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Ashley v. Atlantic Richfield Co.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


argued: February 10, 1986.

BETTY J. ASHLEY, APPELLANT,
v.
ATLANTIC RICHFIELD COMPANY

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 84-1714).

Author: Higginbotham

Before: HIGGINBOTHAM and STAPLETON, Circuit Judges, and TEITELBAUM, District Judge.*fn*

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This appeal arises from the second order of the district court denying appellant's application for attorney's fees under the Civil Rights Attorneys' Fees Award Act, 42 U.S.C. § 1988, after settlement on the merits of her claim of employment discrimination on the basis of race. For the reasons set forth below we will reverse and remand to the district court for proceedings consistent with this opinion.

I.

Betty J. Ashley was employed by Atlantic Richfield Company ("Arco") from August 2, 1976 to March 2, 1983, at which time she was discharged from her position as the Senior Secretary for Arco. Following her discharge, appellant initiated an action pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 alleging that her termination was racially motivated. After a series of negotiations, the parties agreed to settle their dispute. Accordingly, the district court entered an order on September 24, 1984 that dismissed the action with prejudice, pursuant to agreement of counsel without costs except as provided by Local Rule 42(d).

Subsequently, counsel for Arco prepared a proposed general release and settlement agreement and submitted it to Ashley's attorney, Steven M. Kramer. Kramer refused to endorse the document, specifically objecting to language releasing Arco from liability for attorney's fees. Eventually, on October 24, 1984, a revised document was signed by the parties. The agreement provided that Arco make payment to Ashley in the sum of $7,500.00. In addition, Ashley received non-monetary relief consisting of Arco's agreement to seal Ashley's employment record for ten years and to inform prospective employers that she was "qualified" for the work she had performed. The revised settlement and release agreement was silent on the issue of attorney's fees.

Approximately one month after the settlement and release had been signed appellant's attorney filed an application for counsel fees and costs. The application was vehemently opposed by appellee principally on the ground that Arco considered their agreement to pay Ashley $7,500 a "nuisance settlement." As such, Arco argued that it was unwilling to pay any more and would rather proceed to trial than bear the costs of appellant's attorney's fees. Thereafter, the district court entered an order and opinion denying appellant's application on the ground that plaintiff was not the prevailing party because she had obtained only 23% of her potential back pay recovery and she had not 'essentially succeeded' on her claims for non-monetary relief. App. at A-215. Ashley responded with a timely motion for reconsideration in which she informed the court that, having discharged her statutory duty to mitigate damages by obtaining alternative employment, she had actually recovered over 50% of the potential back pay award. Ashley further contested the district court's finding that the non-monetary relief received was insubstantial and did not entitle her to an award of attorney's fees. In a brief memorandum opinion the district court again rejected Ashley's claims, restating its prior position with regard to Ashley's non-monetary claims, and holding that notwithstanding Ashley's asserted 50% back pay recovery, "she is still not the prevailing party" because Arco "considered the $7,500 a nuisance settlement since it would have at least cost that amount to defend the case." App. at A-228. Accordingly, the district court affirmed its prior judgment and entered a second order denying appellant's requested fees and costs. This appeal followed.

We consider three issues. First, whether the settlement between the parties was a "nuisance settlement" so that appellant did not prevail. Second, whether, assuming arguendo that appellant did prevail, she has waived her right to an award of attorney's fees. And, finally, whether the agreement signed by the plaintiff releasing defendant of all costs encompasses attorney's fees.

II.

