FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTA F. MILLER,

Plaintiff-Appellant,

v.

CITY OF PORTLAND; TIMOTHY

MANZELLA, Officer, Personally;

JOHN SCRUGGS, Officer; Personally;

MICHAEL REESE, Personally,

Defendants-Appellees.

No. 14-35783

DC No.

3:12-CV-01222-

AC

OPINION

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Argued and Submitted June 5, 2017

Portland, Oregon

Filed August 22, 2017

Before: A. Wallace Tashima, Ronald M. Gould,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tashima
2 MILLER V. CITY OF PORTLAND

SUMMARY*

Civil Rights/Attorney’s Fees

The panel reversed the district court’s order denying an

award of attorney’s fees to plaintiff in a 42 U.S.C. § 1983

action and remanded for the calculation and award of a

reasonable fee award.

Plaintiff sued the City of Portland and three Portland

police officers under 42 U.S.C. § 1983 for asserted Fourth

Amendment violations. Portland made a Rule 68 Offer of

Judgment for $1,000, plus reasonable attorney’s fees to be

determined by the district court, which plaintiff accepted. 

When plaintiff moved for fees, however, the district court

denied the motion on the ground that the $1,000 award was

a de minimis judgment under 42 U.S.C. § 1988.

The panel held that the district court engaged in the wrong

analysis when it applied principles governing § 1988 awards,

rather than principles governing contract construction, to

decide plaintiff’s fee motion. The panel held that a prevailing

plaintiff under an accepted Rule 68 Offer, which provides for

the award of reasonable attorney’s fees, is entitled, under the

Rule 68 Offer, to an award of fees in some amount. Thus, the

magistrate judge and the district court decided the wrong

question – whether plaintiff was entitled to fees under § 1988

– rather than the amount of fees to which she was entitled

under the Rule 68 Offer. The panel remanded for a

determination and award of a reasonable fee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MILLER V. CITY OF PORTLAND 3

COUNSEL

Leonard Randolph Berman (argued), Law Office of Leonard

R. Berman, Portland, Oregon, for Plaintiff-Appellant.

Denis M. Vannier (argued), Deputy City Attorney, Office of

the City Attorney, Portland, Oregon, for DefendantsAppellees.

OPINION

TASHIMA, Circuit Judge:

Roberta Miller appeals the district court’s denial of her

motion for attorney’s fees. Miller sued the City of Portland

(“Portland”) and three Portland police officers under

42 U.S.C. § 1983 for asserted Fourth Amendment violations. 

Portland made a Rule 68 Offer of Judgment (the “Rule

68 Offer” or “Offer”) for $1,000, plus reasonable attorney’s

fees to be determined by the district court. Miller timely

accepted the Offer. When Miller moved for fees, however,

the district court denied the motion on the ground that the

$1,000 award was a de minimis judgment under 42 U.S.C.

§ 1988.

Portland’s Rule 68 Offer – and Miller’s acceptance –

which we interpret as a contract, provided that Miller would

receive her reasonable attorney’s fees, without referencing

§ 1988 or otherwise reserving to the district court the

antecedent question of whether Miller was entitled to a fee

award. We have jurisdiction under 28 U.S.C. § 1291. We
4 MILLER V. CITY OF PORTLAND

reverse and remand for a determination and award of a

reasonable fee.

FACTUAL AND PROCEDURAL BACKGROUND

Miller brought this action on behalf of herself and the

estate of her unborn child1

against defendants, asserting

Fourth Amendment claims under § 1983 and state-law tort

claims under Oregon law based on the following factual

allegations: in July 2010, when she was seven-and-a-half

months pregnant, Portland police officers confronted her

about her tenancy at a building in Portland and, during the

confrontation, used excessive force against her by shoving

her against the roll bar of a police vehicle. She further alleges

that she experienced four days of intense pain, was admitted

to the hospital, and suffered an aborted pregnancy. Miller

sought compensatory damages in the amount of $1 million,

plus punitive damages.

