Jensen v. Stangel, 83-2473

• Decision Date: 11 June 1986
• Docket Number: No. 83-2473,83-2473
• Citation: 790 F.2d 721
• Parties: Paul JENSEN, Plaintiff-Appellant, v. Harry STANGEL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 721

790 F.2d 721

Paul JENSEN, Plaintiff-Appellant, v. Harry STANGEL, et al., Defendants-Appellees.

No. 83-2473.

United States Court of Appeals Ninth Circuit.

Argued Feb. 11, 1985.

Decided June 10, 1985.

Order May 21, 1986.

As Amended June 11, 1986.

Thomas J. Ferrito, Los Gatos, Cal., for plaintiff-appellant.

William B. Mayfield, San Jose, Cal., for defendants-appellees.

Before PREGERSON and FERGUSON, Circuit Judges, and STEPHENS, District Judge ^*.

ORDER GRANTING APPELLANT'S REQUEST FOR ATTORNEY'S FEES

UNDER 42 U.S.C. Sec. 1988

Paul Jensen filed this action under 42 U.S.C. Sec. 1983 against the City of San Jose ("City") and two police officers. The district court granted summary judgment for the City, the jury decided in favor of one officer, and the other was dismissed by the court as a defendant. The district court found Jensen's action to be "vexatious, frivolous and without foundation" and awarded attorney's fees to Stangel and the City in the sum of $10,934.00.

Jensen appealed the attorney's fee award, and we reversed, holding that Jensen's claims were not frivolous, unreasonable, or without merit. Jensen v. Stangel, 762 F.2d 815 (9th Cir.1985). Because he successfully challenged the district court's award of attorney's fees, Jensen, pursuant to 42 U.S.C. Sec. 1988, now moves for attorney's fees on this appeal.

We note at the outset that section 1988 authorizes an award of attorney's fees to Jensen for his successful appeal. "[We have] construed [section 1988] as implicitly authorizing compensation for time devoted to either the pursuit or the defense of an appeal challenging the district court's award of attorney's fees." In re Nucorp Energy, Inc., 764 F.2d 655, 660 ([th Cir. 1985) (citing Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir. 1981)).

42 U.S.C. Sec. 1988 provides that in actions brought under 42 U.S.C. Sec. 1983 a court may, in its discretion, award reasonable attorney's fees to a "prevailing party." A party is a "prevailing" party under this section if he or she succeeds "on any significant issue in litigation which achieves some of the benefit" the party sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983). The extent of the plaintiff's success is considered only in determining the amount of the award. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941, Riviera v. City of Riverside, 763 F.2d 1580, 1583 (9th Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985); Lummi, 720 F.2d at 1125.

Here Jensen achieved all the benefit he sought on his appeal from the district court's attorney's fee award. On appeal we held that his section 1983 claim was reasonable and not frivolous, and we reversed the judgment against him for the amount of defendants' district court attorney's fees. Because Jensen now has the benefit of a favorable final judgment on the merits of his fee award appeal, he is the prevailing party and is entitled to a reasonable attorney's fee for his appeal. ¹

Congress intended to encourage nonfrivolous suits by victims of discrimination when it enacted section 1988. Parks v. Watson, 716 F.2d 646, 664-65 (9th Cir.1983) (citing S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908 at 5912). Furthermore, "Congress has instructed the courts to use the broadest and most effective remedies available to achieve the goals of our civil rights laws." S.Rep. No. 1011 at 3, reprinted in 1976 U.S.Code Cong. & Ad.News at 5910. This circuit has interpreted Congress' mandate to require a liberal construction of section 1988 to achieve the purpose of encouraging compliance with and enforcement of the civil rights laws. American Constitutional Party v. Munro, 650 F.2d 184, 187 (9th Cir.1981).

In this appeal, we determined that Jensen's civil rights suit was reasonable, meritorious and not frivolous and that the defendants were therefore not entitled to an attorney's fee award by the district court. Failure to award attorney's fees for Jensen for successfully prosecuting such an appeal would deter plaintiffs from bringing good faith actions to vindicate civil rights and produce a result contrary to the intent of Congress.