Nuisance Settlement

Pursuant to the Civil Rights Attorneys' Fees Awards Act of 1976 ("section 1988"),*fn1 a plaintiff who prevails in a civil rights action is "ordinarily [entitled to] recover an attorney's fee unless special circumstances would render such an award unjust." See Newman v. Piggie Park Enters, 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968) (per curiam), quoted in S. Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912. "The standard used in this circuit for determining a plaintiff's prevailing party status is whether plaintiff achieved 'some of the benefit sought' by the party bringing the suit." NAACP v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1167 (3d Cir. 1982), cert. denied, 460 U.S. 1052, 75 L. Ed. 2d 930, 103 S. Ct. 1499 (1983); see also Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 910-12 (3d Cir. 1985) (reaffirming the Wilmington Medical Center standard in light of the United States Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)). Moreover, in order to be deemed a shaving prevailed, plaintiffs need not obtain relief "identical to the relief they specifically demanded, as long as the relief obtained is of the same general type." Institutionalized Juveniles, 758 F.2d at 912. Plaintiff need only demonstrate that she obtained some of the benefit sought and that the relief obtained was causally connected to the prosecution of the complaint. See Wilmington Medical Center, 689 F.2d at 1171. That a plaintiff's claim terminates in an out-of-court settlement or consent decree does not preclude prevailing party status. See Institutionalized Juveniles, 758 F.2d at 911-12 (citing Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982)). Thus, in applying the test we first "compare the relief sought with that actually obtained, . . . [and] the fact that relief was obtained by way of settlement is only a factor to be taken into account in deciding the second step required by the case law in this circuit; the causal connection between the relief obtained and the lawsuit."*fn2 Disabled In Action of Pennsylvania v. Pierce, 789 F.2d 1016, slip op. at 6 (3d Cir. May 1, 1986). Finally, the fact that plaintiff prevailed through settlement does not extinguish or attenuate her claim for attorney's fees. As noted in the Supreme Court's seminal opinion, Maher v. Gagne, 448 U.S. 122, 131, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980), "nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated."

A. Monetary Relief

In the case sub judice, Ashley sought relief in the form of a judgment in her favor, compensatory and punitive damages, counsel fees and costs, and such other relief as the court deemed just.*fn3 See App. at A-216. Guided by the principles enunciated above, we turn to consider the monetary relief obtained by Mrs. Ashley to determine whether such relief -- albeit obtained via settlement -- supports a determination of prevailing party status. Absent special circumstances, such a determination would entitled Ashley to an award of attorney's fees under § 1988.

Ashley received a total of $7,500 from Arco in settlement of her claim. The district court, however, refused to award attorney's fees on the basis of Ashley's monetary recovery. Indeed, the court declined to make a finding under § 1988 whether Ashley was the prevailing party on any of her claims for monetary relief,*fn4 noting instead that defendant Arco considered the resolution of Ashley's claims as a nuisance settlement. The assertion of a purported nuisance settlement, however, does not circumvent application of the Civil Rights Attorneys' Fees Act.

In analyzing Arco's "nuisance settlement"*fn5 argument, it is helpful to turn to some of the few reported cases in which the concept has been discussed.*fn6 In Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C. 1976), aff'd sub nom. Parker v. Califano, 182 U.S. App. D.C. 322, 561 F.2d 320 (D.C. Cir. 1977),*fn7 the district court considered whether a party who settled her employment discrimination claim could be a "prevailing party" entitled to attorney's fees. Noting that to hold otherwise would promote full-scale litigation in civil rights cases, the district court issued the caveat that although fee awards should be generally available to plaintiffs who prevail through settlement "attorneys' fees should not be awarded in nuisance settlements." The court continued, however: "Therefore, to avoid an abuse of the attorneys' fees provision, there must be some additional measure employed by the courts to determine whether the plaintiff is in fact the 'successful party.'" The "additional measure" employed by the Parker court consisted of a formula "focusing particularly on the necessity for bringing the action and whether the party is the successful party with respect to the central issue -- discrimination." 411 F. Supp. at 1064. Thus, in addressing the ultimate inquiry -- "whether the plaintiff was in fact the 'successful party,'" -- the Parker court centered its examination on an assessment of the benefit conferred upon the plaintiff, as opposed to the burden borne by the defendant. Cf. Institutionalized Juveniles, 758 F.2d at 912 (focus of the prevailing party analysis is on "the relief actually obtained"); Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979) (focus is on "relief ultimately received by the plaintiff"). Similarly, in Forrest v. New York City Criminal Justice Agency, 549 F. Supp. 211 (1982), in considering whether the settlement entered into by the parties was a "nuisance settlement" precluding a finding that plaintiff had prevailed, the district court implicitly refused to forgo the conventional inquiry under § 1988 -- whether the benefit obtained justifies the conclusion that plaintiff had prevailed. Finding that due to plaintiff's apparent mitigation of damages, the negotiated settlement amounted to approximately one-half of the relief requested, the district court held that the plaintiff had in fact prevailed and, accordingly, granted plaintiff's motion for an award of attorney's fees.

Chicano Police Officer's Association v. Stover, 624 F.2d 127 (1980), addressed arguments in opposition to a fee award similar to those adopted by the district court and urged upon this court in the instant appeal.*fn8 In Stover, the defendants argued, inter alia, that "the sum paid was about what a legal defense would have cost it and was paid only to end a lengthy and disruptive lawsuit, not as compensation on the merits," 624 F.2d at 130, and therefore, the plaintiff could not be deemed to have prevailed. The Tenth Circuit rejoined, and we concur, that such a view of what constitutes a prevailing party is too narrow.

