Ramos v. Lamm

Decision Date26 March 1982
Docket NumberCiv. A. No. 77-K-1093.
Citation539 F. Supp. 730
PartiesFidel RAMOS, et al., Plaintiffs, v. Richard D. LAMM, et al., Defendants.
CourtU.S. District Court — District of Colorado

COPYRIGHT MATERIAL OMITTED

Edwin S. Kahn, Kelly, Haglund, Garnsey & Kahn, Denver, Colo., for plaintiffs.

Tarquin J. Bromley, Asst. Atty. Gen., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER AWARDING ATTORNEY FEES

KANE, District Judge.

After several years of litigation,1 this case is now before me on plaintiff's application for attorney fees. Because the current law on attorney fees is unsettled and sometimes contradictory, I will explicate it before reaching the details of this case. Although I will consider cases from other jurisdictions, I will focus on Tenth Circuit cases because they are controlling.

I. INTRODUCTION

In the United States the traditional rule has been that attorney fees are not awardable to a prevailing party, absent a specific statute authorizing them. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975).2 Under this rule the trial court may award attorney fees in the absence of an authorizing statute only in a few specific cases. If a trustee or party recovers a fund for the benefit of himself and others, he may include attorney fees in his costs recoverable from the common fund. See id. at 257, 95 S.Ct. at 1621. If a losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons" the prevailing party may be entitled to attorney fees. See id. at 258-59, 95 S.Ct. at 1622 (citations omitted). In addition, 28 U.S.C. §§ 1920, 1923 permit the trial court to award some minimal attorney fees.

In the early 1970's many lower federal courts and state courts exercised their traditional equity powers to award attorney fees under the "private attorney general" concept even though there was no statutory authorization for such awards. See S.Rep. No.94-1011, 94th Cong., 2d Sess. at 4, 1976 U.S.Cong. & Ad.News 5908, 5911. In 1975 the supreme court held this practice impermissible, absent express congressional authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. at 262, 95 S.Ct. at 1624.

Before the Alyeska decision at least 29 federal statutes authorized trial courts to award attorney fees. Id. at 260 n.33, 95 S.Ct. at 1623 n.33. Since then the growth in the number of federal attorney fee statutes has been proliferate. Currently, about 120 different federal statutes authorize attorney fee awards.3 These include an amendment to 42 U.S.C. § 1988, which now authorizes trial courts, in their discretion, to award "a reasonable attorney's fee as part of the costs," in civil rights cases brought under 42 U.S.C. §§ 1981-1986 and under Title XI of the Civil Rights Act of 1964.4

II. THE PREVAILING PARTY

Although it is now largely settled in what types of actions a federal trial court may award attorney fees, there is still frequent dispute on when a party is a "prevailing party," as used in the attorney fees statutes. See, e.g., Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981) (revising its earlier opinion to order the trial court to reconsider whether plaintiffs were prevailing parties on their civil rights claim). If the parties enter into a consent decree before the trial court issues a final judgment, the plaintiffs will still be deemed to be prevailing parties if "they vindicate rights." Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980); Gurule v. Wilson, 635 F.2d 782, 791-92 (10th Cir. 1980); Chicano Police Officer's Association v. Stover, 624 F.2d 127, 130-31 (10th Cir. 1980).5 But cf. Pearson v. Western Electric Co., 542 F.2d 1150, 1153 (10th Cir. 1976) (plaintiff who received an arbitration award had not prevailed in court and therefore was not entitled to attorney fees under 42 U.S.C. § 2000e-5(k)).

When plaintiffs prevail on some, but not all, of the issues asserted at trial, it is more difficult to calculate the attorney fees to which they are entitled. Plaintiffs' attorneys are entitled to compensation for legal work "reasonably calculated" to promote the clients' interests, even if unsuccessful. Littlefield v. Deland, 641 F.2d 729, 733 (10th Cir. 1981); Gurule v. Wilson, 635 F.2d at 793-94. On the other hand, plaintiffs' attorneys are not entitled to compensation for work done on issues that were frivolous or brought in bad faith. Id. at 794. Nor are they entitled to compensation for work done on "substantial separate issues" which plaintiffs raised but upon which they did not prevail. Id. (emphasis in original).

The attorney fees statutes normally do not distinguish between prevailing plaintiffs and prevailing defendants. In order for a prevailing defendant to receive attorney fees, however, he must demonstrate that plaintiff's action was

frivolous, unreasonable, or groundless, or that plaintiff continued to litigate after it clearly became so.

