United States District Court, D. Nebraska
JAMES L. DEAN, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. LOIS P. WHITE, as Personal Representative of the Estate of Joseph White, deceased, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. KATHLEEN A. GONZALEZ, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. THOMAS W. WINSLOW, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. ADA JOANN TAYLOR, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. DEBRA SHELDEN, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on Plaintiffs' Application for
Attorneys' Fees and Costs (Filing 700) and
Plaintiffs' Motion for Review of the Clerk's Denial
of Plaintiffs' Bill of Costs (Filing 713).
Plaintiffs' Motion for Attorneys'
11, 2018, judgment was entered by the United States Court of
Appeals for the Eighth Circuit (Filing 694), affirming the
judgment that was entered by this court on July 6, 2016
(Filing 561). The Court of Appeals' mandate issued
and was received by this court on July 24, 2018 (Filing 697).
On July 31, 2018, Plaintiffs filed their motion for attorney
fees (Filing 700) with an index of evidence (Filing 701), but
no supporting brief.
period of time covered by the motion runs from August 3, 2016
(the date Defendants filed a Rule 59 motion for judgment as a
matter of law or for a new trial), through July 29, 2018. The
court previously granted a motion for attorney fees and
expenses for work performed by Plaintiffs' counsel
through July 21, 2016 (the date the motion for attorney fees
was filed). See Memorandum and Order (Filing 613)
and Judgments (Filings 615 through 620) entered on September
August 1, 2018, this court entered a Memorandum and Order
directing Plaintiffs to submit “a brief addressing
whether the motion is timely, whether the motion is in
compliance with the local rules of this court, the Eighth
Circuit Court of Appeals Local Rules, the Federal Rules of
Civil Procedure, and whether the law and the facts warrant
the relief sought on the merits.” (Filing 702) A
schedule was established for submission of briefs and
evidence by both sides.
filed their brief on August 13, 2018 (Filing 708). Defendants
filed an opposing brief on August 24, 2018 (Filing 712).
Plaintiffs replied on August 29, 2018 with a brief (Filing
715) and additional evidence (Filing 716). The matter is now
ripe for determination.
initial matter, this court must determine whether it has
jurisdiction to award attorney fees and expenses associated
with an appeal. As suggested by the court in its previous
Memorandum and Order, this question was answered in the
affirmative by the Eighth Circuit in Little Rock School
District. v. State of Arkansas, 127 F.3d 693 (8th Cir.
1997). In that case, as here, the prevailing parties on
appeal did not file a motion for attorney fees with the Court
of Appeals, as provided in Rule 47C of the Local Rules of the
Eighth Circuit, but instead applied to the district court
after the defendant/appellee's petition for rehearing was
denied. The district court awarded attorney fees to the
plaintiffs pursuant to 42 U.S.C. § 1988. The defendant
appealed from the award and argued, among other things, that
Rule 47C deprived the district court of jurisdiction to award
attorney fees for work performed in connection with the
appeal. The Eighth Circuit rejected this argument, stating:
(a) Motion for Fees. A motion for attorney fees ... shall be
filed with the clerk within 14 days after the entry of
judgment.... The court may grant on its own motion an
allowance of reasonable attorney fees to a prevailing party.
(b) Determination of Fees. On the court's own motion or
at the request of the prevailing party, a motion for attorney
fees may be remanded to the district court or administrative
agency for appropriate hearing and determination....
The usual practice for awarding fees and costs under 42
U.S.C. § 1988 is for this Court to fix the compensation
for services rendered before it, and for the District Court
to do so for services rendered before it. Avalon Cinema
Corp. v. Thompson, 689 F.2d 137, 138 (8th Cir.1982) (en
banc). The policy behind Rule 47C is that fee awards should
be determined by the court most familiar with the legal
services in question. In this case, as in any other before
this Court, the plaintiffs should have filed a motion to this
Court for fees incurred on appeal. If they had done so, we
could have remanded the matter to the District Court for its
determination; but we probably would have kept the motion
here and decided it ourselves.
However, Rule 47C cannot and does not affect the jurisdiction
of the district courts. The jurisdiction of the federal
district courts is conferred by Congress. See 28
U.S.C. §§ 1331-1390. Rule 47C is a rule of
procedure for the Court of Appeals and does not alter this
grant of jurisdiction. Therefore, despite our local rule, the
district courts retain jurisdiction to decide attorneys'
fees issues that we have not ourselves undertaken to decide.
The District Court has awarded attorneys' fees for
services rendered before the United States Supreme Court,
reasoning that the Supreme Court had lost jurisdiction, and,
in any event, would have been unlikely to undertake the
intensive fact-finding necessary in such matters. Vaughn
v. Westinghouse Elec. Corp., 526 F.Supp. 1165, 1169
(E.D.Ark.1981). Such discretionary and practical
considerations continue to be relevant to a district
court's decision whether to grant a motion for
attorneys' fees for services before an appellate court.