Miller amended her complaint five months after filing it. 

She omitted reference to herself as representative of her

unborn child and dropped the wrongful death claim. Because

she continued to maintain, however, that she was pregnant at

the time of her encounter with police, Portland moved to

compel discovery of records related to Miller’s alleged

pregnancy. The district court granted the motion to compel

and ordered Miller to produce medical records. She did not

produce the records by the court-ordered deadline.

1 Before filing this action, Miller petitioned an Oregon state court to

have an estate opened and administered on behalf of her unborn fetus. 

The petition was denied for reasons that are not clear from the record.
MILLER V. CITY OF PORTLAND 5

Portland served a Rule 68 Offer of Judgment on Miller,

see Fed. R. Civ. P. 68, which provided in relevant part:

Pursuant to Fed. R. Civ. P. 68, defendant City

of Portland hereby offers to allow judgment in

the above-captioned matter to be taken against

it by plaintiff for the sum of One Thousand

and no/100 Dollars ($1,000.00), plus costs

(excluding any prevailing fee), and including

reasonable attorney’s fees to be determined by

the Court, incurred as of April 16, 2013, and

for the dismissal with prejudice of defendants

Officer John Scruggs, Officer Timothy

Manzella and Chief Michael Reese.

It is undisputed that the $1,000 sum does not include the fee

amount; attorney’s fees were to be awarded in addition to the

$1,000. Miller timely accepted the Offer.

After the district court entered judgment against Portland

and dismissed the individual police officers, Miller filed a

motion requesting $16,900 in attorney’s fees. Portland

opposed the motion, arguing that Miller should receive no

fees because $1,000 was a de minimis judgment, and in the

alternative, contesting the amount sought.

The district court referred the motion to a magistrate

judge, who issued a Findings & Recommendation (“F&R”). 

Instead of analyzing Miller’s fee request under the terms of

the accepted Offer, the magistrate judge analyzed her request

under 42 U.S.C. § 1988, which gives courts the discretion to

award fees to the prevailing party in a § 1983 action under

certain circumstances. The magistrate judge took up the

question, “as a threshold matter,” of “whether Miller is
6 MILLER V. CITY OF PORTLAND

entitled to a fee award.” He first acknowledged that Miller

was the prevailing party, as Portland conceded. He

nevertheless concluded that Miller was not entitled to fees,

reasoning that the $1,000 award “constitutes a de minimis

judgment” under Farrar v. Hobby, 506 U.S. 103, 115 (1992),

which held that a prevailing § 1983 plaintiff who is awarded

only nominal, i.e., de minimis, damages is usually not entitled

to recover fees under § 1988. Id. The magistrate judge

concluded that Miller’s award was nominal because it “seems

inadequate compensation for the injuries Miller claims to

have suffered in this case.” After weighing the factors that

courts consider in determining whether a plaintiff is entitled

to fees under § 1988 despite receiving only nominal damages,

the magistrate judge determined that Miller was not so

entitled. On that basis, the magistrate judge recommended

denying Miller’s motion for fees and did not reach the issue

of the amount.

Miller objected to the magistrate judge’s F&R. The

district court overruled the objections, adopted the F&R, and

denied the fee motion. Miller timely appealed.

STANDARD OF REVIEW

“[A]ttorney’s fee awards are reviewed for an abuse of

discretion.” Holland v. Roeser, 37 F.3d 501, 503 (9th Cir.

1994). “A district court abuses its discretion when it awards

fees ‘based on an inaccurate view of the law or a clearly

erroneous finding of fact.’” Wilcox v. City of Reno, 42 F.3d

550, 553 (9th Cir. 1994) (quoting Corder v. Gates, 947 F.2d

374, 377 (9th Cir. 1991)). “[A]ny elements of legal analysis

and statutory interpretation which figure in the district court’s

decisions [regarding the fee] are reviewed de novo.” 

