a) motion: "Ordinarily, a district court's decision not to grant a new trial under Rule 59(a) is not appealable. An appeal of the denial of a Rule 59(a) motion for a new trial merely restates the attack on the merits of the final judgment. ... The only exception to this rule is when new matters arise after the entry of the judgment.” Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986) (citations and quotation marks omitted). Pechón did not present new matters that arose after judgment. As to her Rule 59(e) motion: "A district court’s decision not to amend or alter judgment may be overturned only for an abuse of discretion.” Id. (citation omitted). A Rule 59(e) motion "serves the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence. Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet v. Hydro-Chem Inc., 367 F.3d 473, 479 (5th Cir.2004) (citations and quotation marks omitted). And Pechon's Rule 60(b) motion: We will reverse "only for abuse of ... discretion. A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir.2005) (citations and quotation marks omitted).