Wright v. Jackson

Decision Date14 August 1975
Docket NumberNo. 74-1971,74-1971
PartiesNathaniel B. WRIGHT, III, et al., Appellees, v. Delbert C. JACKSON et al., Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

David P. Sutton, Washington, D. C. (C. Francis Murphy, Louis P. Robbins and Richard W. Barton, Washington, D. C., on brief), for appellants.

Geoffrey Judd Vitt, Alexandria, Va. (Cohen & Vitt, Alexandria, Va., William H. Allen, Michael A. Schlanger and David S. Weissbrodt, Covington & Burling, Washington, D. C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, ALDRICH * and WINTER, Circuit Judges.

ALDRICH, Senior Circuit Judge.

The questions involved in this appeal are the propriety, vel non, and the measure, of an award of fees to counsel for prisoners in a declaratory action seeking revision of the rules and procedures for disciplinary proceedings at the Federal Reformatory at Lorton, Virginia. This institution houses certain prisoners from the District of Columbia. In a prior appeal by defendant prison authorities we remanded for reconsideration because the Supreme Court's subsequent decision in Wolff v. McDonnell, 1974, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, revealed that the district court had exceeded its powers. At the same time we ordered that court to decline to exercise jurisdiction, and, in the interests of uniformity, to transfer the case to be heard with some of similar nature presently pending in the District of Columbia District. Wright v. Jackson, 4 Cir., 1974, 505 F.2d 1229. While that appeal was sub judice, the district court awarded plaintiffs' counsel fees based on their entire trial activity, stating two grounds therefor; defendants' obstinacy, and the fact that plaintiff had conferred a public benefit, both to other prisoners similarly situated and to defendants themselves.

Before us defendants' first contention is that, in the light of our decision, the district court had no jurisdiction, and therefore could not award costs. Quite apart from the fact that costs may be awarded although a court dismisses for lack of jurisdiction, 28 U.S.C. § 1919, See Mashak v. Hacker, 7 Cir., 1962, 303 F.2d 526, 527 (per curiam), our transfer was plainly stated to be based upon equitable, not strict jurisdictional grounds. Defendants' point is ill taken.

Since oral argument, however, defendants have been supplied with a better defense so far as the award of counsel fees on a public benefit basis is concerned: it is not to be done. Alyeska Pipeline Service Co. v. The Wilderness Society, (1975) --- U.S. ---, 95 S.Ct. 1612, 44 L.Ed.2d 141. To the extent that Alyeska recognizes an exception for certain types of benefits conferred upon identifiable individuals, we do not find that exception applicable here.

The Alyeska Court expressly excluded from its condemnation, however, "attorneys' fees for the 'willful disobedience of a court order . . . as part of the fine to be levied on the defendant.' (citations omitted) or when the losing party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . .' (citations omitted)." Accordingly, there is still open the question of an award based on a finding of obduracy.

A question not raised by either party is the district court's power to award costs after the filing of a notice of appeal. An appeal from a final order normally ousts the district court of jurisdiction. See 9 Moore's Federal Practice, P 203.11, at 734. While power to perform "ministerial" acts remains, Cf. Sykes v. United States, 8 Cir., 1968, 392 F.2d 735, 738; Moore, ante, at 734, which would include the routine assessment of costs, Independent Productions Corp. v. Loew's, Inc., S.D.N.Y., 1960, 184 F.Supp. 671, 672, we are aware of no case dealing with discretionary costs which, as this case demonstrates, might well lead to an appeal. The policy against piecemeal appeals suggests that a court proposing to award discretionary costs should do so before the appeal is taken from its substantive order. We believe that it more than suggests that to the extent its measure depends upon the correctness vel non, of its substantive order, it should be made in time for us to consider both matters together. We would hold that insofar as a court's measure of a party's obstinacy depends on the merits of the case, it must make that assessment while the merits are before it, either prior to an appeal, or on remand after they have been settled.

We do not feel obliged, however, to apply this prohibition to an award for general obstinacy unconnected with the merits of the case. On this aspect the court found three general grounds. The first was defendants' unwillingness, from the beginning, to "conciliate," particularly where it was " implicitly conceded by (their) counsel" that some of their procedures needed correcting. Secondly, the court found...

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  • Gilliard v. Kirk, Civ. A. No. 2660.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • May 7, 1986
    ...United States v. United Mine Workers of America, 330 U.S. 258, 293-14, 67 S.Ct. 677, 695-06, 91 L.Ed. 884 (1947); Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975). Consequently, the state defendants remain subject to the commands of the original injunction pending modification or reversa......
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    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 16, 1983
    ...and the manner of its failure, fully justify an award of attorney's fees "unconnected with the merits of the case." Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975); accord Lipsig, supra, 663 F.2d at An award of fees is not foreclosed even if defendant's defense of its noncompetitive SLE......
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    ...certiorari in the main case is pending before the Supreme Court. The Park and Planning Commission relies heavily on Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975), which held that a trial court "must" award attorneys' fees "while the merits are before it, either prior to an appeal or o......
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    • Supreme Court of New Mexico
    • January 7, 1992
    ...Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir.1980). In Terket, the court disagreed with a contrary ruling in Wright v. Jackson, 522 F.2d 955, 957-58 (4th Cir.1975), In analyzing the result reached by the court in Wright, we note first that the general rule divesting the district court of "ju......
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