Paul Jensen v. Harry Stangel , 790 F.2d 721 ( 1986 )

ORDER GRANTING APPELLANT’S REQUEST FOR ATTORNEY’S FEES UNDER 42 U.S.C. § 1988

Paul Jensen filed this action under 42 U.S.C. § 1983 against the City of San Jose (“City”) and two police officers. The district court granted summary judgment for the City, the jury decided in favor of one officer, and the other was dismissed by the court as a defendant. The district court found Jensen’s action to be “vexatious, frivolous and without foundation” and awarded attorney’s fees to Stangel and the City in the sum of $10,934.00.

Jensen appealed the attorney’s fee award, and we reversed, holding that Jensen’s claims were not frivolous, unreasonable, or without merit. Jensen v. Stangel, 762 F.2d 815 (9th Cir.1985). Because he successfully challenged the district court’s award of attorney’s fees, Jensen, pursuant to 42 U.S.C. § 1988, now moves for attorney’s fees on this appeal.

We note at the outset that section 1988 authorizes an award of attorney's fees to Jensen for his successful appeal. “[We have] construed [section 1988] as implicitly authorizing compensation for time devoted to either the pursuit or the defense of an appeal challenging the district court’s award of attorney’s fees.” In re Nucorp Energy, Inc., 764 F.2d 655, 660 (9th Cir.1985) (citing Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir.1981)).

42 U.S.C. § 1988 provides that in actions brought under 42 U.S.C. § 1983 a court may, in its discretion, award reasonable attorney’s fees to a “prevailing party.” A party is a “prevailing” party under this section if he or she succeeds “on any significant issue in litigation which achieves some of the benefit” the party sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983). The extent of the plaintiff’s success is considered only in determining the amount of the award. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941, Riviera v. City of Riverside, 763 F.2d 1580, 1583 (9th Cir.1985), cert. granted, — U.S. -, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985); Lummi, 720 F.2d at 1125.

Here Jensen achieved all the benefit he sought on his appeal from the district court’s attorney’s fee award. On appeal we held that his section 1983 claim was reasonable and not frivolous, and we reversed the judgment against him for the amount of defendants’ district court attorney’s fees. Because Jensen now has the benefit of a favorable final judgment on the merits of his fee award appeal, he is the prevailing party and is entitled to a reasonable attorney’s fee for his appeal.¹

Congress intended to encourage nonfrivolous suits by victims of discrimination when it enacted section 1988. Parks v. Watson, 716 F.2d 646, 664-65 (9th Cir.1983) (citing S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908 at 5912). Furthermore, “Congress has instructed the courts to use the broadest and most effective remedies available to achieve the goals of our civil rights laws.” S.Rep. No. 1011 at 3, reprinted in 1976 U.S.Code Cong. & Ad. News at 5910. This circuit has interpreted Congress’ mandate to require a liberal construction of section 1988 to achieve the purpose of encouraging compliance with and enforcement of the civil rights laws. American Constitutional Party v. Munro, 650 F.2d 184, 187 (9th Cir.1981).

In this appeal, we determined that Jensen’s civil rights suit was reasonable, meritorious and not frivolous and that the defendants were therefore not entitled to an attorney’s fee award by the district court. Failure to award attorney’s fees for Jensen for successfully prosecuting such an appeal would deter plaintiffs from bringing good faith actions to vindicate civil rights and produce a result contrary to the intent of Congress.

Having concluded that Jensen is entitled to attorney’s fees, we must determine the amount to which he is entitled. The amount should be “reasonable in relation to the results obtained.” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943. Because Jensen enjoyed complete success on his appeal, the entire effort of his counsel on appeal is reasonably related to the results obtained. In support of his motion for such an appeal, Jensen included affidavits of the two attorneys who worked on this appeal. The first attorney stated that he worked 17 hours and is usually compensated at $125.00 per hour. The second attorney worked 142.8 hours and usually charges $75.00 per hour. We find that both the hours worked and the rates charged are reasonable in this case. Accordingly, Jensen’s motion for attorneys fees on appeal is granted in the sum of $12,835.00.

1 . In addition, this court’s determination of the reasonableness of Jensen’s claim has to a great extent vindicated Jensen in his dispute with the City. The critical issue in the underlying suit was whether the officer was entitled to qualified immunity. Although Jensen lost on this issue, our reversal on the fee issue established that Jensen’s claim was meritorious and reasonable despite the eventual finding of immunity. While we will not speculate as to the effect of that decision on Jensen’s future conduct or the legality of his past conduct, we can safely assume that Jensen’s success on this appeal, which overturned an attorney fee award in excess of $8,000, resulted in a significant benefit to Jensen.