Opinion
Case No. CV-02-475-S-BLW.
April 6, 2004
MEMORANDUM DECISION AND ORDER
INTRODUCTION
The Court has before it a joint Motion for Attorney's Fees and Costs filed by Defendants City of Hailey, Idaho, and Friedman Memorial Airport Authority (collectively, "Airport"). The Court will grant the Airport's motion to the extent stated below.
BACKGROUND
Plaintiff Tutor owns a home in Ketchum, just outside of Hailey, and is a principal of the Tutor-Saliba Corporation. Prior to 2001, Tutor often flew between Hailey and California on a private Gulfstream jet. The dispute in this case arose when Tutor was denied permission to land a larger jet — a Boeing 737 — at the Hailey airport.Plaintiff Tutor filed suit against the Airport alleging various constitutional, federal statutory and state law claims in his complaint. The Court granted the Defendant Airport's Motion for Summary Judgment as to each of these claims. The Airport has requested attorney's fees and costs incurred in defending this action arguing that Tutor's claims were wholly without legal merit and that Tutor prosecuted this case in a vexatious manner. Tutor has objected to this request arguing that his claims were not without legal merit or vexatious, and in any event, the Airport's fees are excessive.
DISCUSSION
The Supreme Court has affirmed the "American Rule" stating that "each party in a lawsuit ordinarily shall bear its own attorney's fees unless there is express statutory authorization to the contrary." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The Airport has cited Rule 54(d) of the Federal Rules of Civil Procedure, Rule 54.2 of the Local Rules, and 42 U.S.C. § 1988 as authority for a fee award in their favor. See Docket No. 92. Rule 54(d)(1) of the Federal Rules of Civil Procedure authorizes the Court to award costs, other than attorneys' fees, to the prevailing party. However, neither Rule 54(d)(2) of the Federal Rules nor Rule 54.2 of the Local Rules grant the Court authority to award attorney's fees. Both rules simply instruct the parties to specify in their motion for attorney's fees the rule or statute which authorizes a fee award. The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, was enacted in response to the Supreme Court's affirmation of the American Rule. It allows the district court "to award a reasonable attorney's fee to prevailing parties in civil rights litigation." Hensely, 461 U.S. at 429. This includes claims brought under 42 U.S.C. § 1983, which provides a federal remedy for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989).
"[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ." Fed.R.Civ.P. 54(d)(1).
A motion for attorney's fees "must specify the judgment and the statute, rule or other grounds entitling the moving party to the award." Fed.R.Civ.P. 54(d)(2)(B). The petition for fees "must state the amount claimed and cite the legal authority relied on." Local Rule 54.2.
The purpose of the Act is "to ensure `effective access to the judicial process' for persons with civil rights grievances." Hensley, 461 U.S. at 429 citing H.R. Rep. No. 94-1558, at 1 (1976).
42 U.S.C. § 1983 states in part: "Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . ."
While § 1988 authorizes an award of fees to the "prevailing party" in a § 1983 action, the applicable standard depends upon whether the prevailing party is the plaintiff or the defendant. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). If the prevailing party is the defendant, as is the case here, that party may recover attorney's fees only where the plaintiff's action is found to be "unreasonable, frivolous, meritless, or vexatious." Id. at 421 citing Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2nd Cir. 1976). "[T]he term `meritless' is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case. . . ." Christiansburg, 434 U.S. at 421.
There are "policy considerations . . . support[ing] the award of fees to a prevailing plaintiff [which] are not present in the case of a prevailing defendant." Christiansburg, 434 U.S. at 418-19 citing EEOC v. Christiansburg Garment Co., 550 F.2d 949, 951 (4th Cir. 1977). The plaintiff is the "chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority.'" Christiansburg, 434 U.S. at 418 citing Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968). "[W]hen a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law." Christiansburg, 461 U.S. at 418. Where the defendant prevails, however, civil rights are not violated. Therefore, the Court requires the defendant to meet a more stringent standard.
The Defendant Airport is clearly the prevailing party in this case. The Court granted the Airport's Motion for Summary Judgment on each of its claims. However, this does not imply that Tutor's claims were without merit. The Court must first determine whether or not the claim was actionable under § 1983, and then whether or not the claim was meritless or vexatious. Only then may the Court exercise its discretion under § 1988 to award a fee.
