Abbott v. City of Bellevue , 310 Neb. 496 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/03/2021 09:07 AM CST
- 496 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496Christopher Abbott et al., appellants, v.
City of Bellevue, Nebraska, appellee.
___ N.W.2d ___
Filed December 3, 2021. No. S-20-700.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Attorney Fees. Generally, a party may recover attorney fees and
expenses in a civil action only if provided for by statute or if a recog-
nized and accepted uniform course of procedure allows the recovery of
attorney fees.
4. Civil Rights: Actions. A civil remedy is provided under 42 U.S.C.
§ 1983 (2012) for deprivations of federally protected rights, statutory or
constitutional, caused by persons acting under color of state law.
5. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
awarding or denying attorney fees will be upheld absent an abuse of
discretion.
6. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
7. Federal Acts: Attorney Fees. A plaintiff is a prevailing party under 42
U.S.C. § 1988 (2012) if the plaintiff obtains actual relief on the merits
of his or her claim that alters the legal relationship between the parties
by modifying the defendant’s behavior in a way that directly benefits
the plaintiff.
- 497 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496Appeal from the District Court for Sarpy County: Michael
A. Smith, Judge. Affirmed in part as modified, and in part
reversed and remanded for further proceedings.
Thomas P. McCarty and Gary L. Young, of Keating, O’Hara,
Nedved & Peter, P.C., L.L.O., for appellants.
A. Bree Robbins, Bellevue City Attorney, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After the City of Bellevue, Nebraska (City), increased the
amount it regularly deducted from its police officers’ pay-
checks to fund their retirement plan, a group of officers and
their union filed suit alleging that this action violated their
rights under the U.S. and Nebraska Constitutions. With respect
to some officers, the district court found that the City unconsti-
tutionally impaired its contractual obligations. As a remedy, the
district court ordered the City to insert certain language into
the document governing the retirement plan. Those officers and
their union appeal. They contend that the language the district
court ordered the City to insert into the retirement plan will
actually reduce their retirement benefits. They also argue that
the district court erred by finding that they were not “prevail-
ing part[ies]” for purposes of 42 U.S.C. § 1988 (2012) and thus
not entitled to attorney fees and costs. We find these arguments
have merit. We affirm in part as modified, and in part reverse
and remand for further proceedings.
BACKGROUND
Earlier Dispute Over Retirement Benefits.
This is not the first time the City has found itself in litigation
with its police officers over retirement benefits. The current
dispute arises out of an attempt to resolve prior litigation, and
thus, we begin our review of the relevant background there.
- 498 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496In 2009, the Bellevue Police Officers Association/Fraternal
Order of Police Lodge No. 59 (BPOA) filed a lawsuit against
the City in the Sarpy County District Court. The BPOA sought
a declaration that a provision of a collective bargaining agree-
ment between the BPOA and the City regarding retirement
benefits was valid and enforceable.
In the provision at issue, the City agreed to provide its police
officers retirement benefits that exceeded those described in
the Police Officers Retirement Act (Retirement Act). See Neb.
Rev. Stat. § 16-1001 et seq. (Reissue 2012 & Cum. Supp.
2020). Then, as now, the Retirement Act required the estab-
lishment of a pension plan for police officers of cities of the
first class such as the City. See § 16-1001. Both the officers
and the City were required to make contributions to the pen-
sion plan described in the Retirement Act. See §§ 16-1005(1)
and 16-1006. At the time it was enacted, the Retirement Act
required officers to contribute 6 percent of their salary to a
retirement account and the City to make a matching contribu-
tion. § 16-1005(1) (Reissue 1983). See 1983 Neb. Laws L.B.
237, § 5. Upon retirement, the officer would receive the accu-
mulated value of that account. §§ 16-1002(5), 16-1007(1), and
16-1013(1) (Reissue 1983). See 1983 Neb. Laws L.B. 237,
§§ 2, 7, and 13.
In the 2009 litigation, the City took the position that the por-
tion of the collective bargaining agreement in which it agreed
to provide officers retirement benefits exceeding those pro-
vided for in the Retirement Act was unenforceable. The City
contended that the Retirement Act did not allow it to provide
benefits other than those set forth in the Retirement Act.
The district court granted a motion for summary judgment
filed by the BPOA. In its order, it found that the Retirement
Act “simply sets forth the minimum benefits that a City of the
First Class must provide to its police force. It does not prevent
a city from offering additional benefits to officers.”
The BPOA and the City then entered into a settlement
agreement covering certain officers. Under the settlement
- 499 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496agreement, covered officers would contribute 6 percent of their
salary to their retirement account and the City would make a
matching contribution. To any covered officer who retired after
reaching 55 years of age and providing at least 25 years of
service, the City agreed to pay either (1) the total sum of the
officer’s retirement account or (2) a payment based upon a per-
centage of the officer’s compensation in his or her last 5 years
preceding retirement, whichever is greater. In this opinion,
we will refer to the first type of benefit mentioned above as a
“defined contribution payment” and the second as a “defined
benefit payment.”
