Petitioners Brief — Consolidated Freightways Corporation of Delaware v. Raymond Kassel

Otfice Supreme Court, Te

FILED |

JUN 22

No. 79-1618 N2 1981

et aaa pase eee,

Supreme Court of the United States

October Term, 1980

CONSOLIDATED FREIGHTWAYS CORPORATION

OF DELAWARE, a Delaware Corporation,

Petitioner,

vs.

RAYMOND KASSEL, ROBERT RIGLER, L. STANLEY

SCHOELERMAN, DONALD GARDNER, JULES

BUSKER, ALLAN THOMS, BARBARA DUNN,

WILLIAM McGRATH, JON McCOY, CHARLES W.

LARSON, EDWARD DICKINSON, RICHARD C.

TURNER, and ROBERT D. RAY,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR PETITIONER

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

GUILD PRINTING <3 MADISON wis.

QUESTION PRESENTED

May a court, without articulating its rationale, sum-

marily deny an application for attorneys’ fees under 42

U.S.C. §1988?

TABLE OF CONTENTS

Page

i es aye ie ccnecaerecweeve nes ]

A ee rey eee Pe 2

STATUTORY PROVISIONS INVOLVED.......... 2

PR EREETE, MOE EEE, occu ecb veesccevecneerees 3

SUMMARY OF ARGUMENT.................05. 4

Is Oe ate Ce Mee ora eg sige Glas ae ald wes 5

I. THE SOLE ISSUE BEFORE THE COURT IS

WHETHER THE LOWER COURT MUST STATE

ee as cnc uaiede ud bbe ake hans 5

Il. THIS COURT MUST REMAND TO PROTECT

ITS POWER TO REVIEW.

A. The Power To Require An Opinion Is Inherent

Be TO FEE TO PRIVEE cic ccc rccccccweccesecens 8

B. The Power To Review Is Impaired By The

Lower Court's Failure To State Reasons.......... 8

C. Failure To State Reasons Denies The Litigants

POUMONS vsccscccncccrcccccccccccccsnoesveseces 10

Ill. THE COURTS HAVE HELD THAT ATTORNEYS’

FEE DECISIONS REQUIRE A STATEMENT OF

REASONS.

A. Review Of Attorneys’ Fee Awards Requires a

Statement Of Reasons... ....... 6.66 c cece eee ene 11

B. This Court Has Held That 4 Court Of Appeals

Must State The Reasons For Denial Of

IV. REMAND TO THE CIRCUIT COURT WITH

INSTRUCTION TO REMAND TO THE DISTRICT

COURT IS THE APPROPRIATE RELIEF.

A. The District Court Is Better Able Than The

Appellate Court To Determine Attorneys’ Fees .... 14

B. Congress Did Not Intend The Courts Of Appeals

To Initially Determine Attorneys’ Fee Awards... . . 15

CEI Sorc che ee re ceceyisesseuvesenesen’s 17

CITATIONS

CASES CITED Page

Adams v. United States, 620 F.2d 1277 (8th Cir.

1980) cert. denied 101 S.C. 88 (1980).......... 15

Aware Woman Clinic, Inc. v. City of Cocoa

Beach, 629 F.2d 1146 (Sth Cir. 1980)........ 15

Blackburn v. Alabama,

ee I ca kcvc cabs kaaebace s

Bond v. Stanton,

630 F.2d 1231 (7th Cir. 1980).............. 15

Booker v. Brown,

aw Pie Or treet Gil. FOOOY vc cc ccccsicsoss 15

Brown v. Bathke,

566 F.2d 588 (8th Cir. :977).......ccccceee 9,15

Campbell v. Cauthron,

623 F.2d 503 (8th Cir. 1980)............... 9,15

Crain v. City of Mountain Home, Arkansas,

611 F.2d 726 (8th Cir. 1979)...... Piaiehees 15

Consolidated Freightways v. Kassel,

612 F.2d 1064 (8th Cir. 1979) .............. 3

Dawson v. Pastrick,

bw ho) eRe) Sree 15

Donnell v. General Motors Corp.,

576 F.2d 1292 (8th Cir. 1978).............. 10

iv

Entertainment Concepts, Inc., III v. Maciejewski,

631 F.2d 497 (7th Cir. 1980), cert. denied,

49 U.S.L.W. 3617 (U.S. 2/24/81)

(No. SO-10SB).... cc cccccccccccccvccccccces

Familias Unidas v. Briscoe,

619 F.2d 391 (Sth Cir. 1980)..............

Fitzpatrick v. Bitzer, 455 F. Supp.