Constitutional Claims
Title 42 U.S.C. § 1983 creates liability for any person, acting under the color of State law, who violates the rights, privileges, or immunities secured by the Constitution and laws of the United States. See 42 U.S.C. § 1983 (2004). Therefore, all constitutional claims are actionable under 42 U.S.C. § 1983, and consequently, fees are recoverable under § 1988. The Court will first address each of Tutor's constitutional claims to determine whether or not the Airport is entitled to fees because the claims were meritless or vexatious.
Substantive Due Process
Tutor asserted that the Airport's runway weight limitation violated his right to substantive due process. The Court determined that in order to establish a violation, Tutor needed to prove that the Airport deprived the Plaintiffs of either liberty or property without due process of law. See Memorandum and Decision Order at 7, (Dkt. No. 90). The Court further noted that the Due Process Clause only protects those fundamental rights and liberties, which are, objectively, "deeply rooted in this Nation's history and tradition." Memorandum and Decision Order at 7, (Dkt. No. 90) citing Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citations omitted).
Tutor argued that he was denied access to the Airport. The Court disagreed, stating that the claim was meritless given that Tutor was able to access the Airport by way of a smaller aircraft. Tutor also asserted that the Airport denied him access by denying him the right to conduct nondestructive testing to acquire certain technical information to support his case. The Court determined this claim was also meritless because the right to conduct testing is not a "fundamental right of the magnitude invoked by the Due Process Clause." Memorandum Decision and Order at 8, (Dkt. No. 90) see Glucksberg, 521 U.S. at 720.
The Court further determined that no property interest of Tutor's had been violated. "Property interests protected by the Due Process Clause do not arise whenever a person has only `an abstract need or desire for,' or `unilateral expectation of,' a benefit." Memorandum Decision and Order at 9, (Dkt. No. 90) citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). The Court pointed out that although Tutor was not able to land the Boeing 737 at the airport, he was not entirely denied the use of his Boeing 737. The Court determined that Tutor was not denied the right to access his real property in Ketchum, Idaho as he had access to another jet which did not exceed the weight limitation, and because other forms of transportation were available to him.
The Court stated that the Due Process Clauses of the United States and Idaho constitutions "do not guarantee the ability to access real property in the most convenient way possible." Memorandum Decision and Order at 9, (Dkt. No. 90) citing Clouser v. Espy, 42 F.3d 1522, 1540 (9th Cir. 1994). Because Tutor unquestionably failed to establish a fundamental right or a violation thereof, the Court finds that his claim that the Airport violated his right to substantive due process is wholly without merit. Therefore, the Court will award the Airport attorney's fees incurred in defending this claim.
Procedural Due Process
Tutor also claimed that the Airport violated his right to Procedural Due Process. As stated above, Tutor failed to put forth a valid claim of the deprivation of a liberty or property interest, one of the distinct elements of a procedural due process claim. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). The Court found that at best, Tutor had shown that he had been "inconvenienced by the Airport in [his] ability to access his real property in Ketchum, Idaho." Memorandum Decision and Order at 10, (Dkt. No. 90). "Convenience is not a constitutionally-protected liberty or property interest." Memorandum Decision and Order at 10, (Dkt. No. 90). For this reason, and for those stated above, the Court finds that Tutor's claim that the Airport violated his right to procedural due process is wholly without merit. Therefore, the Court will award the Airport attorney's fees incurred in defending this claim.
Equal Protection
Next, Tutor argued that the Airport's ban on aircraft with dual-wheel landing gear and a certified take-off weight in excess of 95,000 lbs was a categorical ban that violated the Equal Protection Clause of both the United States and the Idaho Constitutions. The Court determined this argument was wholly without merit. "[U]nless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); Anderson v. Spalding, 50 P.3d 1004, 1009 (Idaho 2002). As stated above, the restriction based on weight did not violate any fundamental right. The Court also determined that the access restriction was not based on an inherently suspect characteristic. Plaintiff Tutor failed to assert any evidence that would support a claim under the Equal Protection clause. Therefore, the Court will award the Airport attorney's fees incurred in defending this claim.