In the case of every officer who has retired since the settle-
ment agreement became effective, the value of the defined
benefit payment has exceeded the value of the defined contri-
bution payment. It has been the City’s practice to provide the
defined benefit payment to retiring officers by distributing the
officer’s retirement account to the officer and then making an
additional payment equal to the difference between the value
of the retirement account and the value of the defined bene­
fit payment.
Amendments to Retirement Act
and City’s Response.
After the parties entered into the settlement agreement, the
Retirement Act was amended. The amendments increased the
required contribution by both officers and cities from 6 percent
to 61⁄2 percent effective October 1, 2013, and to 7 percent effec-
tive October 1, 2015. See § 16-1005(1) (Reissue 2012).
In response to the amendments to the Retirement Act, the
Bellevue City Council adopted amendments to the City’s Police
Retirement Plan and Trust (Retirement Plan). The amendments
increased the contribution rates for both the officers and the
City, so that they were the same as those set forth in the
amendments to the Retirement Act. After the approval of the
amendments to the Retirement Plan, the City increased deduc-
tions from officers’ paychecks and its corresponding matching
- 500 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496payments as provided in the amendments to the Retirement
Plan.
After the City amended the Retirement Plan, when officers
covered by the settlement agreement retired, the City continued
its practice of paying the defined benefit payment by distribut-
ing the officer’s retirement account and then making an addi-
tional payment equal to the difference between the value of the
retirement account and the defined benefit payment.
Current Lawsuit.
In 2017, the BPOA and a number of its officers filed a
lawsuit against the City under 42 U.S.C. § 1983 (2012) and
Nebraska’s Uniform Declaratory Judgments Act, Neb. Rev.
Stat. § 25-21,149 et seq. (Reissue 2016). The lawsuit alleged
that the City had violated the Contracts Clauses and Takings
Clauses of the U.S. and Nebraska Constitutions by increasing
the officers’ contribution rates without providing any corre-
sponding benefit. In their operative complaint, the BPOA and
its officers sought an order enjoining the City from continu-
ing to make deductions from the officers’ salaries in excess of
6 percent; an order directing the City to disgorge funds it had
previously deducted from the officers’ salaries in excess of
6 percent, along with any investment income earned on those
funds; and declarations that the City had violated the Contracts
and Takings Clauses of the U.S. and Nebraska Constitutions.
The operative complaint also asserted that the BPOA and its
officers were entitled to be awarded all damages arising out
of the City’s actions and an award of costs and attorney fees
pursuant to § 1988.
District Court’s Orders.
The parties eventually filed cross-motions for summary
judgment. After a hearing, the district court issued an order
in April 2020 in which it found that the motion of the BPOA
and the officers should be granted in part. In its order, the dis-
trict court, relying on prior cases from this court, stated that
public employee retirement plans are contracts protected from
- 501 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496impairment by the Contracts Clauses of the U.S. and Nebraska
Constitutions. See, Calabro v. City of Omaha, 247 Neb. 955,
531 N.W.2d 541 (1995); Halpin v. Nebraska State Patrolmen’s
Retirement System, 211 Neb. 892, 320 N.W.2d 910 (1982).
The district court concluded that the officers’ rights under the
settlement agreement were impaired by the City’s increased
deductions from the officers’ salaries. The district court rea-
soned that after the increase in the officers’ contributions, the
defined benefit payment the officers bargained for in the settle-
ment agreement would have the same value, but would come at
a higher cost to the officers.
Although the district court’s April 2020 order determined
that the BPOA and its officers were entitled to some relief,
it withheld entry of judgment. Rather than entering specific
relief, the district court requested that counsel for the parties
provide suggestions as to the relief they believed was appropri-
ate in light of the district court’s findings.
In June 2020, after the parties submitted proposals as to
appropriate relief, the district court issued another order. This
order granted in part and denied in part the parties’ respec-
tive motions for summary judgment. It found in favor of the
BPOA and the officers based on their Contracts Clause claim
and ordered certain language inserted into the Retirement Plan.
Without expressly ruling on the Takings Clause claim or the
request for attorney fees, the district court ordered all remain-
ing claims denied and dismissed.
The BPOA and the officers filed a timely motion to alter
or amend in response to the district court’s June 2020 order.
Relevant to this appeal, they contended that the language the
district court ordered the City to insert into the Retirement Plan
contained conflicting descriptions of the City’s obligations
in the event a current officer elected to receive the defined
benefit payment upon retirement and also improperly reduced
the amount a current officer would receive if he or she elected
to receive the defined contribution payment. The BPOA and
its officers also asked that the district court make “express
- 502 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496findings” regarding their “claims under 42 U.S.C. § 1983” and
award them attorney fees and costs under § 1988.