Having concluded that Jensen is entitled to attorney's fees, we must determine the amount to which he is entitled. The amount should be "reasonable in relation to the results obtained." Hensley, 461 U.S. at 440, 103 S.Ct. at 1943. Because Jensen enjoyed complete success on his appeal, the entire effort of his counsel on appeal is reasonably related to the results obtained. In support of his motion for such an appeal, Jensen included affidavits of the two attorneys who worked on this appeal. The first attorney stated that he worked 17 hours and is usually compensated at $125.00 per hour. The second attorney worked 142.8 hours and usually charges $75.00 per hour. We find that both the hours worked and the rates charged are reasonable in this case. Accordingly, Jensen's motion for attorneys fees on appeal is granted in the sum of $12,835.00.

STEPHENS, District Judge, dissenting:

I dissent from the views expressed in the foregoing majority opinion, because I believe that it misinterprets 42 U.S.C. Section 1988 in disregard of opinions of the Supreme Court, Ninth Circuit cases cited and relevant cases from other circuits. ¹

In a nutshell, my position is that in a civil rights action which is decided by a jury verdict, the prevailing party is identified in the verdict and judgment. In this case this was defendant Stangel. Only a party prevailing upon a substantial issue in the action is entitled to attorney's fees- per Section 1988. However, a prevailing defendant is still not entitled to attorney fees unless the claims of the plaintiff are frivolous, unreasonable or groundless. Plaintiff Jensen against whom the verdict was rendered, appealed. We reversed, because the suit was not frivolous, etc. Then plaintiff Jensen requested attorney's fees for himself on the ground that he had now prevailed. But a plaintiff who succeeds only in reversing a fee award to a prevailing defendant is not entitled to recover his attorney's fees from the prevailing defendant because: 1) he only prevailed in a collateral proceeding which was a part of the costs assessable against the loser, and 2) this was not compensation for the injury he claims to have suffered which was also the benefit he sought by bringing suit.

The majority opinion is specifically contrary to White v. New Hampshire Department of Employment Security, 455 U.S. 445, 451-52, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1981), wherein it was held:

Consistently with this original understanding, the federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits. E.g., Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257 [98 S.Ct. 556, 54 L.Ed.2d 521] (1978). By contrast, a request for attorney's fees under Section 1988 raises legal issues collateral to the main cause of action- issues to which Rule 59(e) was never intended to apply.

Section 1988 provides for awards of attorney's fees only to a "prevailing party." Regardless of when attorney's fees are requested, the court's decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits--an inquiry that cannot even commence until one party has "prevailed." (emphasis added).

Nor can attorney's fees fairly be characterized as an element of "relief" indistinguishable from other elements. Unlike other judicial relief, the attorney's fees allowed under Section 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial. See Hutto v. Finney, 437 U.S., at 695, n. 24 .

In note 14 at 455 U.S. page 453, 102 S.Ct. page 1167, the Supreme Court points out:

If a merits judgment is final and appealable prior to the entry of a fee award, then the remaining fee issue must be "collateral" to the decision on the merits. Conversely, the collateral character of the fee issue establishes that an outstanding fee question does not bar recognition of a merits judgment as "final" and "appealable." Obin v. District No. 9, Int'l Assn. of Machinists and Aerospace Workers, supra, at 584.

The injury which gave rise to Jensen's action was violation of his civil rights. He thought that he had been unlawfully arrested and incarcerated. The benefits he sought were damages and vindication. Defendant Stangel, a police officer, and the prevailing party, sought and was awarded attorney's fees by the trial judge. Jensen appealed and we reversed.

The majority treats Jensen's success in appealing the award of fees in this "separate inquiry" as success on a significant issue in the litigation and a benefit Jensen sought in bringing suit. However, it was patently not success upon a substantial issue in the suit brought by Jensen or compensation for the injury of violation of his civil rights. The suit brought by Jensen had terminated in a judgment from which no appeal was taken. Only after this did Stangel seek and receive a fee award in a separate although collateral proceeding. The appeal was from an award of fees made after final judgment which as provided in Section 1988 was to be treated as part of the costs, a collateral matter. Furthermore, the benefit Jensen achieved on appeal was neither sought nor gained by bringing suit. It was a separate inquiry from the decision on the merits. ² It was relief from having to pay the lawyers who successfully represented Jensen's opponent.

Having won his appeal, Jensen then sought to recover his own attorney's fees from defendant Stangel who had prevailed on the merits of Jensen's suit and held a final judgment to prove it. By the majority's reasoning, the...