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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1886%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 329

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1886%3A4. Public record. Not legal advice.