In response to the motion to alter or amend, the district court
issued an order in September 2020 that was substantially simi-
lar to its June 2020 order in nearly all relevant respects. The
district court found that certain officers who had already retired
were not entitled to relief. These officers have not appealed
the district court’s denial of relief, and so we do not discuss
them further.
As for the officers who had not yet retired (current offi-
cers), the district court, echoing the conclusions expressed in
its previous orders, found that the increased deductions from
the officers’ salaries impaired their rights under the Contracts
Clauses. In the course of discussing the way in which the cur-
rent officers were harmed by the increased contributions, the
district court stated:
[I]f the employee were to choose the defined benefit
option, the employee is damaged by having paid the
higher contributions required under the Retirement Act
amendments. The employee’s damages in that instance
would be the sum of the higher employee contribution
and the associated earnings on those contributions. The
employee would be entitled to collect the applicable
percentage of pay on retirement (the defined benefit). As
contemplated by the agreement, the employee retirement
account, less the damages as described in this paragraph,
would belong to the City.
In a section of the order discussing the relief it would order,
the district court stated that current officers who are eligible
to receive the defined benefit payment upon retirement should
also receive “his or her retirement contribution to the retirement
account above 6 [percent] of his or her wages and any earnings
associated with those contributions.” To accomplish this result,
the district court accepted the City’s suggestion that it should
order that certain language be inserted into the Retirement Plan.
That language provided for the creation of separate accounts
for (1) the current officers’ 6-percent contributions—account
- 503 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496“EE012,” (2) the City’s 6-percent matching contributions—
account “ER012,” (3) the current officers’ contributions in
excess of 6 percent—account “EE912,” and (4) the City’s
matching contribution in excess of 6 percent—account
“ER912.” That language also provided as follows:
If a Plaintiff vests in the defined benefit and retires
under the Contract, he or she will receive the greater of:
1. His or her defined benefit under the Contract; or
2. The amounts contained within their “EE012” account
and the amounts contained in his or her “ER012”. . . .
Regardless of whether a Plaintiff elects the defined
benefit (#1 above) or the amounts in his or her account
(#2 above), he or she will receive 100% of the funds in
the “EE912” Account.
Where the defined benefit is greater and a Plaintiff
retires under the Contract defined benefit, the City shall
be liable for the difference between the defined benefit
amount and the “EE012 . . . /ER012” accounts.
CALCULATION FOR MAY 9, 2011
DEFINED BENEFIT CALCULATION:
[Defined Benefit Amount]
– [EE012 + ER012]
= City Liability
In addition, the Plaintiff would also get to keep their
“EE912” Account.
City receives 100% of their “ER912”Account.
(Emphasis and brackets in original.)
The September 2020 order included a paragraph regarding
the request for attorney fees made by the BPOA and its offi-
cers. It observed that no officer that was a party to the case
had retired and been deprived of a right under the settlement
agreement. The district court then stated, “Given the contingent
nature of that future possibility of damage, it is difficult to
come to the conclusion that the [BPOA and the current offi-
cers] are the prevailing party.”
- 504 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496Finally, the district court ordered that “all remaining claims
are denied and dismissed.”
The BPOA and the current officers filed a timely notice
of appeal and petition to bypass. We granted the petition
to bypass.
ASSIGNMENTS OF ERROR
The BPOA and the current officers assign 10 errors, but
in our view, they can be fairly condensed and restated as fol-
lows: The district court erred by (1) ordering a remedy that
will reduce the current officers’ defined benefit payments,
(2) ordering a remedy that could reduce the current officers’
defined contribution payments below the minimum benefits
required by the Retirement Act, (3) denying the request for
attorney fees and costs on the grounds that the BPOA and the
current officers were not “prevailing parties” under § 1988, (4)
failing to find that the City violated § 1983, and (5) dismissing
the BPOA and the current officers’ Takings Clause claims.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of
law. Fuelberth v. Heartland Heating & Air Conditioning, 307
Neb. 1002, 951 N.W.2d 758 (2020).
[2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Id.ANALYSIS
Contracts Clause.
Although the BPOA and the current officers assign sev-
eral errors, the issues on appeal are relatively narrow when
compared to those presented to the district court. Notably, the
- 505 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496district court’s primary finding—that the City unconstitution-
ally impaired a contract—is not before us in this appeal. The
BPOA and the current officers, unsurprisingly, do not assign
error to that determination in their favor, and the City has not
filed a cross-appeal challenging it either. While we therefore
have no occasion to review the district court’s specific con-
clusion on this point, we take this opportunity to observe that
in some of our prior Contracts Clause cases, including those
upon which the district court relied, we appear not to have
considered a distinction, recognized by other courts, between
an unconstitutional contractual impairment and a mere contrac-
tual breach.
