Unpublished Disposition, 907 F.2d 154 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1988)

Carla LASHA; Giles Thues, individually and on behalf of allpersons who are or may be inmates in the North LasVegas City Jail, Plaintiffs-Appellants,v.William THARP, in his capacity as Police Chief for the Cityof North Las Vegas; James K. Seastrand; Theron H. Goynes;Mary J. Kincaid; William E. Robinson; Dale J. Huntsman, intheir capacity as members of the City Council of the City ofNorth Las Vegas, Defendants-Appellees.

No. 89-15587.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 1990.Decided June 27, 1990.

Before TANG, WILLIAM A. NORRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Carla Lasha and others (appellants) bought this action against the police chief and members of the city council of the City of North Las Vegas (the City). Appellants asserted that conditions at the North Las Vegas City Jail were so substandard that the prisoners' constitutional rights were violated. The dispute was settled, a consent decree was entered, and appellants applied for an award of attorney's fees and for reimbursement for expert witness fees. The district court granted an award of attorney's fees, but denied expert witness fees. Appellants were dissatisfied with those determinations, so they appealed. We reverse.

BACKGROUND FACTS

This action was commenced by appellants because they objected to the conditions at the jail run by the City. Appellants' complaint set out in exquisite detail the deplorable deficiencies of the jail facility and the jailers' practices. Suffice it to say that those complaints ranged from overcrowding, inadequate health care, and inadequate exercise possibilities, to the lack of grievance and disciplinary procedures. While the appellees offered resistance at first, the action ultimately resulted in a consent decree, which was approved by the district court on June 15, 1988. That decree granted most of the relief sought by the appellants.

During the progress of the action, appellants retained two experts on jail facilities. It is undisputed that they are nationally known. One of them, Dr. Raymond Leidig, is a corrections expert, and the other, Mr. Ward Duel, is a health and sanitation engineer who specializes in penal institutions. Those experts examined the facilities and made recommendations for improvements. They also met with the City's representatives, discussed the situation with them, and proposed solutions. Those proposals ultimately found their way into the consent decree.

After the decree was approved, appellant's counsel filed a "Motion for Award of Attorneys' Fees and Costs" under 42 U.S.C. § 1988. The request was filed on October 5, 1988.

The district court awarded attorney's fees to appellants in a rather cryptic order in which it simply multiplied a portion of the hours expended by an hourly rate. The award was for all time spent through June 15, 1988. The court refused to award costs. It noted that appellants had not filed the cost bill required by 28 U.S.C. § 1920.

Appellants then filed an amended motion, in which they asked the court to award fees for additional time spent by the attorneys after June 15, 1988. That included time spent in preparation of the request for fees. The district court refused that request without explanation.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

We review for abuse of discretion an award of attorney's fees under 42 U.S.C. § 1988. Venegas v. Skaggs, 867 F.2d 527, 534 (9th Cir. 1989). We also review for abuse of discretion a refusal to give a discretionary award of costs. U.S. v. City of Twin Falls, 806 F.2d 862, 877-78 (9th Cir. 1986). However " [t]he question of whether a type of cost is allowable under the rules is a question of law which we review de novo." Id. at 879.

DISCUSSION

A. Attorney's Fee Award.

Appellants assert that the court erred in denying fees for the period after June 15, 1988.

Awards of attorney's fees require judges to perform the rather delicate task of deciding what is fair to the prevailing litigants without being unfair to the other side. It is not an easy task.

Recognizing the difficulty, we have held that although we will give deference to a district court's decision, the court must provide us with "an adequate explanation of the reasons for its award and the manner in which that award was determined." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1213 (9th Cir. 1986). The district court must be specific about that and must give us a clear explanation. Patton v. County of Kings, 857 F.2d 1379, 1382 (9th Cir. 1988). We have even set forth the elements with great precision. See, e.g., Southerland v. International Longshoremen's and Warehousemen's Union, 845 F.2d 796 (9th Cir. 1988); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S. Ct. 1726, 48 L. Ed. 2d 195 (1976).

Despite these long-standing requirements, in its original order of November 8, 1988, the district court contented itself with the cryptic statement that it had totaled the time sheets and applied a certain hourly rate. That is all we are told. The later denial of fees is even more cryptic. It simply says that the prior award is affirmed, the court will not consider it further, and "the issue is closed." However, it is not closed at all; we must consider it further.

The parties do not contest the amount of the fee award up to June 15, 1988, or the manner in which it was determined. However, the reasons for the court's failure to make any award for time spent after June 15, 1988 remain a mystery. While appellees speculate about the reasons, speculation is all one could hope for on this record.

Perhaps the district court felt that fees should not be awarded for the time spent in asking for fees. While it might seem that making that kind of award will result in an infinite progression, we have made it clear that fees should be awarded for fee request time. Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir. 1986). Furthermore, there was no explanation for the refusal to award fees for the other time spent after June 15, 1988.

As a result, we have no choice but to reverse the district court's determination regarding Mr. Pevar's fee request as it relates to his services after June 15, 1988.

