Edwards H. Metcalf, Plaintiff-appellee, v. Richard Borba, Darry Clanton, Charles Monroe, Elden Vestal,and Phil Baker, Defendants-appellants, 681 F.2d 1183 (9th Cir. 1982)

This is an appeal from a judgment of the district court awarding attorney's fees, pursuant to 42 U.S.C. § 1988, to Metcalf as the prevailing party in an action brought under 42 U.S.C. § 1983 against employees of the California Department of Fish and Game to recover damages to Metcalf's property. Appellee filed a motion for attorney's fees twenty-five days after entry of judgment. Appellants assert that this request was untimely under Rule 59(e) of the Federal Rules of Civil Procedure and local practice rule 265-2 of the United States District Court for the Northern District of California (hereinafter L.R. 265-2). Both Rule 59(e) and L.R. 265-2 contain a ten-day time limit following the entry of judgment in which petitions must be filed. Appellants further contend that the fee request failed to comply with the local rules since a "cost bill" was never filed. Finally, appellants allege several grounds in support of their argument that the district court abused its discretion by awarding attorney's fees. Appellants contend that fees should not have been awarded in this case because plaintiff possessed the financial resources to pay counsel and because plaintiff's suit for damages involved only a single violation of private rights rather than any deliberate pattern of official misconduct affecting broad public interests. Appellants also challenge the award as excessive.

The Supreme Court's decision in White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982) forecloses any argument that appellee's motion was subject to the ten-day limit in Rule 59(e). In addition, we find that fee requests are distinguishable in several respects from "costs" assessed after litigation under L.R. 265-2. Because the local rule does not expressly govern attorney's fees and generally addresses routine court costs which do not require any determination by a district court, we conclude that requests for attorney's fees are not governed by the time limitation set forth in L.R. 265-2. The local rules in this case do not indicate a departure from the general rule that fee awards under § 1988 are within the court's sound discretion. We also find appellants' argument that the district court abused its discretion in awarding attorney's fees to Metcalf to be without merit. We therefore affirm the district court's determinations.

I. Rule 59(e) Does Not Govern Postjudgment Requests for

Attorney's Fees.

After the briefs were submitted in this appeal, the Supreme Court held that a postjudgment request for attorney's fees is not a "motion to alter or amend the judgment" subject to the time limitation of Rule 59(e) of the Federal Rules of Civil Procedure. White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982). This ruling obviously defeats appellants' argument that fee requests must be filed pursuant to Rule 59(e) within ten days after entry of judgment. The Supreme Court found that Rule 59(e) serves a narrow purpose: to permit the district courts to correct their own mistakes in the period immediately following the entry of judgment. Id. at 1166. Thus, Rule 59(e) generally has been invoked "only to support reconsideration of matters properly encompassed in a decision on the merits." Id. A request for attorney's fees raises issues collateral to the main cause of action and the courts in determining whether to award attorney's fees must conduct a separate inquiry from the decision on the merits. Id. The Court also held that attorney's fees cannot simply be characterized as an element of "relief" because the fees do not compensate the injury giving rise to the action.¹ 

II. Rules Governing Routine Court Costs Are Inapplicable to

Requests for Attorney's Fees.

Appellee argues in this case, as did the petitioner in White, that a request for attorney's fees pursuant to 42 U.S.C. § 1988 should be treated as a motion for "costs" under Rules 54(d) and 58 of the Federal Rules of Civil Procedure. Unlike Rule 59(e), Rules 54(d) and 58 do not contain express time limits for filing petitions.²  Although a conflict exists among the courts of appeals concerning the applicability of Rules 54(d) and 58 to postjudgment fee requests, the Court in White decided the case on other grounds and declined the opportunity to resolve the conflict. 102 S. Ct. at 1168 n.17.³ 

Appellee's argument that attorney's fees are "costs" for purposes of Rule 54(d) is supported by the language of section 1988 which "allow(s) the prevailing party, other than the United States, a reasonable attorney's fees as part of the costs " (emphasis added). See Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980). Appellants argue, however, that even if we determine that attorney's fees should be treated as "costs" under Rules 54(d) and 58, appellee's motion for attorney's fees must be denied for untimeliness in this case. Despite the lack of time limitation governing motions for "costs" under the Federal Rules, appellants insist that L.R. 265-2 requires the appropriate petition to be filed within ten days of entry of judgment. In White v. New Hampshire Department of Employment Security, the Supreme Court indicated that the lack of time limitation in Rules 54(d) and 58 does not prohibit the district courts from adopting local rules establishing time limits for fee requests. 102 S. Ct. at 1168 n.17; see Knighton v. Watkins, 616 F.2d 795, 798 n.2 (5th Cir. 1980). Thus, if we were to hold that L.R. 265-2 governs requests for attorney's fees, Rules 54(d) and 58 would not protect appellee's motion from untimeliness. We find, however, that local rules such as L.R. 265-2 which establish procedures for taxing routine court costs are inapplicable to requests for attorney's fees. Because of the inherent distinctions in the procedures for taxing "costs" and those governing the award of attorney's fees, we also hold that "fees" are not "costs" for purposes of Rules 54(d) and 58 of the Federal Rules of Civil Procedure.

