Hines v. City of Albany, 862 F.3d 215

In 2006 Albany police arrested Constance Hines’s son; Constance and her daughter Marshay were handcuffed and Constance’s SUV was impounded for 15 months. Plaintiffs sued under 42 U.S.C. § 1983 claiming unlawful seizure and retention.
The district court granted partial summary judgment to the plaintiffs on the unlawful seizure/retention claims; the Second Circuit affirmed. The parties later settled for $10,000.
Plaintiffs sought § 1988 attorneys’ fees and costs; the district court awarded reduced fees ($132,217.75) and costs.
Defendants appealed the fee award and plaintiffs cross‑appealed; the Second Circuit affirmed in a summary order and stated, “Each side is to bear its own costs with respect to these appeals.”
Plaintiffs then moved in the district court for fees incurred defending against the defendants’ appeal and pursuing the cross‑appeal (~$13,642.50). The district court denied that motion, interpreting the Second Circuit’s “each side bear its own costs” statement (under Fed. R. App. P. 39) as foreclosing § 1988 fee awards for appellate work.
The Second Circuit vacated and remanded, holding that Rule 39 costs do not include § 1988 attorneys’ fees and directing the district court to determine a reasonable award for appellate fee work; plaintiffs are also entitled to fees for this appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 39 "costs" includes attorneys’ fees recoverable under § 1988	Rule 39’s denial of costs did not bar a separate § 1988 award for appellate attorneys’ fees	The panel’s statement that each side bear its own costs meant no attorneys’ fees could be awarded on appeal	Held: Rule 39 costs do not include § 1988 attorneys’ fees; the district court’s interpretation was incorrect
Whether plaintiffs can recover fees for defending a fee award on appeal	§ 1988’s purpose (private enforcement) and precedent permit reasonable fees for preparing/defending fee applications, including appellate defense	Fees for defending a fee award do not further § 1988’s policy and only benefit plaintiffs’ counsel	Held: Plaintiffs may recover reasonable fees defending their fee award on appeal under § 1988
Whether plaintiffs were the "prevailing party" on the prior appeal for purposes of appellate fee recovery	Plaintiffs prevailed on the merits and successfully defended the district court’s favorable ruling on appeal	The summary affirmance left the district court’s decision unaltered and did not effect a material change in legal relationship (Buckhannon)	Held: Plaintiffs were prevailing parties on the merits and entitled to appellate fee recovery; Buckhannon does not bar such awards here

Roadway Express, Inc. v. Piper, 447 U.S. 752 (explains § 1920 costs and that attorney’s fees are generally not included)
Marek v. Chesny, 473 U.S. 1 (permits attorneys’ fees under a fee‑shifting statute to be awarded under a rule that does not define "costs")
Adsani v. Miller, 139 F.3d 67 (2d Cir.) (interpreting interplay between appellate rules and substantive fee statutes)
Hensley v. Eckerhart, 461 U.S. 424 (explains congressional purpose of § 1988 and fee award principles)
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (defines "prevailing party" in certain contexts)
Weyant v. Okst, 198 F.3d 311 (2d Cir.) (authorizes recovery for time spent defending fee awards on appeal)