Association for Retarded Citizens of ND v. Olson

• Decision Date: 19 November 1982
• Docket Number: Civ. No. A1-80-141.
• Citation: 561 F. Supp. 495
• Parties: ASSOCIATION FOR RETARDED CITIZENS OF NORTH DAKOTA, et al., Plaintiffs, v. Allen I. OLSON, Governor of the State of North Dakota, et al., Defendants.
• Court: U.S. District Court — District of South Dakota

561 F. Supp. 495

ASSOCIATION FOR RETARDED CITIZENS OF NORTH DAKOTA, et al., Plaintiffs, v. Allen I. OLSON, Governor of the State of North Dakota, et al., Defendants.

Civ. No. A1-80-141.

United States District Court, D. North Dakota, Southwestern Division.

November 19, 1982.

Michael J. Williams, Bismarck, N.D., Mary Deutsch Schneider, Legal Assistance of N.D., Fargo, N.D., for plaintiffs.

Robert O. Wefald, Atty. Gen., Bismarck, N.D., Rick D. Johnson, Daniel L. Hovland, Asst. Attys. Gen., Albert A. Wolf, Sp. Asst. Atty. Gen., Bismarck, N.D., for defendants.

VAN SICKLE, District Judge.

MEMORANDUM and ORDER

The principal trial having been completed and an order issued thereon, plaintiffs moved for attorneys fees and costs, and, in addition, have moved that the interim grant of attorneys fees made in that Order filed December 16, 1981, be increased. In response to that motion the defendants moved that plaintiffs be denied fees, and, further, that defendants be granted attorneys fees from plaintiffs. A comparison of the fees claimed by the plaintiffs and those claimed by the defendants is attached as Appendix I.

The basic law relevant to these issues is:

A. 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

B. 42 U.S.C. § 1988:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318, or Title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

C. Rule 68 Fed.R.Civ.P. provides that: At any time more than 10 days before the trial begins, ... a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for ... the effect specified in his offer, with costs then accrued.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Thus our first three questions are:

1. Who is the prevailing party?

2. What is the relationship between 42 U.S.C. § 1988 and Rule 68 of the Federal Rules of Civil Procedure?

3. Do "costs" as used in Rule 68 Fed.R. Civ.P. include attorney's fees?

... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs. 42 U.S.C. § 1988.

The "discretion" of the court is a judicial, not a personal discretion. As the Eighth Circuit said in a footnote;

It is worth recalling that Congress, not the courts, has made the decision to impose lawyers' fees on the losing side in civil-rights and other limited types of cases. The so-called American rule, which was judge-made law, left the burden of litigation unshifted: each side paid its own lawyers. Section 1988, enacted in 1976, is a statutory exception to the American rule. The people's elected representatives in Congress evidently felt that those who violate constitutional rights should pay for the legal services required to redress the violation. Our task as judges is to carry out this legislative command. Avalon Cinema Corporation v. Thompson, 689 F.2d 137 (8th Cir. 1982).

Appellate courts constantly hold it is an abuse of discretion to deny attorney's fees to a successful civil rights plaintiff without a finding of unusual circumstances. See Employed Wkrs. Organizing Com. v. Batterton, 477 F.Supp. 509 (D.C.Md.1979).

I find that plaintiffs were the "prevailing parties." The plaintiffs did, at the conclusion of the trial, obtain an order which imposed upon the defendants an obligation under the law to alter materially the scope and direction of the care of the retarded plaintiffs. Whether this result was obtained by negotiation and settlement, or by ruling; and whether the result reflected the good faith motivations of the defendants are not determinative. The key issue is the provocative role of the plaintiffs' lawsuit.^*

Granted that plaintiffs are the prevailing parties, does the offer of judgment presented to the plaintiffs, pursuant to Rule 68, Fed.R.Civ.P., affect plaintiffs' entitlement to attorneys fees?

It is well established that the Federal Rules of Civil Procedure have the force of a federal statute. Sibbach v. Wilson & Co., 312 U.S. 1, 13, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1940). Thus, the only question is whether Rule 68, Fed.R.Civ.P. and 42 U.S.C. § 1988 can be interpreted so as to comply with the duty of the courts to:

... adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions. Heiden v. Cremin, 66 F.2d 943 (8th Cir. 1933), Roadway Express, Inc. v. Piper, 447 U.S. 752 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980).

