Petition — Consolidated Freightways Corporation of Delaware v. Raymond Kassel

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Gupreme Court, U.

FILED

ARR 15 1980

MICHA PONAK. JR., CLERR

IN THE MICHAEL RODAR, eS

SUPREME COURT of the UNITED STATES

October Term, 1979

29-1618

No.

CONSOLIDATED FREIGHTWAYS CORPORATTON =

OF DELAWARE, a Delaware corporation,

vs.

RAYMOND KASSEL, et al.,

Respondents.

PETITION FOR gg La CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JOHN H. LEDERER

JOHN DUNCAN VARDA

ANTHONY R. VARDA

DeWITT, SUNDBY,

HUGGETT & SCHUMACHER, S.C.

121 South Pinckney Street

P.O. Box 2509

Madison, Wisconsin 53701

Telephone: 608-255-8891

Attorneys for Petitioner

*See No. 79-1320, Raymond Kassel, et al., v. Consolidated Freightways

of Delaware, on appeal.

Se i

GUILD PRINTING «BB MADISON WIS

INDEX

Page

og ee er ee eo See 1

PG riiakc aon k ces cus ssi cake iene inne 2

RFI 8 ee ITED, niin ccc cicccscccceneadeus 2

STATUTORY PROVISIONS INVOLVED ....... oe

STATEMENT OF THECASE ...... 0... ccc eedecs 3

REASONS F OR GRANTING THE WRIT............ 5

1. THE ORDER CONTRADICTS THE RULE

DEVELOPED BY OTHER CIRCUITS TO PROMOTE

STATUTORY POLICY AND PERMIT

INFORMED REVIEW

2. REQUESTED RELIEF

CONCLUSION ..........

CITATIONS

CASES CITED Page

Alyeska Pipeline Service Co. v. Wilderness Soceity,

SN TERE ia ec ea cn estingeweypadeded.s

Corsolidated Freightways v. Kassel,

475 F. Supp. 544, 612 F.2d 1064 (8th Cir. 1979). .

Farmington Dowel Products Co. v. Foster Mfg. Co.,

436 F. 2d 699, 701 (1st Cir. 1970)..............

Hampton v. Hanrahan, 600 F. 2d 600,

NECIIESIE TS, <a salbiobeu esebhunacas

H.-P. Hood & Sons, Inc. v. DuMond,

Ds , . ows diab cae ah a aujeek aes b

International Society for Krishna Consciousness, Inc.

v. Andersen, 569 F. 2d 1027 (8th Cir. 1978)......

Johnson v. Georgia Highway Express, Inc.,

488 F. 2d 714 (5th Cir. 1974).......... ou Wh ates

Kimbrough v. Arkansas Activities Association,

574 F. 2d 423, 427 (8th Cir. 1978) .............

Lindy Bros. Builders, Inc. of Philadelphia v.

American R & S San. Corp., 487 F. 2d 161

EE hn 5 bc b oke's du Pelee « 900% bie 6

Lynch v. Household Finance Corp.,

eee es on do's bop vende d's dubase

Newman v. Piggie Park Enterprises, Inc.,

Fe es BO OG oc Scie chinks odaccs deme

Perkins v. Standard Oil Co. of California,

ee RL PERU cosas Geis owed viv'ee de vee

Raymond v. Rice, 434 U.S. 429, (1978) .........

Sergeant v. Sharp, 579 F. 24 645 (1st Cir. 1978) ....

Souza v. Southworth, 564 F. 2d 609

fe Re eee ry. Pee ee

United States v. Price, 383 U.S. 787 (1966) ......

West v. Kansas Natural Gas Co.,

PER AME deen dassinvacsesbicces

Western Union Telegraph Company v. Kansas,

ORE 0 ne es Oa eee ee

Wilderness Society v. Morton, 495 F. 2d 1026

AML RPOR i 6 Sc cchastaparcWavevnseees

STATUES AND RULES

PE MSEREED PAY Fea vs ds anccaoscecseses

GTN a thn Vwdos vic esive ns stvcnek

ee CS ca craves nos ose nace es

Rule 39, Federal Rules of Appellate Procedure ... .