To fully appreciate the intended scope of the prevailing party analysis, the policy objectives that inspired the enactment of § 1988 must be considered. "In enacting § 1988, Congress rejected the traditional assumption that private choices whether to litigate, compromise, or forgo a potential claim will yield a socially desirable level of enforcement as far as the enumerated civil rights statutes are concerned." Hensley, 461 U.S. at 444 (Brennan, J. concurring in part, dissenting in part). Rather, Congress recognized that "in many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer," and concluded that "if our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases." S. Rep. No. 1011, 94th Cong., 2d Sess. 2, 6, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5910, 5913. Thus, in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), the Supreme court observed that the prevailing party standard is a "generous formulation" that entitles even those civil rights plaintiffs who obtain only partial relief to an award of attorney's fees. See Hensley, 461 U.S. at 433, 436-37; cf. Institutionalized Juveniles, 758 F.2d at 911 n.25 ("[A] party can be eligible for attorneys' fees, albeit at a reduced amount, even though that party . . . had obtained only 'minor relief"); 2 A. Larson, Employment Discrimination § 58.15(c) (1985) ("The fact that plaintiff prevails on some issues but not others may affect the amount of the award but does not mean that plaintiff is not 'prevailing.'"); accord Inmates of Allegheny County Jail v. Pierce, 716 F.2d 177 (3d Cir. 1983), modifying Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978). Indeed, Hensley teaches that even "minor" relief may justify an appropriately reduced award. 461 U.S. at 439 n.14. The important factor in establishing entitlement to a fee award is that plaintiffs' rights are vindicated, and "if a settlement provides some benefit to plaintiffs or some vindication of their rights, then the congressional intent to encourage private enforcement of civil rights . . .will be furthered by the awarding of fees." Stover, 624 F.2d at 131. In sum, when a plaintiff obtains "some of the benefit sought" through a settlement, she is a prevailing party and will be entitled to a fee award unless the court finds it to be an exceptional case. Once it is determined that a plaintiff has in fact prevailed, the Hensley analysis which provides that the fee award bear some relation to the relief obtained, 461 U.S. at 440, will normally do justice to a defendant who is settling primarily to avoid litigation expense. Therefore, we hold that, consistent with the case law in this circuit and the policy objectives of § 1988, the threshold determination of prevailing party status that serves to entitled a plaintiff to a reasonable award of attorney's fees may not be jettisoned by the assertion of a nuisance settlement.*fn9 Section 1988 requires a preliminary determination whether plaintiff prevailed. Cf. White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 451-52, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1981) ("The court's decision of entitlement to fees will . . . require an inquiry separate from the decision on the merits -- in inquiry that cannot even commence until one party has 'prevailed.'"). Failure to make that determination saps the statute of its content and thwarts its application.

In the instant appeal, the district court failed to assess the benefit conferred upon Mrs. Ashley to ascertain whether she had prevailed. If, however, as Ashley contends, she duly mitigated her damages by securing alternative employment and thereby obtained a settlement in excess of 50% of her potential recovery, she would qualify as a prevailing party. Although not the sole basis upon which a finding of prevailing party status may lie, Ashley's contention, if true, would entitle her to an award of reasonable attorney's fees under the standard applied in this circuit. Thus, to the extent that the district court considered the assertion of a nuisance settlement as dispositive of the issue whether plaintiff prevailed in the underlying settlement, it applied the wrong legal standard and circumvented compliance with the congressional directive of § 1988. We therefore remand for a determination consistent with the standard set forth above whether plaintiff prevailed on her claim for back pay.

B. Non-monetary Relief

Appellant's requests for non-monetary relief consisted of (1) the removal of certain documents from her employee file, (2) a statement that she was "competent" for the work she performed, and (3) an assurance form Arco that it would not issue negative reports on her work performance. The relief ultimately obtained by Ashley was an agreement from Arco to steal her employee file for a period of ten years and to issue a statement to prospective employees that Ashley was "qualified" to do the work she performed.*fn10 Arco further agreed that if for reasons specified in the agreement, the review of Ashley's file became necessary, notification would be issued to her by Arco's legal division. The district court denied appellant's fee petition holding that she had not vindicated any of her rights because the "defendant merely followed its usual procedures with respect to all of plaintiff's non-monetary requests." App. at A-228. We now reverse.

