Fox v. Parker, 78-1613

• Citation: 626 F.2d 351
• Decision Date: 23 July 1980
• Docket Number: No. 78-1613,78-1613
• Parties: John Christopher FOX, Appellee, v. W. F. PARKER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 351

626 F.2d 351

John Christopher FOX, Appellee, v. W. F. PARKER, Appellant.

No. 78-1613.

United States Court of Appeals, Fourth Circuit.

Argued April 11, 1980.

Decided July 23, 1980.

Michael J. McManus, Arlington, Va. (Lewis, Wilson, Lewis & Jones, Ltd., Arlington, Va., on brief), for appellant.

Gwendolyn Jo M. Carlberg, Washington, D. C., for appellee.

Before HALL and PHILLIPS, Circuit Judges, and HOUCK, District Judge. ^*

K. K. HALL, Circuit Judge:

W. F. Parker appeals from a district court order awarding attorney fees to the appellee John Fox pursuant to the Civil Rights Attorney's Fees Awards Act of 1976 (the Act). Upon consideration of the briefs, the oral arguments and the record, we affirm the district court in part, vacate in part and remand the case with instructions.

In November 1975, Fox instituted an action under 42 U.S.C. § 1983 in which he alleged that Parker, a Virginia State Trooper, used excessive force while arresting him. Fox demanded compensatory and punitive damages as well as attorney fees and costs. At trial, the jury awarded Fox five dollars in damages, and judgment was entered on April 14, 1976. The judgment order did not mention attorney fees or costs.

The district court denied Fox's motion for a new trial, and on May 13, 1976, Fox filed a notice of appeal. On May 23, 1977, Fox voluntarily moved to dismiss his appeal. Fox's motion was granted and the dismissal order was entered on June 2, 1977.

On March 7, 1978, Fox moved the district court for an award of attorney fees and costs incurred in the original trial and subsequent appeal. The motion was based upon the Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. No. 94-559 (Oct. 19, 1976), amending 42 U.S.C. § 1988, which granted the district courts the discretion to award attorney fees in certain actions or proceedings, including section 1983 actions. The motion was accompanied by counsel's affidavit setting forth the costs and time expended in preparing for trial and the motion for fees. During oral argument on the motion, counsel requested fees for an additional 181/2 hours she had expended in preparing the original appeal.

The district court granted the motion and awarded Fox his costs and reasonable attorney fees. The court found that attorney fees could be awarded to Fox pursuant to the Act because Fox's appeal was pending when the Act became effective on October 19, 1976. Included in the award was payment for the time expended by counsel on the initial appeal.

Parker contends that the district court erred in retroactively applying the Act and awarding attorney fees ¹ because: (1) the award inflicts manifest injustice; (2) neither the appeal nor the issue of attorney fees was pending on the effective date of the Act; and (3) the motion for fees was untimely. During argument on the motion before the district court, Parker failed to raise the issue of timeliness; thus that issue is not before us. Therefore, we need only address Parker's first and second contentions. ²

A. Manifest Injustice

In Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court stated:

"A court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary." 416 U.S. at 711, 94 S.Ct. at 2016.

Bradley involved a school desegregation case which was pending on appeal before the Court of Appeals when Congress enacted section 718 of the Education Amendments Act of 1972. Section 718 (20 U.S.C. § 1617) granted the federal courts the discretion to award attorney fees in school desegregation cases. The Supreme Court concluded that the application of that statute to a case pending on appeal did not inflict manifest injustice.

The court's conclusion was based upon an examination of three factors:

(1) The nature and identity of the parties i. e., can the litigation be characterized as a routine private lawsuit between individuals, or is some public interest at stake? 416 U.S. at 718-19, 94 S.Ct. at 2019-20.

(2) The nature of the rights of the parties i. e., would a retrospective application of the law "infringe upon or deprive a person of a right that had matured or become unconditional?" 416 U.S. at 720, 94 S.Ct. at 2020 (citations omitted).

(3) The nature of the impact of the change in law upon the parties' existing rights i. e., would the retrospective application impose new and unanticipated obligations upon a party without notice of an opportunity to be heard? 416 U.S. at 720, 94 S.Ct. at 2020.

Relying upon Bradley, Parker argues that the district court's retrospective application of the Act was manifestly unjust because: (1) this litigation was essentially a tort action between two private individuals; (2) the rights litigated were those of a single individual as opposed to a group; and (3) Parker did not know he would be liable for attorney fees. These arguments are without merit.

First, this litigation is not merely a private dispute between two individuals, but involves the violation of a citizen's civil rights by a police officer acting under color of law. The litigation was framed by the complaint and tried under authority of section 1983 and, thus, was the type of litigation contemplated by Congress in the Act.

Second, we see no significance in the fact that only Fox's civil rights were litigated as opposed to those of a group. Certainly, the vindication of an individual's civil rights inures to the benefit of all citizens.

Finally, Parker does not argue that he would have altered his conduct towards Fox had he known of the availability of attorney fees under the Act. The Act did not impose a greater standard of conduct upon Parker, nor does it hold Parker accountable for otherwise innocent conduct.

Accordingly, we find that Parker was not subjected to manifest injustice.

B. Pendency of the Action

The legislative history of the Act and a prior decision of the Supreme Court indicate that the Act applies to all section 1983 actions which were pending on Octob...