O'Bryan v. Saginaw County, Mich., 82-1854

• Decision Date: 08 December 1983
• Docket Number: No. 82-1854,82-1854
• Parties: James O'BRYAN, Duane Wilbert, Isaac McKinley, Thomas Jackson, Thomas Dorsey, John Phillips, Earl McClaren, Dale Falk and James Brotzman, individually and on behalf of all other persons who have been, are, or will be confined in the Saginaw County Jail, Plaintiffs-Appellants, v. The COUNTY OF SAGINAW, MICHIGAN, James Kelley, Fred Clark, Members of the Saginaw County Board of Commissioners and Dorothy Kovaleski, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 313

722 F.2d 313

James O'BRYAN, Duane Wilbert, Isaac McKinley, Thomas

Jackson, Thomas Dorsey, John Phillips, Earl McClaren, Dale

Falk and James Brotzman, individually and on behalf of all

other persons who have been, are, or will be confined in the

Saginaw County Jail, Plaintiffs-Appellants, v. The COUNTY OF SAGINAW, MICHIGAN, James Kelley, Fred Clark,

Members of the Saginaw County Board of

Commissioners and Dorothy Kovaleski, in

their official capacities,

Defendants-Appellees.

No. 82-1854.

United States Court of Appeals, Sixth Circuit.

Submitted Nov. 9, 1983.

Decided Dec. 8, 1983.

Phillip H. Snelling, Legal Assistance Foundation of Chicago, Chicago, Ill., Jack Greenberg, New York City, for plaintiffs-appellants.

Peter Jensen, Jerome Burns, William Bovill, Saginaw, Mich., for defendants-appellees.

Before MERRITT and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

MERRITT, Circuit Judge.

James O'Bryan and others, who are the "prevailing parties" in this civil rights action, appeal an order denying a request for appellate attorney's fees under 42 U.S.C. Sec. 1988. The District Court denied the motion erroneously upon the grounds that "the present motion pertains exclusively to plaintiff's counsel's time spent in connection with his prosecution of an appeal in this case, i.e., drafting of briefs, preparation of oral argument, etc. This court is without first hand knowledge of counsel's work product as to the appeal, and is without any sound basis to adjudge the reasonableness of the requested fee."

The same District Court awarded attorney's fees to plaintiffs as prevailing parties under Sec. 1988 for the conduct of the trial before the District Court. The District Court has ruled in effect that attorney's fees for the prosecution of an appeal should only be awarded in the first instance by the Court of Appeals. This is erroneous. The Courts of Appeal, unlike a trial court, do not have original jurisdiction to resolve issues of fact but have only appellate jurisdiction. We do not have a witness chair for hearing evidence, and we are not in a position to conduct an evidentiary hearing where proof is offered on the question of attorney's fees. An appellate court is not a trier of fact. In the federal system, the district court is normally the trier of fact in the first instance and initially hears evidence on disputed questions.

Accordingly, this Court has ruled that issues concerning the award of attorney's fees for the prosecution...