Hines v. City of Albany
| Decision Date | 06 July 2017 |
| Docket Number | Docket No. 16-1056-cv,August Term, 2016 |
| Citation | 862 F.3d 215 |
| Parties | Constance HINES, Marshay Hines, Plaintiffs–Appellants, v. The CITY OF ALBANY, Brian Quinn, Albany Police Officer, James W. Tuffey, Albany Chief of Police, Jeff Roberts, Robert Mulligan, Albany Police Officer, Michael Haggerty, Albany Police Officer, Robert Shunck, Albany Police Officer, Jeffrey Hyde, Albany Police Officer, Tim Haggerty, Albany Police Officer, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
PHILLIP G. STECK, Cooper Erving & Savage LLP, Albany, New York, for Plaintiffs–Appellants.
STEPHEN J. REHFUSS, The Rehfuss Law Firm, P.C., Latham, New York, for Defendants–Appellees.
Before: LIVINGSTON and LOHIER, Circuit Judges, and RAKOFF, District Judge.**
Constance and Marshay Hines appeal from an order of the United States District Court for the Northern District of New York (Suddaby, C.J. ) denying their motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988. This is the third time this case has been before us on appeal, starting with our affirmance of the grant of partial summary judgment in the plaintiffs' favor on their Section 1983 claim against the City of Albany, its Chief of Police, and individual officers. Following our affirmance on the merits, the District Court granted the plaintiffs a reduced award of attorneys' fees under 42 U.S.C. § 1988. The defendants appealed the fee award, and the plaintiffs cross-appealed. We affirmed the award in a summary order on appeal, stating "[e]ach side is to bear its own costs with respect to these appeals." Hines v. City of Albany , 613 Fed.Appx. 52, 56 (2d Cir. 2015). The plaintiffs then moved for an award of the attorneys' fees incurred in defending against the defendants' appeal and pursuing their cross-appeal. Relying principally on our instruction that "[e]ach side is to bear its own costs," the District Court denied the plaintiffs' motion for attorneys' fees. Because we hold that our reference to "costs" in the context of Federal Rule of Appellate Procedure 39 did not include attorneys' fees, we VACATE the order and REMAND to the District Court for further proceedings consistent with this opinion.
In 2006 officers of the Albany Police Department arrested Constance Hines's son at her home as part of a drug investigation. During the course of the arrest, Constance Hines and her daughter, Marshay Hines, were themselves handcuffed, and the police seized and impounded Constance Hines's SUV. Hines v. City of Albany , No. 1:06-CV-01517 (NPM), 2011 WL 2620381, at *3, *6 (N.D.N.Y. July 1, 2011), aff'd sub nom. Hines v. Albany Police Dep't , 520 Fed.Appx. 5 (2d Cir. 2013). The plaintiffs were released the same day, but the SUV remained impounded for fifteen months. Id. at *10–11, *15.
The plaintiffs sued under 42 U.S.C. § 1983, claiming that the police illegally held them for over six hours and that the SUV was illegally seized and retained without affording Constance Hines a hearing to contest the seizure, as required by Krimstock v. Kelly , 306 F.3d 40, 68 (2d Cir. 2002). As relevant here, a District Judge granted partial summary judgment in the plaintiffs' favor on the claims concerning unreasonable seizure and retention of the SUV. Hines , 2011 WL 2620381, at *14–17. On appeal, we affirmed the partial grant of summary judgment. Hines , 520 Fed.Appx. at 6–7. The parties thereafter settled, and the plaintiffs received $10,000 for having lost the use of the SUV.
The plaintiffs moved for an award of $213,395 in attorneys' fees and $1,548.62 in costs under 42 U.S.C. § 1988. See Hines v. City of Albany , No. 1:06-CV-1517 (GTS/RFT), 2014 WL 12613275, at *2 (N.D.N.Y. June 5, 2014). Concluding that the plaintiffs were the prevailing party, the District Court awarded them attorneys' fees in the reduced amount of $132,217.75 and costs of $1,548.62. Id. at *5, 8–9.
Unhappy with this result, the defendants appealed the award of attorneys' fees, arguing that the plaintiffs were not the "prevailing party" under Section 1988 in light of their "de minimis " relief, and, in the alternative, that the plaintiffs' award should be reduced. The plaintiffs cross-appealed, seeking an increase in the award based on the full rates and hours billed. We affirmed the District Court's award in a summary order, which we concluded by stating "[e]ach side is to bear its own costs with respect to these appeals." Hines , 613 Fed.Appx. at 56.