OTHER MATERIALS

U.S. Code Cong. & Admin. News,

MEE Cas sinc y.cc’cbas acelieet oak Teeenn 5

Article I, §8, of the

United States Constitution ...............008- 3,5

In The

SUPREME COURT of the UNITED STATES

October Term, 1979

No.

CONSOLIDATED FREIGHTWAYS CORPORATION

OF DELAWARE, a Delaware Corporation,

vs.

RAYMOND KASSEL, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner Consolidated Freightways Corporation of

Delaware [CF] respectfully prays that a Writ of Certiorari

issue to review an order of the United States Court of

Appeals for the Eighth Circuit entered in this proceeding

on January 16, 1980.

OPINION BELOW

Petitioner seeks review of an order of the Eighth Circuit

denying attorneys’ fees under 42 USC §1988, which reads

in its entirety as follows:

“Bill of costs was filed by counsel for appellee. Response to

appellee’s bill of costs was filed by intervenor, Motor Club of

Iowa. Appellants’ resistance to appellee's bill of cost was also

filed. The Court having considered this matter, it is now here

ordered that costs of appellee, $131.40, be taxed to appellants.

Costs are collectible in the United States District Court for the

Southern District of Iowa.

“It is further ordered that motion of appellee to tax disbursements

and attorney's fees be and is hereby denied.”

Petitioner timely filed a motion to vacate the order. The

Eighth Circuit’s disposition of that motion was by an order

entered February 13, 1980, which reads in its entirety as

follows:

“The Court has considered appellee’s [CF’s] motion to vacate its

order of January 16, 1980, and response thereto. It is now here

ordered that appellee’s motion be, and is hereby, denied.”

No order or opinion has been rendered by the District

Court on attorneys’ fees. The Eighth Circuit acted on the

claim for attorneys’ fees on appeal in the first instance be-

cause the District Court had, before trial, separated all

claims related to attorneys’ fees from the case-in-chief

which came before the Eighth Circuit on appeal.

JURISDICTION

The order of the Court of Appeals for the Eighth Circuit

was entered January 16, 1980. This Petition for Certiorari

was filed within 90 days of that date. This Court’s juris-

diction is invoked und«r 28 USC §1254 (1).

QUESTION PRESENTED

May a court, without articulating its rationale, sum-

marily deny an application for attorneys’ fees under 42

USC §1988?

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42:

§1983 Civil Action for Deprivation of Rights.

“Every person who, under color of any statute, . . .of any State. . .

subjects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation

of any rights, . . . secured by the Constitution . . . shall be liable

to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.”

§1988 Proceedings in Vindication of Civil Rights.

*.. In any action or proceeding to enforce a provision of section|s]}

... 1983 . . . the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee

as a part of the costs.

STATEMENT OF THE CASE

This Petition relates solely to a claim for attorneys’ fees

under 42 USC §§1983 and 1988. The related case-in-chief

has been brought to this Court on appeal, in No. 79-1320,

Raymond Kassel et al. v. Consolidated Freightways Cor-

poration of Delaware.

Petitioner brought suit against Respondents, various

employees and officials of the State of Iowa, to void an

Iowa statute which excluded Petitioner’s 65-foot twin

trailer vehicles from Interstate Highways in Iowa. Both the

District Court and the Eighth Circuit determined that the

challenged statute burdened interstate commerce in vio-

lation of Art. I, §8, of the United States Constitution,

and sustained Petitioner’s right to operate free from that

burden on interstate commerce.’

Petitioner timely filed a Bill of Costs on appeal, including

its claim for attorneys’ fees under 42 USC §1988. The

filing was accompanied by a notice that the District Court

had separated the attorneys’ fees claim from the case-in-

chief and a request that the matter be referred to the

District Court for disposition. Petitioner set out its claim

for attorneys’ fees on appeal in the Bill of Costs only

because apparently required to do so to avoid waiver of the

claim.?

