745 F.3d 1261
9th Cir.2014Background
- Family PAC challenged Washington election provisions, including disclosure requirements and a 21-day contribution limit.
- District court upheld the 25/100 disclosures but struck down the 21-day limit; Family PAC and opponents appealed.
- Ninth Circuit affirmed, holding 25/100 disclosures constitutional and 21-day limit unconstitutional; stated each party bears own costs of appeal.
- Family PAC moved to transfer consideration of appellate attorney’s fees to district court; court stated it expressed no opinion on §1988 fees.
- On remand, Family PAC sought $148,987.62 in §1988 fees; district court awarded $146,073.12 after adjustments.
- State appealed, arguing Rule 39 costs barred appellate attorney’s fees; court held costs do not include §1988 fees and affirmed in part, reversed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 39 include §1988 attorney’s fees as costs? | Family PAC argues Rule 39 should include §1988 fees as costs. | State argues Rule 39 includes all costs defined by law, including §1988 fees. | No; Rule 39 costs exclude attorney’s fees under §1988. |
| Does the mandate that each party bear its own costs preclude §1988 fees? | Prevailing party could still recover fees under §1988 despite Rule 39 costs. | The costs order forecloses any §1988 appellate fee recovery. | Not precluded; §1988 fees may be awarded notwithstanding Rule 39 costs. |
| Was the district court's remand award proper? | District court correctly awarded §1988 fees on appeal on remand. | Challenge to the amount or basis of the fee award should prevail. | District court’s award affirmed in part; fee recovery permitted. |
Key Cases Cited
- Roadway Express, Inc. v. Piper, 447 U.S. 752 (U.S. Supreme Court, 1980) (defined 'costs' under 28 U.S.C. §§ 1920/1927, excluding attorney’s fees)
- Marek v. Chesny, 473 U.S. 1 (U.S. Supreme Court, 1985) (addressed interplay of §1988 with costs; treated costs broadly under Rule 68)
- Azizan v. Federated Department Stores, Inc., 499 F.3d 950 (9th Cir. 2007) (held Rule 7 costs may include attorney’s fees; Rule 39 not defined like Rule 7)
- Kelley v. Metropolitan County Bd. of Educ., 773 F.2d 677 (5th Cir. 1985) (en banc: Rule 68 includes §1988 fees as costs; distinguishes Roadway Express)
- Terket v. Lund, 623 F.2d 29 (7th Cir. 1980) (distinguishes attorney’s fees from ordinary costs under Rule 39)
- Exxon Valdez v. Exxon Mobil Corp., 568 F.3d 1077 (9th Cir. 2009) (describes mixed judgments and cost-shifting practice related to Rule 39)