Robert W. Kelley, Cross-Appellees v. Metropolitan County Board of Education, Cross-Appellants

KENNEDY, Circuit Judge,

concurring in part and dissenting in part, joined by EN-GEL and WELLFORD, JJ.

I concur in the court’s holding that the 1971 desegregation order did not constitute a distinct break in the litigation. I dissent, however, from the majority’s decision to overrule Buian v. Baughard, 687 F.2d 859 (6th Cir.1982). I remain convinced that the award of costs on appeal is a prerequisite to the award of appellate attorney fees under 42 U.S.C. § 1988 .

The statutory authorization for attorney fees in civil rights cases provides that

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988 .

Traditionally, the Supreme Court, the courts of appeals and the district courts each issue cost awards only for the proceedings within their own sphere. Rule 39(a) of the Federal Rules of Appellate Procedure governs the award of costs on appeal. It provides that costs shall be awarded to the prevailing party, unless otherwise ordered. Where each party prevails in part, costs are allowed only as ordered by the court. Normally, a prevailing party receives costs and a partially prevailing party receives partial costs. 1 In the rare *687 situation where the appellate court disallows costs entirely, the court very likely has a good reason for doing so, a reason which may or may not be apparent to the district court when it decides the subsequent motion for attorney fees. I do not see how we can allow a district court the discretion to award appellate attorney fees “as part of the costs” when we have refrained from awarding costs. 2

Moreover, I do not see how we can, consistent with the Eleventh Amendment, allow an award of attorney fees against a state other than as part of costs. Section 1988 does not expressly abrogate Eleventh Amendment immunity, cf. Atascadero State Hospital v. Scanlon, — U.S. --, 105 S.Ct. 3142, 3148 , 87 L.Ed.2d 171 (1985) (“Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself”), and the Supreme Court has upheld § 1988 fee awards against states only because they are part of costs:

The Act imposes attorney’s fees “as part of the costs.” Costs have traditionally been awarded without regard for the States’ Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. The Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants

Just as a federal court may treat a State like any other litigant when it assesses costs, so also may Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States’ Eleventh Amendment immunity. For it would be absurd to require an express reference to state litigants whenever a filing fee, or a new item, such as an expert witness’ fee, is added to the category of taxable costs.

There is ample precedent for Congress’ decision to authorize an award of attorney’s fees as an item of costs____ It is much too late to single out attorney’s fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of the States’ immunity.

Hutto v. Finney, 437 U.S. 678, 695-98 , 98 S.Ct. 2565, 2575-77 , 57 L.Ed.2d 522 (1978) (citations and footnotes omitted).

As recently as this term, the Court has shown that it regards the “as part of the costs” language as more than mere sur-plusage. In Marek v. Chesny, — U.S. -, 105 S.Ct. 3012 , 87 L.Ed.2d 1 (1985), the Court held that the “costs” contemplated by Federal Rule of Civil Procedure 68— which shifts to the plaintiff all costs incurred subsequent to a rejected settlement offer which is not exceeded by the eventual recovery—include attorney’s fees awarda-ble under § 1988. Plaintiffs in Marek had rejected a $100,000 settlement offer in their § 1983 suit, and subsequently won only a $60,000 judgment. Thus, under Rule 68, plaintiffs could not recover “costs” incurred during the period after the settlement offer. Plaintiffs nonetheless sought attorney’s fees for that period. The Court *688 ruled that since § 1988 defined attorney’s fees as costs, fees could not be awarded for any period for which costs were not awarded:

Pursuant to ... § 1988, a prevailing party in a § 1983 action may be awarded attorney’s fees “as part of the costs.” Since Congress expressly included attorney’s fees as “costs” available to a plaintiff in a § 1983 suit, such fees are subject to the cost-shifting provision of Rule 68.

105 S.Ct. at 3017.

In dissent, Justice Brennan argued that it was wrong to let a determination of attorney’s fees, which is governed by a reasonableness standard, be subordinated to and subsumed by a rule on costs, which may have a much more mechanical application. 105 S.Ct. at 3020-21. In the instant case, I take it that essentially this sentiment underlies the majority’s decision to reverse Buian . But the Supreme Court rejected that argument in favor of the “plain language” view that since attorney’s fees are defined as part of costs, they cannot be separately awarded where costs are not awarded.

Notwithstanding all of this, the majority, with an absence of analysis and a dearth of support, “concludes that an award of costs pursuant to Fed.R.App.P. 39(a) is separate and distinct from and totally unrelated to an award of attorney’s fees pursuant to the directions of § 1988.” The majority adds that “[wjhile it is true that § 1988 expressly states that attorney’s fees ‘may be awarded as part of the costs,’ neither the legislative history nor the express language of § 1988 mandates the conclusion expressed in Buian.” (Emphasis added). I do not know what that “express language” mandates if not Buian’s conclusion. The refusal to award costs precludes the award of any part of the costs, and the express language of section 1988 defines attorney’s fees as part of the costs, as discussed in Hutto and Marek .

The majority cites two cases as support for rejecting the Buian approach. While the district court in Willie M. by Singer v. Hunt, 564 F.Supp. 363 (W.D.N.C.1983), did explicitly reject Buian , the majority’s subsequent history of Willie M. as “affd as modified” disguises the Fourth Circuit’s partial reversal.

