Titlе 42 U.S.C. § 1988(b) (2006) provides in part that a court may, in its discretion, award attorney’s fees to a “prevailing party,” other than the United States, in a proceeding to enforce a provision of 42 U.S.C. § 1983 (2006).
The issue in this appeal is whether the plaintiff, T & D Video, Inc. (T & D), which in 2002 obtained permanent injunctive relief in a final judgment in the Superior Court, is eligible for an award of attorney’s fees for its successful defense in 1994-1996 against the city of Revere’s (city’s) interlocutory аppeals from a preliminary injunction, where T & D did not request those fees. Instead, T & D sought its interlocutory appellate (and other) attorney’s fees for the first time in the Superior Court in 2003 after final judgment entered in its favor. In 2004, a judge in the Superior Court granted T & D its fees and costs
For reasons we shall explain, we conclude that T & D is eligible for its interlocutory appellate attorney’s fees. We also take this opportunity to clarify the Massachusetts procedure for requesting interlocutory appellate attorney’s fees and costs under 42 U.S.C. § 1988(b) and similar Federal fee-shifting statutes. See note 4, supra.
1. Background. In November, 1994, owing to difficulties that it experienced in obtaining permission from the city to open an “adult” video store in Revere, T & D commenced an action in the Superior Court against the city, claiming, inter alla, that the city’s “adult entertainment” zoning ordinances
Following discovery, T & D moved for summary judgment in the Superior Court, which was denied by a different judge in November, 2001. The case then proceeded to a jury-waived trial before a third judge in the Superior Court. In October, 2002, that judge concluded that enforcement of the city’s adult entertainment ordinances violated the constitutional rights of T & D to engage in the sale of nonobscene “adult” videotapes, and entered an order permanently enjoining the city from enforcing the ordinances against T & D. In January, 2003, T & D filed a motion in the Superior Court, as a “prevailing party” under “both federal and state law,” requesting attorney’s fees and costs in the total amount of $1,163,233.28.
The city appealed from the final judgment in the Superior Court on the merits, and from the award of attorney’s fees and costs to T & D. The Appeals Court affirmed the judgment on the merits. See T & D Video, Inc. v. Revere,
Both parties applied for further appellate review. In the city’s application, which we denied, it challenged the decision of the Appeals Court on the merits, and further claimed the Appeals Court should have denied “in its entirety” T & D’s request for attorney’s fees and costs. In T & D’s application, which we granted, T & D sought review only of the denial of its appellate attorney’s fees pertaining to the city’s 1994-1996 appeals from the preliminary injunction.
2. Discussion. We first address the appropriateness of awarding T & D its interlocutory appellate attorney’s fees and costs under 42 U.S.C. § 1988(b), and then outline the procedure for the request for, and award of, such fees and costs in the future.
As noted earlier, 42 U.S.C. § 1988(b) authorizes a court to award attorney’s fees and costs to a “prevailing party,” including attorney’s fees incurred on appeal. See Buckhannon, supra at 604; Powell v. Alexander,
The city argues, however, that, in 1996, when this court affirmed the order of the Superior Court granting T & D a preliminary injunction, T & D was a “prevailing party” under the then prevailing “catalyst test,”
The Appeals Court, which did not have the benefit of Sole, supra, rejected T & D’s petition for rehearing on the issue of its interlocutory appellate attorney’s fees for two reasons. First, it held that T & D “prevailed” before this court, and T & D’s “status as a prevailing pаrty in that appeal became fixed when the court returned its decision regardless of what might happen in subsequent proceedings regarding a permanent injunction.” This is contrary to Buckhannon and Sole. See Sole, supra at 2196; Buckhannon, supra at 604-605.
The Appeals Court gave a second reason, in its view of “greater importance,” pertaining not to the timing of T & D’s fee request, but rather its “location.” The Appeals Court noted that it was “not persuaded that it is the business either of the Appеals Court or of a trial court to pass upon fee requests pertaining to proceedings in the Supreme Judicial Court.” We agree with the Appeals Court that the appropriate forum for such a request is here, because we are in “a far better position to evaluate the worth of the appellate work than the trial judge.” Yorke Mgt. v. Castro,
The fee request at issue in this appeal is based on a Federal statute, 42 U.S.C. § 1988(b). The procedure for requesting fees and costs, however, is governed by Massachusetts law. See Society of Jesus of New England v. Boston Landmarks Comm’n,
We now clarify the procedure for parties seeking interlocutory appellate attorney’s fees and costs under 42 U.S.C. § 1988(b) and other similar Federal fee-shifting statutes. See note 4, supra.
If a party later becomes a “prevailing party” for the first time in an appellate court, the “prevailing party” must, within thirty days of the date of the appellate court rescript, file an application for attorney’s fees and costs, with appropriate supporting materials, in both that appellate court in accordance with Fabre v. Walton, supra, and in the trial court, if it intends to seek attorney’s fees and costs incurred in proceedings in the trial court.