SSS GD. Comm. FGFE). 02 cc cccccvenstoensee

Fountila v. Carter, 571 F.2d 487

oe ae Mere

Gary W. v. State of Louisiana,

622 F.2d 804 (Sth Cir. 1980)..............

Gay Lib v. University of Missouri, 588 F.2d

848 (8th Cir. 1977) cert. denied, 434 U.S.

FD GUTOR oo ésivddececdivcoetvsaneonmeete

General Talking Pictures Corp. v. Western

Electric Co., 304 U.S. 175 (1938)...........

Green v. Ten Eyck, 572 F.2d 1233

Ore Ce. RIOD 6 ive sensececennshennnenee

Gurule v. Wilson, 635 F.2d 782

(OCR Gir, TRG 005 vvinscsvvcccansaeennen

Honeyman v. Hanan,

Pee

1S

1S

oe

v

International Society for Krishna Conscionsuess,

Inc. v. Anderson, 569 F.2d 1027

GS cua ace shVitss eset ses eees es

Iranian Students Assoc. v. Edwards,

604 F.2d 352 (5th Cir. 1979)...............

Irvine v. California,

ee | SR Vee ee

J. I. Case Co. v. Borak,

RE i MP LRUOTR, cece ccrcccccccececeecs

Johnson v. State of Mississippi,

606 F.2d 635 (Sth Cir. 1979)...............

Kassel v. Consolidated Freightways,

RUSTE, os Sc CNWo cscs ccccsveents

Kimbrough v. Arkansas Activities Assoc.,

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

Knighton v. Watkins,

616 F.2d 795 (Sth Cir. 1980) ...............

Love v. Mayor of Cheyenne,

620 F.2d 235 (10th Cir. 1980) ..............

Mayor v. Educational Equality League,

Ue SA MEME cs iiwcde ce ssitsccrvecens

McGowan v. King, Inc.,

616 F2d 745 (Sth Cir. 1980).............45.

McManama v. Lukhard,

616 F 2d 727 (4th Cir. 1980) ...............

vi

Mid-Hudson Legal Services, Inc. v. GUU, Inc.,

578 F.2d 34 (2d Cir. 1978), on remand,

465 F. Supp. 261 (S.D.N.Y. 1978) ........... 15

Minnesota v. National Tea Co.,

es Oe ok a oka be ev tuvnsdecnebe'e 8

National Licorice Co. v. National Labor Relations

Board, 309 U.S. 350 (1940) ...........00005- 6

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968)......... ccc eee eee eee 12

Northcross v. Board of Education,

DE Bee WE CRUE EErs bc ev ncceasvevaséeres 8, 13, 14

Northcross v. Board of Education, 611 F.2d 624

(6th Cir. 1979), cert. denied, 447 U.S. 911

SE areas Seer ah ke bo oboe eee Oa Saks 15

O’Neil v. City of Lake Oswego,

642 F.2d 367 (9th Cir. 1981) ............05. 12

Panama Mail Steamship Co. v. Vargas,

ee Sh Oe CUNO is cvisocsneseees sevens 8

Parker v. Califano,

561 F.2d 320 (D.C. Cir. 1977), on remand,

443 F. Supp. 789 (D. DC 1978) ............. 15

Perkins v. Standard Oil Co. of California,

Fg TM rere eereerre rere ere 14

Prandini v. National Tea Co.,

BOS F.8e 47 (Sd Cir. 1978)... cccccscccess 15

vii

Public Service Commission of Wisconsin v.

Wisconsin Telephone Co., 289 U.S. 67

SEN Gh Ch aioe RUS CCS SE Fi ks £0550 oremenen s

Roadway Express, Inc. v. Piper,

ie eee i6

Sargent v. Sharp,

579 F.2d 645 (Ist Cir. 1978)................ 12

Souza v. Southworth,

564 F.2d 609 (Ist Cir. 1977)................ 10.15

Taylor v. McKeithen,

OT WEE: BOE IG od ondcyecnkucdans vanes 8

United Handicapped Federation v. Andre,

622 F.2d 342 (8th Cir. 1980) ............... 9

Virginia Railroad Company v. U.S.,

SFE Ca Oe CUO ko bos Dbk capi cocnneee cas 10

Wharton v. Knefel,

562 F.2d 550 (8th Cir. 1977) ............... 15

White v. New Hampshire Dept of Employment

Security, 629 F.2d 697 (Ist Cir. 1980) ....... 10

Winton v. Amos,

ee Sh See CEES 6p bee bd eo cvneknwanneeee 8

Woe v. Nebraska State Department of Public

Welfare, 608 F.2d 302 (8th Cir. 1979) ....... 15

viii

STATUTES AND RULES

Emergency School Aid Act of 1972, §718,

Be es HONE CIBTE) wn cess sceseesvsevcesess 13

eerste 2

ose a canescccsescccsccssceses 16

ME Svcncccrderevecccceseseccess passim

ks EAT Tee passim

Rule 14, Eighth Circuit Court of Appeals....... 11

Rule 21.1(a), Rules of the Supreme Court....... 6

Rule 39, Federal Rules of Appellate

GEES SCC us ees coscensccesees 4, 15, 16, 17

Rule 52, Federal Rules of Civil Procedure ...... 8

OTHER MATERIALS

ABA TASK FORCE ON APPELLATE PROCEDURE,

EFFICIENCY AND JUSTICE IN APPEALS:

