Benjamin Hescott v. City of Saginaw , 757 F.3d 518 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0138p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BENJAMIN HESCOTT; JOHN HESCOTT, ┐
Plaintiffs-Appellants/Cross-Appellees, │
│
│ Nos. 13-2103/2153
v. │
>
│
CITY OF SAGINAW, │
Defendant-Appellee/Cross-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:10-cv-13713—Thomas L. Ludington, District Judge.
Decided and Filed: July 2, 2014
Before: BOGGS, COLE, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Susan K. Friedlaender, Joseph M. Rogowski, II, FRIEDLAENDER ROGOWSKI,
PLC, Farmington Hills, Michigan for Appellants/Cross-Appellees. Gregory W. Mair, Brett
Meyer, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Appellee/Cross-
Appellant.
_________________
OPINION
_________________
COLE, Circuit Judge. John and Benjamin Hescott prevailed over the City of Saginaw,
Michigan in a Section 1983 action for the unconstitutional seizure and destruction of their
personal effects after the City demolished the Hescotts’ rental property. A jury awarded the
Hescotts $5,000 in compensatory damages. In these cross-appeals, we must determine whether
the district court erred by denying attorneys’ fees to the Hescotts under 42 U.S.C. § 1988 and by
denying fees to the City under the cost-shifting regime of Federal Rule of Civil Procedure 68.
1
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 2
Because no special circumstances warranted denial of the Hescotts’ attorneys’ fees, and because
attorneys’ fees are not properly awardable to a losing party like the City—even one otherwise
entitled to post-settlement-offer costs under Rule 68—we reverse in part and affirm in part the
district court’s fee determinations.
I. BACKGROUND
A. Factual Background
John Hescott is a helicopter pilot in the United States Army. Like so many members of
the armed forces, he tried to manage his affairs from afar while routinely deploying to the
Middle East during the past decade. One of those affairs became the subject matter of this
litigation: a rental property located at 1002 Webber Street, in Saginaw, Michigan.
Hescott and his son, Benjamin, purchased the Webber Street property in 2001 and
successfully rented it to tenants from 2001 to 2007. Benjamin tended to the rental property while
Hescott was stationed or deployed away from Michigan. Ultimately, Hescott grew tired of
managing the property and listed it for sale in March 2008. After receiving no offers, he de-
listed the property with the intention of remodeling it for lease or sale. Nevertheless, the
property sat vacant and fell into disrepair between the spring of 2008 and summer of 2009.
Following a deployment to Afghanistan and Iraq, Hescott returned to Saginaw in July
2009 to inspect the property. While there, he discovered that the basement wall on the west side
of the house had given way. Hescott arranged for a pair of local contractors to repair the
foundation and then returned to his post at Fort Rucker, located in Ozark, Alabama. But before
the contractors could begin their repair work, a Saginaw police officer noticed children playing
in and around the vacant house, so he contacted the City’s Dangerous Buildings Inspector. The
Inspector, together with the City’s Fire Marshal, determined that the house should be demolished
immediately due to its dilapidated condition and threat to public safety. The City quickly slated
the property for demolition under an emergency provision from its Dangerous Buildings
Ordinance.
The City hired an excavation company to demolish the property but did not notify
Hescott before or after the demolition. The excavation company demolished the house on
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 3
Saturday, July 18, 2009, and returned two days later to remove all fixtures and remaining
materials to a landfill. The City did not take an inventory of what was left after the demolition or
consider whether any salvageable items remained. Hescott, still unaware of the demolition,
returned to the property in August 2009 to assist his contractors with taking measurements and
purchasing supplies for the intended repairs. Upon arrival, he realized his house was gone.
B. Procedural Background
The Hescotts filed suit under 42 U.S.C. § 1983 against the City and various city officials,
alleging seven causes of action. After the district court granted summary judgment to the
defendants on five claims, the Hescotts retained a viable claim under the Fourth Amendment for
the unlawful seizure of their aluminum siding following demolition of the house and a
supplemental state-law claim for the inverse condemnation of their house.
