Tunison v. Continental Airlines Corp., Inc.
| Decision Date | 22 December 1998 |
| Docket Number | No. 98-7037,98-7037 |
| Citation | 333 U.S.App. D.C. 280,162 F.3d 1187 |
| Parties | Winnie TUNISON, Appellee, v. CONTINENTAL AIRLINES CORPORATION, INC., Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John Longstreth argued the cause for appellant. With him on the briefs was William Gray Schaffer.
Sunil H. Mansukhani argued the cause for appellee. With him on the brief was Douglas L. Parker.
Before: SILBERMAN, SENTELLE and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge SENTELLE.
Winnie Tunison, who is blind and deaf, filed this action in the United States District Court for the District of Columbia, alleging that Continental Airlines ("Continental"), by refusing to allow her to fly alone, violated the Air Carrier Access Act, 49 U.S.C. § 41705 ("ACAA"), and pursuant regulations. The jury found that Continental had violated the Act, but awarded Tunison no damages. The district court entered an empty judgment in Tunison's favor, and awarded her costs. Continental appeals from the award of costs, arguing that because Tunison received no relief, she should not be considered a prevailing party for the purposes of awarding costs under Fed.R.Civ.P. 54(d)(1), and that because she refused a pretrial offer of judgment more favorable than her ultimate award, under Fed.R.Civ.P. 68, Tunison should be required to pay Continental's post-offer costs. We hold that because Tunison obtained no relief under the judgment, and Continental was found to have violated the Act, neither party should be considered a prevailing party presumptively entitled to costs under Rule 54(d)(1). However, we agree with Continental that the offer of judgment Tunison rejected was more favorable than the judgment she ultimately obtained. Accordingly, we reverse the award of costs to Tunison and remand the case to the district court for an award of Continental's allowable post-offer costs.
Winnie Tunison is a forty-two-year-old blind and deaf woman who is a wife, mother, college student and motivational speaker. She is able to communicate by touching the hands of a person performing sign language, or by having letters traced in her palm. According to Tunison, she regularly travels by air alone without difficulty.
In August 1996, Ms. Tunison scheduled air travel on Continental Airlines for a round trip between Washington, D.C. and Providence, with a change of planes in Newark. The initial leg, from D.C. to Newark, was uneventful. Tunison received the safety instructions through letters traced on her palm, and traveled unaccompanied. After changing planes in Newark with the assistance of a Continental employee, Tunison was again given the safety instructions, this time by a Continental employee who knew sign language. Although Ms. Tunison had understood the safety instructions, the pilot and flight crew, after consulting Continental manuals, did not feel comfortable allowing her to travel unaccompanied. The flight was delayed while flight personnel came to Tunison's seat on the plane and asked her to get off the plane and wait until they could find someone to fly with her. When Tunison refused, Continental found an off-duty flight attendant to accompany her.
Ms. Tunison claims that she was humiliated and embarrassed by this episode, which took place in front of the other passengers. She did not want to make the return flight if she would be required to have an attendant. Accordingly, before her return flight, her daughter spoke by telephone to a Continental employee, who told her that Tunison would be allowed to fly home alone. However, when Tunison arrived at the airport, she was met by a Continental gate agent, who accompanied her all the way back to Washington, D.C.
Ms. Tunison sued alleging that Continental's actions violated the Air Carrier Access Act, 49 U.S.C. § 41705, 1 and pursuant regulations which limit the situations in which individuals may be required to have an attendant. 2 She sought compensatory damages for the emotional distress she suffered as a result of Continental's actions, as well as punitive damages and injunctive relief requiring Continental to revise its policies to comply with the ACAA.
Tunison's claims for punitive and injunctive relief were dismissed by the district court at the summary judgment stage. Her claim for compensatory damages proceeded to trial. On August 13, 1997, Continental submitted an offer of judgment for $1,000 pursuant to Fed.R.Civ.P. 68. Tunison did not accept this offer. After trial, the jury returned a special verdict finding that Continental had violated the ACAA on each of the three flights on which it had required an attendant. However, the jury awarded Tunison no damages. The court entered judgment for Tunison, with no damages.
Both Tunison and Continental filed Bills of Costs. The district court concluded without discussion that Ms. Tunison was the prevailing party for the purposes of Fed.R.Civ.P. 54(d)(1), then considered the effect of the offer of judgment under Fed.R.Civ.P. 68. The court reasoned that while the $1,000 offer of judgment was more than the damages awarded ($0), the appropriate comparison was between the offer amount and the damages awarded plus pre-offer costs. Since Tunison's pre-offer costs were $1,788.70, the court concluded that the offer of judgment was not more than the ultimate award. Hence Tunison was awarded both pre-and post-offer costs, totaling $3,190.85. Continental appeals from this award of costs.
Rule 54(d)(1) provides that "[e]xcept when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." In its order regarding costs in this case, the district court quoted Rule 54(d)(1), but did not pause to discuss who was the prevailing party. Instead, the court simply noted that "the jury found in favor of Tunison," and then proceeded to treat her as the prevailing party in analyzing the Rule 68 issues.
Tunison argues that she was a prevailing party because she was the "judgment winner." This approach to the prevailing party determination is not without support. Wright and Miller note that "[u]sually the litigant in whose favor judgment is rendered is the prevailing party for purposes of Rule 54(d)." 10 Wright, et al., Federal Practice and Procedure § 2667, at 204 (1998). Tunison has cited several cases with language suggesting that a party who receives a judgment is considered prevailing under Rule 54(d)(1). See, e.g., K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 477 (9th Cir.1974); Green Constr. Co. v. Kansas Power & Light Co., 153 F.R.D. 670, 674 (D.Kan.1994). However, with the exception of one district court decision, the cases Tunison cites did involve some relief, and hence did not test whether a judgment alone is enough. See Mary M. v. North Lawrence Community Sch. Corp., 951 F.Supp. 820, 828 (S.D.Ind.) ( party to be prevailing despite the fact that no damages were awarded), rev'd on other grounds, 131 F.3d 1220 (7th Cir.1997).
Continental argues that Tunison is not prevailing by relying on Supreme Court cases regarding who is a prevailing party entitled to attorneys' fees under 42 U.S.C. § 1988. Tunison questions the relevance of these attorneys' fees cases to the prevailing party issue under 54(d). While there may be reason in some cases to construe the term "prevailing party" differently depending on whether attorneys' fees or only costs are at issue, see Friends for All Children, Inc. v. Lockheed Aircraft Corp., 725 F.2d 1392 (D.C.Cir.1984), we agree with Continental that the "prevailing party" determination is generally the same in the two contexts. See Farrar v. Hobby, 506 U.S. 103, 119, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (O'Connor, J., concurring) (); Manildra Milling Corp. v. Ogilvie Mills Inc., 76 F.3d 1178, 1180 n. 1 (Fed.Cir.1996) (); Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 926 (3d Cir.1985) (); Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 132 (5th Cir.1983) (). See also Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ().
The Supreme Court has consistently required that to be considered a prevailing party under § 1988, a party must receive some affirmative relief. In Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), the Court observed that "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." In Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988), the Court refused to award prisoners attorneys' fees even though the prisoners obtained a declaratory judgment against prison officials, noting that a declaratory judgment will only constitute relief for the purposes of § 1988 where it "affects the behavior of the defendant toward the plaintiff." In Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), the Court concluded that to be considered the prevailing party under § 1988, the plaintiff "must be able...
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