METHODS AND SELECTED MATERIALS (1977) . 1]

S. Rep. No. 94-1011. 94th Cong., 2d Sess.,

reprinted in [1976] U.S. CODE CONG. &

PRED, PUI WVS DOU occ ccc ccc ccccccecccens 12, 16, 17

Ne. 79-1618

IN THE

Supreme Court of the United States

October Term, 1980

CONSOLIDATED FREIGHTWAYS CORPORATION

OF DELAWARE, a Delaware corporation,

Petitioner,

VS.

RAYMOND KASSEL, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR PETITIONER

OPINION BELOW

Petitioner, Consolidated Freightways Corporation of

Delaware [CF],' seeks review of an order of the Eighth

Circuit denying attorneys’ fees under 42 U.S.C. §1988. The

order 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.

‘Consolidated Freightways Corporation of Delaware is a wholly owned

subsidiary of Consolidated Freightways, Inc. Both Companies wholly own all

of their subsidiaries, except for United Terminals, Ltd., which is 50% owned

by NLI Corporation, a subsidiary of Time-D.C., Inc.

2

Costs are collectible in the United States District Court for the

Southern District of lowa.

It is further ordered that motion of appellee to tax disbursements

and attorney's fees be and is hereby denied.” (A. 24)

Petitioner timely filed a motion to vacate the order

(A. 25). The Eighth Circuit order disposing of that motion

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 hereby

ordered that appellee's motion be, and is hereby, denied.” (A. 29)

No order or opinion has been rendered by the District

Court on attorneys’ fees. The Eighth Circuit was the first

court to act on any claim for attorneys’ fees. Before trial,

the District Court had 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. Petition for Certiorari was

filed on April 15, 1980, and was granted on April 6, 1981.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

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 depri-

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

3

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

other proper proceedings 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 CASE

The State of Iowa prohibited the operation of 65’ twin

trailers through Iowa but permitted their operation in, to,

and from certain border cities. Consequently, interstate

general commodity carriers were forced to divert 65’ twin

trailers from direct interstate routes through Iowa to

routes around Iowa. In 1978, Consolidated Freightways

Corporation filed suit in District Court against State

officials responsible for enforcing the law, alleging that

enforcement of the law was a violation of the Commerce

Clause, the Fourteenth Amendment, and 42 U.S.C. §1983

(A. 6-13). CF sought a declaratory judgment, injunctive

relief, and attorneys’ fees. The District Court bifurcated

trial, separating the issue of attorneys’ fees. It has yet to

rule on the question of attorneys’ fees for the trial (A. 18).

After an extensive trial of the case in chief, the District

Court ruled for CF, declaring the statute to be uncon-

stitutional and enjoining its enforcement. The Eighth

Circuit Court of Appeals affirmed the District Court,?

*Consolidated Freightways v. Kassel, 612 F.2d 1064 (8th Cir. 1979). -

4

and this Court recently affirmed that decision.’ Sub-

sequent to the Eighth Circuit decision, Plaintiff

submitted a Bill of Costs pursuant to Rule 39 and the

instruction of the Clerk of the Eighth Circuit (A. 20-21).

Included in the costs were the attorneys’ fees associated

with the appeal. A letter accompanying the Bill of Costs

drew the Court’s attention to the District Court's bifur-

cation of the attorneys’ fee issue, noted that only those

attorneys’ fees associated with the appeal were included

in the Bill of Costs,* and suggested that judicial economy

would be served by remanding the attorneys’ fee question

to the trial court to be considered jointly with fees for the

trial (A. 19).

Costs of $131.40 were granted by the Eighth Circuit,

but attorneys’ fees and associated disbursements were

denied without explanation (A. 24). Plaintiff filed a

Motion to Vacate the denial order and to remand the issue

to the trial court or, in the alternative, to permit filing of

briefs and affidavits (A. 25). The Motion to Vacate was

denied, again without explanation (A. 29).

SUMMARY OF ARGUMENT

The question upon which a writ of certiorari was

granted and the only question susceptible of review is

whether the Court of Appeals must provide a statement of

*Kassel v. Consolidated Freightways, 49 U.S.L.W. 4328, (1981).

