Buian v. Baughard, s. 81-3274

• Citation: 687 F.2d 859
• Decision Date: 07 September 1982
• Docket Number: 81-3275,Nos. 81-3274,s. 81-3274
• Parties: Nicholas BUIAN, Plaintiff-Appellee, Cross-Appellant, v. Clifford BAUGHARD, et al., Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 859

687 F.2d 859

Nicholas BUIAN, Plaintiff-Appellee, Cross-Appellant, v. Clifford BAUGHARD, et al., Defendants-Appellants, Cross-Appellees.

Nos. 81-3274, 81-3275.

United States Court of Appeals Sixth Circuit.

Argued Dec. 10, 1981.

Decided Sept. 7, 1982.

Edward J. Riegler, Akron, Ohio, John Shoemaker, Cuyahoga Falls, Ohio, for defendants-appellants, cross-appellees.

John R. Vintilla, Cleveland, Ohio, for plaintiff-appellee, cross-appellant.

Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CORNELIA G. KENNEDY, Circuit Judge.

We consider here cross-appeals from the award of attorney's fees in a civil rights case. 42 U.S.C.A. §§ 1983, 1985(3), and 1988. Plaintiff-appellee and cross-appellant claims that the District Court impermissibly reduced the number of hours claimed, erroneously applied a factor for the contingent nature of the fee arrangement only to the hours spent before liability was established, and awarded an inadequate hourly rate considering counsel's experience and the unpopular nature of the litigation. Defendants-appellants and cross-appellees challenge the award of attorney's fees for the appeal of the case on the merits, an appeal from which plaintiff obtained no relief and in which appellees prevailed in all respects.

Plaintiff, a former employee of the City of Akron, filed this action against several members of the Akron Police Department and three members of the Civil Service Commission of that city. One Commissioner was voluntarily dismissed and the District Court directed a verdict for the police officers. The jury returned a verdict of $1 in nominal damages and $650 in punitive damages against each of the remaining two Commissioners. Plaintiff appealed the amount of the award and the dismissal of certain of the claims. The judgment was affirmed in all respects and no costs were taxed to either party. Plaintiff's petition for a rehearing en banc was denied, as was plaintiff's petition to the Supreme Court for a writ of certiorari. Plaintiff then filed a petition for attorney's fees in the District Court which awarded $600. On appeal this award was vacated by our Court. The case was remanded to the District Court with instructions to reconsider the issue of attorney's fees in view of the intervening decision in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979). On remand the District Court expressly determined that plaintiff prevailed on the case as a whole and entered a corrected judgment for $13,257.50 in attorney's fees which included fees for the totally unsuccessful appeal in which no costs were awarded. These cross-appeals followed.

We agree with defendants-appellants that no attorney's fees should be awarded plaintiff for the totally unsuccessful appeal on the merits in which the judgment of the District Court was affirmed. He was not entitled to or awarded costs on appeal, a prerequisite to the award of attorney's fees under 42 U.S.C.A. § 1988.

42 U.S.C.A. § 1988 provides: "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, ... a reasonable attorney's fee as part of the costs" (emphasis added).

A party is not entitled to costs on appeal if its appeal is dismissed or the judgment of the district court from which it appeals is affirmed, as it was in this case. Fed.R.App.P. 39(a). Such a party is required to pay costs, unless otherwise ordered. Id. Congress could not have intended that unsuccessful civil rights appellants receive attorney's fees for their fruitless efforts on appeal, merely because they prevailed below, when other unsuccessful appellants are required to pay costs for their lack of success.

Section 1988 was enacted in response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), to give the federal courts discretion to award attorney's fees in civil rights cases. ¹ In creating a statutory exception to the common law rule that attorney's fees cannot ordinarily be obtained by a prevailing party, neither the language of the statute nor its legislative history evidences an intent on the part of Congress to create an exception to the traditional rules of who awards costs, and how. Cost determinations are made at three levels: the district court, the court of appeals, and the Supreme Court. Each court has jurisdiction to make de novo awards of costs only for proceedings within its jurisdiction. The statutory directive that attorney's fees may be awarded as "part of the costs" must, therefore, be read with reference to Fed.R.Civ.P. 54(d), ² Fed.R.App.P. 39(a), ³ and Sup.Ct.R. 50. In the absence of an express statutory mandate, respect for the three levels at which costs have traditionally been awarded pursuant to court rule directs the conclusion that a prevailing party is not entitled to attorney's fees for appeals as part of district court costs. Instead, a party must be entitled to receive costs on appeal as a result of the appellate court's award of costs before it is eligible to receive attorney's fees as a part of those costs under section 1988.

There is nothing in the policy behind section 1988, promoting the full and vigorous litigation of civil rights claims and compensating prevailing parties' attorneys in the manner customary for fee-paying clients, that is inconsistent with treating the trial and appellate court levels separately for purposes of awarding attorney's fees as part of costs. See (1976) U.S. Code Cong. & Ad. News 5913. An attorney's incentive to take an appeal from a final judgment does not differ from his incentive when he filed the case in district court. In either case it is the belief one will prevail that provides the necessary incentive to proceed. The statute was never intended to underwrite all civil rights actions or provide compensation to parties who have unsuccessfully raised substantial, good faith claims or defenses. Compensation is only permitted for prevailing on the merits. 42 U.S.C.A. § 1988. To adopt any other rule would provide a plaintiff who has received a favorable final judgment an unrestricted, fully-paid-for appeal in the hope of bettering that party's position. This seems neither necessary nor desirable.

That attorney's fees under section 1988 are indeed costs is made clear by the Supreme Court's holding in Hutto v. Finney, 437 U.S. 678, 693-99, 98 S.Ct. 2565, 2574-2578, 57 L.Ed.2d 522 (1978), in which the Court held such fees could be assessed against the state without express congressional directive, because they were costs. See also Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981). The Supreme Court's decision in Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), indicates that the determination of whether a party has prevailed, within the meaning of section 1988, must be separately made with reference to the trial and appellate court levels. Id. 756 n.3, 100 S.Ct. at 1988 n.3. Although the plaintiffs in that case were unsuccessful in their appeal to the court of appeals the merits of the case were still undecided, and it could not as yet be determined whether they were prevailing parties. Decisions of the Seventh and Fourth Circuits buttress this; both circuits have determined that a party must prevail on the merits of their appeal before they are entitled to attorney's fees under section 1988 for their appellate work. See Bond v. Stanton, 630 F.2d 1231, 1234-35 (7th Cir. 1980); Hampton v. Hanrahan, 600 F.2d 600, 643-44 (6th Cir. 1979), rev'd on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Davis v. Murphy, 587 F.2d 362, 364-65 (6th Cir. 1978); Fox v. Parker, 626 F.2d 351, 354 (4th Cir. 1980); McManama v. Lukhard, 616 F.2d 727, 730 (4th Cir. 1980). ⁴

The District Court here considered itself bound by Northcross to award attorney's fees for plaintiff's totally unsuccessful appeal on the merits. Among the many issues decided in Northcross was whether the prevailing party determination had to be dissected on an issue by issue basis or whether a party could be said to have prevailed based on the...