So where, as here, the plaintiffs are the prevailing parties, the effect of an offer of judgment made under Rule 68, Fed.R.Civ.P. must be to reduce the entitlement to "costs" that the plaintiffs have otherwise earned, if in fact the offer of judgment is as favorable as the judgment finally obtained.

42 U.S.C. § 1988 recites that attorneys fees shall be taxed as part of the "costs." I conclude that "costs" as used in Rule 68 means "costs" exclusive of attorneys fees. In this matter I am persuaded by the reasoning of Roadway Express, Inc., v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). That is, Rule 68 was drawn against the background of the "American rule" that a litigant shall bear his own attorney's fees. And further, there is no evidence that Congress, in its enactment of 42 U.S.C. § 1988, intended to incorporate thereby a broadening of the meaning of "costs" in Rule 68.

Defendants made an offer of judgment on October 1, 1981. Comparing the Offer of Judgment of October 1, 1981, with the Interim Order of November 4, 1981, and the Memorandum and Order of August 31, 1982 (relief award), this court finds:

A comparison of the Interim Order and Offer of Judgment shows that the Offer of Judgment fails to meet the needs of these critical areas.

1. Pharmaceutical reform,

2. Punishment reform,

3. Feeding reform,

4. Skills and need inventory. (Provision is made for areas of problem evaluation, for example, dental care, but no provision is made for development of a comprehensive individualized program.)

The Offer of Judgment incorporates the language of the North Dakota statutory, and the ACMR/DD¹ definitions. Then it recited many specific and detailed programs for upgrading buildings, employing additional help, and undertaking to develop community placements. As any such detailed program must, it contains numerous caveats in anticipation of administrative breakdowns.

The offer contains infinite detail, too precise to be "cast in the bronze of judicial decree," and it contains caveats which make the dictates of the offer precatory rather than mandatory. I find the Offer of Judgment is not more favorable than the Interim Order.

Turning to a comparison of the order of August 31, 1982, and the Offer of Judgment: The criticisms previously stated still apply. For example, the order of August 31, 1982, required immediate alleviation of overcrowded conditions at the central institutions. The Offer of Judgment would allow a total of 800 community placements by 1988. However, specific provision is made that these placements could be made from the community as well as from the institutions. Placements from the community do not alleviate existing overcrowding in the institutions.

From this analysis, I conclude that the offer of judgment is not as favorable as the relief finally obtained, and, therefore, under Rule 68, Fed.R.Civ.P., defendants are not entitled to a reduction in costs as a result of the offer.

In addition to a determination of fees earned after November 14, 1981 plaintiffs have petitioned for an increase in the fees allotted under the order of December 16, 1981. That order and its supplement are attached to this order as Appendix II and III.

The order of December 16, 1981, provided in part that:

... this Court finds that the payment of some interim attorneys' fees are in order, and that the rates of the fees must be established after consideration of whether more experienced lawyers could have produced the same results with substantially less expenditure of time. This Court also finds that while some allowance for fees is justified at this time, the hourly rate of the fee should be temporarily held low in order to review the total fee at the conclusion of the case. Any incentive or multiplier fee will not be determined at this time.

To better compute the fees, this court has separated the fee computation into two parts. The first part has to do with the fees earned by October 31, 1981, and covered by the order of December 16, 1981, which will be designated as the Preparation Phase of the litigation.² The fees covered from November 1, 1981 to September 1, 1982 will be designated as the Trial Phase of the litigation.

As to the Preparation Phase, applying the standards derived from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), this court concludes:

1. The time and labor required: While the defense resists the amount of plaintiffs' preparation, the court is convinced the work done is accurately reported. The case involved many persons and many problems. Extensive preparation was justified.

2. Novelty and difficulty of issues: This case was the first of its kind in North Dakota, and counsel had to face the jealous and fierce independence of the State officials and legislative leadership. The issues were novel and foreign, and, therefore, disturbing to the very pe

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