‘Rule 39, Federal Rules of Appellate Procedure requires that costs be filed

within 14 days after entry of judgment to avoid waiver. 42 U.S.C. §1988

provides that reasonable attorneys’ fees may be awarded “as a part of the

costs.””

5

its reasons for making an initial decision denying attor-

neys’ fees under 42 U.S.C. §1988. Not all cases require

statements of reasoning. This case does. The lack of a

statement impairs this Court's ability to review the deci-

sion, deprives the litigants of basic fairness, and impairs

judicial efficiency.

Statements of the reasons for decisions granting or

denying attorneys’ fees under the civil rights laws have

been uniformly required of trial courts by the Courts of

Appeals and by this Court when a Court of Appeals makes

the initial determination.

The appropriate relief is remand to the Eighth Circuit

with instructions to remand to the District Court for an

initial determination of attorneys’ fees at trial and on

appeal. Absent special circumstances, the trial court is

better able to make initial determinations regarding

attorneys’ fees, and review of that decision by an inter-

mediate appellate court will protect this Court's docket.

ARGUMENT

I. THE SOLE ISSUE BEFORE THE COURT IS

WHETHER THE LOWER COURT MUST STATE

ITS REASONING.

This Court did not grant certiorari on the issue of

whether the court below erred by denying attorneys’

fees. The only issue before the Court is whether the court

below erred by not stating the reasons for its decision on

6

attorneys’ fees.’ Without such a statement of reasons,

review of this decision is impossible, and the very im-

practicality of review becomes the issue on appeal.*

The posture of this case requires this narrow limitation

of the issue, even though there are a number of possible

underlying issues of importance. This case is not before

the Court in the normal sequence of events. There has

been no hearing on the issue of attorneys’ fees. There has

been no opportunity for either party to introduce evidence

on attorneys’ fees. There has been no substantial briefing

of the issues, and there have been no stated determinations

of fact or law by any court.

The Circuit Court’s denial of attorneys’ fees gives no

hint as to the reasons for denial. It is impossible to deter-

mine what issues are involved in that denial and what

issues should be appealed. Petitioner can hypothesize at

least ten possible grounds for the denial, any of which

could have been expressed in a one paragraph opinion:

1. The issue of attorneys’ fees on appeal should not

have been presented to the Court of Appeals but

should have been presented in the first instance to

the District Court.

*Rule 21.1(a) of this Court confines the parties to this issue, as it is the

question upon which certiorari was granted. General Talking Pictures Corp.

v. Western Electric Co., 304 U.S. 175, 177-178 (1938); National Licorice

Co. v. National Labor Relations Board, 309 U.S. 350, 357, n. 2 (1940); Irvine

v. California, 347 U.S. 128, 129 (1954); J. 1. Case Co. v. Borak, 377 U.S. 426,

428-429 (1964); and Mayor v. Educational Equality League, 415 U.S. 605,

623 (1974).

*We do not suggest that all cases require opinions, nor that any opinion

required need be more than a sentence or two. We do contend that this case

requires some statement of the Court's reasoning.

10.

7

. The Bill of Costs is an inappropriate vehicle to

present attorneys’ fees for consideration.

The Court of Appeals is without the trial court's

power to award attorneys’ fees under 42 U.S.C.

§1988.

There is insufficient factual support for an award of

attorneys’ fees.

. The fee request is excessive and is denied to dis-

courage such claims.

The State and its officials are immune from awards

of attorneys’ fees.

. 42 U.S.C. §1988 is inapplicable to cases involving

property or commercial interests.

. 42 U.S.C. §§1983 and 1988 are applicable, but

there are special factual circumstances which

would make an award of attorneys’ fees unjust.

There are no ccnstitutional rights cognizable

under 42 U.S.C. §§ 1983 and 1988 in this case.

42 U.S.C. §1988 requires a specific finding of dis-

crimination.

There is case law opposing most of these grounds, but

some are of first impression. The impossibility of treating

all conceivable grounds for denial on appeal necessarily

confines the issue to the question of whether the Court of

Appeals should have stated the grounds for its decision.

8

Il. THIS COURT MUST REMAND TO PROTECT ITS

POWER TO REVIEW.

A. The Power To Require An Opinion Is Inherent In

The Power To Review.

Even where no statute or rule requires an opinion, this

Court has repeatedly reversed or vacated inadequately

explained decisions it could not properly review.’ The

authority to do so is implied by the constitutional and

statutory grants of reviewing authority, the inherent

power to protect that authority from impairment, and the

obligation to be fair to the litigants.

