Smith v. Detroit Federation of Teachers Local 231, American Federation of Teachers, AFL-CIO

• Decision Date: 29 September 1987
• Docket Number: AFL-CIO,No. 85-1742,85-1742
• Citation: 829 F.2d 1370
• Parties: 126 L.R.R.M. (BNA) 2601, 9 Fed.R.Serv.3d 113, 41 Ed. Law Rep. 1229 Ernest SMITH; Sam Eliowitz; Albert Rosen; Robert Sheldon; Jan Sklenar; Joseph Soltesz; Cecelia Stoll; and Harry Weber, Plaintiffs-Appellees, v. DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS,; Detroit Board of Education, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1370

829 F.2d 1370

126 L.R.R.M. (BNA) 2601, 9 Fed.R.Serv.3d 113,

41 Ed. Law Rep. 1229

Ernest SMITH; Sam Eliowitz; Albert Rosen; Robert Sheldon;

Jan Sklenar; Joseph Soltesz; Cecelia Stoll; and Harry Weber, Plaintiffs-Appellees, v. DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN

FEDERATION OF TEACHERS, AFL-CIO; Detroit Board of

Education, Defendants-Appellants.

No. 85-1742.

United States Court of Appeals, Sixth Circuit.

Argued March 13, 1987.

Decided Sept. 29, 1987.

Eileen Nowikowski, Theodore Sachs (argued), Sachs, Nunn, Kates, Kadushin, O'Hare, Heleston & Waldman, P.C., Detroit, Mich., for defendants-appellants.

Michael E. Avakian (argued), Ctr. on Nat. Labor Policy, Inc., North Springfield, Va., Robert W. Morgan, Chirco, Herrington, Runstadler & Thomas, Troy, Mich., for plaintiffs-appellees.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant-appellant Detroit Federation of Teachers, Local 231, American Federation of Teachers, AFL-CIO ("DFT" or "the Union") appeals that portion of a district court's order which rejected a magistrate's recommendation that DFT be awarded attorney's fees following the plaintiffs-appellees' (collectively "Smith") unsuccessful civil rights suit against the Union. DFT argues on appeal that the frivolous and harassing nature of Smith's suit and attendant unsuccessful appeal to this court warranted the imposition of attorney's fees against both Smith and plaintiffs' counsel pursuant to the inherent power of the court, 42 U.S.C. Sec. 1988 (1982), 28 U.S.C. Sec. 1927 (1982), and Fed.R.Civ.P. 11. We hold that by failing to object to the magistrate's recommendation that the individual plaintiffs not be held responsible for attorney's fees, DFT waived the right to now contend that Smith be held liable for the payment of attorney's fees to DFT. We also hold that the district court did not abuse its discretion in declining to assess Smith's counsel for DFT's attorney's fees. Accordingly, we affirm.

I.

The facts underlying the instant appeal are not in dispute. Despite a Michigan state law prohibiting public employee strikes, DFT instituted a teachers' strike in the Detroit Public School System in September, 1979. As a result of the strike, the start of the school year was delayed by thirteen days, which were made up by extending the end of the school year. Subsequently, on November 12, 1980, eight individuals, all nonunion tenured teachers, filed suit in federal court against the Detroit Board of Education ("Board") and DFT. Although the teachers had lost no wages or benefits as a result of the strike, Smith's complaint alleged that the Board's closing of the schools and subsequent denial of unemployment compensation resulted in a deprivation of their right to employment, and monetary loss by virtue of not being able to perform other employment during the period of the strike, all without due process. To this section 1983 action against the Board, Smith appended a state law tort claim against DFT, alleging that DFT had intentionally caused them to lose their employment until the strike was settled to DFT's satisfaction, resulting in injury to their personal and professional activities.

DFT filed a motion to dismiss or for summary judgment on February 9, 1981, alleging that Smith had failed to state a claim upon which relief could be granted and that the district court lacked jurisdiction to hear Smith's case. Smith then filed a motion with the court for leave to amend the complaint to substitute a section 1983 claim against the Union for the state tort claim. Oral argument was heard before the district court on March 13, 1981. DFT contended that the Michigan Public Employment Relations Act governs public sector labor relations and vests exclusive authority with the Michigan Employment Relations Commission to adjudicate claims arising out of labor disputes, and thereby precluded Smith's pendent state claim against the Union. In addition, DFT argued against permitting Smith to amend the complaint to assert a section 1983 action against DFT, on the ground that DFT, a private organization, was not engaged in any "state action," a necessary element for any section 1983 claim. The district court agreed with DFT in a bench opinion entered following the hearing. The court formalized its holding in an order denying Smith's motion to amend its complaint because the proposed amendment would be "futile," and granting DFT's motion to dismiss the complaint and for summary judgment. Following the district court's grant of summary judgment to the Board on June 1, 1982, final judgment was entered dismissing Smith's case on June 15, 1982, but assessing no costs. Smith then appealed to this court.

