                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERTA F. MILLER,                       No. 14-35783
               Plaintiff-Appellant,
                                            DC No.
                v.                      3:12-CV-01222-
                                              AC
CITY OF PORTLAND; TIMOTHY
MANZELLA, Officer, Personally;
JOHN SCRUGGS, Officer; Personally;        OPINION
MICHAEL REESE, Personally,
             Defendants-Appellees.


     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 Defendants-
Appellees.


                        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.
