Miller v. Caudill

• Decision Date: 23 August 2019
• Docket Number: Nos. 17-6385/6404,s. 17-6385/6404
• Citation: 936 F.3d 442
• Parties: April MILLER ; Karen Ann Roberts; Shantel Burke; Stephen Napier; Jody Fernandez; Kevin Holloway ; L. Aaron Skaggs; Barry W. Spartman, Plaintiffs-Appellees, v. Elwood CAUDILL, Jr., in his official capacity as Rowan County Clerk, Defendant-Appellee/Cross-Appellant, Rowan County, Kentucky, Defendant-Appellee, Matthew G. Bevin, in his official capacity as Governor of Kentucky; Terry Manuel, in his official capacity as State Librarian and Commissioner of the Kentucky Department for Libraries and Archives, Third Party/Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

936 F.3d 442

April MILLER ; Karen Ann Roberts; Shantel Burke; Stephen Napier; Jody Fernandez; Kevin Holloway ; L. Aaron Skaggs; Barry W. Spartman, Plaintiffs-Appellees,
v.
Elwood CAUDILL, Jr., in his official capacity as Rowan County Clerk, Defendant-Appellee/Cross-Appellant,

Rowan County, Kentucky, Defendant-Appellee,

Matthew G. Bevin, in his official capacity as Governor of Kentucky; Terry Manuel, in his official capacity as State Librarian and Commissioner of the Kentucky Department for Libraries and Archives, Third Party/Defendants-Appellants/Cross-Appellees.

Nos. 17-6385/6404

United States Court of Appeals, Sixth Circuit.

Argued: January 31, 2019
Decided and Filed: August 23, 2019

ARGUED: Palmer G. Vance, II, STOLL KEENON OGDEN, PLLC, Lexington, Kentucky, for Matthew G. Bevin and Terry Manuel. William E. Sharp, BLACKBURN DOMENE & BURCHETT, PLLC, Louisville, Kentucky, for April Miller, et al. Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Elwood Caudill, Jr. ON BRIEF: Palmer G. Vance, II, William M. Lear, Jr., STOLL KEENON OGDEN, PLLC, Lexington, Kentucky, for Matthew G. Bevin and Terry Manuel. William E. Sharp, BLACKBURN DOMENE & BURCHETT, PLLC, Louisville, Kentucky, James D. Esseks, Ria Tabacco Mar, Daniel Mach, Heather L. Weaver, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Daniel J. Canon, Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, Louisville, Kentucky, Amy D. Cubbage, ACLU OF KENTUCKY, Louisville, Kentucky, for April Miller, et al. Roger K. Gannam, Mathew D. Staver, Horatio G. Mihet, Kristina J. Wenberg, LIBERTY COUNSEL, Orlando, Florida, for Elwood Caudill, Jr. Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Rowan County.

Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.

GRIFFIN, Circuit Judge.

Under the "American Rule," parties typically pay their own attorney’s fees. Congress created an exception, though, for plaintiffs who win cases against government officials over civil-rights violations. Here, plaintiffs applied for marriage licenses only to find that Kim Davis, who oversaw marriage licensing for Rowan County, Kentucky, wouldn’t issue them. So they sued her for infringing their constitutional right to marry, and the district court ordered Davis to give them what they wanted. Once they obtained licenses (or chose not to seek them again), they chose not to pursue the lawsuit any further. But they did pursue attorney’s fees, which the

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district court awarded and required the Commonwealth of Kentucky to pay. The Commonwealth, Rowan County, and the official who replaced Davis now contend that plaintiffs didn’t win and thus can’t recover attorney’s fees. They also dispute who must pay the fee award. And Davis’s successor challenges the amount of the award. We reject all the issues the parties raise on appeal and therefore affirm.

I.

In the summer of 2015, Kim Davis was the County Clerk for Rowan County, Kentucky. One of her responsibilities was to issue marriage licenses. But same-sex marriage offended her religious beliefs, so when the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges , ––– U.S. ––––, 135 S. Ct. 2584, 192 L.Ed.2d 609 (2015), Davis took matters into her own hands.

One day after the Supreme Court released Obergefell , Davis stopped issuing marriage licenses. She didn’t discriminate against same-sex couples, though; she stopped issuing licenses altogether. That meant that when plaintiffs—two same-sex couples and two different-sex couples who lived in Rowan County—sought marriage licenses from the Clerk’s Office, they couldn’t get them.

With a constitutional right to marry yet no ability to obtain marriage licenses within Rowan County, plaintiffs sued Rowan County and Davis, in her individual capacity and in her official capacity as County Clerk. They sought injunctive relief, a declaratory judgment, and damages.

