Ohio A. Philip Randolph Institute v. Householder

• Decision Date: 04 February 2020
• Docket Number: No. 1:18-cv-357,1:18-cv-357
• Parties: OHIO A. PHILIP RANDOLPH INSTITUTE, et al., Plaintiffs, v. LARRY HOUSEHOLDER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

OHIO A. PHILIP RANDOLPH INSTITUTE, et al., Plaintiffs, v. LARRY HOUSEHOLDER, et al., Defendants.

No. 1:18-cv-357

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

February 4, 2020

ORDER DENYING COSTS

Before: Moore, Circuit Judge; Black and Watson, District Judges.

Before the Court is Defendants Larry Householder and Larry Obhof's ("Legislative Defendants") Bill of Costs (Dkt. 290). Pursuant to the briefing schedule established by the Court, Plaintiffs filed a response in opposition (Dkt. 293), and Defendants filed a reply in support of their request for costs (Dkt. 295). For the reasons that follow, we DENY the Legislative Defendants' request for costs.

I. BACKGROUND

Plaintiffs, individual Democratic voters from each of Ohio's sixteen congressional districts, two non-partisan pro-democracy organizations, and three Democratic-aligned organizations, initiated this action to challenge the constitutionality of Ohio's 2012 redistricting map. After a two-week trial, the Court entered an Order ruling in Plaintiffs' favor, declaring Ohio's 2012 map an unconstitutional partisan gerrymander and enjoining its use in the 2020 election. See Ohio A. Philip Randolph Inst. v. Householder, 373 F. Supp. 3d 978 (S.D. Ohio 2019). The Legislative Defendants, Speaker of the Ohio House of Representatives Larry Householder and President of the Ohio State Senate Larry Obhof, appealed the decision directly to the Supreme Court.¹ Dkt. 265. While the appeal was pending, the Supreme Court issued a ruling in Rucho v. Common Cause, 139 S. Ct. 2484 (2019), in which the Court held that partisan gerrymandering claims present political questions beyond the scope of federal jurisdiction. Subsequently, the Supreme Court vacated this Court's judgment and remanded the case for further consideration in light of Rucho v. Common Cause. Dkt. 283; Dkt. 284. Pursuant to the Supreme Court's order, this Court dismissed the case for lack of jurisdiction on October 29, 2019. Dkt. 287.

On November 8, 2019, the Supreme Court issued a certified copy of its judgment, which vacated this Court's judgment, remanded the case, and awarded $300 to the Legislative Defendants for costs incurred therein. Dkt. 288. On December 9, 2019, the Legislative Defendants filed a Bill of Costs in this Court seeking a total of $71,179.27. Dkt. 290. Plaintiffs oppose the request for costs, asserting that an award of "just costs" would not be appropriate under 28 U.S.C. § 1919, as Plaintiffs reasonably pursued their case in the district court based on existing Supreme Court precedent. Dkt. 293 at 5-6. In support of their Bill of Costs, the Legislative Defendants argue that an award of costs in this case is governed by Federal Rule of Civil Procedure 54(d)(1), rather than 28 U.S.C. § 1919, which carries a presumption of costs to the "prevailing party." Dkt. 295 at 3-4. Alternatively, Defendants argue that if § 1919 applies, the costs it seeks are "just." Id. at 4. Defendants further assert that the Court should apply the "law of the case" doctrine and award costs in this case based on the Supreme Court's prior award of costs in its order vacating this Court's judgment. Id. at 2.

II. ANALYSIS

The Legislative Defendants assert that they are entitled to costs under Federal Rule of Civil Procedure 54(d). Rule 54(d) creates a presumption in favor of awarding costs to the "prevailingparty," stating that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." However, several courts have found that when a case is dismissed for lack of jurisdiction, 28 U.S.C. § 1919 controls the question of costs, rather than Rule 54(d). See Otay Land Co. v. United Enters. Ltd., 672 F.3d 1152, 1157 (9th Cir. 2012); Miles v. California, 320 F.3d 986, 988 n.2 (9th Cir. 2003); Hygienics Direct Co. v. Medline Indus., Inc., 33 F. App'x 621, 624-26 (3d Cir. 2002); Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1338-39 (10th Cir. 1998); Commodity Futures Trading Comm'n v. Ross Erskine, and Goros, LLC, No. 1:04-cv-0016, 2006 WL 3526930, at *1 (N.D. Ohio Dec. 6, 2006).² Section 1919 provides that "[w]henever any action or suit is dismissed in any district court . . . for want of jurisdiction, such court may order the payment of just costs." 28 U.S.C. § 1919. Unlike under Rule 54(d), an award of costs under § 1919 is permissive, not presumptive, and does not depend on "prevailing party" status. See Miles, 320 F.3d at 988 n.2. The Sixth Circuit has not yet addressed whether § 1919 applies in lieu of Rule 54(d) to a request for costs when a case is dismissed for lack of jurisdiction. Regardless of which standard applies, an award of costs to the Legislative Defendants is not warranted in this case.

