United Nuclear Corp. v. Cannon

Decision Date29 April 1983
Docket NumberCiv. A. No. 81-0521 S.
PartiesUNITED NUCLEAR CORPORATION v. Joseph E. CANNON, Director Department of Health of the State of Rhode Island, et al.
CourtU.S. District Court — District of Rhode Island

Deming Sherman, Patricia Zesk, Providence, R.I., for plaintiff.

Donald Elbert, Jr., Sp. Asst. Atty. Gen., Providence, R.I., for Joseph E. Cannon.

Mary Ellen McCabe, Providence, R.I., for Dept. of Health.

MEMORANDUM

SELYA, District Judge.

This action was originally brought by United Nuclear Corporation ("UNC") to challenge the validity of a statute enacted by the Rhode Island General Assembly, S. 924, P.L.1981, ch. 85 ("S.924") which imposed a $10,000,000. bonding requirement upon plaintiff in an effort to insure adequate decontamination in and around its nuclear facility at Wood River Junction, Charlestown, Rhode Island. Following the granting of partial summary judgment and the issuance of declaratory and injunctive relief in favor of UNC, United Nuclear Corporation v. Cannon, 553 F.Supp. 1220 (D.R.I.1982) ("UNC I"), the parties were directed to address any remaining issues and to advise the Court as to the mootness thereof. Id. at 1236. Subsequently, the parties jointly informed the Court that there was no need for further litigation, and presented to the Court for entry an agreed form of judgment (annexed hereto as Appendix "A"). Paragraphs 5 and 6 thereof dealt with the question of counsel fees and disbursements, a matter entirely dehors the scope of the Court's opinion. The judgment was entered on January 28, 1983.

Plaintiff, pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976)1, and to paragraph 6 of the judgment, has now moved for assessment of fees and disbursements. The defendant has objected. Various affidavits have been filed. The Court scheduled an evidentiary hearing for March 22, 1983, at which time plaintiff elected to rest upon its affidavits and related filings, and the defendant elected to rest upon its brief, declining the Court's offer to require the plaintiff to produce its affiants for cross-questioning. Protracted oral argument then ensued. The Court instructed plaintiff's counsel to prepare further affidavits (now of record), and the parties were granted permission to file, on or before April 1, 1983, supplementary briefs if either or both so desired.

I.

The defendant argues with considerable passion that the Court should exercise its discretion under 42 U.S.C. § 1988 and decline to award fees and costs, since (i) the plaintiff is a profitable corporation which (by its counsel's admission) can afford to absorb its litigation expenses, and (ii) the thrust of this suit was essentially private and proprietary. Defendant contends, in effect, that these constitute "special circumstances" which "would render an award unjust." Newman v. Piggie Park, Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), quoted with approval in Burke v. Quiney, 700 F.2d 767, 771 (1st Cir.1983). See also Williams v. Miller, 620 F.2d 199, 202 (8th Cir.1980). There are, however, several problems with this exhortation—despite its obvious appeal to the preservation of the public fisc. First, the defendant (hereinafter sometimes referred to as the "State") consented to the entry of the judgment contemplating a fee award, and has in all likelihood waived any contention to the contrary. See, Scola v. Boat Frances, R., Inc., 618 F.2d 147, 155 (1st Cir.1980). Second, the burden of proof of the required "special circumstances" rests with the defendant, Crosby v. Bowling, 683 F.2d 1068, 1072 (7th Cir.1982); Staten v. Housing Authority, 638 F.2d 599, 605 n. 13 (3rd Cir.1980); Williams v. Miller, 620 F.2d at 202; Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 38 (2d Cir.1978), and the defendant has seen fit to offer no extrinsic evidence in support of this thesis. Third, the case law leaves scant doubt but that, in an appropriate case, corporate plaintiffs are entitled to fee awards under § 1988. See, e.g., Venuti v. Riordan, 702 F.2d 6, 7 (1st Cir.1983); International Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 503 (5th Cir.1980).

The First Circuit has flatly rejected any notion that, to be eligible for shifting of counsel fees, a prevailing party must show that his suit was productive of a direct benefit to the public at large, rather than ameliorating only the circumstances of the party himself. Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir.1979), (citing Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979)). Private citizens, individually or collectively, may assert their civil rights in the § 1983 context. This being so, the sovereign should be no more free unconstitutionally to trample upon the property rights of business entities than upon those of individuals.

The full panoply of this suit, and of its factual predicate, is set forth in UNC I. The plaintiff challenged the constitutionality of S. 924 on the following grounds: (i) it constituted a bill of attainder; (ii) it was impermissible ex post facto legislation; (iii) it was preempted by the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq.; and (iv) it was unconstitutionally vague and thus denied the plaintiff its due process rights. While the plaintiff was not successful on each and every theory proffered, the plaintiff's constitutional rights were implicated sufficiently by the due process astrictions inherent in the offending statute to justify some award of fees pursuant to § 1988.

II.

Once it is determined that some fees are allowable and should be assessed, two broad questions remain unanswered. First, what work is compensable? Second, what is the fair and reasonable dollar value of such compensable services?