Before trial, the defendants served the Hescotts with an offer of judgment under Federal
Rule of Civil Procedure 68 in which they proposed to settle the case for $15,000. The Hescotts
rejected the settlement offer and instead proceeded to trial, where they requested an award of
$7,000 in actual damages for the loss of aluminum siding; $35,000 in actual damages for the
inverse condemnation of their house; and $250,000 in punitive damages against the individual
defendants for their callous indifference to the Hescotts’ property rights. After a four-day trial,
the jury reached a unanimous verdict rejecting the Hescotts’ inverse-condemnation and punitive-
damages claims, after concluding that exigent circumstances justified the demolition. The jury
found in favor of the Hescotts, however, on their Fourth Amendment claim and awarded them
$5,000 for the fair market value of the aluminum that was hauled away and discarded.
After the jury announced its verdict, the district court granted judgment as a matter of law
to the individual defendants on qualified-immunity grounds. The district court denied judgment
as a matter of law to the City, however, thus leaving intact the jury award of $5,000. Several
weeks later, both parties moved the court for taxable costs and attorneys’ fees.
The district court awarded costs to the Hescotts because they were “prevailing parties” on
their Fourth Amendment claim. Hescott v. City of Saginaw, No. 10-13713, 2013 WL 2395054,
at *3 (E.D. Mich. May 31, 2013). But the court denied the Hescotts’ motion for attorneys’ fees
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 4
under 42 U.S.C. § 1988(b) after concluding that “special circumstances” warranted such a result.
Id. at *4–5. The court based its fee denial on “the degree of success obtained,” which the court
labeled as a “modest jury award,” and the fact that the constitutional violation “was of little
effect.” Id. The court later affirmed its denial of attorneys’ fees in response to the Hescotts’
motion for reconsideration. Hescott v. City of Saginaw, No. 10-13713, 2013 WL 3817347, at *3
(E.D. Mich. July 23, 2013). There, the court acknowledged that denying fees to a prevailing
civil-rights plaintiff is “unusual” but reiterated its view that awarding fees to the Hescotts would
be “unjust” under the circumstances. Id. The court noted that this suit involved only “the loss of
a modest residence” in a neighborhood of “poor condition,” and that the Hescotts lost on their
primary claim that the demolition was unjustified. Id. at *3–4. After considering the results
obtained, the legal significance of the issues presented, and the public purpose of the litigants,
the court “arrive[d] at the same conclusion” as before and again denied fees to the Hescotts. Id.
at *4.
On the other side of the ledger, the district court initially awarded the City over $25,000
in costs and attorneys’ fees as a sanction under Federal Rule of Civil Procedure 68 because the
Hescotts’ jury award fell below the defendants’ settlement offer. Hescott, 2013 WL 2395054, at
*7. But the court reversed itself and denied the City its fees following the Hescotts’ motion for
reconsideration. Hescott, 2013 WL 3817347, at *5. The court determined that attorneys’ fees
were not “properly awardable” to the City because the Hescotts’ Fourth Amendment claim was
not “wholly frivolous.” Id.Both parties timely appealed the court’s final attorneys’-fee determinations. The district
court had subject-matter jurisdiction over this case under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction over the parties’ cross-appeals under 28 U.S.C. § 1291.
II. ANALYSIS
We review a district court’s award or denial of attorneys’ fees under 42 U.S.C. § 1988 for
an abuse of discretion. Dubuc v. Green Oak Twp., 312 F.3d 736, 744 (6th Cir. 2002). We
review de novo a district court’s legal interpretations of Federal Rule of Civil Procedure 68 and
review for clear error the factual findings concerning the circumstances under which Rule 68
offers were made. Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 837 (6th Cir. 2005).
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 5
A. The District Court Improperly Denied the Hescotts’ Motion for Attorneys’ Fees
The Hescotts argue that the district court abused its discretion by denying their motion for
attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.
They contend that, as prevailing civil-rights plaintiffs, they were presumptively entitled to
attorneys’ fees, and that no special circumstances would render such an award unjust. We agree.