Article I, § 10, of the U.S. Constitution provides, “No
State shall . . . pass any . . . Law impairing the Obligation of
Contracts . . . .” Article I, § 16, of the Nebraska Constitution
contains substantially similar language: “No . . . law impairing
the obligation of contracts . . . shall be passed.”
The district court relied on precedent from this court in
determining whether a contractual “impairment” had occurred.
It cited language from Bauers v. City of Lincoln, 255 Neb.
572, 583, 586 N.W.2d 452, 461 (1998), in which we, quoting
an earlier opinion—Caruso v. City of Omaha, 222 Neb. 257,
383 N.W.2d 41 (1986)—stated that to be an impairment, a
change “‘must take something away and not work to the par-
ties’ benefit.’” (Emphasis omitted.) In Caruso, we reasoned
that the word “impair,” as it is used in the Contracts Clause
of the U.S. Constitution, “requires no construction and may be
given its ordinary meaning, which, according to the most basic
dictionary definition, is ‘to make worse.’” 222 Neb. at 260,383 N.W.2d at 44, citing Webster’s Third New International
Dictionary, Unabridged 1131 (1981). We offered no additional
explanation.
To the extent we concluded in Caruso that the word “impair”
should be given a plain language definition taken from a mod-
ern dictionary and, thus, that any action that makes the com-
plaining party’s rights under a contract “worse” qualifies as
- 506 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496an impairment, that view appears to be an outlier. In several
cases, federal courts of appeal have discussed the importance
of distinguishing between governmental action that impairs a
contract and governmental action that amounts to nothing more
than a contractual breach. See, e.g., Pure Wafer Inc. v. Prescott,
City of, 845 F.3d 943 (9th Cir. 2017); TM Park Ave. Associates
v. Pataki, 214 F.3d 344 (2d Cir. 2000); Horwitz-Matthews,
Inc. v. City of Chicago, 78 F.3d 1248 (7th Cir. 1996); Jackson
Sawmill Co. v. United States, 580 F.2d 302 (8th Cir. 1978).
As these courts have explained, “the distinction is crucial, not
least because conflating the two concepts would risk making a
federal constitutional case out of even the most garden variety
public contract dispute, transforming the Contract Clause into
a font of state contract law.” Pure Wafer Inc., 845 F.3d at 951.
See, also, Horwitz-Matthews, Inc., 78 F.3d at 1250 (“[i]t would
be absurd to turn every breach of contract by a state or munici-
pality into a violation of the federal Constitution”).
So, according to those courts that have considered the
matter, what is the line between a government’s breach of a
contract and its impairment of a contractual obligation? The
difference lies in whether the governmental entity has merely
failed to perform a contract as promised or has gone further
and enacted a law that prevents the other contracting party
from pursuing ordinary contract remedies for such a failure.
The former is a mere breach; the latter is an unconstitutional
impairment. See, Pure Wafer Inc., 845 F.3d at 951 (“state
action cannot be said to ‘impair’ the obligation of a contract
so long as it leaves both parties free to obtain a court-ordered
remedy (typically damages) in the event that either of them
fails to perform as promised”); Crosby v. City of Gastonia, 635
F.3d 634, 642 n.7 (2011) (“[i]f the offended party retains the
right to recover damages for the breach, the Contracts Clause
is not implicated; if, on the other hand, the repudiation goes
so far as to extinguish the state’s duty to pay damages, it may
be said to have impaired the obligation of contract”); TM Park
Ave. Associates, 214 F.3d at 349 (“[i]f a contract is merely
- 507 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496breached and the duty to pay damages remains, then the
obligation of the contract remains and there has been no
impairment”); Horwitz-Matthews, Inc., 78 F.3d at 1251 (“[t]he
essence . . . of a breach of contract is that it triggers a duty
to pay damages for the reasonably foreseeable consequences
of the breach. If the duty is unimpaired, the obligation of the
contract cannot be said to have been impaired”).
Although an argument could be made that our opinion
in Caruso v. City of Omaha, 222 Neb. 257, 383 N.W.2d 41(1986), adopted a definition of “impair” that did not account
for the distinction between impairment and breach recognized
by other courts, we need not determine today whether the
Caruso definition should be reconsidered. As we have noted,
the district court’s conclusion that the City unconstitution-
ally impaired the contract has not been challenged on appeal.
We thus proceed to consider the various assignments of error
raised by the BPOA and the current officers.
District Court’s Remedy for
Defined Benefit Payments.
