F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T A F

. M I L L E R ,

Plaintiff-Appellant

,

v

.

C I T Y O F P O R

T L A N D ; T I M O T H Y M A N Z E L L A , Officer, Personally ; J O H N S C R U G G S , Officer; Personally ; M I C H A E L R E E S E , Personally

,

Defendants-Appellees. N o. 14-35783

DC No. 3:12-CV-01222- AC

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Marco A. Hernandez

, District J udg e, Presiding

Arg ued and Submitted J une 5, 2017 Portland, Oreg on

F iled Aug ust 22, 2017

B efore: A. W allace Tashima, Ronald M. Gould, and J ohnnie B . Rawlinson, Circuit J u d g es.

Opinion by

J u dg e TashimaM I L L E R V

. C I T Y O F P O R T L A N D 2

SUMMARY *

Civil Rights/Attorney’s F ees

The pan e l reversed the district court’s o r der deny ing an award of attorney ’s fees t o plaintiff in a 42 U.S.C. § 1983 action a nd r emanded for the cal c u l at ion and award of a reasonable fee award.

P l a i n tiff sued the City o f Portland and three Portla n d police officers under 42 U.S.C. § 1983 for asserted Fo u r t h Amendment violation s

. Portland made a Rule 68 Offer o f J udg ment for $1,000, plus reasonable attorney ’ s fee s to be de t e r m ined by the district court, which plaintiff a ccepted. W h en plaintiff moved for fees, however, the distr i c t court denied the motion o n the g round that the $1

, 0 0 0 a wa rd was

a de minimis judg ment under 42 U.S.C. § 1988.

The panel held that the district court eng ag ed in the wrong analy sis w hen it a

pplied principles g overning § 1988 awards, rather than principles g overning contract c o n s t ruction, to decide plaintiff’s fee motion. The p anel held that a prevailing plaintiff under an accepted Rule 6 8 Offer, which provides for the award of r easonable attorney ’ s fees, is entitled, under the Rule 68 Offer, to an award of f ees in some amount. Thus, the
mag istrate judg e and the district court decided the w r ong question – whether plaintiff was entitled to fees under § 1988

– rather than the amount of fees to w h i c h s he was entitled under the R u l e 6 8 O ffer. T he panel remanded f o r a determination and award of a reasonable fee.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M I L L E R V

. C I T Y O F P O R T L A N D 3

COUNSEL

L eonard Randolph B erman (arg ued), L aw Office of L e onard R. B erman, Portland, Oreg on, for Plaintiff-Appellant.

Denis M. Vannier (arg

ued), D eputy City

Attorney , Office of
t h e City A ttorney , Portland, Oreg on, for DefendantsAppellees.

OP INION

TASHI MA, Circuit J udg e:

Roberta Miller appeals the district court’s denial o f h er motion for a ttorney ’s f

ees. Miller sued the City of Portland (“Portland”) and three Portland police officers under 42 U.S.C. § 1983 for asserted F ourth Amendment v iolations. Portland made a Rule 68 O ffer of J udgm e n t (the “ Rule 68 Offer” o r “ Offer”) for $1,000, plus reasonable a t torney ’s fees to be determined by the district court. Mi l l e r t i m ely

a c c e p t e d the Offer. W hen Miller moved for fees, h owever, the district court denied the motion on th e gr o u nd that the $1,000 award was a de m inimis judg ment under 42 U

. S.C. § 1988.

Portland’s Rule 68 Of

f e r – and Miller’s acceptance

– which we interpret as a contract, provided that Miller would receive her reasonable a t t o rney ’s fees, without referencing § 1988 or otherwise reserving to the district c ourt the antecedent questio n o f whether Miller w as entitled to a f ee award. W e have jurisdiction u nder 28 U. S

. C

. § 1291. W eM I L L E R V

. C I T Y O F P O R T L A N D 4

reverse and r emand f

or a determination and award of a reasonable fee.

F A C T U A L A N D P R O C E D U R A L B A C K

G R O U N D

Miller broug ht this action on be h a l f o f herself and the
estate of her unborn child 1 ag ainst defendants, asserting F ourth A mendment claims under § 1983 and s t a te-law tort claims under Oreg on law based o n the following f actual alleg ations: in J uly 2010, w h e n she was seven-and-a-half months preg nant , P ortland police officers confronted her abou t h e r tenancy at a building in Portland and, during the confrontation, used ex cessive force ag ainst her b y shoving her ag ainst the roll bar of a police v e h icle. She further alleg e s that she ex perienced four d ay s of intense pain, was admitted
to the hospital, and suffered a n aborted preg nancy

. Miller
soug h t compensatory damag es in th e a m o u nt of $1 million, plus punitive damag es.