Congress enacted 42 U.S.C. § 1988 to encourage the private enforcement of civil rights.
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Section 1988 provides that when a party files
suit under § 1983, as the Hescotts did here, “the [district] court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
42 U.S.C. § 1988(b). Although § 1988 uses permissive language regarding fee awards, “the
Supreme Court has read [§ 1988] as mandatory where the plaintiff prevails and special
circumstances are absent.” Déjà Vu v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn.,
421 F.3d 417, 420 (6th Cir. 2005) (citing Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S.
754, 761 (1989)); Berger v. City of Mayfield Heights, 265 F.3d 399, 406–07 (6th Cir. 2001).
The City does not dispute that the Hescotts were “prevailing parties” within the meaning
of § 1988. Thus, the only issue on appeal is whether the district court abused its discretion by
finding special circumstances that would render a fee award unjust. See Déjà Vu, 421 F.3d at421–22. The Supreme Court has offered “little guidance” as to what constitutes a special
circumstance that would defeat a fee award, and our court has eschewed adopting a
“predetermined formula” in favor of a “case-by-case approach.” Id. (internal quotation marks
omitted). In this case-by-case inquiry, a non-prevailing defendant bears the burden “to make a
strong showing that special circumstances warrant a denial of fees.” Id. (internal quotation
marks omitted). Moreover, “courts have made clear that special circumstances should not be
easily found.” Cleveland v. Ibrahim, 121 F. App’x 88, 90 (6th Cir. 2005) (collecting cases).
At the outset, we note that the City did not argue that special circumstances warranted an
outright denial of fees until the district court denied the Hescotts’ motion on those grounds
sua sponte. Rather, the City merely argued that plaintiffs’ counsel requested an unreasonable fee
in light of the work performed on the Hescotts’ Fourth Amendment claim. Only after the court
denied the Hescotts’ motion for fees altogether did the City jump on the special-circumstances
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 6
bandwagon. Assuming, for the sake of argument, that a district court may relieve a defendant of
its burden of proving that special circumstances existed, see Déjà Vu, 421 F.3d at 422, the court
nevertheless abused its discretion by denying a fee award in this case.
1. The District Court Improperly Applied the Law Governing Attorneys’ Fees
The district court based its finding of special circumstances and related denial of fees on
two Supreme Court cases: Hensley v. Eckerhart, 461 U.S. 424 (1983), and Farrar v. Hobby,
506 U.S. 103 (1992). But the district court seems to have drawn the wrong lesson from both
cases and therefore improperly applied the law governing attorneys’ fees to the matter at hand.
In Hensley, the Supreme Court confronted the question of what constitutes a “reasonable”
fee under § 1988. 461 U.S. at 433. There, the Court explained that “[t]he most useful starting
point for determining the amount of a reasonable fee is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.” Id. But the Court recognized that other
considerations may lead district courts to adjust the fee upward or downward. Id. at 434. For
example, in cases where plaintiffs succeed on only some of their claims for relief, and
particularly where the successful and unsuccessful claims are factually and legally related to one
another, a consideration of the “results obtained” may be “particularly crucial.” Id.Accordingly, the Court provided guidance on how to calculate a reasonable fee where “a plaintiff
has achieved only partial or limited success” in a civil-rights suit involving a common core of
facts or based on related legal theories. Id. at 436.
The Hensley Court said nothing about denying attorneys’ fees altogether where plaintiffs
prevail on some claims but lose on others. Hensley simply did not involve the presence or
absence of special circumstances that might warrant a denial of fees; the Supreme Court
addressed only the manner in which district courts should calculate a prevailing party’s
reasonable fees. Thus, to the extent that the district court relied upon language from Hensley for
the proposition that “[t]he result is what matters” in finding special circumstances, the court
misconstrued the general thrust and holding of the case. See id. at 435. Indeed, “[l]itigants in
good faith may raise alternate legal grounds for a desired outcome, and the court’s rejection of or
failure to reach certain grounds is not a sufficient reason for reducing a fee,” let alone denying a
fee award altogether. See id. at 435 & n.11 (emphasis added); accord Déjà Vu, 421 F.3d at 423.