The BPOA and the current officers first argue that while
the district court correctly found that the City’s actions had
impaired its contractual obligations, the district court’s remedy
for that violation will actually result in a reduction of their
defined benefit payments. The BPOA and the current officers
claim that the district court’s order shows that it intended to
order a remedy that would result in officers entitled to the
defined benefit payment receiving both the defined benefit
payment amount and the return of their contributions in excess
of 6 percent of their salaries, along with all associated earnings
on those excess contributions. According to the BPOA and the
current officers, however, the language of the district court’s
order will result in the current officers’ receiving far less.
The City does not dispute that the district court intended to
ensure that the current officers would receive both the defined
benefit payment amount and the sum of their contributions
- 508 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496exceeding 6 percent and the associated earnings on those con-
tributions. Neither does the City contend that such a remedy
would be erroneous. The City argues instead that the district
court’s order, read in context, does direct that the current offi-
cers will receive both the defined benefit payment amount and
the return of their excess contributions and associated earnings
on those contributions. The sole dispute on appeal then boils
down to whether the district court’s order actually accom-
plishes what all agree was its correct intention.
The BPOA and the current officers contend that two differ-
ent parts of the district court’s final order are in conflict with
its statement that upon retirement, the current officers should
receive both the defined benefit payment and the sum of their
contributions in excess of 6 percent and associated earnings
on those contributions. First, they point to the district court’s
statement that “[a]s contemplated by the [settlement] agree-
ment, the employee retirement account, less the damages as
described in this paragraph, would belong to the City.” Second,
they direct us to the formula the district court ordered the City
to insert into the Retirement Plan to calculate what a current
officer who elects the defined benefit payment will receive
upon retirement. The BPOA and the current officers observe
that the formula directs that if the current officers elect the
defined benefit payment upon retirement, the City is to be
liable to pay them the difference between the defined benefit
payment amount and the sum of the amounts in the EE012
and ER012 accounts and to provide them their EE912 account,
which would contain their contributions in excess of 6 percent
and associated earnings on those contributions.
We do not view the district court’s statement that the
employee retirement account “would belong to the City” as
inconsistent with its stated intention that the current officers
should receive their defined benefit payment and the return
of their contributions in excess of 6 percent along with asso-
ciated earnings on those contributions. In the context of the
paragraph in which it appears, we understand that statement to
- 509 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496communicate merely that if the City pays an officer the defined
benefit payment amount and returns his or her contributions in
excess of 6 percent along with the associated earnings on those
contributions, it is not also obligated to distribute to that officer
the amounts that have accrued in his or her retirement account
as a result of the 6-percent contributions.
The district court’s defined benefit payment formula, how-
ever, strikes us as problematic. Under the formula, an officer
eligible for the defined benefit would receive only the return
of his or her contributions in excess of 6 percent, the earnings
associated on those contributions, and the difference between
the defined benefit payment and the amounts in his or her
EE012 and ER012 accounts. Under the formula, the officer
would not receive an amount equal to the defined benefit pay-
ment and the return of his or her contributions in excess of
6 percent and the earnings associated on those contributions.
The BPOA and the current officers suggest that while the
formula the district court ordered the City to insert into the
Retirement Plan will not function as intended, it can be easily
fixed. They point out that if the formula was changed to make
clear that in addition to receiving the difference between the
defined benefit payment amount and the amounts in the EE012
account and ER012 account, an officer would also receive the
amounts in the EE912, EE012, and ER012 accounts, the officer
would receive an amount equal to the defined benefit payment
and the return of his or her excess contributions and any asso-
ciated investment income.
At oral argument, the City conceded that the BPOA and the
current officers’ proposed modification of the formula would
not result in any harm to the City. The City argued only that
in light of the rest of the district court’s order, the modifica-
tion was unnecessary. We find it significant, however, that the
district court ordered the City to insert the formula into the
Retirement Plan. We see no reason not to dispel any future con-
fusion as to the amount a current officer electing the defined
benefit payment will receive by modifying the district court’s
- 510 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496order so that the formula the City is ordered to insert into the
Retirement Plan provides as follows:
[Defined Benefit Amount]
– [EE012 + ER012]
= City Liability
In addition, the Plaintiff would also get to keep their
“EE012,” “ER012,” and “EE912” Accounts.
City receives 100% of their “ER912” Account.
District Court’s Remedy for Defined
Contribution Payments.
The BPOA and the current officers next argue other lan-
guage the district court ordered the City to insert into the
Retirement Plan would result in an unlawful reduction of
benefits in the event an officer elects to receive the defined
contribution payment. The language at issue directs that if
an officer vested in the defined benefit retires, he or she will
receive the greater of the defined benefit or “[t]he amounts
contained within their ‘EE012’ account and the amounts con-
tained in his or her ‘ER012’ [account].” The BPOA and the
current officers contend that by not also including the City’s
contributions in excess of 6 percent in the defined contribution
payment amount, an officer who elects to receive the defined
contribution payment will receive less than the Retirement
Act guarantees.