The costs routinely granted under Rule 54(d) and L.R. 265 and the procedures by which they are assessed are very different in nature from the discretionary award of attorney's fees allowed under section 1988. The local practice rules require a party entitled to claim costs to file a "cost bill" within ten days of entry of judgment. Opposing counsel then has ten days in which to file "specific objections to any item" of the cost bill.⁴  The costs are taxed by the clerk of the court who notifies the parties. L.R. 265-4. The costs which are taxable under L.R. 265 are set forth in Appendix A of the local rules. Among the items included are the clerk's filing fee, fees of the marshal, the cost of reporter's transcripts, the costs of an original and one copy of any deposition (but not including the expenses of counsel in attending depositions), various costs related to reproducing documents, records, and trial exhibits, and costs for preparation of exhibits and charts.

Neither L.R. 265 nor Appendix A indicate that attorney's fees are cognizable as "costs," nor does the rule state that fee requests are subject to its procedures. Similarly, the costs allowed under Rule 54(d) and detailed in 28 U.S.C. § 1920 do not include attorney's fees. A comparison of Appendix A of the local rules and section 1920 reveals the costs listed in the two provisions are very similar.⁵  Under Rule 54(d), costs are capable of being taxed by the clerk. See n.2, supra.

Whereas "costs" under L.R. 265 and Rule 54(d) are routinely assessed by the clerk, an award of attorney's fees under section 1988 requires action by the district court. In the Ninth Circuit, the district courts must consider the criteria set forth in Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975), cert. denied sub nom. Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S. Ct. 1726, 48 L. Ed. 2d 195 (1976), in determining whether to award attorney's fees and in setting the amount of the award. As in the present case, the district courts usually are assisted in their determinations by submissions from the attorneys; hearings frequently are held on the matter. Appeals often ensue. By contrast, routine costs under L.R. 265 and Rule 54(d) are easily computed and assessed by the clerk and rarely give rise to any dispute or appeal. The First Circuit weighed the differences between "costs" and "fees" and concluded:

The potential amount of the (attorney's) fees award, the varied factors which must be considered by the court in reaching the fees decision, and the crucial role of the judge and parties in reaching that final determination render the fees/costs comparison strained at best.

White v. New Hampshire Department of Employment Security, 629 F.2d 697, 703 (1st Cir. 1980), rev'd on other grounds, --- U.S. ----, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982); see Obin v. District No. 9, International Association of Machinists and Aerospace Workers, 651 F.2d 574, 580 (8th Cir. 1981).

Even the Fifth Circuit which held that section 1988 fee requests were part of costs cognizable under Rule 54(d) acknowledged that the procedures for taxing costs would differ from those involving requests for attorney's fees. Knighton v. Watkins, 616 F.2d 795, 798 n.2 (5th Cir. 1980). The Court suggested that "the problem can be best handled by local rule." Id.; accord, Obin, 651 F.2d at 583 (recommendation that a rule be adopted requiring the filing of fee requests within twenty-one days after judgment); see White, 102 S. Ct. at 1168 n.17 (district courts free to adopt local rules for the timeliness of fee requests). Because L.R. 265-2 does not address the differences between court costs and attorney's fees, we find appellants' assumption that fee requests must comply with the procedures for taxing costs under the local rule is simply inappropriate. In rejecting the applicability of Rules 54(d) and 58 of the Federal Rules of Civil Procedure to postjudgment motions for attorney's fees, the Eighth Circuit held that although section 1988 describes attorney's fees as "costs," this label "does not necessarily carry over to other provisions of the United States Code or the Federal Rules ...." Obin, 651 F.2d at 580. Similarly, section 1988's designation of attorney's fees as "costs" does not require application of L.R. 265-2.

In the absence of a controlling local rule, we find appellee's fee request was filed within a reasonable period after entry of judgment and was therefore timely. The request did not "unfairly surprise or prejudice the affected party." White v. New Hampshire Department of Employment Security, 102 S. Ct. at 1167.

We agree with the recommendations of the Fifth and Eighth Circuits that the procedure for adjudicating fee requests should be set forth in local practice rules which specifically address postjudgment petitions for attorney's fees. Although we make no specific recommendation as to the length of time following entry of final judgment in which parties should be required to file their request for attorney's fees, we acknowledge the Supreme Court's warning expressed in White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S. Ct. 1162, 1167, 71 L. Ed. 2d 325 (1982), that application of a time period as short as the ten-day limit under Rule 59(e) "could yield harsh and unintended consequences." Rather than promoting finality, judicial economy, or fairness, the Court notes that a ten-day limit "could deprive counsel of the time necessary to negotiate private settlements of fee questions." Id. The likely result would be to generate increased litigation concerning fee requests. Id. Additionally, the Court notes that section 1988 provides attorney's fees in various constitutional and civil rights cases often involving injunctive relief that must be monitored by the court over a period of time. Id. Many "final orders" may issue in the course of such litigation leaving counsel uncertain as to which orders are "final judgments" which would trigger the limitation period for filing fee requests: "Cautious to protect their own interests, lawyers predictably would respond by entering fee motions in conjunction with nearly every interim ruling. Yet encouragement of this practice would serve no useful purpose." Id.