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 7
Similarly, in Farrar, the Supreme Court confronted the question whether a civil-rights
plaintiff who receives a nominal-damages award is a “prevailing party” eligible to receive
attorneys’ fees under § 1988. 506 U.S. at 105. There, the Court held that a plaintiff who wins
nominal damages is a prevailing party under § 1988, but noted that the “technical nature” of a
nominal-damages award does “bear on the propriety of fees awarded.” Id. at 114. Thus, where
the plaintiffs’ victory is purely technical or de minimis, which often is reflected by a nominal-
damages award, they sometimes “should receive no attorney’s fees at all.” Id. at 115. The
plaintiff in Farrar typified this concern: he requested $17 million in compensatory damages and,
after ten years of litigation, received just one dollar. Id. at 116 (O’Connor, J., concurring). The
Farrar jury found that only one of the six defendants had deprived the plaintiff of an
indeterminate civil right and, even then, that the violation was not the proximate cause of any
damages. Id. at 106 (majority opinion). Nevertheless, the district court awarded the plaintiff
$280,000 in attorneys’ fees “without considering the relationship between the extent of the
success and the amount of the fee award.” Id. at 115–16. Accordingly, the Supreme Court
affirmed the reversal of the district court’s fee award. Id. at 116.
Here again, Farrar is legally and factually distinguishable from the case at hand, and the
district court’s reliance on Farrar constituted an abuse of discretion. First, Farrar dealt with the
reasonableness of a given fee award, not whether special circumstances warranted its outright
denial. Id. at 115 (“[T]he only reasonable fee [for a pyrrhic victory] is usually no fee at all.”
(emphasis added)); id. at 117 (O’Connor, J., concurring) (“[T]he Court makes clear today that, in
fact, [the manner of victory] is part of the determination of what constitutes a reasonable fee.”).
And more importantly, unlike the plaintiff in Farrar, the Hescotts proved an actual, compensable
injury. See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 556 (6th Cir. 2008)
(distinguishing Farrar on the ground that, unlike Farrar, Imwalle received “far more than
‘nominal’ compensatory damages”).
To the extent that the district court relied on other aspects of Farrar to support its
outright denial of fees, it again improperly applied the law to the facts of this case. The district
court couched its analysis in terms of a three-factor test Justice O’Connor articulated in her
concurring opinion in Farrar. That test considers (1) the degree of success obtained; (2) the
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 8
significance of the legal issues on which the plaintiff prevailed; and (3) the public purpose served
to determine whether to award fees to a plaintiff who fails to prove that the violation caused a
compensable injury. See Farrar, 506 U.S. at 121–22 (O’Connor, J., concurring). We question
whether use of this test was proper given that the controlling opinion of the Supreme Court did
not adopt it. Even so, Justice O’Connor’s test does not apply here because the Hescotts proved
that the City’s constitutional violation caused their damages. This simply was not a case where
the plaintiffs achieved only a de minimis victory, reflected by a nominal damages award.
2. The District Court Improperly Applied the Law Governing “Special Circumstances”
The district court’s real concerns, which the court voiced in its opinion and order denying
the Hescotts’ motion for reconsideration, seem to be that their claims involved only the loss of a
modest residence in a bad neighborhood, that the City acted in good faith in demolishing the
house and pursuing its defense throughout this litigation, and that the Hescotts overreached both
in the number of claims they pursued and the damages they sought at trial. None of these
concerns constitutes special circumstances that would render a fee award unjust. In fact, “we
have never (to our knowledge) found a ‘special circumstance’ justifying the denial of fees.”
McQueary v. Conway, 614 F.3d 591, 604 (6th Cir. 2010). Moreover, “[i]t is ‘extremely rare’ to
deny fees based on special circumstances in other circuits as well.” Id. (quoting Saint John’s
Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1064 (9th Cir. 2009)).