3. Conclusion. Within thirty days of the date of the rescript, T & D may file in this court an application for its attorney’s fees and costs relating to its 1995-1996 defense in this court of
With respect to appellate attorney’s fees and costs T & D may have incurred opposing the city’s direct appeal in the Appeals Court, T & D may apply for such fees and costs from the Appeals Court. See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm’n Against Discrimination,
So ordered.
Notes
Title 42 U.S.C. § 1988(b) (2006) provides: “In any action or proceeding to enforce a provision 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 . . . .”
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources,
In Sole v. Wyner,
The ordinances, proposed by the mayor of Revere in September, 1993, two days after T & D sought a business certificate from the city, were adopted by the city council in November, 1993. See Revere Revised Zoning Ordinance §§ 17.08.065-17.08.069,17.16.045 (1993) (ordinances). The ordinances permit the granting of special permits, in Revere’s general industrial district only, for “[a]duit entertainment establishments, adult bookstore[s], adult videostore[s], аdult motion picture theater[s] and advertising signs” provided that certain location, size, and setback restrictions are met. Id. In 1995, the city council repealed the 1993 ordinances and replaced them with new ordinances that lowered the setback requirement and the lot size requirement, but otherwise left largely unchanged the 1993 ordinances.
The Massachusetts Civil Rights Act (Massachusetts act) provides a cause of action fоr any person whose civil rights have been interfered with by “threats, intimidation or coercion.” G. L. c. 12, § 11H. The Massachusetts act also provides for recovery of reasonable attorney’s fees and costs to “[a]ny aggrieved person or persons who prevail. . . .” G. L. c. 12, § 111.
General Laws c. 231, § 118, first par., provides, in pertinent part: “A party aggrieved by an interlocutory order of a trial court. . . may file ... a petition in the apprоpriate appellate court seeking relief from such order [from a single justice] . . . .”
General Laws c. 231, § 118, second par., provides, in pertinent part: “A party aggrieved by an interlocutory order of a trial court. . . granting ... a preliminary injunction . . . may appeal therefrom to the appeals court. . . .”
There is some discrepancy concerning the amount of attorney’s fees and costs requested. In T & D’s motion for attorney’s fees and costs it requested $1,163,233.28. The amount in counsel’s affidavit in support of T&D’s motion is $1,173,057.13, and the amount referred to by the trial judge in his order is $1,209,585.33.
In the materials súpporting T & D’s 2003 motion for attorney’s fees and
The trial judge employed the “lodestar” approach, by which he determined “the product of reasonable hours times a reasonable rate.” See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,
The Appeals Court made no reference to the issue of attorney’s fees еxpended by T & D in its defense of the city’s interlocutory appeals to the Appeals Court. See notes 8 and 9, supra.
Although the judge did not state explicitly that he was awarding T & D its attorney’s fees and costs relating to the city’s appeal from the preliminary injunction to the Appeals Court or to this court, it seems clear that he did so. As noted earlier, T & D included its appellate fees in its application to the Superior Court. See note 11, supra. The judge made no finding that T & D was not eligible for such fees. The Appeals Court stated that the trial judge had ordered the city to pay T & D’s appellate interlocutory fees in this court in an amount of $100,000, a figure used by the city in its brief in the Appeals Court without record citation. T & D Video, Inc. v. Revere,
T & D filed its application within twenty days of the denial of its petition for rehearing, but not within twenty days “after the date of the rescript of the Appeals Court.” Mass. R. A. P. 27.1 (a), as amended,
T & D made no mention of a claim for its attorney’s fees and costs under
The “catalyst test” posited that a “prevailing party” was one who achieved the desired result because its lawsuit causеd a voluntary (i.e., without judicial involvement) change in the defendant’s conduct. See Pearson v. Fair,
Fabre v. Walton,
T & D’s decision to file its request for interlocutory appellate fees in the Superior Court did not comport with our procedures, but was not wholly without basis. In the Federal courts, attorney’s fees sought for appellate litigatian pursuant to Federal fee-shifting statutes are generally awarded by the trial court. See, e.g., Powell v. Alexander,
In its application for further appellate review, T & D did not challenge the Appeals Court’s order vacating the award of T & D’s attorney’s fees and costs incurred in the Superior Court, and remanding the case to the Superior Court for recalculation of those fees and costs. See T & D Video, Inc. v. Revere, 66 Mass. App. Ct. 461, 475-481, 483-484 (2006). That issue is not before us.
We emphasize that we do not consider here any fee requests under the Massachusetts act. See note 12, supra. Buckhannon and its progeny concern only Federal statutes, and have no application to fee requests under Massachusetts fee-shifting statutes or other Massachusetts authority.
In many cases, of which this case is a telling example, a significant
Except for good cause shown, failure by the nonprevailing party to move to stay any assessment of fees and costs shall be deemed a waiver of any claim that the party seeking fees and costs as a “prevailing party” has not in fact prevailed.