B. The Power To Review Is Impaired By The Lower

Court’s Failure To State Reasons.

Reviewing courts do not judge the evidence and decide

cases. They review the decision below to determine that

it was properly reached. To do that, they must know what

the reasoning process of the lower court was, for the

process and not the result frequently determines whether a

case is affirmed or reversed. A decision which rests upon

a close factual determination and proper application of

the law should be affirmed. The same decision, if based

upon a different factual conclusion and a misapplication

"Rule 52 of the Federal Rules of Civil Procedure requires findings of fact

and conclusions of law by federal trial courts in most instances. This court

has required such findings prior to enactment of the rule, Public Service Com-

mission of Wisconsin v. Wisconsin Telephone Co., 289 U.S. 67, 69-71 (1933);

Panama Mail Steamship Co. v. Vargas, 281 U.S, 670, 671-672 (1930); Winton

v. Amos, 255 U.S. 373, 396 (1921); and has required them of state courts not

bound by the rules, Blackburn v. Alabama, 354 U.S. 393, 393 (1957); Minne-

sota v. National Tea Co., 309 U.S. 551, 555 (1940); Honeyman v. Hanan, 300

U.S. 14, 26 (1937); and of the Circuit Courts of Appeals to whom rule 52 is

inapplicable, Northcross v. Board of Education, 412 U.S. 427, 428-429

(1973); Taylor v. McKeithen, 407 U.S. 191, 194(1972).

9

of the law, should be reversed. Denial of access to the

reasoning denies the power to review.

This case lacks any indication of the reasoning in the

decision itself. It also lacks the circumstantial indications

of the reasoning that a hearing, briefs by the parties, or a

lower court decision could provide.* The original decision

was based solely on a simple bill of costs (A. pp. 20-21)

and a stark statement that Appellees objected (A. pp.

22-24). There are no clues to the basis of the denial.°

Review is also impaired by the failure to define the

issues. That lack of definition makes review an arduous

proposition for the Court and the litigants. The number of

possible issues in this case makes the presence of the

problem clear.

In addition, lower courts have no guidance in new

unsettled areas such as the issue of attorneys’ fees raised

in this case. Here the precedent would be of immediate

value. The District Court still must try the issue of attor-

neys’ fees for the trial work. The unexplained denial by

the Circuit Court can provide it with no guidance. Instead,

*The parties did file briefs on the Motion to Vacate, but no briefs were

filed prior to the original decision. The later filed briefs cannot provide

guidance as to the basis of the original decision.

*The lack of briefs or argument is not unusual. Though the Eighth Circuit

requires District Courts to fully explain their reasons, it simultaneously

awards attorneys’ fees on appeal apparently sua sponte and without discus-

sion of its own reasoning. Campbell v. Cauthron, 623 F.2d 503 (8th Cir.

(1980); United Handicapped Federation v. Andre, 622 F.2d 342 (8th Cir.

(1980); Kimbrough v. Arkansas Activities Assoc., 574 F.2d 423 (8th Cir.

(1978); Green v. Ten Eyck, 572 F.2d 1233 (8th Cir, 1978); Brown v. Bathke,

566 F.2d 588 (8th Cir. 1977).

10

it merely adds a new issue to those that already exist —

What is the meaning and effect of the Circuit Court

decision?'®

There is a final, more subtle effect upon the appellate

process. In unsettled areas of law there is a delicate

dialogue among the courts. This dialogue promotes both

efficient judicial administration and consistent, effective

development of the law. The lack of an opinion, however

brief, deprives the judicial system of this necessary dia-

logue. Because the procedures surrounding attorneys’ fees

are particularly unsettled and involve divisions of effort

between the appellate and district courts, that dialogue is

of particular value here.''

C. Failure To State Reasons Denies The Litigants

Fairness.

The Constitution may only grant litigants a limited

right to appeal in civil cases, but it does guarantee them

fundamental fairness in the conduct of such an appeal.

Without a statement of reasons when significant issues

are involved, a litigant is often unable to tell whether to

proceed or not."?

The denial may not even be intended to be determinative in regard to

appellate fees. If denial by the Eighth Circuit were based upon the desirability

of an initial determination by the trial court, the trial court should not only

decide the question of fees for trial work but entertain and join the question of

fees for appellate work.

"'Simple questions of procedure are unsettled, such as which court should

award appellate fees, compare, Souza v. Southworth, 564 F.2d 609 (Ist Cir.

1977) with Donnell v. General Motors Corp., 576 F.2d 1292 (8th Cir. 1978),

and whether they are a necessary part of a final judgment, compare, White v.

New Hampshire Dept. of Employment Security, 629 F.2d 697 (ist Cir. 1980)

with Knighton v. Y/aikins, 616 F.2d 795 (Sth Cir. 1980).