Begin with the easiest grounds for reversal—that the monetary value of the Hescotts’
property or their loss weighed in favor of finding a special circumstance. This reasoning runs
directly counter to the purpose of § 1988. See City of Riverside v. Rivera, 477 U.S. 561, 574–80
(1986). As the Supreme Court has explained, civil-rights plaintiffs “seek[] to vindicate
important civil and constitutional rights that cannot be valued solely in monetary terms.” Id. at
574. Therefore, “Congress enacted § 1988 specifically to enable plaintiffs to enforce the civil
rights laws even where the amount of damages at stake would not otherwise make it feasible to
do so.” Id. at 577. A rule that eliminates attorneys’ fees in civil-rights cases due to the size of
the damages awarded “would seriously undermine Congress’ purpose in enacting § 1988.” Id. at
576. We refuse to countenance a decision that does so today. The Hescotts may have owned a
“modest residence” in a neighborhood of “poor condition.” But their constitutional right to be
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 9
secure in that residence, or in what remained of it following an otherwise lawful demolition,
remained no less inviolate, and no less worthy of vindication under 42 U.S.C. §§ 1983 and 1988.
Consider next the district court’s finding that the City acted in good faith by demolishing
the Hescotts’ house because it was a dangerous nuisance, by offering to forgo the costs of
demolition, and by acknowledging that the Hescotts were entitled to their day in court on the
inverse-condemnation theory of recovery. The City may well have acted in good faith, but such
a finding does not constitute a special circumstance that warrants the denial of attorneys’ fees.
We have held time and again that “good faith is not a ‘special circumstance’ which justifies the
denial of attorney’s fees under section 1988.” Morscott, Inc. v. City of Cleveland, 936 F.2d 271,
273 (6th Cir. 1991) (citing United States v. Slodov, 675 F.2d 808, 810 (6th Cir. 1982));
McQueary, 614 F.3d at 604. Accordingly, the district court abused its discretion by denying
attorneys’ fees based on the City’s conduct before or during this litigation.
Finally, consider the district court’s determination that special circumstances existed
because the Hescotts prevailed on only one of their claims and, even then, failed to secure a
punitive-damages award. This is wrong twice over. As an initial matter, “[a] court should
compensate the plaintiff for the time his attorney reasonably spent in achieving the favorable
outcome, even if the plaintiff failed to prevail on every contention.” Fox v. Vice, 131 S. Ct.
2205, 2214 (2011) (internal quotation marks omitted). District courts may deny fee awards only
for work performed on claims “that bore no relation to the grant of relief” or were otherwise
“frivolous.” Id. We have explained the distinction as follows:
[A] court should not reduce attorney fees based on a simple ratio of successful
claims to claims raised. When claims are based on a common core of facts or are
based on related legal theories, for the purpose of calculating attorney fees they
should not be treated as distinct claims, and the cost of litigating the related
claims should not be reduced.
Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (citations omitted).
We have not hesitated to reverse a reduction in fees when a district court improperly
applied the legal standard for analyzing claims on which a plaintiff had limited success. See
Déjà Vu, 421 F.3d at 423 (“[W]e have repeatedly rejected mechanical reductions in fees based
on the number of issues on which a plaintiff has prevailed.”); DiLaura v. Twp. of Ann Arbor,
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 10
471 F.3d 666, 672–73 (6th Cir. 2006) (same). We decline to endorse the outright denial of
attorneys’ fees on similar grounds today. As an additional matter, a plaintiff’s failure to win
punitive damages does not constitute special circumstances warranting the denial of attorneys’
fees either. See Imwalle, 515 F.3d at 555–56 (affirming district court’s refusal to reduce fee
award on the grounds of “limited success” where plaintiff won compensatory but not punitive
damages). Thus, the Hescotts’ failure to secure a punitive-damages award is of no moment to
determining whether special circumstances existed that would render a fee award unjust.