Appellants seek reimbursement for amounts they paid to expert witnesses. Perhaps the money was well spent. Perhaps the experts helped the progress and the ultimate settlement of this case. Unfortunately for appellants, that is not enough. It does not demonstrate that appellants can now recover those costs.

We have held that out-of-pocket litigation expenses are an element of attorneys fees under 42 U.S.C. § 1988. United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990); Thornberry v. Delta Airlines, Inc., 676 F.2d 1240, 1244 (9th Cir. 1982), vacated on other grounds, 461 U.S. 952 103 S. Ct. 2421, 77 L. Ed. 2d 1311 (1983). Those include normal amounts that an attorney expends and charges to a fee paying client. Such things as photocopying and travel are included. Thornberry, 676 F.2d at 1244.

However, we have also said that expert witness fees are an element of costs. U.S. v. City of Twin Falls, 806 F.2d 862 (9th Cir. 1986). As we said in Thornberry, 676 F.2d at 1245:

Those costs which are not considered a part of attorneys fees, and those not within the ambit of the "liberal construction" rule which governs the application of Sec. 1988, require a different analysis.... Unlike attorney's fees, taxation of these costs, which include consulting and expert witness fees, lies within the trial court's discretion.

The parties have spilled a great deal of ink mooting the issue of whether Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987), has now made the award of expert witness fees inappropriate in civil rights cases. That case established that Federal Rule of Civil Procedure 54(d) does not confer separate authority upon a district court to make an award of costs. Crawford Fitting, 107 S. Ct. at 2497. It also established that "absent explicit statutory or contractual authorization" expert witness fees are not recoverable. Id. at 2499. Since then, other circuits have reached opposing conclusions on the issue of whether expert witness fees can be recovered in civil rights litigation. For example, compare West Virginia Univ.Hosps., Inc. v. Casey, 885 F.2d 11 (3rd Cir. 1989) cert. granted, --- U.S. ----, 110 S. Ct. 1294, 108 L. Ed. 2d. 472 (1990) (expert witness fees not allowed) with Sapanajin v. Gunter, 857 F.2d 463 (8th Cir. 1988) (expert witness fees allowed). See also, Denny v. Westfield State College, 880 F.2d 1465 (1st Cir. 1989) (Title VII case--expert witness fees not allowed); Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir. 1989), cert. denied, --- U.S. ----, 58 U.S.L.W. 3580 (1990) (expert witness fees recoverable in Sec. 1988 award); Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988) (patent case--expert witness fees allowed); Chaparral Resources, Inc. v. Monsanto, Co., 849 F.2d 1286 (10th Cir. 1988) (contract case--expert witness fees not allowed); Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988) (civil rights case--expert witness fees not allowed); Glenn v. General Motors Corp., 841 F.2d 1567 (11th Cir. 1988) (equal pay case--expert witness fees not allowed); Leroy v. Houston, 831 F.2d 576 (5th Cir. 1987) (voting rights case--expert witness fees not allowed).

The joust is interesting, but we should not enter the lists at this time. On this record, we are not able to determine the basis of the district court's refusal to award any expenses whatever. The whole of the explanation was set forth in one sentence, in which the court said, " [n]o bill of costs has been filed in this case as required by Title 28 U.S.C. § 1920 and no costs are allowed." Since the sentence is in the conjunctive, it is not clear that the only reason for disallowance of costs was the failure to file a cost bill under section 1920. However, there is some reason to believe that was not the only reason. In the first place, since Crawford Fitting, it can hardly be doubted that section 1920 will not itself support an award of expert witness fees. Second, some of the "costs" disallowed by the district court--for example, attorney's travel expenses and postage--can be awarded as a portion of attorney's fees, and are not generally considered to be subject to the cost bill procedure. See, e.g., United Steelworkers, 896 F.2d at 407-08; Thornberry, 676 F.2d at 1244. Finally, section 1920 does not set a particular time for filing cost bills, or a particular format for those bills. A local rule does set time limits, but the district court made no reference to that rule, and we do not know if any portion of the decision is based upon it. Dist.Ct.Nev.L.R. 205-1.

In fine, since the basis of the district court's decision was caliginous we are unable to determine just what that basis is. We are loath to decide the expert witness fee issue until that basis is illuminated. We, therefore, reverse the determination regarding expert witness fees.

CONCLUSION

The district court erred when it failed to explain the reason for its award of attorney's fees, and, more particularly, when it failed to state why it refused to award any fees for the period after June 15, 1988. It also erred when it denied the request for reimbursement of expenditures without a sufficient explanation of the reason for its actions. The case must, therefore, be remanded so that the district court can revisit these questions and render a decision that fully discusses the reasons for its various determinations.

REVERSED, and remanded for further proceedings not inconsistent with this decision.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

As used in this decision, "expert witness fees" refers to amounts over and above the usual $30.00 a day which is allowed to all witnesses under 28 U.S.C. § 1821(b)