"Unless an opinion indicating the grounds of the decision is delivered, a

defeated party may often be unable to determine whether the case presents a

question worthy of consideration by the appellate court.” Virginia Railroed

Company v. U.S., 272 U.S. 660, 675 (1926).

1]

If a losing party does appeal a multiple issue case with-

out an opinion, he must dissipate the force of his appeal

in a welter of possible legal issues and undetermined

factual controversies. The reviewing court must base

initial factual determinations on the paper record, depriv-

ing the litigants of the right to a live trial at which the

credibility of the witnesses, an often decisive factor, may

be judged. The appellee may be denied the proper advan-

tage that factual determinations by the trial court in his

favor would give him on appeal.

III. THE COURTS HAVE HELD THAT ATTORNEYS’

FEE DECISIONS REQUIRE A STATEMENT OF

REASONS.

A. Review Of Attorneys’ Fee Awards Requires A

Statement Of Reasons.

Not all appellate decisions require even abbreviated

statements of reasons. A comprehensive definition of

which decisions require articulation of the court’s reason-

ing would be difficult, but need not be made in this case."

Decisions regarding attorneys’ fees under the civil rights

"The American Bar Association Task Force on Appellate Procedure has

recommended;

“The question of whether the opinion should be published or not published

is quite separate from the question of whether there shall be any opinion at

all. The device of eliminating opinions entirely by what are in effect one

word orders of the ‘affirmed’ or ‘reversed’ variety exists in some juris-

dictions. Except for the simplest cases, this is not desirable; particularly in

cases of a reversal there ought to be explanation which demonstrates that

the law is a reasoned process." ABA TASK FORCE ON APPELLATE PROCEDURE,

EFFICIENCY AND JUSTICE IN APPEALS: METHODS AND SELECTED MATERIALS,

(1977), p. 11S,

The Eighth Circuit provides by rule for affirmance without opinion of

lower court decisions but requires citation to the rule which lists reasons for

the affirmance, 8th Cir. R. 14.

12

laws clearly fall within the class of decisions requiring a

statement of reasons.

In Newman v. Piggie Park Enterprise, Inc., 390 U.S.

400 (1968), this Court held that attorneys’ fees should be

awarded under the Civil Rights Act of 1964, absent special

circumstances. In enacting 42 U.S.C. §1988, Congress

specifically intended that the Newman standard be applied

to 42 U.S.C. §1988.

“It is intended that the standards for awarding fees be generally

the same as under the fee provisions of the 1964 Civil Rights Act.

A party seeking to enforce the rights protected by the statutes

covered by S. 2278 [enacted 42 U.S.C. §1988), if successful,

‘should ordinarily recover an attorney's fee unless special circum-

stances would render such an award unjust.” Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400, 402 (1968).”" S. Rep. No.

94-1011, 94th Cong., 2d Sess., 4, reprinted in [1976] U.S.

CODE CONG. & AD. NEWS 5908, 5912.

The statute thus grants discretion to the trial court as to

whether fees should be awarded, but also provides a rigor-

ous standard for the exercise of that discretion. Fees may

only be denied if there are “special circumstances.” The

combination of discretion and a standard for the exercise

of that discretion necessitates a statement of reasons to

determine whether the decision is proper.

The Circuit Courts of Appeals have held that decisions

on attorneys’ fees under the civil rights laws, whether

granted or denied, must be accompanied by a statement of

reasons. Sargeant v. Sharp, 579 F.2d 645, 647 (Ist Cir.

1978); McGowan v. King, Inc., 616 F.2d 745, 747 (Sth

Cir. 1980); International Society for Krishna Conscious-

ness, Inc. v. Anderson, 569 F.2d 1027, 1029 (8th Cir.

1978); Fountila v. Carter, 571 F.2d 487, 496-497 (9th

13

Cir. 1978); O’Neil v. City of Lake Oswego, 642 F.2d 367,

371 (9th Cir. 1981). The Eighth Circuit itself has so held:

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

whether the court's denial of attorneys’ fees was based on an

erroneous belief that the Act [42 USC §1988] did not authorize an

award of fees in this case, or whether it was an exercise of its

discretionary power under the Act. We, therefore, reverse and

remand the cause to the District Court . . ."" Kimbrough v. Ar-

kansas Activities Association, 574 F.2d 423, 427 (1978).

B. This Court Has Held That A Court Of Appeals Must

State The Reasons For Denial Of Attorneys’ Fees.