The City counters that the language to which the BPOA and
the current officers object is merely a correct application of
the settlement agreement. It contends that if a current officer
retires under the settlement agreement, he or she “ha[s] no
right to the Retirement Act benefits.” Brief for appellee at 19.
We find it unnecessary to determine whether the Retirement
Act requires the City to include its contributions in excess
of 6 percent in calculating the defined contribution payment
amount. For other reasons we will explain, we find the dis-
trict court’s order should be modified to remove the language
in question.
- 511 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496First, the amount the current officers would be entitled to
receive if they elected the defined contribution payment was
not at issue in this case. The operative complaint alleged only
that the City’s increased withholding from the officers’ salaries
was unconstitutional. The district court was not required to
determine how an officer’s defined contribution payment would
be calculated in order to resolve those constitutional claims.
Not only was the calculation of the defined contribution
payment not at issue in the case, it appears unlikely it will ever
amount to anything more than a theoretical dispute between the
parties. Recall that under the settlement agreement, an officer
receives the defined contribution payment only if it exceeds
the defined benefit payment. But as noted above, in the case
of every officer who has retired since the settlement agreement
became effective, the value of the defined benefit payment has
exceeded the value of the defined contribution payment. Both
parties also agree on appeal that it is unlikely the amounts
in any current officer’s retirement account will ever exceed
the defined benefit payment. Finally, even if at some point in
the future, the value of a current officer’s retirement account
approaches the defined benefit payment such that there is a live
controversy between the parties as to how the defined contri-
bution payment should be calculated, nothing would preclude
either party from seeking a judicial determination of that issue
at that time.
In essence, the district court entered a declaration as to how
the defined contribution payment should be calculated despite
no party requesting such a declaration and the agreement of
both parties that it is unlikely that such a calculation will ever
be necessary. This court has long held that declaratory and
injunctive relief should not be issued to adjudicate hypotheti-
cal or speculative situations which may never come to pass.
See, e.g., Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542(2017). We find the district court erred by addressing the issue
and therefore modify the district court’s order by removing the
following language:
- 512 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496If a Plaintiff vests in the defined benefit and retires
under the Contract, he or she will receive the greater of:
1. His or her defined benefit under the Contract; or
2. The amounts contained within their “EE012” account
and the amounts contained within his or her “ER012”.
The vesting schedule shall be as outlined in the Contract.
(Emphasis in original.)
Attorney Fees and Costs.
The BPOA and the current officers next contend that the
district court erred by denying their request for attorney fees
and costs under § 1988 on the grounds that they were not, for
purposes of that statute, “prevailing parties.”
[3,4] Generally, a party may recover attorney fees and
expenses in a civil action only if provided for by statute or if
a recognized and accepted uniform course of procedure allows
the recovery of attorney fees. Melanie M. v. Winterer, 290
Neb. 764, 862 N.W.2d 76 (2015). Section 1988(b), however,
provides that in “any action or proceeding to enforce a provi-
sion of [§] 1983, . . . the court, in its discretion, may allow
the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.” Section 1983 provides a
civil remedy for deprivations of federally protected rights, stat-
utory or constitutional, caused by persons acting under color of
state law. Schaeffer v. Frakes, 306 Neb. 904, 947 N.W.2d 714(2020). The BPOA and the current officers brought their claims
based on the U.S. Constitution under § 1983.
[5,6] Although a trial court’s decision awarding or denying
attorney fees is generally reviewed for an abuse of discretion,
see McGill Restoration v. Lion Place Condo. Assn., 309 Neb.
202, 959 N.W.2d 251 (2021), whether a plaintiff was a prevail-
ing party is a legal question. See Jenkins v. State of Mo., 127
F.3d 709 (8th Cir. 1997). An appellate court independently
reviews questions of law decided by a lower court. Stone
Land & Livestock Co. v. HBE, 309 Neb. 970, 962 N.W.2d 903(2021). We will thus independently review the district court’s
determination that the BPOA and the current officers were
- 513 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496not prevailing parties. See, also, id. at 973, 962 N.W.2d at
907 (“‘district court by definition abuses it discretion when it
makes an error of law’”), quoting Koon v. United States, 518
U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996).
The district court found that the BPOA and the current
officers were not prevailing parties, because they had not yet
retired and elected to receive the defined benefit payment.
The district court reasoned that until an officer did these two
things, he or she had not suffered any damage as a result of
the City’s actions. The district court concluded that the BPOA
and the current officers could not be prevailing parties if they
had not yet been damaged and there was only a possibility of
future damage.
[7] The district court’s focus on whether the BPOA and the
current officers had suffered damages was misplaced. Guided
by precedent from the U.S. Supreme Court, we have said that
a plaintiff is a prevailing party under § 1988 if the plaintiff
obtains actual relief on the merits of his or her claim that alters
the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plaintiff.