For these reasons, the district court abused its discretion by denying the Hescotts’ motion
for attorneys’ fees under the special-circumstances doctrine. We therefore reverse the court’s fee
award (or lack thereof) and remand the matter so that the court may calculate the Hescotts’
reasonable attorneys’ fees. We set out the methodology for determining a reasonable fee award
in Wayne v. Village of Sebring, 36 F.3d 517 (6th Cir. 1994), as follows:
A starting point is to calculate “the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” (This is known as the
“lodestar” calculation.) The court should then exclude excessive, redundant, or
otherwise unnecessary hours. Next, the resulting sum should be adjusted to
reflect the “result obtained.” This involves two questions: “First, did the plaintiff
fail to prevail on claims that were unrelated to the claims on which he succeeded?
Second, did the plaintiff achieve a level of success that makes the hours
reasonably expended a satisfactory basis for making a fee award?”
Id. at 531 (citations omitted). Our court adheres to that methodology today. Jordan v. City of
Cleveland, 464 F.3d 584, 602 (6th Cir. 2006). Because the district court “had a ring-side view of
the underlying proceedings,” it remains best suited to apply this methodology in calculating the
Hescotts’ fee award in the first (or rather, second) instance. See McQueary, 614 F.3d at 604.
B. The District Court Properly Denied the City’s Motion for Attorneys’ Fees
In its cross-appeal, the City argues that the district court erred by denying the City’s
motion for attorneys’ fees under Federal Rule of Civil Procedure 68. The City contends that
defendants are entitled to their post-settlement-offer costs under Rule 68 and that the term
“costs” contemplates and includes an award of attorneys’ fees. We agree with half of the City’s
argument. Defendants most certainly are entitled to their post-offer costs when Rule 68 applies.
But, because attorneys’ fees are not “properly awardable” under § 1988 to a losing party like the
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 11
City, the term “costs” excludes an award of attorneys’ fees in this case. We join the First, Third,
Fifth, Seventh, Eighth, and Ninth Circuits in so holding.
1. Post-Offer Costs
The City first argues that defendants are entitled to their post-offer costs, enumerated in
28 U.S.C. § 1920, after a spurned settlement offer under Federal Rule of Civil Procedure 68.
No quarrel there. Rule 68 permits a party defending against a claim to make a pretrial settlement
offer, and if the claimant rejects the offer but then obtains a judgment that is less favorable, the
claimant “must pay the costs incurred after the offer was made.” Fed. R. Civ. P. 68. As we have
explained, this rule “encourages early settlements by increasing the risks to claimants of
continuing to litigate once the defending party has made a settlement offer.” Pouillon v. Little,
326 F.3d 713, 718 (6th Cir. 2003). Thus, claimants who refuse a settlement offer and later fail to
receive a more favorable judgment must not only pay their own post-offer costs, but also the
defending party’s post-offer costs. Id. This rule, when applicable, “is mandatory and leaves a
district court without any discretion” to deny costs. Id.Here, the district court complied with Rule 68’s requirements by awarding the City
$751.96 in costs that it accrued after making the settlement offer. Ordinarily, that would end the
matter. However, our reversal and remand to calculate the Hescotts’ attorneys’-fee award
complicates things. This is so because Rule 68 requires the court to compare a settlement offer
that includes “costs then accrued” with the “judgment that the [claimant] finally obtains.”
Fed. R. Civ. P. 68. As the City acknowledges in its briefing, the “judgment” used to make this
apples-to-apples comparison includes not just the damages award, but also the claimant’s pre-
offer costs and fees actually awarded. See Marek v. Chesny, 473 U.S. 1, 7 (1985); see also, e.g.,
Dowling v. Litton Loan Servicing LP, 320 F. App’x 442, 449–50 (6th Cir. 2009); Bogan v. City
of Boston, 489 F.3d 417, 431 (1st Cir. 2007); Marryshow v. Flynn, 986 F.2d 689, 692 (4th Cir.
1993); Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir. 1986).
Consequently, if the district court determines on remand that the Hescotts’ pre-offer costs
and fees exceeded $10,000—then the Hescotts will have obtained a “judgment” (including their
$5,000 jury verdict) more favorable than the City’s settlement offer of $15,000. Under those
circumstances, the City would not be entitled to any post-offer costs under Rule 68, and the
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 12
district court must reverse its initial cost award. If, on the other hand, the Hescotts’ judgment,
including pre-offer costs and fees, is less than $15,000—then the City remains entitled to its
post-offer costs of $751.96. We simply cannot settle the matter today by predicting the amount
and temporal allocation of the district court’s fee award on remand.
2. Post-Offer Attorneys’ Fees
The City next argues that the term “costs” in Rule 68 contemplates and includes an award
of attorneys’ fees such that the rule, as interpreted in Marek v. Chesny, not only prohibits the
Hescotts from recovering their own post-offer attorneys’ fees, but also requires that the Hescotts
pay the City’s post-offer attorneys’ fees. Though this appears to be an issue of first impression
in our court, all but one of our sister circuits to consider the matter has roundly rejected the
City’s argument. We join those circuits in holding that because § 1988 is not a “two-way fee-
shifting statute,” Rule 68 cannot force a prevailing civil-rights plaintiff to pay a defendant’s post-
offer attorneys’ fees. See, e.g., Payne v. Milwaukee Cnty., 288 F.3d 1021, 1026 (7th Cir. 2002).
In Marek, the Supreme Court held that attorneys’ fees are included within the definition
of “costs” under Rule 68 so long as fees are “properly awardable [as costs] under the relevant
substantive statute.” 473 U.S. at 9. The Court reasoned that because a prevailing party in a civil-
rights suit may recover attorneys’ fees “as part of the costs” under § 1988, a plaintiff who
receives a judgment less than the defendant’s Rule 68 settlement offer cannot recover his or her
own post-offer attorneys’ fees. Id. The Court did not, however, determine whether Rule 68 also
imposes the losing party’s post-offer fees upon a prevailing civil-rights plaintiff. Id. at 4 n.1.
Over the years, one appellate court after another has answered that question in the
negative. See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1030–31 (9th Cir.
2003); Le v. Univ. of Pa., 321 F.3d 403, 411 (3d Cir. 2003); Payne v. Milwaukee Cnty., 288 F.3d
1021, 1027 (7th Cir. 2002); EEOC v. Bailey Ford, Inc., 26 F.3d 570, 571 (5th Cir. 1994) (per
curiam); O’Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir. 1989); Crossman v.
Marcoccio, 806 F.2d 329, 334 (1st Cir. 1986); see also 12 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3006.2 (2d ed. 1997) (“[T]he Supreme Court was
careful to specify in Marek that only ‘properly awardable’ costs were to be awarded to
defendants, and the lower courts have properly held that this means that civil-rights defendants
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 13
can recover their fees as a part of costs under Rule 68 only if they can satisfy the otherwise-
applicable standard for recovery by defendants.”).
Today, we join those circuits in concluding that a losing civil-rights defendant cannot
recover its post-offer attorneys’ fees under Rule 68 because such a party does not satisfy the
requirements for a fee award under § 1988. In determining that Rule 68 “costs” can sometimes
include attorneys’ fees, the Marek Court drew a “strict link” between the rule and the underlying
statute that authorizes a fee award. Payne, 288 F.3d at 1026. The Marek Court stated twice that
the term “costs” in Rule 68 refers to “all costs properly awardable” under the relevant statute.
473 U.S. at 9 (emphasis added). Thus, the appropriate inquiry is whether attorneys’ fees are
“properly awardable” to the City under § 1988. Crossman, 806 F.2d at 333.
Under § 1988, a civil-rights defendant may recover attorneys’ fees only if the defendant
is a “prevailing party” and proves that the plaintiff’s action was “frivolous, unreasonable, or
without foundation.” Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421 (1978)); Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427,
437 (6th Cir. 2009). Here, the City falls short under this test; the City did not prevail on the
Hescotts’ Fourth Amendment claim and, therefore, could not possibly prove that the action was
frivolous, unreasonable, or without foundation. Accordingly, attorneys’ fees were not “properly
awardable” to the City under § 1988, and the district court correctly denied them.
