reluctantly reaching merits of discharged attorney’s claim on his own behalf that he was entitled to fees under the Civil Rights Attorney’s Fees Awards Act despite fact that attorney lacked standing because matter outside record indicated that party to the action had consented to claim and the district court had reached merits
How later courts described this case
- reluctantly reaching merits of discharged attorney’s claim on his own behalf that he was entitled to fees under the Civil Rights Attorney’s Fees Awards Act despite fact that attorney lacked standing because matter outside record indicated that party to the action had consented to claim and the district court had reached merits
- scope of release to be determined by federal law in federal civil rights action
- "Under [42 U. S. C. § 1988] it is the prevailing party rather than the lawyer who is entitled to attorney's fees"
- “Under the Act it is the prevailing party rather than the lawyer who is entitled to attorney’s fees.”
Written by the judges who cited it.
The opinion
OAKES, Circuit Judge
(concurring):
I would not reach the issue of the scope of the release under either New York or federal law. 1 I note that the district court’s *1013 order of dismissal specifically provided that the action was to be dismissed “without costs.” The dismissal, of course, was part of the consideration received from Brown for the $5,000, and in my view it is therefore proper to look to the dismissal itself to clarify what I feel is uncertainty or ambiguity as to the scope of the release. I believe that the denial of costs in the dismissal order is sufficient to uphold the district court’s ultimate conclusion that the settlement covered the issue of attorney’s fees. Although attorney’s fees certainly differ from other “costs,” Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (6th Cir.1979), cert. denied, 447 U.S. 911 , 100 S.Ct. 2999 , 64 L.Ed.2d 862 (1980), the Act allows a reasonable attorney’s fee “as part of the costs." 42 U.S.C. § 1988 ; Hutto v. Finney, 437 U.S. 678, 695 , 98 S.Ct. 2565, 2576 , 57 L.Ed.2d 522 (1978).
In any event, I would add, Davis’s request for fees is untimely. The district court’s order of dismissal provided that the case could be reopened “upon good cause shown within 60 days ... if settlement is not consummated.” Davis was aware that a settlement agreement had been reached, and I believe that however his claim might have been resolved had he applied for fees within sixty days from the date of the order, his application of January 5, 1982, some eighty-three days after the order of dismissal, is untimely.