The fee request limned in the plaintiff's application and affidavits ($68,365.67) is a prodigious one for a case which was, with a minimum of pre-trial discovery, terminated at a Rule 56 way station. It must be broken down, however, into its component service areas, as the First Circuit has indicated that, as a general rule, fee awards under § 1988 should be granted only for issues which were successfully litigated. Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978). In so doing, a district court "must consider the relationship of the claims that resulted in judgment with the claims that were rejected and the contribution, if any, made to success by the investigation and prosecution of the entire case." Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981). The Court compartmentalizes the services here sub judice as follows:

1. Work undertaken prior to the enactment of S. 924.
2. Work incident to fending off a putative intervenor.
3. Development of the bill of attainder and ex post facto issues.
4. Development of the Supremacy Clause thrust.
5. Work anent due process considerations and all other services germane to prosecution of the litigation.
III.

The statute giving rise to the case at bar was signed into law on May 20, 1981. The plaintiff, however, engaged counsel in advance of that date. At oral argument, this engagement was portrayed as research and related effort in an "attempt to convince the General Assembly of the unconstitutionality of the proposed statute." Although plaintiff's counsel strenuously asserts that these services cannot be characterized as lobbying, this contention, viewed charitably, can best be described as disingenuous. In the Court's opinion, the prelitigation expenditure of time, devoted as it was to an attempt to convince the General Assembly of the illegality of its proposed action, was lobbying, pure and simple. While patrolling the legislative halls to head off disadvantageous enactments may be a prudent use of funds by special interests, the cost of such political elbow-rubbing cannot, in the view of this Court, be shifted to the state even where, as here, a bill emerges which does not pass constitutional muster. With the statute not yet adopted and the shape both of the perceived harm and of the eventual instrument thereof entropic at best, none of this time properly should be recompensed under § 1988. Cf. Venuti v. Riordan, supra, at 9-10. Not even the most ambitious of the decided cases suggests a contrary result on this point.

IV.

Subsequent to the institution of this suit, the Conservation Law Foundation ("CLF") sought unsuccessfully to intervene in the litigation. There is no evidence that the defendant incited such intervention; in fact, it took no position. Plaintiff understandably felt constrained to resist intervention, and did so successfully in the district court and before the First Circuit. United Nuclear Corporation v. Cannon, 696 F.2d 141 (1st Cir.1982).2 The Court believes that the reasoning expressed in Taylor v. Sterrett, 640 F.2d 663 (5th Cir.1981) is persuasive on this point. In Taylor, the Fifth Circuit held that time expended in connection with opposition to intervention was not only irrelevant to the main goal of the primary civil rights litigation there sub judice, but also represented a circumstance beyond the defendant's control. Id. at 670. The Court then held that the time so expended was not compensable under § 1988. Id. So here: whether or not CLF joined the defendant as UNC's adversary, the dimensions of the constitutional issue remained constant; and there is no evidence that the State collogued with CLF to inspire its intercession. The intervention was collateral and was beyond the defendant's control. The decision to battle against it was essentially a tactical judgment on plaintiff's part for its own ends. The plaintiff attempts to distinguish Taylor on the ground that CLF's motion was a dire impediment to the timing of its rush to judgment, but the State, prior to, during and after CLF's attempt to...

To continue reading

Request your trial
36 cases
  • Robinson v. Ariyoshi
    • United States
    • U.S. District Court — District of Hawaii
    • 18 Enero 1989
    ...research can be recovered as "costs" by the prevailing party. This court agrees with the analysis set forth in United Nuclear Corp. v. Cannon, 564 F.Supp. 581 (D.R.I.1983): Lexis is an essential tool of a modern efficient law office. As such, it saves lawyers' time by increasing the efficac......
  • Duranceau v. City of Tacoma
    • United States
    • Washington Court of Appeals
    • 18 Junio 1984
    ...Inc., 488 F.2d 714 (5th Cir.1974). 3 See, e.g., Capozzi v. Albany, 565 F.Supp. 771, 774 (N.D.N.Y.1983); United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 587 (D.R.I.1983). Thus, the questions of awarding fees and of determining the appropriate amount are treated separately. Because the trial......
  • Spell v. McDaniel
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 10 Julio 1985
    ...Cir. 1982), cert. denied 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982); Milos v. Sampson, 675 F.2d at 9; United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 589 (D.R.I. 1983); Langdon v. Drew Municipal Separate School District, 512 F.Supp. 1131, 1139 (N.D.Miss.1981). On the other hand, so......
  • Houghton v. Sipco, Inc.
    • United States
    • U.S. District Court — Southern District of Iowa
    • 8 Julio 1993
    ...and thus to larger fee awards. The Court will, therefore, treat lexis charges as other cost items in the case. United Nuclear Corp. v. Cannon, 564 F.Supp. 581 (D.R.I.1983); see, e.g., Alberti v. Sheriff of Harris County, 688 F.Supp. 1176, 1202 (S.D.Tex.1987), modified sub nom., Alberti v. K......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT