Plais v Panuelo [1992] FMSC 10; 5 FSM Intrm. 319 (Pon. 1992) (28 May 1992)

[1992] FMSC 10; 5 FSM Intrm 319 (Pon 1992)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

FSM CIVIL ACTION 1990-088

HARRY PLAIS
Plaintiff

V

WILLIAM PANUELO, PAULUS HARTMAN, REMIKIO PRETRICK
all individually and in official capacity
POHNPEI STATE
AND FEDERATED STATES OF MICRONESIA
Defendants

OPINION: May 28, 1992

BEFORE: Honorable Edward C. King, Chief Justice, FSM Supreme Court

APPEARANCES: For the Plaintiff: Roberta J. Lindberg, Esq.;
For the Defendants Panuelo, Hartman, Pretrick and Pohnpei State: Joses R. Gallen, Esq., Attorney General, State of Pohnpei; For the Defendant FSM: David Webster and Douglas Juergens, Chief of Litigation, Office of the FSM Attorney General

HEADNOTES

Attorney, Trial Counselor and Client - Fees
11 F.S.M.C. 701(3) is comprehensive and contains no suggestion that publicly funded legal services are outside the clause or should be treated differently than other legal services. Plais v. Panuelo, [1992] FMSC 10; 5 FSM Intrm. 319, 320-21 (Pon. 1992).

Attorney, Trial Counselor and Client-Fees; Civil Rights
The government does not pay twice when it violates someone's civil rights and then is forced to pay attorney's fees. It pays only once - as violator of civil rights. Its role as a provider of public services is distinct from its role as a defendant in a civil case. Thus an award of costs and reasonable attorney's fees should be made to a publicly funded legal services organization whose client prevailed in a civil rights action. Plais v. Panuelo, [1992] FMSC 10; 5 FSM Intrm. 319, 321 (Pon. 1992).

COURT'S OPINION

EDWARD C. KING, Chief Justice:

Plaintiff Harry Plais has prevailed in this civil rights action under 11 F.S.M.C. 701(3).

Plaintiff has now moved the court to award him attorneys' fees in the amount of $36,512 for 365.12 hours at the prevailing rate of $100.00 per hour, and costs in the amount of $1,240. The motion is brought pursuant to 11 F.S.M.C. 701(3), which says, "in an action brought under this section, the court may award costs and reasonable attorney's fees to the prevailing party."

The defendants contend that it is inappropriate to award attorney's fees for legal services provided by a publicly-funded organization because the government would in essence be paying a second time for legal services that already have been funded at least in part by this government. This contention has not previously been made in the Federated States of Micronesia and no national statute or previous court decision here is directly controlling on this issue.

At the outset however, it is noteworthy that 11 F.S.M.C. 701(3) is comprehensive, containing no suggestion that publicly funded legal services are outside the clause or should be treated differently than other legal services.

There is also no support for the government in the case law of the Federated States of Micronesia. Only one case concerning attorney's fees has reached the appellate division. In that case, Tolenoa v. Kosrae, [1987] FMSC 15; 3 FSM Intrm. 167, 170 (App. 1987), the Court concluded that 11 F.S.M.C. 701(3) is derived from United States statutory provisions, 42 U.S.C. §§ 1983, 1988, and that courts in the FSM may look to interpretations of those United States statutes for guidance.

United States courts have held under 42 U.S.C. §§ 1983 and 1988 that publicly funded legal services should be treated the same as other legal services. In Blanchard v. Bergeron, [1989] USSC 19; 489 U.S. 87, 94-95[1989] USSC 19; , 109 S. Ct. 939, 945[1989] USSC 19; , 103 L. Ed. 2d 67, 76 (1989) (quoting Blum v. Stenson, [1984] USSC 57; 465 U.S. 886, 894[1984] USSC 57; , 104 S. Ct. 1541, 1547, 79 L. Ed. 2d 891, 899 (1984)), the court said that Congress did not intend for fee awards under 42 U.S.C. §§ 1983 and 1988 to "`vary depending on whether the plaintiff was presented by private counsel or by a nonprofit legal services organization.'"

The policy supporting awards of attorney's fees to a government funded legal services agency has also been explained this way:

“[Congress'] purpose in authorizing fee awards was to encourage compliance with and enforcement of civil rights laws... An award in these circumstances serves the purposes of the act for two reasons: (1) the award encourages a legal services organization to expend its limited resources in litigation aimed at enforcing the civil rights statutes; and (2) the award encourages potential defendants to comply with civil rights statutes.”

Dennis v. Chang, [1980] USCA9 73; 611 F.2d 1302, 1306 (9th Cir. 1980).

As to the argument that awarding attorneys' fees in civil rights cases amounts to double payment for services, the court in Shades v. Beal, [1982] USCA3 816; 685 F.2d 824, 833 (3d Cir. 1982) stated that the government "does not pay twice when it violates someone's civil rights and then is forced to pay attorneys' fees. It pays only once - as a violator of civil rights. Its role as a provider of public services is distinct from its role as a defendant in a civil case."

This Court finds the reasoning of those decision persuasive and finds nothing in 11 F.S.M.C. 701(3) or in its legislative history calling for a different result here. Thus, an award of costs and reasonable attorney's fees should be made in this case.

The Court also has reviewed counsel's detailed explanation of times devoted to this litigation and finds the number of hours to be reasonable.

The quality of the work of counsel for Mr. Plais in this case quite good. The fees sought reflect the prevailing rate of the FSM $100.00 per hour, based on the appellate division's holding in Tolenoa v. Kosrae, 3 FSM Intrm. at 174.

Therefore, the Court hereby holds that the defendants are liable, jointly and severally, to pay the plaintiff's attorneys' fees in the amount of $36,512 and costs in the amount of $1,240 for a total of $37,752.