Christiansburg Garmet Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The Tenth Circuit has not yet clearly specified how trial courts are to apply this test. In Cottrell v. Newspaper Agency Corp., 590 F.2d 836, 839 (10th Cir. 1979), the court summarily affirmed the trial court's finding that plaintiff's action was not frivolous or without foundation and therefore that defendant was not entitled to attorney fees. In EEOC v. Fruehauf Corp., 609 F.2d 434 (10th Cir. 1979), cert. denied, 446 U.S. 965, 100 S.Ct. 2941, 64 L.Ed.2d 824 (1980), the court reversed the trial court's award of attorneys fees to the defendant:

There is nothing in the record before us to support the trial court's finding that the action was frivolous from its inception, or that in prosecuting the action EEOC was motivated by something other than good faith, presumably bad faith.
Id. at 436 (citing Cottrell). In Prochaska v. Marcoux, 632 F.2d 848, 854 (10th Cir. 1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 841 (1981), the court reversed the trial court's denial of attorneys fees:
we hold that plaintiff's claim was clearly `frivolous, unreasonable or groundless.'

The Tenth Circuit apparently reached this conclusion because plaintiff's deposition did not establish or reinforce essential allegations in his complaint. The opinion is somewhat curt and does not enunciate what standard of review was being applied to the trial court's factual finding.6 Judge Doyle dissented, stating that the appellate court should have applied the usual "plain error" standard to the trial court's factual findings. Id. at 854-55. Finally, in Nulf v. International Paper Co., 656 F.2d 553, 564 (10th Cir. 1981), the Tenth Circuit reversed the trial court's decision to award the defendant attorney fees. The appellate court again did not enunciate what standard of review it was applying, but apparently independently determined the essential facts. Because the issue of whether an action is frivolous or groundless is a question of fact, it is unclear why the Tenth Circuit does not apply the established "clearly erroneous"7 standard to trial court findings on that issue.

III. CALCULATION OF REASONABLE ATTORNEY FEES

After several years of flux, rules on liability for attorney fees are becoming stable. Congress has determined the types of causes of action for which courts may award attorney fees. Standards are beginning to evolve about when a party is entitled to attorney fees under those causes of action. In contrast, the rules on calculation of attorney fees have remained unsettled. The appellate opinions on this subject are unclear and frequently contradictory. Compare In re Permian Anchor Services, Inc., 649 F.2d 763, 768 (10th Cir. 1981) (attorney fees in bankruptcy proceedings should be determined by applying the standards of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)) with In re King Resources Co., No. 80-1301 (10th Cir. April 1, 1981) (not for routine publication) (trial court's award of attorney fees in bankruptcy proceeding reversed without any explicit application of or citation to the Johnson criteria). See also Bowie v. Denver Dept. of Health and Hospitals, Civil Action No. 78-M-1186 (D.Colo. July 24, 1981) at 7 (Judge Matsch notes the disparities in different Tenth Circuit attorney fee cases and expresses difficulty in "attempting to articulate a comparison" of the attorney fee awards that he has made in different cases).

The Supreme Court has stated that civil rights plaintiffs are ordinarily entitled to attorney fees. Northcross v. Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).8 In addition, the Tenth Circuit has stated that the trial court must hear evidence on a reasonable attorney fee before making an award. Francia v. White, 594 F.2d 778, 782 (10th Cir. 1979). However, neither court has enunciated clear guidelines on the calculation of attorney fees. I therefore find it necessary to summarize the case law on the calculation of attorney fees.

A. THE REASONABLENESS OF PARTICULAR AWARDS

In many cases the Tenth Circuit has stated that the award of attorney fees is a matter "particularly within the discretion of the trial court," and then has affirmed the award without any elaboration. See, e.g., Higgins v. Oklahoma ex. re. Oklahoma Security Comm., 642 F.2d 1199, 1203 (10th Cir. 1981); Colyar v. Third Judicial District Court, No. 80-1809 (10th Cir. June 22, 1981) (not for routine publication), Slip Opinion at 4 ("From a study of the record, we are satisfied that the award was within the area of reasonableness. If the court considered irrelevant factors in making the award, the error was harmless."); Milgo Electronic Corp. v. United Business Communications, Inc., 623 F.2d 645, 667 (10th Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct....

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