McDonald v. McCarthy
| Citation | 966 F.2d 112 |
| Decision Date | 27 May 1992 |
| Docket Number | No. 91-1859,91-1859 |
| Parties | Timothy Scott McDONALD Barbara J. McDonald, his wife v. Albert J. McCARTHY, and James McCarthy and Kenneth S. Roberts, Jr., and Herbert L. Waltz, and Elliot B. Grover, and Carol Merrick, and Shirley Zunino, and Robert F. Goddu, and Borough of Kennett Square, and Joanne C. Spencer. Timothy Scott McDonald, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Jeffrey L. Pettit (argued), Phillips and Phelan, Philadelphia, Pa., for appellants.
Christine M. Brenner (argued), Mark L. Tunnell, Gawthrop, Greenwood & Halsted, P.C., West Chester, Pa., for appellees.
Before: BECKER, COWEN and ROTH, Circuit Judges.
This case involves a plaintiff who prevailed in a civil rights action in the district court and successfully defended the judgment in its original appeal to the court of appeals. The question presented in this appeal is whether this plaintiff is foreclosed from obtaining an award of attorneys' fees under the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988, for the successful defense of the district court judgment in the court of appeals, when the court of appeals affirmed the district court judgment with a direction pursuant to Fed.R.App.P. 39(a) that "each party bear its own costs." We hold that such an order by the court of appeals does not act as a bar to an award of attorneys' fees under section 1988. We will reverse the order of the district court regarding the award of attorneys' fees.
On February 2, 1990, a jury rendered a verdict in favor of Timothy Scott McDonald on his claims under 42 U.S.C. § 1983 (1988) for compensatory and punitive damages. The defendants thereafter filed motions for a new trial and judgment notwithstanding the verdict. McDonald moved for additional equitable relief and filed two separate motions for attorneys' fees and costs pursuant to section 1988. The first motion covered attorneys' fees and costs incurred through March 1, 1990. The second motion sought attorneys' fees and costs incurred from March 2, 1990 through June 26, 1990. By order dated September 12, 1990, the district court denied the defendants' motions and McDonald's motion for equitable relief and granted McDonald's motions for attorneys' fees.
The defendants appealed the denial of their motions and McDonald cross-appealed from the order denying his right to additional equitable relief. While the appeal was pending, McDonald sought to commence execution proceedings on the judgment and appellees filed a motion for a stay of execution pending the outcome of the appeal. The district court refused to grant a stay without the posting of security by defendants and the defendants moved for reconsideration of that order. Eventually, security arrangements were agreed upon and a stay was granted.
On April 17, 1991, this court affirmed the district court's order of September 12, 1990 without opinion. McDonald v. McCarthy, 932 F.2d 960 (3d Cir.1991). The judgment order which was entered stated:
After consideration of all contentions raised by appellants and cross-appellants, it is
ADJUDGED AND ORDERED that the orders of the district court be and are hereby affirmed.
The parties shall bear their own costs on this appeal.
McDonald then moved for an award of attorneys' fees and costs incurred from June 27, 1990 to May 14, 1991, the date on which the motion for fees was filed. McDonald requested a lodestar of $19,676 for 132.4 hours of legal services and $2,005.42 for costs. He also requested a multiplier of five percent consistent with the district court's original award. Defendants opposed the motion on the grounds that this court's order directed each party to "bear its own costs" and therefore recovery of attorneys' fees and costs under section 1988 was barred. Defendants also contended that McDonald's motion was untimely under Fed.R.App.P. 39(d). The defendants did not oppose the motion on the grounds that the fees sought, even if allowable, were unreasonable or excessive.
The district court concluded that the motion was not untimely but determined that the judgment order entered by this court, directing each party to bear its own costs, precluded an award of attorneys' fees and costs under section 1988. The district court reasoned that it could not award section 1988 attorneys' fees to a plaintiff who prevailed on appeal where the court of appeals decided that the prevailing party should bear its own costs on appeal. The district court stated: "[i]t would be an anomaly for appellant to be deprived costs on appeal by the Court of Appeals but awarded attorney's fees on that same appeal by the trial court." App. at 17. This appeal followed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1988). Our scope of review of the district court's legal determination as to its authority to award fees and costs under section 1988 is plenary. See Bell v. United Princeton Properties, Inc., 884 F.2d 713, 718 (3d Cir.1989).
At the outset we must address the defendants' contention that McDonald's request for attorneys' fees for the costs of defending the appeal was untimely and should, therefore, have been dismissed by the district court. Defendants argue that section 1988 states that attorneys' fees are "part of the costs," and thus all requests for attorneys' fees must be filed in accord with the fourteen day deadline established in Fed.R.App.P. 39(d).
McDonald's request for attorneys' fees was filed more than fourteen days after this court affirmed the district court's order. However, the motion for additional attorneys' fees was not untimely. Fed.R.App.P. 39(d) requires that an itemized and verified bill of costs be filed with the clerk of the court within fourteen days. When Rule 39 is read in its entirety, it is clear that the time limit set forth in Rule 39(d) only applies to the costs of briefs, appendices and copies of records allowable under Rule 39(c). This is evident from the language of Rule 39(d) which begins with the phrase, "[a] party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which the party shall file with the clerk." (emphasis added). The word "such" obviously refers back to Rule 39(c) which immediately precedes it and allows for the cost of briefs, appendices and copies of records.
Rule 39(e) addresses costs on appeal which may be taxed by the district court and allows for "[c]osts incurred in the preparation and transmission of the record, the costs of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the notice of appeal...." There is no indication in the rule that these costs are subject to Rule 39(d)'s fourteen-day time limit and we decline to read such a time limit into the rule. The district court correctly concluded that McDonald's application for costs on appeal was timely.
Despite the timeliness of the request for costs, McDonald was not entitled to recover any costs on appeal under Rule 39 by reason of this court's appellate mandate that each party bear its own costs. Under Rule 39(a) this court was free to order the parties to bear their own costs and its mandate was properly followed by the district court.
The thorny issue in this appeal is not the timeliness of McDonald's request but rather what effect this court's order that each party bear its own costs has on the request for attorneys' fees under section 1988. The district court concluded that a determination by this court that McDonald bear his own costs on appeal foreclosed his request for section 1988 attorneys' fees. The question of the relationship between costs under Rule 39 and attorneys' fees under section 1988 is not new to the federal courts but has yet to be addressed by this court.
Rule 39(a) provides:
(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.
Fed.R.App.P. 39(a). In ordering that each party bear its own "costs" this court was clearly and properly exercising its discretion under Rule 39(a). As to the meaning of "costs" within the context of the rule, one of the advisory committee notes to Rule 39 explains that
Statutory authorization for taxation of costs is found in 28 U.S.C. § 1920 ... A few statutes contain specific provisions in derogation of these general provisions. (See 28 U.S.C. § 1928, which forbids the award of costs to a successful plaintiff in a patent infringement action under the circumstances described by the statute). These statutes are controlling in cases to which they apply.
Fed.R.App.P. 39 advisory committee's 1967 note. Thus ordinarily, "costs" for the purposes of Rule 39 should be defined with reference to 28 U.S.C. § 1920. However, the district court concluded that the "statutes contain[ing] specific provisions in derogation of these general provisions" mentioned in the advisory committee note referred to statutes such as section 1988. Under the district court's interpretation of the committee note, section 1988's language that attorneys' fees may be recovered as "part of costs" is "controlling." Therefore, the district court reasoned that a mandate that a party bear its own costs bars recovery of attorneys' fees because under section 1988 attorneys' fees are "part of costs." This interpretation is incorrect.
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