The precedent of this Court is consistent with the hold-

ings of the Courts of Appeals. In Northcross v. Board of

Education, 412 U.S. 427 (1973), a case identical in posture

to this one,'* the Court vacated a Circuit Court of Appeals

decision on attorneys’ fees and remanded the case for a

statement of reasons;

“In this case, the United States Court of Appeals for the Sixth

Circuit denied petitioners’ motion for an award of costs and

attorneys’ fees. The Court of Appeals did not, however, state

reasons for the denial and it is therefore not possible for this Court

to determine whether the Court of Appeals applied the proper

standard in reaching this result.

Since it is impossible for us to determine whether the Court of

Appeals applied the standard and, if so, whether it did so cor-

rectly, we grant the petition for certiorari, vacate the judgment

"The request for fees on appeal in Northcross was originally made to the

appellate court pursuant to the Emergency School Aid Act of 1972, §718,

a statute in pari materia with 42 U.S.C. §1983.

14

below insofar as it relates to the denial of costs and attorneys’

fees, and remand to,the Court of Appeals for further proceedings

consistent with this opinion.” Northcross v. Board of Education,

412 U.S. at 427-429 (1973) (Footnotes omitted).

VI. Remand To The Circuit Court With Instruction To

Remand To The District Court Is The Appropriate

Relief.

A. The District Court Is Better Able Than The Appel-

late Court To Determine Attorneys’ Fees.

Normally the trial court can better determine attorneys’

fees awards than the Circuit Court of Appeals, even when

the fees include a determination of appellate fees. The trial

court generally has better knowledge of the details of the

case, will be better aware of the tactical decisions made

and the need for them, and be more familiar with the

efforts of counsel. Remand to the trial court will often

permit consolidating the attorneys’ fees for all phases of

the case in one hearing and decision.

Initial determination by the trial court also allows

appellate review prior to review by this Court.'®

An appellate court is procedurally ill-suited to deter-

mine the facts necessary in fee awards. In Perkins v.

Standard Oil Co., 399 U.S. 222, 223 (1970), this Court

held that attorneys’ fees on appeal in antitrust cases

should normally be first determined by the trial court.

All of the circuits, save for the Eighth Circuit, have gener-

ally adopted that position for civil rights attorneys’ fee

‘Routine awards of attorneys’ fees by the Courts of Appeals would sub-

stantially increase the docket of this Court which would be the only available

court of review. The volume of such cases and the responsibilities of this

Court would prevent any review of many erroneous decisions.

15

awards for appeal of civil rights cases.'* The Eighth

Circuit has not."’

B. Congress Did Not Intend The Courts Of Appeals To

Initially Determine Attorneys’ Fee Awards.

It would be inappropriate to remand to the District

Court if Congress had intended that attorneys’ fees on

appeal be decided initially by the Courts of Appeals. 42

U.S.C. §1988 provides that fees shall be awarded “‘as

costs.” Federal Rules of Appellate Procedure Rule 39(b)

requires submission of a bill of costs to the Court of

Appeals within 14 days of judgment. Read together, the

'*First Circuit: Souza v. Southworth, 564 F.2d 609 (Ist Cir. 1977). Second

Circuit: Mid-Hudson Legal Services, Inc. v. GWU, Inc., 578 F.2d 34 (2d Cir.

1978), on remand, 465 F. Supp. 261 (S.D. N.Y. 1978); Fitzpatrick v. Bitzer,

455 F. Supp. 1338 (D. Conn. 1978), on remand from 427 U.S. 445 (1976).

Third Circuit: Prandini v. National Tea Co., 585 F.2d 47 (3d Cir. 1978).

Fourth Circuit: McManama v. Lukhard, 616 F.2d 727 (4th Cir. 1980). Fifth

Circuit: Aware Woman Clinic, Inc. v. City of Cocoa Beach, 629 F.2d 1146

(Sth Cir. 1980); Iranian Students Assoc. v. Edwards, 604 F.2d 352 (Sth Cir.

1979); Gary W. v.State of Louisiana, 622 F.2d 804 (Sth Cir. 1980); Familias

Unidas v. Briscoe, 619 F.2d 391 (Sth Cir. 1980); Johnson v. State of Missis-

sippi, 606 F.2d 635 (Sth Cir. 1979). Sixth Circuit: Northcross v. Board of

Education, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980).

Seventh Circuit: Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d

497 (7th Cir. 1980), cert. denied, 49 U.S.L.W. 3617 (U.S. 2/24/81) (No.

80-1039); Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980), Dawson v.

Pastrick, 600 F.2d 70 (7th Cir. 1979). Ninth Circuit: Fountila v. Carter, 571

F.2d 487 (9th Cir. 1978). Tenth, Circuit: Gurule v. Wilson, 635 F.2d 782

(10th Cir. 1980); Love v. Mayor of Cheyenne, 620 F.2d 235 (10th Cir. 1980);

Booker v. Brown, 619 F.2d 57 (10th Cir. 1980). District of Columbia Circuit:

Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977), on remand, 443 F. Supp.