Commerce Clause
In addition, Tutor argued that the Airport's ban on dual-wheel aircraft with a maximum take-off weight in excess of 95,000 pounds was an impermissible burden on interstate commerce. The Court applied a balancing test, adopted by the Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), to determine if the weight restriction withstood constitutional scrutiny. The Pike balancing tests states that when a regulation does not specifically discriminate against interstate commerce, but acts for a local benefit, with only incidental effects on interstate commerce, that regulation is to be upheld by the Court unless the burden on interstate commerce is "clearly excessive in relation to the putative local benefits." Id. The weight restriction was clearly for a local benefit. The restriction promoted the safety of the airport by preventing deterioration of the runways. Furthermore, Tutor asserted no evidence to show that there was anything more than an incidental effect on interstate commerce. Tutor merely stated that he believed the ban was an impermissible burden on interstate commerce and offered nothing to support that claim. Therefore, the Court finds that this claim was wholly without merit, and will award the Airport attorney's fees incurred in defending this claim. Right to Travel
Tutor's final constitutional argument was that the Airport's ban on dual-wheel aircraft with a maximum take-off weight in excess of 95,000 pounds also denied the Plaintiffs of their right to travel as guaranteed by the Fourteenth Amendment to the United States Constitution. Again, the Court determined that the argument was wholly without merit. Ninth Circuit law clearly states that "burdens on a single mode of transportation do not implicate the right to interstate travel." Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). Furthermore, even a complete lack of choice in means of travel "may be unfortunate, but it is not unconstitutional." Monarch Travel Servs., Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir. 1972). It is clear that Tutor had no claim under this standard, therefore, the Court will award the Airport attorney's fees incurred in defending this claim.
Federal Statutory Claims
Tutor also asserted claims under both the Federal Airport Noise and Capacity Act ("ANCA"), 49 U.S.C. § 47521 et seq. and the Federal Airports and Airways Improvement Act, ("AAIA"), 49 U.S.C. § 47101 et seq. As stated previously, a party must specify what rule or statute authorizes a grant of attorney's fees in their favor. Because the stated statutes do not provide for an award of fees, Tutor's claims must be actionable under § 1983 and be considered meritless or vexatious in order for the Airport to recover fees.
Airport Noise and Capacity Act ("ANCA") 49 U.S.C. § 47521 et seq.
Although the Court ultimately determined that Tutor had no private right of action to enforce any alleged violations of ANCA, the issue was one of first impression, and therefore, the Court cannot characterize the claim as meritless. See United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 648 (9th Cir. 1986); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir. 1994).
The Airport has also asserted that they are entitled to an award of attorney's fees because Tutor prosecuted this claim in a vexatious manner. Black's Law Dictionary defines "vexatious" as being "without reasonable or probable cause or excuse; harassing; annoying." Black's Law Dictionary 1559 (7th ed. 1999). "Vexatious suit" is defined as "[a] lawsuit instituted maliciously and without good cause." Black's Law Dictionary 1559 (7th ed. 1999). Although Tutor continued to assert a large number of claims that were without merit throughout this litigation, the Court cannot label the claim asserted under ANCA as vexatious. Therefore, the Airport's request for fees for this claim is denied. Because the Court has determined Tutor's claim does not meet the requisite standard for awarding a prevailing defendant attorney's fees, it is not necessary to determine whether or not an action for violation of ANCA could be pursued under § 1983.
Airports and Airways Improvement Act, ("AAIA"), 49 U.S.C. § 47101 et seq
The Court also determined that Tutor had no private right of action under AAIA. However, the issue was again one of first impression and cannot be characterized as meritless. See Cedarhurst Air Charter, Inc. v. Waukesha County, 110 F. Supp. 2d 891 (E.D. Wis. 2000). Applying the same reasoning stated above, the Court declines to find that Tutor's claim under AAIA was vexatious and will deny the Airport's request for fees for this claim.
Consequently, it is not necessary to determine whether or not an action for violation of AAIA could be pursued under § 1983.
State Law Claim
Tutor also claimed that the Airport's restriction violated Idaho state law. Although the Court determined that Tutor's state law claim was without merit, because the Airport has failed to cite to any authority which authorizes the Court to award attorney's fees for the state law claim, the Court will deny the Airport's request for attorney's fees for this claim.