As relevant here, the plaintiffs then moved before the District Court for an award of attorneys' fees of $13,642.50 incurred while defending against the defendants' appeal and pursuing their cross-appeal. The District Court denied the plaintiffs' motion, concluding that our mandate that each party "bear its own costs" with respect to the appeals "foreclosed the possibility of an award of attorney's fees under Section 1988, which are part of the ‘costs' under that statute." Hines v. City of Albany , No. 1:06-CV-1517 (GTS/RFT), 2016 WL 7166103, at *2 (N.D.N.Y. Mar. 22, 2016). In other words, because Section 1988 permits attorneys' fees to be included "as part of the costs" that may be awarded to a prevailing party in a civil rights action, the District Court reasoned that our reference to costs must have included attorneys' fees. See id.
This appeal followed.
We ordinarily review a denial of attorneys' fees under Section 1988 for abuse of discretion, Panetta v. Crowley , 460 F.3d 388, 399 (2d Cir. 2006), recognizing that "[a]lthough a district court typically has wide discretion in choosing whether to deny attorneys' fees, ... this discretion is narrowed by a presumption that successful civil rights litigants should ordinarily recover attorneys' fees unless special circumstances would render an award unjust," Raishevich v. Foster , 247 F.3d 337, 344 (2d Cir. 2001). Where, as here, "an appellant's contention on appeal regarding an award of attorneys' fees is that the district court made an error of law in granting or denying such an award, the district court's rulings of law are reviewed de novo." Union of Needletrades, Indus. & Textile Emps. v. INS , 336 F.3d 200, 203 (2d Cir. 2003) (quotation marks omitted).
An award of costs on appeal is granted pursuant to Federal Rule of Appellate Procedure 39, which describes the manner in which costs should be taxed without explicitly defining the costs themselves.1 See Adsani v. Miller , 139 F.3d 67, 74 (2d Cir. 1998). "Rule 39 provides only that (unless the court orders otherwise) costs on appeal go to the winner, and that certain procedures be followed in the taxing of these costs ...." Id. at 74–75. The Advisory Committee's notes to Rule 39 in turn refer to 28 U.S.C. § 1920, which provides "[s]tatutory authorization" for certain enumerated costs that may be taxed under Rule 39. Fed. R. App. P. 39 advisory committee's note to 1967 adoption (providing that "[s]tatutory authorization of costs is found in 28 U.S.C. § 1920"); see also 28 U.S.C. § 1920 (). The costs listed under Section 1920 do not include attorneys' fees,2 reflecting the " ‘American rule’ that attorney's fees ordinarily are not among the costs that a winning party may recover." Roadway Express, Inc. v. Piper , 447 U.S. 752, 759, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) ; see also Marek v. Chesny , 473 U.S. 1, 8, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). But the American rule is not absolute; it yields to a federal statute authorizing an award of attorneys' fees to a prevailing party. See Roadway Express , 447 U.S. at 759–61, 100 S.Ct. 2455 ; Marek , 473 U.S. at 8–9, 105 S.Ct. 3012 ; Adsani , 139 F.3d at 74.
Here, as noted, the District Court denied the plaintiffs' motion for attorneys' fees because it interpreted our instruction that "[e]ach side is to bear its own costs" to bar an award of attorneys' fees. Hines , 613 Fed.Appx. at 56. We have not previously considered whether an award of costs on appeal pursuant to Rule 39 includes attorneys' fees under a separate statute, Section 1988, which authorizes attorneys' fees "as part of [ ] costs." To answer that question we turn to the Supreme Court's decisions in Roadway Express and Marek , as well as our decision in Adsani .
In Roadway Express , the Supreme Court held, as relevant here, that attorneys' fees sought under Section 1988 were not part of the costs that could be assessed under 28 U.S.C. § 1927 against a party found to have engaged in vexatious litigation.3 447 U.S. at 760–61, 100 S.Ct. 2455. The Court observed that costs under Section 1927 were "generally ... defined ... according to 28 U.S.C. § 1920," which, as we have noted, does not include attorneys' fees in its enumeration of costs, and so the Court declined to look beyond those two provisions—for example, to Section 1988. Id. at 757, 761, 100 S.Ct. 2455. Later, in Marek , the Supreme Court held that attorneys' fees under Section 1988 could be awarded under the cost-shifting provision of Rule 68 of the Federal Rules of Civil Procedure.4 Marek , 473 U.S. at 11–12, 105 S.Ct. 3012. The Court distinguished Roadway Express by explaining that unlike Section 1927, which was understood to incorporate Section 1920's definition of costs that "did not include attorney's fees," "Rule 68 does not come with a definition of costs" but "incorporates the definition of costs that otherwise applies to the case." Id. at 9 n.2, 105 S.Ct. 3012.
In Adsani , we considered whether a district court could require an unsuccessful plaintiff alleging copyright infringement to post a bond under Rule 7 of the Federal Rules of Appellate Procedure to cover attorneys' fees incurred on appeal.5 139 F.3d at 69–71. After reviewing Roadway Express and Marek , we determined that Rule 7 did not define costs and that Rule 39 also did not supply a definition of costs for Rule 7. Id. at 74. We therefore read Rule 7 together with the relevant...
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