The City relies largely on dicta from Marek for the proposition that that the term “costs”
in Rule 68 includes an award of attorneys’ fees under § 1988, even for losing civil-rights
defendants. We are not persuaded. Every quotation that the City highlights from Marek applies
with equal force and validity to the limited holding in that case—namely, that prevailing civil-
rights plaintiffs may be forced to bear their own post-offer attorneys’ fees as part of the cost-
shifting provisions from Rule 68. We agree that “[t]he Rule prompts both parties to a suit to
evaluate the risks and costs of litigation, and to balance them against the likelihood of success
upon trial on the merits,” and that “application of Rule 68 will require plaintiffs to think very
hard about whether continued litigation is worthwhile.” Marek, 473 U.S. at 5, 11 (internal
quotation marks omitted). Paying a portion of one’s own attorneys’ fees that would otherwise be
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 14
recoverable from the defendant certainly will give civil-rights plaintiffs pause before rejecting a
settlement offer.
But the statements the City clings to do not compel an answer to the question Marek
carefully avoided: whether prevailing civil-rights plaintiffs must also pay their adversaries’ post-
offer attorneys’ fees under Rule 68. Congress answered that question with an emphatic “no”
when it limited attorneys’ fees to prevailing parties under § 1988, and the Supreme Court further
narrowed the statute’s benefit to defendants in Hughes and Christiansburg Garment. We cannot
force through the back-door of a court rule what Congress and the Supreme Court expressly
barred at the front gates. See Grosvenor, 801 F.2d at 947 n.7 (“Any interpretation of Rule 68
that significantly undercuts the substantive policies underlying § 1988 conflicts with [the Rules
Enabling Act].”); Crossman, 806 F.2d at 333 (“These two words—‘properly awardable’—are so
essential to the holding of Marek that, even if the Supreme Court had not expressly included
them, we would have implied their existence to prevent Marek’s chilling effect on the initiation
of civil rights actions from attaining glacial magnitude.”).
Nor are we persuaded by the City’s reliance on a two-sentence analysis from the Eleventh
Circuit pertaining to fee awards under the Copyright Act, 17 U.S.C. § 101 et seq. See Jordan v.
Time, Inc., 111 F.3d 102, 105 (11th Cir. 1997) (per curiam). There, the court determined that the
plaintiff was required to pay the defendant’s post-offer costs, including attorneys’ fees, simply
by stating that “Rule 68 ‘costs’ include attorneys’ fees when the underlying statute so prescribes.
The Copyright Act so specifies.” Id. The court in Jordan made no mention of Marek’s limiting
language that Rule 68 “costs” include attorneys’ fees only when fees are properly awardable
under the relevant statute. Id. Nor did the court examine the Copyright Act’s restriction that
attorneys’ fees may be awarded only to a prevailing party. Id.; see 17 U.S.C. § 505. We are not
the first court to point out these shortcomings, nor the first to avoid relying on Jordan as a result.
Indeed, the Eleventh Circuit appears to acknowledge these critiques itself. See Util. Automation
2000, Inc. v. Choctawhatchee Elec. Coop., Inc., 298 F.3d 1238, 1246 n.6 (11th Cir. 2002)
(collecting cases).
Nos. 13-2103/2153 Hescott, et al. v. City of Saginaw Page 15
III. CONCLUSION
For these reasons, we reverse in part and affirm in part the district court’s final cost and
fee determinations set forth in its orders on May 31 and July 23, 2013. We remand the matter to
the district court for further proceedings consistent with this opinion. On remand, the district
court should first calculate the Hescotts’ reasonable attorneys’ fees. Then, the court should
compare the Hescotts’ jury award and pre-offer costs and fees to the City’s settlement offer to
determine if Rule 68 applies. If Rule 68 applies, the Hescotts must bear their own post-offer
costs and fees, as well as the City’s post-offer costs. If Rule 68 does not apply, then the Hescotts
are entitled to the full measure of their pre- and post-offer costs and attorneys’ fees. Under no
circumstances are the Hescotts liable to the City for its attorneys’ fees.