Thus, a local rule establishing procedures for filing fee requests must strike a balance between the "harsh and unintended results" described by the Supreme Court in White that might result from imposing too short a time after judgment in which petitions must be filed with the need to avoid unfair surprise to litigants and piecemeal appellate review caused by delays in filing fee requests. The local procedure governing attorney's fees should be designed to assure that all issues arising out of a single lawsuit can be considered in one appellate proceeding. As the Eighth Circuit states:

In the interests of orderly and expeditious consideration of all issues arising from a single lawsuit, disputes on appeal over the merits, as well as disputes regarding the allowance of attorney's fees to a prevailing party, should ordinarily be considered and decided by this court in either a single or consolidated appellate proceeding. This court deems it essential that all district courts follow a consistent practice of promptly hearing and deciding attorney's fees claims in civil rights and other cases so that any appeal by an aggrieved party from the allowance or disallowance of fees can be considered by this court together with any appeal taken from a final judgment on the merits.

Obin v. International Association of Machinists and Aerospace Workers, 651 F.2d 574, 583 (8th Cir. 1981). The court indicated that piecemeal consideration of various issues arising out of a single legal action could be avoided by the trial court delaying entry of judgment on the merits until resolution of the fee question thereby enabling the court to dispose of both the merits and attorney's fees in a single judgment. Id. If, however, the issue of attorney's fees is to be decided after entry of judgment on the merits, the Eighth Circuit recommended adoption of a uniform rule requiring that fee requests be filed no later than twenty-one days after entry of judgment. Id. We similarly urge the district courts to clarify the procedures governing postjudgment motions for attorney's fees by adopting appropriate local rules.

IV. No Abuse of Discretion.

The district court's award of attorney's fees must stand unless the record indicates that the court abused its discretion by awarding fees to Metcalf. E.g., Rivera v. City of Riverside, 679 F.2d 795 (9th Cir. 1982). No abuse is disclosed in the record and appellants' contentions are simply without merit.⁶ 

Appellants assert that this case is not appropriate for an award of fees under section 1988 because Metcalf's suit involved only a single violation of private rights rather than a broad pattern of misconduct on the part of public officials. See Buxton v. Patel, 595 F.2d 1182, 1185 (9th Cir. 1979). The transcript of the hearing on appellee's motion for attorney's fees reveals that the court considered Buxton and found the present facts distinguishable. Excerpt of Record 92-93 (hereinafter ER). The court indicated that attorney's fees were not awarded in Buxton because of the isolated nature of the civil rights violation which made it unlikely that similar violations would be perpetrated. ER 92. The record in this case confirms that the appellants are officials with the California Department of Fish and Game and are likely to have considerable public contact and authority.

Appellants also contend that the fees awarded in this case were excessive and should not have been granted to a litigant who could afford to absorb his expenses. The record shows that the court carefully reviewed the attorneys' time sheets and eliminated more than fourteen hours which were found to be duplicative. ER 108-09. The court followed the litany of factors enumerated in Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975), cert. denied sub nom. Perkins v. Screen Extras Guild, 425 U.S. 951, 96 S. Ct. 1726, 48 L. Ed. 2d 195 (1976), in determining the amount of the award. ER 107. Although the award of fees, a total of $21,541.50, was more than twice the $8,000.00 in compensatory damages Metcalf received from the jury, appellants do not cite any authorities suggesting that this outcome is so disproportionate as to constitute an abuse of discretion by the district court. Significantly, this court recently held that "(t)he extent to which a plaintiff has 'prevailed' is not necessarily reflected in the amount of the jury verdict. Rather, the legislative history behind section 1988 demonstrates Congress' position that courts should award reasonable attorney's fees even if the rights vindicated are 'non-pecuniary in nature.' " Rivera v. City of Riverside, 679 F.2d 795, at 798, citing S.Rep.No.94-1011, 94th Cong., 2d Sess. 6 (1976), reprinted in (1976) U.S.Code Cong. & Ad.News 5908, 5913. Metcalf does not dispute that he could afford to pay his attorneys. But the appellants point to no case that indicates an award of fees to a party capable of paying his attorneys constitutes an abuse of discretion. Appellants' reliance on Buxton v. Patel, 595 F.2d 1182 (9th Cir. 1979), is misplaced. Buxton held only that the likely prospect of a sizeable damage award may be considered by the district court in determining an attorney's fee award.

In sum, although section 1988 permits the prevailing party in an action brought under 42 U.S.C. § 1983 to recover attorney's fees as part of the "costs," the statute provides that the award of fees is left to the discretion of the district court. Because the procedures set forth under L.R. 265-2 govern the taxing of routine court costs that do not require action by a district court, we conclude that fee requests need not comply with the ten-day time limitation set forth in L.R. 265-2. Appellants fail to support their claim that the award of fees in this case constitutes an abuse of discretion. The judgment of the district court is affirmed.