789 (D.D.C, 1978).

"Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980); Adams v. United

States, 620 F.2d 1277 (8th Cir. 1980), cert. denied, 101 S.C. 88 (1980); Crain

v. City of Mountain Home, Arkansas, 611 F.2d 726 (8th Cir. 1979); Woe v.

Nebraska State Department of Public Welfare, 608 F.2d 302 (8th Cir. 1979);

Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977); Wharton v. Knefel, 562 F.2d

550 (8th Cir. 1977); Gay Lib v. University of Missouri, 558 F.2d 848 (8th

Cir. 1977), cert. denied, 434 U.S. 1080 (1978); Green v. Ten Eyck, 572 F.2d

1233 (8th Cir. 1978).

16

two could imply that attorneys’ fees on appeal must be

submitted initially to the Court of Appeals and an infer-

ence be drawn that Congress intended that the Court of

Appeals initially determine appellate fees. Stated more

generally, the question is whether Congress intended to

embrace all of the rules, statutes, and case law developed

on costs by using the phrase ‘‘as costs’’ in regard to

attorneys’ fees awards.

This Court has recently determined that Congress did

not intend in 42 U.S.C. §1988 to incorporate other statutes

regarding costs. Roadway Express, Inc. v. Piper, 447 U.S.

752 (1980). In Roadway, the Court determined that 28

U.S.C. §1927 (providing awards of costs in certain cases)

was not applicable to attorneys’ fees under 42 U.S.C.

§1988.

A close review of Rule 39 shows its provisions to be in-

consistent with the congressional purpose of 42 U.S.C.

§1988, thus strongly suggesting that Congress did not

intend Rule 39 to be applicable to attorneys’ fees under

42 U.S.C. §1988. Rule 39(a), for instance, contemplates

equal treatment of taxation of the parties. Though §1988

does not on its face so provide, congressional history

suggests different treatment of plaintiffs and defendants.

S. Rep. 94-1011, 94th Cong., 2d Sess. 5, reprinted in

[1976] U.S. CODE CONG. & AD. NEWS, 5908, 5912.

Rule 39(d) as it existed at the time of enactment of 42

U.S.C. §1988 provided for the taxation of the costs by the

clerk. The 1979 amendment provided for objections to the

Bill of Costs, but clearly contemplates as the norm a

clerical matter involving no discretion. An award of

attorneys’ fees to the contrary will always require sub-

17

stantial exercise of judicial discretion. Moreover, if attor-

neys’ fees under §1988 are to be regarded literally “as

costs” for purposes of Rule 39, those attorneys’ fees associ-

ated with the preparation of the record must be awarded

by the trial court, Rule 39e). Finally, Rule 39 only pro-

vides for awards after judgment, whereas Congress

intended to permit awards pendente lite under 42 U.S.C.

§1988, S. Rep. No. 94-1011, 94th Cong. 2d Sess. 5,

reprinted in [1976] U.S. CODE CONG. & AD. NEWS, :

5908, 5912.

The inconsistencies between Rule 39 and 42 U.S.C.

§1988 strongly suggest that Congress did not intend Rule

39 to apply to §1988. Application of Rule 39 to §1988 is

the only support that exists for inferring a congressional

intent that the Circuit Court of Appeals initially determine

attorneys’ fees. Without it, judicial efficiency strongly sup-

ports an initial determination by the trial court in most

cases, and certainly in this bifurcated action.

CONCLUSION

There may well be issues of substantial importance in

this case, but the present posture only presents the single

issue of whether the denial of attorneys’ fees must have its

reasoning stated. Remand will permit the other issues to

be raised and argued by the parties and decided, not in

the abstract, but in the context of the operative determined

facts of an actual case. Remand will permit informed

review of the issues.

Remand to the District Court will promote judicial

efficiency. It will avoid the separate consideration by

different courts of attorneys’ fees for trial and attorneys’

fees on appeal that wastes judicial time and invites the

18

mischief of contradictory decisions. It will discourage the

practice of Courts of Appeals making initial decisions of

attorneys’ fees, a practice that inappropriately makes this

Court a court of initial appeal.

Dated June 18, 1981.

Respectully submitted,

JOHN H. LEDERER

JOHN DUNCAN VARDA

ANTHONY R. VARDA

DeW ITT, SUNDBY,

HUGGETT & SCHUMACHER, S.C.

Post Office Address:

121 South Pinckney Street

P. O. Box 2509

Madison, Wisconsin 53701

Telephone: (608) 255-8891