FSM SUPREME COURT
TRIAL DIVISION
Cite as Plais v. Panuelo,
5 FSM Intrm. 319 (Pon. 1992)

[5 FSM Intrm. 319]

HARRY PLAIS
Plaintiff,

v.

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

FSM CIV. 1990-088

OPINION
 
Before Edward C. King
Chief Justice
FSM Supreme Court
May 28, 1992

APPEARANCES:
For the Plaintiff:              Roberta J. Lindberg, Esq.
                                         Directing Attorney
                                         Micronesia Legal Services Corp.
                                          Kolonia, Pohnpei  FM 96941

For the Defendants:       Joses R. Gallen, Esq.
Panuelo, Hartman,         Attorney General
Pretrick and Pohnpei     State of Pohnpei
State                                Kolonia, Pohnpei  FM 96941


[5 FSM Intrm. 320]

For the Defendant:         David Webster
FSM                                 Douglas Juergens
                                         Chief of Litigation
                                         Office of the Attorney General
                                         Palikir, Pohnpei  FM 96941

*    *    *    *

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, 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, 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.

[5 FSM Intrm. 321]

     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, 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, 489 U.S. 87, 94-95, 109 S. Ct. 939, 945, 103 L. Ed. 2d 67, 76 (1989) (quoting Blum v. Stenson, 465 U.S. 886, 894, 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, 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, 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.

[5 FSM Intrm. 322]

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.

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