Arco maintains (1) that "company policy prohibits removal of documents from a file," (2) that "a discharged employee's personnel file is a s a matter of course sent to storage and never again referred to absent special circumstances," and (3) that "responses to inquiries about former employees are limited to the person's beginning and ending dates of employment, and their final position." Brief on Behalf of Defendant-Appellee at 24-25. Although there is no record evidence to either substantiate or invalidate Arco's characterization of its company policy, even if true, it does not sustain the conclusion that Ashley did not prevail. As this court recently noted, plaintiffs need not obtain relief "identical to the relief they specifically demanded, as long as the relief obtained is of the same general type." Institutionalized Juveniles, 758 F.2d at 912. In addition, if a plaintiff is also successful in "moving the defendant to do more than it was already committed to do," she will be deemed to have prevailed. Disabled In Action, 789 F.2d 1016, slip op. at 7.

We find that the sealing of Ashley's employee file for a period of ten years essentially grants her the type of relief sought in her request for the removal of certain documents from her file. By precluding review of her file altogether, with limited exceptions, Arco provides Ashley with the assurance that the existence of the documents she wished removed will be virtually innocuous. In addition, nothing in the record suggests, and Arco has not averred, that former employees are routinely notified if their files are subject to review. Ashley has secured the right to such notification and, implicitly, a right to contest any proposed review. See supra note 8. Similarly, we do not find the distinction between a statement that Ashley was "qualified" as opposed to "competent" to perform the work for which she was hired of such magnitude as to preclude prevailing party statutes. Although the terms are not synonymous or completely "identical to the relief [Ashley] specifically demanded," they are sufficiently similar so as to constitute "relief . . . of the same general type." See Institutionalized Juveniles, 758 F.2d at 912. Finally, Ashley received some assurance that in situations where conventional Arco policy may not apply, Arco would be nevertheless precluded form issuing negative statements. The language of the settlement agreement makes clear that if prospective employers submit their own questionnaires to Arco with respect to Ashley's employment, thereby permitting deviation from standard Arco policy, "under no circumstances can the information provided be less favorable than' the statement that Ashley was qualified to perform her duties. App. at A-20.

As appellees concede, taking its policy characterizations as true, "each [element of Ashley's non-monetary relief] was a minor deviation from [Arco] company policy." Brief on Behalf of Defendant-Appellee at 24 (emphasis added). Ashley obtained some of the benefit sought and moved Arco to do something more than it was committed to do. Hence, Ashley prevailed on her claims for non-monetary relief and is entitled to a fee award. Therefore, we will remand to the district court for computation of a reasonable fee award on Ashley's non-monetary claims.

III.

Fee Waiver

Arco argues that even if we accept appellant's position that she prevailed on any or all of her underlying claims, she is nevertheless not entitled to an award of attorney's fees because whatever rights she had were waived when she signed the settlement agreement. Ashley, however, points to the chronology of events surrounding the drafting of the settlement agreement and contends that no waiver of fees occurred. In addition, Ashley argues that this court's decision in El Club Del Barrio v. United Community Corp., 735 F.2d 98 (3d Cir. 1984), is controlling and resolves the waiver issue in her favor.

As discussed supra, the initial settlement agreement prepared by Arco and submitted to Kramer, Ashley's counsel, contained language which unambiguously waived Ashley's statutory right to attorney's fees. Kramer objected to the language and refused to sign. Subsequently, a revised agreement deleting all references to attorney's fees was prepared by counsel for Arco. Prior to the execution of the revised agreement, counsel for Arco maintains that in response to the question whether Ashley was seeking attorney's fees, Kramer responded, "I am not taking a position." The agreement was signed nonetheless by court recently held, on similar facts, that where a settlement agreement is silent on the issue of attorney's fees "the best rule of law would be one that places the burden [or proving waiver] on the party losing the underlying litigation. If the parties cannot agree on counsel fees and the losing party wishes to foreclose a suit under section 1988 for attorneys fees, it must insist that a stipulation to that effect be placed in the settlement agreement."*fn11 El Club Del Barrio, 735 F.2d at 101. For the reasons set forth below, we hold that the principle enunciated in El Club Del Barrio obtains in the instant appeal, and consequently, appellant has not waived her rights to an award of attorney's fees pursuant to § 1988.