On January 16, 1980, the Eighth Circuit denied at-

torneys’ fees, without a statement of its rationale. Petitioner

timely filed a motion to vacate which requested referral

of the claim to the District Court or, in the alternative, an

opportunity to file a brief and affidavits in support of the

claim. On February 13, 1980, the Eighth Circuit denied the

motion, again without a statement of its reasons.

‘Not only Petitioner's interests were at stake. Although the ban of 65-foot

twins from Interstate Highways in lowa cosis Petitioner and its customers ap-

proximately two million dollars annually, the total cost burden exceeded 12

million dollars annually in 1974 by lowa’s estimate. Consolidated Freight-

ways v. Kassel, 475 F. Supp. 544, f.n. 2 (1979).

More significantly, both the District Court and the Eighth Circuit found

the lowa statute to detract from safety, 475 F. Supp. 544, 550 (1979). Con-

solidated Freightways v. Kasse’ “1 ¥. 2d 1064, 1070 (1979). The District

Court succinctly stated its safety finding in denying Respondents’ Motion to

Stay, in its order of August 20, 1979: ‘“*. . . Under the circumstances, the

granting of the stay would result in more accidents, more injuries, more

fatalities and more fuel consumption, than would occur if the 65-foot twins

were operated through lowa over 1-80 and 1-35.""

*Rule 39, FRAP, appears to require that all costs be filed within 14 days

after entry of judgment, in order to avoid waiver. 42 USC §1988 provides

that reasonable attorneys’ fees may be awarded “‘as a part of the costs.”

Petitioner's claim for attorneys’ fees at trial is still pend-

ing before the District Court.

REASONS FOR GRANTING THE WRIT

1. THE ORDER CONTRADICTS THE RULE DE-

VELOPED By OTHER CIRCUITS TO PROMOTE

STATUTORY POLICY AND PERMIT INFORMED

REVIEW.

The judgment of the trial and appellate courts estab-

lishes a prima facie case for grant of attorneys’ fees under

42 USC §1988.3 42 USC §1988 was a direct Congressional

response to this Court’s decision in Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240 (1975), which de-

nied attorneys’ fees absent a statutory basis for their

award. Although attorneys’ iees are discretionary under

the statute, it was the stated intent of Congress that at-

torneys’ fees are to be awarded “unless special circum-

stances would render such an award unjust.’”

—s - ene 2 oe

Interpreting 42 USC §1983, this Court has stated that the phrase “any

rights . . . secured by the Constitution” embraces “a// of the Constitution

and laws of the United States,” Lynch v. Household Finance Corp., 405

U.S. 538, 549, f.n. 16 (1972), citing United States v. Price, 383 U.S. 787,

796-797 (1966). It is well settled that individuals and corporations have a right

to engage in interstate commerce, free from burdensome state regulation,

under Art. I, §8, of the United States Constitution, West v. Kansas Natural

Gas Co., 221 U.S. 229, 260 (1910); Western Union Telegraph Company v.

Kansas, 216 U.S. 1, 37 (1910); HP. Hood & Sons, Inc. v. DuMond, 336

U.S. 525, 535 (1949).

‘The standard was first enunciated in Newman v. Piggie Park Enterprises,

Inc., 390 U.S. 400, 402 (1968). This standard has been uniformly adopted for

attorney fees claims under 42 USC §1988 and was expressly cited in the

legislative history of related amendments to 42 USC §§1983 and 1988,

Senate Report No. 94-1011, 94th Congress, 2nd Session (June 29, 1976),

reprinted in U.S. Code Cong. & Admin. News, 1976, p. 5908.

Until this case, the Circuit Courts of Appeal which con-

sidered the question, including the Eighth Circuit, had uni-

formly held that trial courts denying attorneys’ fees per-

mitted by statute must give their rationale, Sergeant v.

Sharp, 579 F. 2d 645, 647 (1st Cir. 1978); International

Society for Krishna Consciousness, Inc. v. Andersen, 569

F. 2d 1027, 1029 (8th Cir. 1978); imbrough v. Arkansas

Activities Association, 574 F. 2d 423, 427 (8th Cir. 1978);5

Johnson v. Georgia Highway Express, 488 F. 2d 714, 717

(5th Cir. 1974); Lindy Bros. Builders of Philadelphia v.

