Judge Arthur Spatt
An April 2012 judgment awarded plaintiffs attorney fees and prejudgment interest. Second Circuit’s March 2013 affirmation did not mention appellate attorney fees. On April 16 the circuit denied rehearing. On July 31, 2013, district court partly denied plaintiffs’ putative motion to correct judgment under Federal Rule of Civil Procedure 60(a). On Aug. 29, plaintiffs sought $38,552 in appellate attorney fees—as measured by previously determined hourly rates rather than the $46,104 actually billed—pursuant to 29 USC §1132(g)(1) of ERISA. Informed by S. Tex. Elec. Co-op. v. Dresser-Rand Co. and Dippin’ Dots v. Mosey the court granted plaintiffs’ motion. Nothing in the Appellate Rules of Civil Procedure requires Second Circuit’s approval before a district court may award appellate attorney fees. Discussing Cush-Crawford v. Adchem Corp. the court found a prevailing party must seek appellate attorney fees in an ERISA action within a reasonable period of time after the circuit’s entry of final judgment. In awarding plaintiffs’ $38,552 in appellate attorney fees, district court found their calculations of attorney hours expended—and the rates applied thereto—reasonable.