In El Club Del Barrio a plaintiff who had prevailed in the underlying settlement instituted an application for an award of attorney's fees pursuant to § 1988. During the course of negotiations plaintiff had drafted an agreement expressly reserving plaintiff's right to seek attorney's fees notwithstanding settlement on the merits. Defendants objected to the reservation and ultimately, a revised agreement, silent on the issue of attorney's fees, was endorsed by both parties. Defendants opposed the subsequent fee application arguing that the silence of the settlement agreement on the issue of attorney's fees together with plaintiff's conduct during the negotiations evinced a waiver of plaintiff's right to a fee award. Both parties in El Club Del Barrio -- as in the case sub judice*fn12 -- invoked this court's ruling in Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977), which disapproved the simultaneous negotiation of settlements on the merits and attorney's fees, as a partial explanation for their conduct. After oral argument in the instant appeal, however, the United States Supreme Court issued its opinion in Evans v. Jeff D.,*fn13 475 U.S. 717, 89 L. Ed. 2d 747, 106 S. Ct. 1531, (1986), in which the Court was unanimous in concluding "that the Fees Act [§ 1988] should not be interpreted to prohibit all simultaneous negotiations of a defendant's liability on the merits and his liability for his opponent's attorney's fees."*fn14 106 S. Ct. at 1543 n.30. To the extent that Prandini constitutes an absolute ban on simultaneous fee negotiation, then, it has been overruled. That Prandini has been overruled, however, does not vitiate the vitality of El Club Del Barrio. The rule enunciated in El Club Del Barrio was announced in spite of Prandini, not on the basis of it.*fn15 Moreover, consistent with the spirit of Evans, the requirement that negotiated fee waiver be expressly contained in the settlement agreement will result in informed settlements*fn16 -- prejudicing neither plaintiff nor defendant -- and effectively extinguish most post-settlement petitions for fee awards. Thus, El Club Del Barrio is neither inconsistent nor incompatible with the reasoning of Evans. While Evans decides the propriety of fee waivers, El Club Del Barrio merely determines the form they must take.

Of course, where plaintiffs fail to prevail under the standard applied in this circuit, no entitlement to attorney's fees attaches. Where the plaintiff does so prevail, however, in the absence of an express waiver, she will be deemed to have retained her statutory right to an award of reasonable attorney's fees. Therefore, where a defendant seeks to settle its total liability on a claim, it shall be incumbent upon the defendant to secure an express waiver of attorney's fees.*fn17 Silence will not suffice.*fn18

Although Arco offers decisions from two other circuits as support for the silence equals waiver rule, see Brown v. General Motors Corp., Chevrolet Div., 722 F.2d 1009, 1012 (2d Cir. 1983) (stipulation that action be dismissed 'without costs to any party' is intended to settle all claims, including a claim for attorney's fees); Jennings v. Metropolitan Gov't of Nashville, 715 F.2d 1111, 1114 (6th Cir. 1983) (silence of the agreement notwithstanding, the record supported "the single inference that the parties agreed to settle their dispute in full [including the issue of attorney's fees]"),*fn19 we think the congressional policy of § 1988 will be enhanced by adherence to the contrary position. As we observed in El Club Del Barrio, the "'silence equals waiver' rule . . . pays inadequate attention to the presumption established in Hensley and Piggie Park in favor of [fee awards to] prevailing civil rights plaintiffs." 735 F.2d at 100. Our approach avoids that result and thus furthers the nationally legislated, preferred policy of Congress.*fn20 While statutory rights may be voluntarily bargained away by the party so entitled, they may not be assumed away by the party opposing their enforcement. With or without the Prandini prohibition, it is not unreasonable to expect defendants to presume that where a civil rights plaintiff satisfies the statutory requirements of § 1988, she is at liberty to invoke the provisions of the statute so as to entitle her to an award of reasonable attorney's fees. Indeed, the presumption inheres in the existence of the statute itself. Nor do we find Ashley's counsel's refusal to take a position on the fee issue sufficiently "misleading" to overcome that presumption.*fn21

In the instant appeal, Arco is virtually indistinguishable from defendants against whom fee liability was imposed in El Club Del Barrio. Having failed to secure an express waiver of plaintiff's statutory entitlement to attorney's fees -- albeit due to a side-effect of Prandini -- Arco may not, in effect, abrogate congressional intent and extinguish Ashley's claim (to the extent that she has prevailed) to a fee award either because the parties did not discuss attorney's fees or failed to reach an agreement on them. Section 1988 does not require that prevailing plaintiffs affirmatively reserve their rights under the statute as a condition precedent to its enforcement.

IV.