Rule 47C's own language indicates that it is not a rigid
jurisdictional rule. First, this Court has the power to grant
attorneys' fees on its own motion. 8th Cir. R. 47C(a).
Second, whether the fee award is on its own motion or that of
the party seeking compensation, this Court retains the
discretion to remand the question to the District Court,
instead of determining the award itself. 8th Cir. R. 47C(b).
The Rule thus preserves multiple procedural options for the
determination of attorneys' fees.
The choice of procedure should not obscure the end goal:
calculation of a fair award. It would be mere procedural
contortion to reverse the District Court's award only to
award fees to the school districts on our own motion, which
we would be inclined to do rather than allow services
necessary to enforce the settlement agreement to go
uncompensated. Therefore, we hold that the District Court had
jurisdiction to make the award, and we review its amount for
abuse of discretion. See Winter v. Cerro Gordo County
Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991).
Id., at 696-97 (footnote omitted).
it would have been prudent for Plaintiffs to follow the usual
practice of filing a motion for any appeal-related attorney
fees in the Court of Appeals, see Id. at 697 n. 2
(8th Cir. 1997) (noting that even before the Court's
adoption of Rule 47C, “the preferred practice was for
the appellate court to decide appellate fee awards”),
their failure to do so does not deprive this court of
jurisdiction. The court must next decide whether
Plaintiffs' motion is timely, an issue that was not
raised in the Little Rock Sch. Dist. case.
contend Plaintiffs' motion is untimely under Rule 47C(a),
which specifies that “[a] motion for attorney fees ...
shall be filed with the clerk within 14 days after the entry
of judgment.” Because “[a] judgment is entered
when it is noted on the docket, ” Fed. R. App. P.
36(a), there can be no doubt that the deadline for Plaintiffs
to file a motion for attorney fees in the Court of Appeals
was June 25, 2018.
do not argue that Rule 47C applies directly to the district
courts in this circuit. It is, after all, “a rule of
procedure for the Court of Appeals.” Little Rock
Sch. Dist., 127 F.3d at 696. See Fed. R. App.
P. 47(a)(1) (“Each court of appeals ... may ... make or
amend rules governing its practice, ” except that
“[a] local rule must be consistent with” the
Federal Rules of Appellate Procedure.); see also
Fed. R. App. P. 1(a)(1) (“These rules govern procedure
in the United States courts of appeals.”).
instead argue that the same 14-day deadline should apply in
the district court, and that Plaintiffs “should not be
allowed to recover simply because they withheld their
application hoping to file it in their jurisdiction of
choice” (Filing 712, p. 4). While this might be a
relevant consideration in determining whether to grant
Plaintiffs' motion, see Little Rock Sch. Dist.,
127 F.3d at 696, it does not go to the issue of
“timeliness.” Plaintiffs admit that their motion
for attorney fees “does not comply with the Eighth
Circuit Court of Appeals Local Rule 47C” (Filing 708,
p. 5). They contend the applicable rule is Rule 54(d)(2) of
the Federal Rules of Civil Procedure. This rule, which is
also relied upon by Defendants, provides in part:
(A) Claim to Be by Motion. A claim for
attorney's fees and related nontaxable expenses must be
made by motion unless the substantive law requires those fees
to be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a
statute or a court order provides otherwise, the motion must:
(i) be filed no later than 14 days after the entry of
Fed. R. Civ. P. 54(d)(2). Plaintiffs contend “[t]he
Court of Appeals' judgment was entered in the district
court upon issuance of the mandate” on July 24, 2018
(Filing 708, p. 2), while Defendants contend “entry of
judgment” occurred in the Court of Appeals, on June 11,
in the Federal Rules of Civil Procedure,
“judgment” is defined to “include[ ] a
decree and any order from which an appeal lies.”
See Fed. R. Civ. P. 54(a). Even if the term
“appeal” is broadly construed to include
discretionary review by petition for writ of certiorari,
see Fed. Election Comm'n v. NRA Political Victory
Fund, 513 U.S. 88, 100 (1994) (Stevens, J., dissenting)
(Although the term ‘appeal' may be construed
literally to encompass only mandatory review, a far more
natural reading of the term ... would embrace all appellate
litigation whether prosecuted by writ of certiorari, writ of
mandamus, or notice of appeal.”), it would still
require a “strained construction” of Rule
54(d)(2) to conclude that judgment is entered when the Court
of Appeals' mandate issues. Cf. Murphy v. L & J
Press Corp., 577 F.2d 27, 29 (8th Cir. 1978) (local rule
requiring the filing of a bill of costs within 10 days
“after entry of a final judgment or decree, ” if
read literally, “could not be applicable to the
taxation of appellate costs in the district court since
district court proceedings after an appellate judgment must
await issuance of the mandate, which normally follows the
appellate judgment of twenty-one days, and the District
Court's implicit construction of ‘final judgment or
decree' to mean, in an appellate context, ...