As an initial matter, under Sixth Circuit precedent, it is at best unclear whether the Legislative Defendants could be considered "prevailing parties" under Rule 54(d). To be a prevailing party, a party must have achieved "at least some relief on the merits of his claim." Andretti v. Borla Performance Indus., 426 F.3d 824, 835 (6th Cir. 2005) (applying meaning of "prevailing party" developed in the context of fee-shifting statutes to Rule 54(d) analysis) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health and Human Res., 532 U.S. 598, 603 (2001)); see also Maker's Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 425(6th Cir. 2012). Further, there must have been a "judicially sanctioned change in the legal relationship of the parties." Andretti, 426 F.3d at 835 (quoting Buckannon, 532 U.S. at 605).

After Plaintiffs achieved initial success on the merits, and while the appeal of this Court's decision was pending before the Supreme Court, the Supreme Court held in Rucho that political gerrymandering claims are nonjusticiable. Consequently, the Supreme Court vacated our prior judgment, and we dismissed the case for lack of jurisdiction. Defendants did not prevail on the merits, which the Supreme Court deemed to involve political questions beyond the scope of federal courts. For that reason alone, it is unlikely the Legislative Defendants are eligible for costs under Rule 54(d). Assoc. Gen. Contractors of Tenn., Inc. v. Cty. of Shelby, 5 F. App'x 374, 376-78 (6th Cir. 2001) (affirming district court's finding that plaintiff was not a prevailing party where the court never reached the merits of the case due to an intervening court of appeals decision finding the district court lacked jurisdiction).

Even assuming the Legislative Defendants are prevailing parties, an award of costs is not warranted under Rule 54(d). Although Rule 54(d) creates a presumption in favor of awarding costs to the prevailing party, district courts retain discretion to deny costs when such an award "would be inequitable under all of the circumstances of the case." Andretti, 426 F.3d at 836 (citing White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986)); accord Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001). Factors courts consider when exercising this discretion include the losing party's good faith, the difficulty of the case, the winning party's behavior, and the necessity of the costs. Singleton, 241 F.3d at 539.

Plaintiffs' good faith in initiating and litigating this action to challenge Ohio's 2012 redistricting map is readily apparent. Initially ruling in Plaintiffs' favor on the merits, this Court held that the 2012 redistricting map unconstitutionally burdened Plaintiffs' right to associate and advance their political beliefs, concluding that "the dominant party in State governmentmanipulated district lines in an attempt to control electoral outcomes and thus direct the political ideology of the State's congressional delegation." Ohio A. Philip Randolph Inst., 373 F. Supp. 3d at 1163. Moreover, we repeatedly rejected Defendants' jurisdictional challenges to find the claims justiciable. See Ohio A. Philip Randolph Inst. v. Householder, 367 F. Supp. 3d 697, 704-08 (S.D. Ohio 2019); Ohio A. Philip Randolph Inst., 373 F. Supp. 3d at 1076-92. Up until its decision in Rucho, the Supreme Court grappled with the question of the justiciability of partisan gerrymandering claims, leaving open the possibility that such claims could be justiciable under a workable standard. See Gill v. Whitford, 138 S. Ct. 1916 (2018); Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). In addition, shortly after the Supreme Court issued its opinion in Rucho, Plaintiffs moved to voluntarily dismiss the case. Dkt. 285. Accordingly, an award of costs to the Legislative Defendants would be inequitable under the totality of the circumstances, considering Plaintiffs' good faith, as demonstrated by their initial success on the merits and motion to voluntarily dismiss the case, as well as the closeness of the case and intervening change in the law. See, e.g., Knology, Inc. v. Insight Commc'ns Co., 460 F.3d 722, 728 (6th Cir. 2006) (rejecting request for costs based on plaintiff's partial success on the merits, the closeness of the case, and plaintiff's good-faith prosecution of the case).

The Legislative Defendants are also not entitled to "just costs" under 28 U.S.C. § 1919. As discussed, courts applying § 1919 to determine costs following dismissal for lack of jurisdiction do not begin with a presumption in favor of awarding costs to the "prevailing party," nor must they decide which party, if any, should be considered "prevailing." Rather, to determine "just costs," courts consider "what is most fair and equitable under the totality of the circumstances." Otay, 672 F.3d at 1157. While seemingly open-ended, this standard reflects the broad discretion traditionally afforded trial courts in awarding costs. Id. In Whitford v. Gill, a three-judge panel ofthe Western District of Wisconsin applied § 1919 to...