Costs

Finally, we briefly consider whether the settlement agreement releasing defendant from all costs encompasses a release of attorney's fees. At oral argument Arco argued that the Supreme Court's decision in Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985), moots the prevailing party question because Chesny held that attorney's fees provided by § 1988 are included among taxable costs. While acknowledging that Chesny involved an interpretation of federal Rule of Civil Procedure 68, Arco nevertheless suggests that Chesny primarily considers the proper construction of the costs provision of § 1988. From this Arco reasons that the settlement agreement released it from liability for all § 1988 costs which include attorney's fees. Arco misreads the Court's decision.

Chesny involved the interplay between Rule 68*fn22 of the Federal Rules of Civil Procedure and § 1988. Rule 68 is a cost-shifting mechanism which provides that a prevailing plaintiff must pay the defendant's "costs" if she rejects a settlement offer which exceeds the amount recovered after trial. Under § 1988, however, a prevailing plaintiff is ordinarily entitled to a reasonable fee award. Newman v. Piggie Park Enters., 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968) (per curiam). thus, the issue in Chesny involved not the definition of costs under § 1988, but rather, the scope of the costs provision of Rule 68. In determining "whether attorney's fees incurred by a plaintiff subsequent to an offer of settlement under . . . [Rule 68] must be paid by the defendant under . . . § 1988, when the plaintiff recovers a judgment less than the offer," 105 S. Ct. at 3014, the Court held that "where the underlying statute defines 'costs' to include attorney's fees, . . . such fees are to be included as costs for purposes of Rule 68." Id. at 3017. Because § 1988 provides that attorney's fees may be recovered "as part of the costs," see supra note 1, a prevailing plaintiff who recovers less than a defendant's Rule 68 offer must bear her own post-offer costs, including attorney's fees. The intended effect of Chesny is to deny to prevailing plaintiffs fee awards for post-offer services that do not produce any additional monetary benefit for the plaintiff. Id. at 3018.

Arco's argument seeking to extend Chesny to the instant appeal fails for several reasons. First, Rule 68 requires a formal submission to the court of the offer and acceptance after which judgment will be entered against the defendant. Here there was no formal submission, and more important, judgment was not entered against Arco. Second, a Rule 68 offer must include an offer to pay all costs accrued at the time of the offer. In Chesny the court noted that "it is immaterial whether the offer recites that costs are included, whether it specifies the amount the defendant is allowing for costs, or for that matter, whether it refers to costs at all. As long as the offer does not implicitly or explicitly provide that the judgment not include costs, a timely offer will be valid." Chesny, 105 S. Ct. at 3016. The settlement agreement in the instant appeal expressly released defendant form all costs.*fn23 Finally, and more fundamentally, Rule 68 by its own terms applies to release defendants from costs where an offer is rejected. Ashley and Arco entered into a negotiated settlement that was accepted by both parties. Chesny neither mandates nor encourages the exclusion of attorney's fee liability in all civil rights settlement agreements. To read Chesny any other way would indeed undercut the Court's approval of simultaneous fee negotiation in Evans.

In sum, Chesny is simply inapplicable to this appeal. The Supreme Court did not purport to establish a uniform definition of costs that is coterminous with attorney's fees.*fn24 Chesny governs actions in which Rule 68 is invoked. There is no formal Rule 68 offer in the instant proceeding. Nor are the policy objectives undergirding Rule 68 remotely implicated by this appeal.*fn25 We do not consider here the construction of a costs provision of a statute or a rule. Rather, we seek to determine the content of costs as employed in a negotiated settlement agreement. We conclude that it is clear on this record that the parties did not consider "costs" to be inclusive of attorney's fees.*fn26 The original draft agreement included language referring to attorney's fees. Upon objection from Ashley's counsel, the parties agreed to delete that language while that referring to costs was retained. Thus, the agreement signed by the parties did not include a release of defendant's potential liability for attorney's fees.

The agreement does provide, however, for a general release of Arco's liability for Ashley's traditional costs. The district court dismissed the action without costs to either party except as provided by Local Rule 42(d)*fn27 and subsequently refused to grant an award of costs to Ashley. Appellants have advanced no argument why that decision should be disturbed. Accordingly, we will affirm the district court's denial of costs to Ashley.

V.

Conclusion

We hold that the district court failed to make the requisite finding under § 1988 whether appellant prevailed on the monetary claims for relief. We therefore will remand for a determination whether appellant prevailed on her claim for back pay. We will reverse the district court's finding that appellant did not prevail on her non-monetary claims for relief and, accordingly, remand for a computation of a reasonable fee award on those claims. We will affirm the district court's denial of costs to appellant.


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