See Melanie M., supra, citing Lefemine v. Wideman, 568 U.S.
1, 133 S. Ct. 9, 184 L. Ed. 2d 313 (2012). In the same case,
again citing U.S. Supreme Court precedent, we recognized that
an injunction or a declaratory judgment will usually satisfy the
prevailing party test. See Melanie M., supra, citing Lefemine,
supra. The prevailing party inquiry is thus not focused on
whether the plaintiff has suffered damages or obtains a dam-
ages award, but whether the plaintiff has obtained relief from
the court that alters the parties’ legal relationship and requires
the defendant to modify its behavior.
The BPOA and the current officers qualify as prevailing par-
ties under the test we recited in Melanie M. The district court
found that the City unconstitutionally impaired a contract.
As a remedy, it ordered the City to insert language into the
Retirement Plan. That language required the City to separate
the officers’ and the City’s contributions into various accounts
- 514 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496and to return officers’ contributions in excess of 6 percent,
along with any associated investment earnings to those offi-
cers who retire and elect to receive the defined benefit. The
addition of this language precludes the City from continuing
to use officers’ contributions in excess of 6 percent to fund its
defined benefit payment obligations. Any current officer who
retires and elects to receive the defined benefit payment will
receive more from the City as a result of the district court’s
order. While the district court did not award damages to the
BPOA and the current officers, its order required the City to
modify its behavior and altered the legal relationship between
the parties.
The City says little about the Melanie M. test and, instead,
asserts that the district court was correct in finding that the
BPOA and the current officers were not prevailing parties for a
number of other reasons. As we will explain, we find no merit
to these arguments.
The City first contends that the BPOA and the current offi-
cers do not qualify as prevailing parties, because the issue on
which they prevailed was not significant and they were not
awarded the relief sought in their operative complaint. In sup-
port of this argument, the City relies on language from Hensley
v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40(1983). In that case, the U.S. Supreme Court stated that one
“typical formulation” of the prevailing party test was that
plaintiffs could be considered a prevailing party if “they suc-
ceed on any significant issue in litigation which achieves some
of the benefit the parties sought in bringing suit.” Id., 461 U.S.
at 433 (internal quotation marks omitted).
The City’s claim that the BPOA and the current officers did
not succeed on a significant issue requires little discussion.
The City offers nothing beyond a conclusory assertion that the
BPOA and the current officers did not prevail on a significant
issue, and in any event, we disagree that the district court’s
finding of an unconstitutional impairment of contract could be
fairly characterized as insignificant.
- 515 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496The City fares no better with its argument that the BPOA
and the current officers do not qualify as prevailing parties
because the district court did not order the relief requested.
Here, the City’s argument is that because the remedy ordered
by the district court was not the precise relief requested by the
BPOA and the current officers in their operative complaint,
they did not achieve the benefit sought in bringing suit under
Hensley, supra. The City is correct that the operative complaint
requested that the district court enter an order enjoining the
City from deducting funds from the current officers’ salaries in
excess of 6 percent and requiring the City to immediately dis-
gorge prior excess contributions. The City is also correct that
the district court did not order that relief. The City is incorrect,
however, that to be a prevailing party, a plaintiff must receive
the precise relief requested.
The language from Hensley upon which the City relies
does not require that plaintiffs obtain the relief they sought in
bringing suit; it requires they achieve “some of the benefit . . .
sought in bringing suit.” 461 U.S. at 433 (internal quotation
marks omitted) (emphasis supplied). Furthermore, the notion
that a plaintiff must obtain the precise relief sought in order to
be a prevailing party is at odds with the well-recognized princi-
ple that “the prevailing party inquiry does not turn on the mag-
nitude of the relief obtained.” Farrar v. Hobby, 506 U.S. 103,
114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). Although the
degree of a plaintiff’s success bears on how much the plaintiff
should be awarded as a reasonable fee, that question is separate
from the threshold determination of whether the plaintiff is a
prevailing party. See id.Consistent with the language from Hensley, supra, and the
prevailing party jurisprudence generally, other courts have
recognized that a plaintiff qualifies as a prevailing party if it
obtains actual relief in its favor even if the relief granted does
not mirror the relief sought. See St. John’s Organic Farm v.
Gem County Mosquito, 574 F.3d 1054, 1059 (9th Cir. 2009)
(explaining that “the relief achieved need not be of precisely
- 516 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496the same character as the relief sought in the complaint, but
it must require defendants to do something they otherwise
would not have been required to do”); J.O. ex rel. C.O. v.
Orange Tp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002)
(“[t]he relief need not be the exact relief requested as long
as it goes toward achieving the same goal”); Fast v. School
Dist. of City of Ladue, 728 F.2d 1030, 1033 (8th Cir. 1984)
(en banc) (“[i]n determining who is a ‘prevailing party’ for fee
purposes, the important thing is what relief was awarded on
the facts and the law, not what relief was expressly requested
by the pleadings”).