Plaintiffs promptly moved for a preliminary injunction. The district court granted the motion, enjoining Davis from enforcing her policy against plaintiffs. Davis asked our court and the Supreme Court to stay the injunction, but she didn’t prevail. Davis v. Miller , ––– U.S. ––––, 136 S. Ct. 23, 192 L.Ed.2d 994 (2015) ; Miller v. Davis , No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015).

The morning after the Supreme Court rejected her request for a stay, Davis decided to resist the injunction, so she told her deputy clerks to continue enforcing her no-license policy. Two of the plaintiffs again sought a marriage license but were rebuffed. Plaintiffs then moved for the district court to hold Davis in contempt of the injunction and to expand the injunction’s scope to prevent Davis from enforcing her policy against other couples. The district court did both. And after Davis’s deputy clerks told the court they would issue marriage licenses, the court gave Davis a second chance: if she would agree not to interfere with her deputy clerks’ compliance with the injunction, she wouldn’t be sent to jail. Davis chose jail.

While Davis was in custody, two plaintiffs decided not to seek a marriage license again, six others sought and received them, and four of those six used them to wed. After learning of plaintiffs’ successes, the district court lifted the contempt sanction and released Davis from custody. It also ordered her to refrain from interfering with her deputy clerks as they issued licenses.

In addition to fighting the case against her, Davis brought a case of her own. She filed a third-party complaint against the then-Governor of Kentucky, Steven Beshear, and the then-Commissioner of Kentucky’s Department of Libraries and Archives, Wayne Onskt ("Kentucky Officials"). She opposed same-sex marriage on religious grounds—the marriage licenses she issued had her name on them, and she felt that her name’s appearance was the equivalent of her personal endorsement—so she sought a preliminary injunction requiring the Kentucky Officials

936 F.3d 447

to exempt her from having to issue marriage licenses.

In response to Davis’s lawsuit, Governor Matthew Bevin, who had succeeded Beshear, issued an executive order establishing a revised marriage license that didn’t contain the names of county clerks. The Kentucky General Assembly also amended Kentucky law so that county clerks weren’t required to sign marriage licenses. See 2016 Kentucky Laws Ch. 132 (SB 216), General Assembly Reg. Sess. (Ky. 2016).

Those changes appeased Davis, so she asked us to dismiss the various appeals then pending in our court. We granted her request and instructed the district court to vacate its preliminary injunction. Miller v. Davis , 667 F. App'x 537, 538 (6th Cir. 2016). On remand, the district court followed our instructions and also dismissed plaintiffs’ damages claims sua sponte .

Plaintiffs chose not to appeal the dismissal of their damages claims, but they sought attorney’s fees under 42 U.S.C. § 1988. The district court awarded plaintiffs $222,695.00, but it imposed liability on the Commonwealth, not the Clerk’s Office or Rowan County. That prompted the Kentucky Officials, who hadn’t responded to plaintiffs’ motion for fees, to ask the district court to amend its ruling to assess fees against the Clerk’s Office. The district court refused.

The Kentucky Officials and Davis appealed the fee award. After the parties submitted their briefs, Elwood Caudill, Jr. replaced Davis as Rowan County Clerk and thus as a defendant, appellee, and cross-appellant in this case. He adopted her arguments, so we will refer to them as his.

II.

The common law contains no right to attorney’s fees for the winning party to a lawsuit. McQueary v. Conway , 614 F.3d 591, 596 (6th Cir. 2010). Instead, under what is known as the "American Rule," each party pays his, her, or its own fees unless a statute explicitly provides otherwise. Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health and Human Res. , 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Here, 42. U.S.C. § 1988 provides otherwise:

In any action or proceeding to enforce a provision of ... [§] 1983 ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee ....

42 U.S.C. § 1988(b).

Whether plaintiffs may obtain attorney’s fees, then, hinges on whether they prevailed. Caudill and the Kentucky Officials say they didn’t; plaintiffs say they did. And if they did, Caudill and the Kentucky Officials also argue over who must pay the award—Caudill points to the Commonwealth; the Commonwealth (by way of the Kentucky Officials) points back. Caudill, alone, challenges the amount of the award as well. We address each issue in turn.

A.

As an initial matter, we must resolve a split in our caselaw over how we review a district court’s determination of whether a party is a "prevailing party" under § 1988. Sometimes we’ve reviewed for clear error. See, e.g. , DiLaura v. Twp. of Ann Arbor , 471 F.3d 666, 670 (6th Cir. 2006). Other times we’ve reviewed de novo. See, e.g. , Radvansky v. City of Olmsted Falls , 496 F.3d 609, 619 (6th Cir. 2007). And when our published opinions conflict, the earliest opinion normally controls because one panel can’t overturn another’s decision. Ne. Ohio Coal. for the Homeless...