Holland, 37 F.3d at 503 (internal quotation marks omitted). 
MILLER V. CITY OF PORTLAND 7

We also review de novo a district court’s interpretation of a

Rule 68 offer of judgment. See id.

DISCUSSION

The sole issue on appeal is whether a prevailing plaintiff

under an accepted Rule 68 Offer, which provides for the

award of reasonable attorney’s fees, is entitled, under the

Rule 68 Offer, to an award of fees in some amount.2 We

conclude that she is; therefore, that the district court abused

its discretion in denying Miller’s motion for fees on the

ground that the amount of her agreed-upon Rule 68 award

was de minimis, where the Rule 68 Offer expressly provided

that she was entitled to a reasonable fee award. We further

conclude that the district court’s ruling was erroneous

because it was “based on an inaccurate view of the law,”

Wilcox, 42 F.3d at 553 (internal quotation marks omitted),

and therefore an abuse of discretion.

A. Rule 68

Rule 68(a) of the Federal Rules of Civil Procedure

provides:

At least 14 days before the date set for trial, a

party defending against a claim may serve on

an opposing party an offer to allow judgment

2 The question of whether a $0.00 or nominal award, such as $1.00,

could constitute a reasonable fee award under a Rule 68 Offer is not

before us and we need not decide it. We neither encourage nor dissuade

the district court on remand from inquiring into whether, under a contract

principle analysis, an award of $0.00, or a nominal amount, could

constitute a reasonable fee award in this case.
8 MILLER V. CITY OF PORTLAND

on specified terms, with the costs then

accrued. If, within 14 days after being served,

the opposing party serves written notice

accepting the offer, either party may then file

the offer and notice of acceptance, plus proof

of service. The clerk must then enter

judgment.

Once accepted, an offer of judgment becomes a settlement

agreement. Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th

Cir. 1995). Accordingly, “[t]he ‘usual rules of contract

construction’ apply to interpreting the terms of a Rule 68

settlement offer in a § 1983 case.” Id. (quoting Herrington v.

Cty. of Sonoma, 12 F.3d 901, 907 (9th Cir. 1993)).

B. 42 U.S.C. § 1988

“In an action brought pursuant to 42 U.S.C. § 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. . . .’” Benton v. Or. Student Assistance Comm’n,

421 F.3d 901, 904 (9th Cir. 2005) (quoting 42 U.S.C.

§ 1988(b)). “A § 1983 plaintiff who receives a nominal

damage award is a prevailing party for purposes of § 1988,”

but “[t]hat does not . . . mean that such a plaintiff is

necessarily entitled to an award of fees.” Id. (citing Farrar,

506 U.S. at 112, 114). In deciding a § 1988 fee motion, “the

district court’s first consideration must be whether the

nominal damages plaintiff is entitled to any fees at all.” Id.

at 905.3“[A] district court should give primary consideration

3 Fees may also be denied under § 1988 “when special circumstances

exist sufficient to render an award unjust,” even if an award is not

nominal. Mendez v. Cty. of San Bernardino, 540 F.3d 1109, 1126 (9th
MILLER V. CITY OF PORTLAND 9

to the degree of success achieved when it decides whether to

award attorney’s fees.” Wilcox, 42 F.3d at 554. “If a district

court chooses to award fees after a judgment for only nominal

damages, it must point to some way in which the litigation

succeeded, in addition to obtaining a judgment for nominal

damage.”4 Id. at 555.

C. Analysis

The district court engaged in the wrong analysis when it

applied principles governing § 1988 awards, rather than

principles governing contract construction, to decide Miller’s

fee motion. We have repeatedly emphasized that Rule 68

offers of judgment are “analyzed in the same manner as any

contract.” Erdman v. Cochise Cty., 926 F.2d 877, 880 (9th

Cir. 1991). Plaintiffs are “entitled to rely on the plain

language of the offer [they] accepted,” id. at 897, and “any

ambiguities are construed against the drafter,” id. at 880. See

also id. at 881 (“[T]he [defendant] is bound by the letter of its

agreement.”).