The City also argues that the district court’s prevailing party
decision was correct because the BPOA and the current officers
were not successful on a § 1983 claim. The City appears to
believe that when the district court dismissed all claims it had
not specifically addressed, it dismissed the BPOA and the cur-
rent officers’ sole § 1983 claim as meritless. This is incorrect.
There is no such thing as a stand-alone § 1983 claim. Section
1983 is a vehicle “for vindicating federal rights elsewhere
conferred.” Kendall v. City of Chesapeake, Va., 174 F.3d 437,
440 (4th Cir. 1999) (internal quotation marks omitted). See,
also, Chapman v. Houston Welfare Rights Org., 441 U.S. 600,
617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979) (“one cannot go
into court and claim a ‘violation of § 1983’—for § 1983 by
itself does not protect anyone against anything”). The BPOA
and the current officers used § 1983 to allege that the City
had violated the Contracts Clause and Takings Clause of the
federal Constitution. By finding that the City unconstitution-
ally impaired a contract, the district court granted the BPOA
and the current officers relief on a claim brought under § 1983.
See Calabro v. City of Omaha, 247 Neb. 955, 531 N.W.2d 541(1995) (finding that plaintiffs prevailed on § 1983 claim alleg-
ing violation of federal Contracts Clause).
In the course of arguing that the BPOA and the current offi-
cers did not prevail on their § 1983 claim, the City also claims
that the BPOA and the current officers failed to demonstrate
- 517 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496all that the U.S. Supreme Court has held a party must show in
order to obtain relief against a municipality on a claim brought
under § 1983. See, e.g., Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611(1978). This, however, is not an argument that the BPOA and
the current officers did not prevail on a claim brought under
§ 1983, but, rather, an argument that they should not have
prevailed on such a claim. If the City had filed a cross-appeal,
we would have authority to take up the question of whether the
district court erred by finding that the City unconstitutionally
impaired a contract. See Wasikowski v. Nebraska Quality Jobs
Bd., 264 Neb. 403, 648 N.W.2d 756 (2002). Because the City
did not file a cross-appeal, however, the only question before us
is whether the BPOA and the current officers prevailed on their
§ 1983 claim in the district court. That question is answered
by analyzing the relief the district court actually awarded, not
by second-guessing whether that decision was correct. See,
Dahlem v. Board of Educ. of Denver Public Schools, 901 F.2d
1508 (10th Cir. 1990); Bishop v. Committee on Professional
Ethics, Etc., 686 F.2d 1278 (8th Cir. 1982). Considering the
relief the district court awarded, we find that the BPOA and
the current officers were prevailing parties and that the district
court made a legal error by finding otherwise.
Although we find that the BPOA and the current officers
were prevailing parties in the district court, this alone does not
mean that they were entitled to an award of attorney fees and
costs. The determination of whether a plaintiff is a prevailing
party is a threshold determination that the party is eligible for
an award of fees under § 1988. See Hensley v. Eckerhart, 461
U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). And while
the U.S. Supreme Court has held that a prevailing plaintiff
“should ordinarily recover an attorney’s fee unless special
circumstances would render such an award unjust,” id., 461
U.S. at 429 (internal quotation marks omitted), the decision of
whether and to what extent to award attorney fees was com-
mitted in this instance to the discretion of the district court.
- 518 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
ABBOTT v. CITY OF BELLEVUE
Cite as 310 Neb. 496See § 1988. We therefore remand the cause to the district court
for it to reconsider that question on the existing record and in
light of our determination that the BPOA and the current offi-
cers qualified as prevailing parties.
Remaining Assignments of Error.
The remaining assignments of error asserted by the BPOA
and the current officers require little analysis. They claim
that the district court erred by dismissing their claims brought
under § 1983 and their claims that the City violated the Takings
Clauses of the U.S. and Nebraska Constitutions.
As we have explained above, the district court did not dis-
miss all of the § 1983 claims asserted by the BPOA and the cur-
rent officers. It found merit to the claim brought under § 1983
that the City had unconstitutionally impaired a contract.
The district court did dismiss the Takings Clause claims
asserted by the BPOA and the current officers, but at oral
argument, their counsel acknowledged that if they obtained the
relief they were seeking regarding the district court’s remedy
and its finding that they were not prevailing parties, it was not
necessary for us to determine whether the district court erred
by dismissing their Takings Clause claims. Accordingly, we
will not examine that issue.
CONCLUSION
Because we find that the district court erred as set forth
herein, we affirm in part as modified, and in part reverse and
remand for further proceedings.
Affirmed in part as modified, and in part reversed
and remanded for further proceedings.