Award
The Airport is seeking $440,470.25 for attorney's fees. See Dkt. No. 92. As determined above, the Court will award fees that were incurred only in defending the federal constitutional claims. The Airport's affidavit supporting their petition for attorney's fees and costs fails to adequately separate out what percentage of fees were incurred on each claim. However, "[t]he determination of attorney fees is within the sound discretion of the trial court. . . ." Zuniga v. United Can Co., 812 F.2d 443, 454 (9th Cir. 1987) citing Planned Parenthood of Cent. and N. Ariz. v. State of Arizona, 789 F.2d 1348 (9th Cir. 1986); see also Hensley, 461 U.S. at 437 (emphasizing "the district court's superior understanding of the litigation. . . ."). The Court was present throughout this action and feels it can make an accurate calculation in determining the amount of the award.
In setting the amount of an attorney fee award under 42 U.S.C. § 1988, the Court must utilize the "lodestar" calculation, which is accomplished by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley, 461 U.S. at 433. The Supreme Court has established "a `strong presumption' that the lodestar represents the `reasonable' fee." City of Burlington v. Dague, 505 U.S. 557, 561 (1992) citing Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986). Nevertheless, in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), the Ninth Circuit adopted the 12-factor Johnson test in order to provide a more concrete framework within which to determine fees. The Circuit stated that "failure to consider such factors . . . constitute[s] an abuse of discretion." Jordan v. Multnomah County, 815 F.2d 1258, 1264 (9th Cir. 1987) citing Kerr, 526 F.2d at 70. However, the Ninth Circuit "has since relaxed the standard, saying that application of at least some of, or the most relevant, factors may be sufficient for review on appeal." Jordan, 815 F.2d at 1264. The Court has considered the factors adopted in Kerr and supports its determination with the reasons stated below.
"The Johnson court posited twelve factors to be considered in calculating a reasonable attorneys' fee: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the `undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987) citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
Tutor argues that the amount claimed by the Airport for fees and costs is excessive. After considering the expertise and experience of the lead attorneys defending the action, and that an average flat fee for municipalities was applied, the Court feels that the rates charged by defense counsel were reasonable. The Court also considered the time and labor required to defend the claims for which the Court has awarded fees. Although Tutor asserted multiple violations of constitutional law, the briefs filed by the parties supporting and opposing the motions for summary judgment and the oral argument at the hearing on summary judgment focused on the alleged claims under ANCA and AAIA. Therefore, after reviewing the record, the hearing transcript, and the billing records submitted by the Airport, the Court finds that an award of twenty percent of the Airport's fees is commensurate with the time expended by the Airport in defending the constitutional claims.
The Airport is seeking $33,433.53 for expert witness fees incurred in defending this action. See Dkt. No. 92. The Airport cited 42 U.S.C § 1988(c) as authority for the Court to include expert fees as part of the attorney's fee. However, § 1988(c) only applies to actions brought to enforce a provision of 42 U.S.C. § 1981 or 1981a. It does not apply to actions brought under § 1983, therefore the Court will deny the Airport's request for expert fees.
Lastly, the Airport has requested $70,944.39 for costs incurred. See Dkt. No. 92. The Court has reviewed the billing records in considering the reasonableness of the amount the Airport has requested. Due to the substantial amount of research and travel involved in defending this action, the Court finds that the Airport's request for costs is reasonable. Therefore, because the Airport was the prevailing party on all of the claims involved, the Court will award all of the Airport's costs pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure.
CONCLUSION
In sum, pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure the Court awards $70,944.39 for costs. Pursuant to 42 U.S.C. § 1988(b) the Court awards $88,094.05 for attorney's fees, twenty percent of the total fees expended by the Defendant Airport, not including expert witness fees.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendants City of Hailey, Idaho, and Friedman Memorial Airport Authority are entitled to attorney's fees under 42 U.S.C. § 1988(b) in the amount of $88,094.05, and costs under Rule 54(d)(1) of the Federal Rules of Civil Procedure, in the amount of $70,944.39. The Court directs Plaintiffs Ronald N. Tutor and the Tutor-Saliba Corporation to satisfy this award of attorney's fees and costs within 30 days of the date of this Order.