American R & S San. Corp., 487 F. 2d 161, 169-170 (3rd

Cir. 1973); Farmington Dowel Products Co. v. Foster Mfg.

Co., 436 F. 2d 699, 701 (1st Cir. 1970).

In awarding or denying attorneys’ fees, an appellate

court is bound by the same standards as a trial court,

Hampton v. Hanrahan, 600 F. 2d 600, 643 (7th Cir.

1979).

There are two reasons for requiring an articulation of the

lower court’s rationale in denying attorneys’ fees under

§1988. First, it preserves the Congressional policy of re-

quiring an award absent special circumstances. A finding

and explication of the special circumstances forces the

court to consider the statute’s provisions. Second, denial

without explanation, without hearing, and without dis-

cernible consideration of the factors involved is a violation

“We are unable to determine from the District Court’s order whether

the court’s denial of attorney's fees was based on an erroneous belief that

or whether it was an exercise of its “iscretionary power under the Act.

We, therefore, reverse and remand tiv cause to the District Court . . .”

974 F. 2d 423, 427

of due process. The violation is particularly repugnant as

the lack of a statement of the reasons denies effective

review.®

In denying attorneys’ fees, the Court of Appeals pro-

vided no rationale for its order. It neither afforded a full

hearing nor permitted filing of a brief and affidavits despite

Petitioner’s request for an opportunity to address the

question. Informed review of the Appellate Court’s ration-

ale is made impractical.

2. REQUESTED RELIEF.

Petitioner does not request that this Court determine the

propriety of awarding fees in this case. Petitioner requests

that, this Court exercise its supervisory powers and re-

mand to the Eighth Circuit with instructions to vacate

its order and either (1) reconsider the matter and state the

®“Summary disposition . . . followed by issuance of an order denying

counsel fees without an adequate statement of the reasons for the order does

not meet minimum standards for procedural fairness and regularity. . . . Nor

does an order issued without a deliberate articulation of its rationale, including

some appraisal of the factors underlying the court's decision, allow for a

disciplined and informed review of the court's discretion. [Citations omitted.]"’

Sergeant v. Sharp, 579 F . 2d 645, 647 (1st Cir. 1978).

reasons for its decision or (2) remand to the District Court

for an initial determination of the claim for attorneys’ fees.’

*Deference to the trial court on attorneys’ fee claims is more than a pro-

cedural nicety; it is a substantive and practical approach. The proposition

finds its statement in Souza v. Southworth, 564 F. 2d 609, 613-614 (1st Cir.

1977);

“The Supreme Court has recognized the power of a district court to

award fees for appellate work under Section 4 of the Clayton Act,

Perkins v. Standard Oil Co. of California, 399 U.S. 222, 90 S.Ct.

1989, 26 L.Ed. 2d 534 (1970), and the Court of Appeals for the District of

Columbia Circuit has argued that as a general rule a district court should

in the first instance set the fee for services rendered on appeal. Wilder-

ness Society v. Morton, 161 U.S. App. D.C. 446, 495 F. 2d 1026, 1036

(D.C. Cir. 1974), rev'd sub nom., Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L.Ed. 2d 141 (1975).

Persuasive arguments support the position staked out in Wilderness

Society. Although a court of appeals might be in the best position to

assess the importance and complexity of a case on appeal and the quality

of the performance by the attorneys that appear before it, other factors

going into a fee determination require factual findings more appropriately

made by a district court. . . . As this case illustrates, a district court

cannot fully evaluate such litigation without taking into account the

history of the dispute on appeal. Having evaluated the appellate work

of the attorneys, the district court properly may assign a price tag to it.

The deference is particularly apt in Commerce Clause cases. It is said

that Commerce Clause litigation depends in large part on the thorough-

ness of the attorneys, Raymond v. Rice, 434 U.S. 429, 447-448, f.n. 25 (1978).

CONCLUSION

For these reasons, Petitioner requests that a Writ of

Certiorari be issued.

Respectfully submitted,