In Willie M., the plaintiffs prevailed overall in a class action, but defendants prevailed on one issue — the scope of the class — which was the subject of an independent appeal. The appellate court awarded no costs on that appeal. Nonetheless, the district court allowed plaintiffs to recover attorney’s fees, including fees for time spent on the lost appeal, because they had largely prevailed overall. The Fourth Circuit reversed that part of the decision and disallowed attorney fees for the lost appeal because plaintiffs had not prevailed — precisely the reason, of course, that costs had not been awarded. See Willie M. v. Hunt, 732 F.2d 383, 386-87 (4th Cir.1984). Thus, the Fourth Circuit reversed the district court on the very issue that brought Buian into play, albeit in such a way that the court avoided altogether a Buian -type question.

Not only was the Willie M. district court reversed, 3 but one of the cases it relied upon in rejecting Buian had been reversed by the Supreme Court. White v. New Hampshire Department of Employment Security, 629 F.2d 697 (1st Cir.1980), had held that Fed.R.Civ.P. 59(e)’s time limit on motions to alter or amend judgments applied to motions for attorney’s fees. The court rejected the argument that fees are more like costs than like part of the judgment and thus should be governed by Fed. R.Civ.P. 54(d), which contains no time limit.

The Supreme Court, however, reversed White, see 455 U.S. 445 , 102 S.Ct. 1162 , 71 L.Ed.2d 345 (1982), holding that a motion *689 for attorney’s fees was not like a motion to alter or amend the judgment and so not subject to Rule 59(e). The Court declined, though, to rule specifically on whether a request for fees was an application for costs, as three circuits had held, see Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir.1981); 4 Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir.1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir.1980), or was a third kind of creature, related neither to costs nor judgment, as the Eighth Circuit had held in Obin v. District No. 9 International Association of Machinists and Aerospace Workers, 651 F.2d 574 (1981), and as the Ninth Circuit later held in Metcalf v. Borba, 681 F.2d 1183 (1982). 5

It appears that the majority now tacitly adopts the Obin view that a claim for attorney’s fees is not a request for costs nor part of the judgment but “a matter collateral to and independent of the merits of the litigation.” 651 F.2d at 583 . Justice Blackmun’s concurring opinion in White called for the Court to go “one step further” and affirmatively adopt the Obin view rather than the “costs” view of Johnson, Bond and Knighton. See 455 U.S. at 455-56 , 102 S.Ct. at 1168 . Evidently, a majority of the Court was not willing to do that. Nor am I.

I also dissent from the holding that the District Court abused its discretion in awarding Mr. Williams an hourly rate of $100 for all hours since 1972. The evidence was that rates for attorneys with Mr. Williams’ experience were from $100 to $200 per hour at or about the time of the hearing in 1982. However, $100 per hour was the generally prevailing rate. There was also undisputed testimony that rates generally were lower in the early and middle 1970’s. The court relies on Mr. Williams’ testimony that he charges $120 per hour. It overlooks his testimony that he began charging $120 per hour in January 1981. (App. at 783). Based on the evidence before it, I do not believe the District Court abused its discretion by adopting the $100 rate, although it might have been preferable to approve a lower rate for earlier years and a higher rate for later years.

. If there is an appeal and a cross appeal and the plaintiff prevails on one and loses on the other, costs would ordinarily be awarded only on the successful appeal. Although the attorney's services could not readily be divided, under Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983), the fee award could *687 be reduced according to the degree of success. This need not involve the courts of appeals in determining the amount of the fees. The court need only state in its award of costs that attorney fees should be reduced by the appropriate percentage because of the limited success.

. I am not insensitive to the harshness of disallowing attorney fees in the instant case because of the absence of cost awards. I do not know why the panels in the 1972 and 1982 Kelley decisions ordered each party to bear its own costs on appeal. Appellants prevailed on the school district's appeal in 1972 and also prevailed in 1982. If it was through inadvertence, or through a perception that each party had partially prevailed and the costs balanced out, the cost issue could have been made the subject of a motion for rehearing by appellants, in anticipation of seeking attorney’s fees. Appellants never filed such a motion. The 1982 Kelley case, however, was decided six weeks prior to Buian and appellants might reasonably not have realized what the failure to award costs portended for their impending attorney’s fee motion. Because of the harshness of the result, we might decline to apply Buian in the present case. I would prefer this approach to the majority’s discarding of Buian .

. In addition to Willie M., the majority cites Robinson v. Kimbrough, 620 F.2d 468 (10th Cir.1980), in which the court did allow an attorney’s fee award where costs had been denied. Aside from my plain disagreement with the Robinson holding, it does not appear that a Buian -type question was squarely addressed by that court.

. In Snyder , we held that "attorney’s fees awarded under § 1988 are awarded as costs and are not controlled by the time limitations” of Rule 59(e). 639 F.2d at 317 . The majority’s opinion would seem necessarily to overrule Snyder as well as Buian .

. The Willie M. district court relied on Obin and Metcalf in addition to White .