In an unpublished decision, we affirmed the district court in its entirety on August 30, 1983. DFT then moved the panel for double costs of appeal pursuant to Fed.R.App.P. 38, and the award of attorney's fees as the "prevailing party" in a civil rights suit, pursuant to 42 U.S.C. Sec. 1988 (1982). This court referred DFT to the district court as the proper forum in which to apply for attorney's fees, and its request for double costs, based on DFT's assertion that Smith had brought a frivolous appeal, was denied as "unwarranted." Smith v. Detroit Board of Education, 728 F.2d 359 (6th Cir.1984) (per curiam).

DFT's subsequent motion for attorney's fees in the district court was referred to a magistrate for a report and recommendation. The magistrate recommended that DFT was entitled to attorney's fees under section 1988, under 28 U.S.C. Sec. 1927, under Fed.R.Civ.P. 11, and pursuant to the court's inherent power to assess costs against a party for bad faith litigation. The magistrate also recommended, however that only Smith's counsel, and not the individual plaintiffs, be assessed for attorney's fees. Finally, the magistrate reduced DFT's total claim of over $30,000 down to $15,740 in attorney's fees and $330 in costs. Upon review of the report, the district court disagreed with the magistrate's recommendation and rejected any award of attorney's fees to DFT, adopting only that portion of the report which assessed costs to Smith. This appeal ensued.

II.

Before addressing the merits, we must delineate the proper scope of this appeal. DFT argues for an attorney's fee assessment against the individual plaintiffs under the court's inherent power, section 1988, and Rule 11, and that Smith's counsel be held liable for the fees pursuant to the court's inherent power, section 1927, and Rule 11. Smith, on the other hand, asserts that the magistrate recommended that only Smith's counsel be held responsible for DFT's attorney's fees, and only pursuant to the court's inherent powers to assess an attorney for bad faith litigation and 28 U.S.C. Sec. 1927. Thus, according to Smith, when DFT failed to object to either the magistrate's delimitation of the parties potentially liable for the fees, or the magistrate's failure to invoke Fed.R.Civ.P. 11 as a basis for an assessment against Smith's counsel, DFT failed to preserve for appeal any objection to these matters.

DFT's motion for attorney's fees was referred to a magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1982) for a report and recommendation. By operation of section 636(b)(1), any party that disagrees with the magistrate's recommendation "may serve and file written objections" to the magistrate's report, and thereby obtain de novo review by the district court judge of those portions of the report to which objections are made. 28 U.S.C. Sec. 636(b)(1) (1982). In the interest of judicial economy, this circuit established in United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981), that a party must file timely objections with the district court to avoid waiving appellate review. See also Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff'd, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir.1983). By operation of this supervisory rule, only those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 471, 88 L.Ed.2d 435 (1985); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir.1986); Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir.1986).

Determining whether DFT complied with this supervisory rule, or whether the issue of the individual plaintiffs' responsibility for the fees was otherwise preserved for our review, is made difficult because neither the magistrate's report nor the district court's memorandum are models of clarity. The magistrate first determined that the prevailing defendants were entitled to attorney's fees pursuant to 42 U.S.C. Sec. 1988, the court's inherent powers, and Fed.R.Civ.P. 11, then recommended that the individual plaintiffs not be held liable for the fees, and finally concluded that Smith's counsel should bear responsibility for the fees under the court's inherent powers and 28 U.S.C. Sec. 1927. Although the magistrate only expressly enunciated two bases for assessing the fees against Smith's counsel, it appears to us that he also desired to shift the plaintiffs' responsibility to their attorney and assess Smith's counsel under 42 U.S.C. Sec. 1988 and Fed.R.Civ.P. 11. As for the district court's memorandum, it left unclear whether it was precisely determining that the individual plaintiffs were not being held liable under section 1988, the inherent powers, or Rule 11, or merely expressing a general disagreement with the magistrate over whether DFT was entitled to fees, from any source, under these provisions.

What is clear to us is that the magistrate intended that Smith's counsel only, and not the individual plaintiffs, be held responsible for the payment of DFT's...