For instance, in Holland, we addressed a provision in a

Rule 68 offer of judgment that allowed the plaintiffs to

recover “costs now accrued and reasonable attorney fees as

Cir. 2008) (internal quotation marks omitted), overruled on other grounds

by Arizona v. ASARCO LLC, 773 F.3d 1050, 1058 n.1 (9th Cir. 2014) (en

banc). The court determines “whether special circumstances exist by

asking whether (1) allowing attorney’s fees would further the purposes of

§ 1988 and (2) whether the balance of equities favors or disfavors the

denial of fees.” Id. (internal quotation marks omitted). This “special

circumstances” provision is not at issue in this case.

4 We assume, without deciding, that a settlement award of $1,000

qualifies as “nominal” damages.
10 MILLER V. CITY OF PORTLAND

determined by the court.” See 37 F.3d at 502 (internal

quotation marks omitted) (emphasis added). The issue was

whether the plaintiffs could only recover fees incurred prior

to accepting the offer, or could also seek fees incurred in

preparing their fee motion. Id. at 503. At the outset, we

noted that, “if Rule 68 were not implicated,” the case would

be controlled by Clark v. City of Los Angeles, 803 F.2d 987

(9th Cir. 1986), which held that “time spent litigating

attorneys fees in § 1983 cases [is] compensable.” Holland,

37 F.3d at 503. However, because the proper analysis was

under Rule 68, we instead applied Erdman and “the usual

rules of contract interpretation.” Id. at 504. We concluded

that the phrase “costs now accrued and reasonable attorney

fees” was “ambiguous,” and, construing that term “against the

drafter,” we held that “the City’s offer of judgment did not

limit the attorney’s fee award to those fees incurred prior to

the offer.” Id. (internal quotation marks and emphasis

omitted).

Applying the same analytical framework to the Offer at

hand, we conclude that the district court was required to

determine and award a reasonable amount in attorney’s fees

to Miller. The Offer authorized Miller to recover “reasonable

attorney’s fees to be determined by the Court,” plainly

entitling Miller to a reasonable amount to compensate her

counsel. Like in Holland, considerations that govern the

decision to award fees under §§ 1983 and 1988 are not

applicable to this case, as those considerations were not

incorporated into the Offer. Here, such considerations

include whether Miller’s judgment was de minimis, whether

Miller was a ‘prevailing’ party, and other factors that could

lead to the outright denial of fees on the ground that Miller is

not entitled to any. In short, because “the settlement provided

that [Miller] would be awarded reasonable fees,” the district
MILLER V. CITY OF PORTLAND 11

court “did not need to determine whether fees should have

been awarded.” See Bell v. United Princeton Props., Inc.,

884 F.2d 713, 725 (3d Cir. 1989) (emphasis added). Thus,

the magistrate judge and the district court decided the wrong

question – whether Miller was entitled to fees under § 1988

– rather than the amount of fees to which she was entitled

under the Rule 68 Offer.

The Seventh Circuit has held that a district court may

deny fees in § 1983 cases in which the offer of judgment only

expressly shifted costs. See, e.g., Fisher v. Kelly, 105 F.3d

350, 352 (7th Cir. 1997) (offer provided that plaintiff would

recover “costs accrued to date”) (internal quotation marks

omitted). Our holding is consistent with Fisher, given the

lack of any express fee-shifting provision in the offer at issue

in that case. By contrast, here, Miller was “entitled to rely on

the plain language of the offer,” Erdman, 926 F.2d at 879,

which expressly provided for fees without referencing

§ 1988.

Accordingly, the order of the district court denying the

award of fees is reversed and the matter remanded for the

calculation and award of a reasonable attorney’s fee. 

Plaintiff-Appellant shall recover her costs on appeal.

REVERSED and REMANDED with directions.