Miller amended her complaint five months after filing it. She omitted reference to herself as repr e s e n t a tive of her unborn child and dropped the wrong ful d eath claim. B ecause she continued to maintain, however, that she was preg nant at the time of her encounter with police, Portland moved to compel discovery o f records related to Miller’s alleg ed
preg n ancy

. The distr i c t c o urt g ranted the motion to c ompel and o rdered Miller t o produce medical records. She did not produce the records by the court-ordered deadline.

1 Bef o re f ilin g t h is actio n , Miller p etitio n ed an Oreg o n state co u rt to h av e an estate o p en e d a nd a d m in istered o n beh alf o f h er u n b o rn f etu s. T h e p etitio n

w as d en ied f

o r reaso n s th at are n o t clear f ro m th e reco rd

.M I L L E R V

. C I T Y O F P O R T L A N D 5

Portland served a Rule 68 Off e r of J udg ment on Miller,

s ee F ed. R. Civ. P. 68, which provided in relevant part:

Pursuant to F ed. R. Civ. P. 68, defendant City of Portland h ereby offers to allow judg ment in the above-captioned matter to b e taken ag ainst it by plaintif

f f o r the sum of One Thousand and n o/100 D ollars ($1,000.00), plus costs (ex cluding any prevailing fee), and including reasonable attorney ’s fees to b e determined b y the Court, i n cu r r ed as of April 1 6, 2013, a nd for the dismissal with prejudice o f defendants Officer J oh n Scrug g s, Officer Timothy Manz ella and Chief Michael Reese.

I t 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 d istrict c o u rt entered judg ment ag ainst Portland and dismissed the individual police o f ficers, Miller filed a motion r equesting $ 16,900 in attorney ’s f ees. Portland opposed the motion, arg uing that Miller sh o u l d r eceive no fees b ecause $1,000 was a de minimis judg me n t , and in the alternative, contesting

the amount soug ht.

The district court referred the motion to a mag is t r ate judg e, who issued a F inding s & Recommendation (“F & R”). I nstead of analy

zing Miller’s fee request under the terms o f the a ccepted Offer, the mag istrate judg e analy zed her request under 4 2 U.S.C. § 1988, which g ives courts the discretion to

awa r d f e e s to the p revailing party in a § 1983 action under certain circumstances. Th e mag istrate judg e took up the question, “ as a threshold ma t t e r,” of “whether Miller isM I L L E R V

. C I T Y O F P O R T L A N D 6

entitled to a fee a ward.” H e f irst acknowledg ed that Miller

was th e prevailing p arty , as Portland conceded. He neverth e l ess concluded that Miller was not entitled to fees, reasoning that the $1,000 award “constitutes a d e minimis judg ment” 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
, d amag es is usually n ot entitled
to rec over fees under § 1988. Id. The mag istrate judg e concluded that Miller’s award was nominal because it “seems inadequate compensation for t h e i n juries Miller claims to have suffered in this case.” After weig h ing the factors that courts consider in determining whether a plaintiff is entitled
to f ees under § 1988 despite receiving only nominal d amag es, the mag istra t e j udg e determined that Miller was not so entitled. On that b asis, the mag istrate ju d ge r e commended de n y ing Miller’s motion for fees and d id not reach the issue of the amount.

Miller objected to the m a gi s t rate judg e’s F & R. The district court overruled the objections, adopted the F & R, a nd denied the fee motion. Miller timely appealed.

S T A N D A R

D O F R E V I E W

“[ A ] ttorney ’s fee a

wards are reviewed for an abuse o f discretion.” Holland v

. R o es er , 37 F .3d 501, 503 ( 9 th Cir. 1994). “ A district court abuses its discretion when it awards fees ‘based on an inaccurate view of the law or a c l e a r l y

erroneous finding of fact.’” W ilcox 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 leg al analy sis and statutory interpretation which fig ure in the district court’s decisions [ r e g arding the fee] a re reviewed de novo.” H o lland

, 37 F

. 3d at 503 (internal quotation marks omitte d ).M I L L E R V

. C I T Y O F P O R T L A N D 7

W e a lso review de novo a district court’s interpretation o f a Rule 68 offer of judg ment. See id.

D I S C U S S I O N

The sole issue on appeal is whether a prevailing p laintiff under an accepted Rule 68 Offer, whic h p r o v ides for the award of reasona

b l e attorney ’s fees, is entitled, under the Rule 68 Offer, to a

n award o f f

ees in some amount. 2 W e conclude that she is; therefore, that the d istr i c t court abused its discretion in deny ing Mill e r ’ s motion for fees on the
g round that the amount of her a g reed-upon Rule 68 award

was de minimis
, where the Rule 68 O ffer ex p ressly provided that she w as e n t i t led to a reasonable f ee award. W e f

urther conclude that the district court’s ruling was erroneous because it w as “ based on an in a c c u ra t e view o f the law,” W ilcox

, 42 F

. 3d at 553 (internal q uotatio n marks omitted), and therefore an abuse of discretion.

A. Rule 68

Rule 68(a) of the F ederal Rules of Civil Procedure provides:

At least 14 day s b efore the date set for trial, a party defending

ag ainst a claim may

serve on an opposing party

an offer to allow judg ment

2 T h e q u estio n of w

h eth er a $ 0 .0 0 o r n o m in al aw ard

, su ch as $ 1 .0 0
, co u ld co n st i t u t e a reaso n ab le f ee aw ard u

n der a Ru le 68 Of

f er is n o t b ef o re u s an d w e n eed n o t d ecid e it. W e n eith er en co u rag e n o r d issu ad e th e d istrict co u

rt on rem an d f

ro m i n q u irin g in to w

h eth er, u n d er a co n t

ract p rin cip le an aly s is, an aw ard o f $ 0 .0 0
, o r a n o m i n a l a m o u n t , co u ld

co n stitu te a reaso n ab le f

ee aw ard in

th is case.M I L L E R V

. C I T Y O F P O R T L A N D 8

on specified terms, with the costs then accrued. I f, within 14 day s after being served, the o pposing party serves wr i t ten notice accepting the offer, either party

may then file the offer and n otice of a c ceptance, p lus proof of service. The clerk must then enter judg ment.

Once acce p ted, an offer of judg ment becomes a settlement
ag reement. G uerrero v. Cummings
, 70 F .3d 1111, 1 113 (9th Cir. 1995). According ly

, “[ 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

“I n an a ction broug ht pursuant to 42 U.S.C. § 1983, ‘the court, in its discretion, may allow the prevailing p a rty , other than the United States, a reasonable attorney ’s fee as part o f the costs.

. . .’” Benton v. Or. Stu d ent Assistance Comm’n
, 421 F .3d 901, 904 (9th Cir. 2005) (quoting 4 2 U.S.C. § 1988( b ) )

. “ A § 1983 p laintiff w ho receives a nominal damag e award is a prevailing p arty for purposes of § 1988,” b u t “ [ t] hat does not

. . . mean that such a plaintiff is necessarily entitled to a

n award of fees.” Id. (citing Farr a r , 506 U.S. at 112, 114). I n deciding a § 1988 fee motion, “the district c ourt’s first c onsideration must be whether the nominal damag es plaintiff i s e n t i t l e d to any fees at all.” Id.
at 905. 3 “[ A] district c o urt should g ive primary consideration

3 Fees m ay also b e den ied u n d er § 19 88 “ w h en sp ecial circu m stan ces

ex ist s u f f icien t t o ren d er an aw ard u n j u st,” ev en if an aw ard is n o t

n o m in al. M

en d ez v. Cty. o

f S a n Bern a rd in o , 5 4 0 F.3 d 1 1 0 9
, 1 12 6 (9 thM I L L E R V

. C I T Y O F P O R T L A N D 9

to the deg ree of success achieved when it decides whether to award attorney ’s fees.” W ilcox

, 4 2 F .3d at 554. “I f a district
court c hooses to a

ward fees after a judg ment for o nly nominal damag es, it must point to some way in which the litig a t i on succeeded, in a ddition to obtaining a judg ment for no m inal damag e.” 4 Id. at 555.

C. Analysis

The district c ourt eng ag ed in the w rong analy sis w hen it
ap p l i e d principles g o verning § 1988 awards, rather than principles g overning contract construction, to decide Miller’s fee motion. W e have repeatedly emphasiz ed that Rule 68 offers of judg ment are “analy z ed in the same m anner as any contract.” E

rdman v. Cochise Cty.
, 926 F .2 d 877, 880 (9th Cir. 1991). Plaintiffs a re “entitled to r e l y on the plain lang uag e of the offer [ they ] accepted,” id. a t 897, and “any ambig uities are construed a g ainst the drafter,” id. a t 880. See also id. at 881 (“[ T] he [ defendant] is bound by the letter of its
ag reement.”).

F o r i n s tance, in H

olland

, we addressed a provision in a R u l e 68 offer of judg ment that allowed the plaintif f s t o

recover “costs now accrued a nd reasonable attorney fees as

Cir. 2 00 8 ) (in t ern al q u otatio n m ark s o m itted ), overru led o n o t h er g ro un d

s b y Arizo n a v. AS

ARCO LLC
, 77 3 F .3 d 1 0 5 0
, 1 0 5 8 n .1 (9 th Cir. 2 0 1 4 ) (en b an c). T h e co u rt d eterm i n es “ w h eth er sp ecial circu m stan ce s e x ist b y ask in g w h eth er (1 ) allo w in g atto rn ey ’ s f ees w o u l d f

u rth er th e p u rp o ses of § 1 9 88 an d (2 ) w

h eth er t h e b alan ce o f eq u ities f

av o r s o r d isf

av o rs th e d en ial o f f

ees.” Id

. (in tern al q u o tatio n m ark s o m itted ). T h is “ sp ecial circu m s tan ces” p ro v isio n is n ot at issu e in th is case.

4 W e assu

m e, w ith o u

t d ecid in g , th at a settlem en t aw ard o f $ 1
, 0 0 0
q u alif ies as “ n o m in al” d am ag es.M I L L E R V

. C I T Y O F P O R T L A N D 10

determi n e d b

y the court .” See 37 F .3d at 502 (internal quotation marks omitt e d ) (emphasis a dded). The issue was whether the p laintiffs c ould only recover fe e s i n c urred prior
to accepting the offer, or c o u l d a l so seek f ees incurred in preparing their fee motio n

. I d. at 503. At the outset, we noted that, “ if Rule 68 were not implicated,” the case would be controlled b y Cl a rk v

. C i ty of Los A ngeles

, 8 0 3 F .2d 987 (9th Cir. 1986), which held that “time spe n t l itig ating attorney s fees in § 1983 cases [ is] compensable.” Holland

, 37 F .3d at 503. However, bec a use the proper analy sis was

un d e r R u l e 68, we instead applied Erdman and “the usual rules o f contract interpretation.” Id. at 504. W e concluded that the phrase “costs now accrued and reason able attorney fees” was “ambig uous,” and, c o nstruing that term “ag ainst the drafter ,” w e held that “the City ’ s offer of judg ment did not limit the a ttorney ’s fee awa r d t o those fees incurred prior to the o ffer.” Id. (internal quotation marks and emphasis omitted).

Apply ing the same analy tical framework to the Offer at hand, we conclude that the d istrict cour t w a s required to determine and award a reasonable amo u nt in attorney ’s fees
to Miller. The Offer authoriz ed Miller to recover “reasonable attorney ’s fees to be determined by the Court,” plainly entitling Miller to a reasonable amount to c o m p e nsate her counsel. L ike in H

olland

, considerations tha t go vern the decision to award fe e s u n der §§ 1983 and 1988 a re not applicable to this case, as those consideration s were not incorporated into the Offer. Here, s uch considerations include whether Miller’s judg ment was de minimis , whether Miller was a ‘prevailing ’ party , and o ther factors that could lead to the outrig ht denial of f ees on the g round that Miller is
not entitled to any

. I n short, b ecause “the settlement provided that [ Miller] would be awarded reasonable fees,” the districtM I L L E R V

. C I T Y O F P O R T L A N D 11

court “did n ot need t o d etermine whether fees should have been a warded.” See Bell v. United Princeton Props., Inc.
, 884 F .2d 713, 725 (3d Cir. 1 989) (emphasis added). Thus, the mag istrate judg e and the district c o urt decided the wrong question

– whether Miller was entitled to fees under § 1988

– rather than the amount of fees to which she w as en t i t l e d under the Rule 68 Offer.

The Seventh Circuit has held th a t a district court may deny fees in § 1983 cases in w hich the offer of judg ment only

ex p ressly 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 qu o tation marks

o m i tted). Our holding is consistent with Fisher

, g iven t h e lack of a ny ex press fee-shifting provision in the offer at issue in that case. B y contrast, here, Miller was “entitled to rely on the p lain lang u ag e of the offer,” E rdman

, 9 2 6 F. 2 d at 879, which ex pressly provided for fees without ref e r encing § 1988.

According ly

, the order of the district court d e n y i ng the award of fees is reversed a n d the matter r e m a n d e d for the calculation and award of a reasonable a t torney ’s fee. Plaintiff-Appellant shall recover her costs on appeal.

REVERSED and REMANDED w ith directions.