Pac v. Ferguson

• Citation: 745 F.3d 1261
• Decision Date: 19 March 2014
• Docket Number: No. 12–35640.,12–35640.
• Parties: FAMILY PAC, Plaintiff–Appellee, v. Robert FERGUSON, in his official capacity as Attorney General of Washington; Amit Ranade, member of the Public Disclosure Commission, in his official capacity; Grant Degginger, member of the Public Disclosure Commission, in his official capacity; Kathy Turner, member of the Public Disclosure Commission, in her official capacity; Jennifer Joly, member of the Public Disclosure Commission, in her official capacity; Barry Sehlin, member of the Public Disclosure Commission, in his official capacity, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

745 F.3d 1261

FAMILY PAC, Plaintiff–Appellee,

v.Robert FERGUSON, in his official capacity as Attorney General of Washington; Amit Ranade, member of the Public Disclosure Commission, in his official capacity; Grant Degginger, member of the Public Disclosure Commission, in his official capacity; Kathy Turner, member of the Public Disclosure Commission, in her official capacity; Jennifer Joly, member of the Public Disclosure Commission, in her official capacity; Barry Sehlin, member of the Public Disclosure Commission, in his official capacity, Defendants–Appellants.

No. 12–35640.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 6, 2014.

Filed March 19, 2014.

Robert W. Ferguson, Attorney General, Linda A. Dalton (argued), Senior Assistant Attorney General, Nancy J. Krier, Special Assistant Attorney General, Callie A. Castillo, Assistant Attorney General, Olympia, WA, for Defendants–Appellants.

Noel H. Johnson (argued) and Kaylan L. Phillips, ActRight Legal Foundation, Plainfield, IN; Justin D. Bristol, Gourley Bristol Hembree, Snohomish, WA, for Plaintiff–Appellee.

William R. Maurer (argued), William H. Mellor and Paul V. Avelar, Institute for Justice, Bellevue, WA, for Amicus Curiae Institute for Justice.

David E. Roland, Freedom Foundation, Olympia, WA, for Amicus Curiae Freedom Foundation.

Allen Dickerson, Center for Competitive Politics, Alexandria, VA, for Amicus Curiae Center for Competitive Politics.

Sarah A. Dunne and Nancy L. Talner, American Civil Liberties Union of Washington Foundation, Seattle, WA, for Amicus Curiae American Civil Liberties Union of Washington Foundation.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:09–cv–05662–RBL.

Before: RAYMOND C. FISHER, RONALD M. GOULD and MORGAN CHRISTEN, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Addressing an issue of first impression in this circuit, we hold that the term “costs” under Rule 39 of the Federal Rules of Appellate Procedure does not include attorney's fees recoverable as part of costs under 42 U.S.C. § 1988 and similar statutes. The district court therefore properly concluded that the statement in our previous opinion that “[e]ach party shall bear its own costs of appeal,” Family PAC v. McKenna, 685 F.3d 800, 814 (9th Cir.2012), did not preclude Family PAC, as prevailing party, from obtaining an award of appellate attorney's fees under § 1988.

BACKGROUND

Family PAC is a continuing political committee organized under Washington law. See id. at 803. In its 2009 federal lawsuit, Family PAC alleged that three provisions of Washington election law violated the First Amendment as applied to ballot measure committees: a provision requiring a political committee to report the name and address of each person contributing more than $25 to the committee, a provision requiring a political committee to report the occupation and employer of each person contributing more than $100 to the committee and a provision barring a political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election. See id. The defendants are the Washington State Attorney General and the members of the Washington State Public Disclosure Commission, which administers and enforces the challenged provisions. See id. at 804. Family PAC moved for summary judgment, which the district court granted in part and denied in part. See id. at 804–05. The court held that the $25 and $100 disclosure requirements survived exacting scrutiny but struck down the 21–day contribution limit as a violation of the First Amendment. See id.

After both sides appealed, we affirmed on all issues. We agreed with the district court that the $25 and $100 disclosure requirements survived exacting scrutiny, but held that the 21–day contribution limit was unconstitutional. See id. at 805–14. Given that each side had been partly successful on appeal, our opinion stated that “[e]ach party shall bear its own costs of appeal.” Id. at 814;seeFed. R.App. P. 39(a).

Shortly thereafter, Family PAC asked us to transfer consideration of attorney's fees on appeal to the district court. See 9th Cir. R. 39–1.8. The defendants (collectively, “the state”) opposed the motion, arguing that we had already precluded an award of attorney's fees by stating that each party would bear its own costs. In a January 2012 order, we granted Family PAC's motion to transfer consideration of attorney's fees on appeal to the district court. We “express[ed] no opinion as to whether an award of fees to any party is warranted” but expressly noted that “[o]ur instruction that each party shall bear its own costs on appeal did not address whether any party is entitled to attorney's fees under 42 U.S.C. § 1988.”

On remand, Family PAC moved for an award of $148,987.62 in attorney's fees and expenses, including fees and costs on appeal, under 42 U.S.C. § 1988. Family PAC excluded from its request attorney's fees incurred solely on its unsuccessful claim challenging the $25 and $100 disclosure requirements. The state opposed the motion, arguing once again that appellate attorney's fees were not available because this court already had ordered the parties to bear their own costs.

With minor adjustments, the district court granted Family PAC's motion for fees. The court specifically rejected the state's argument that our allocation of costs under Federal Rule of Appellate Procedure 39 barred Family PAC from recovering appellate attorney's fees. Although the court recognized that this was an issue of first impression in this circuit, it noted that the Third, Fifth, Seventh and Eleventh Circuits had all rejected the proposition that “costs” under Rule 39 includes attorney's fees under § 1988. After addressing the state's remaining arguments, the court awarded fees and expenses of $146,073.12. The state timely appealed.

DISCUSSION

Federal Rule of Appellate Procedure 39 governs the taxation of costs on appeal. The rule does not define the term “costs,” but Rule 39(e) specifically enumerates the costs on appeal that may be taxed in the district court, and the advisory committee's note cites 28 U.S.C. § 1920 as the statutory authority for the rule. Section 1920, in turn, contains a specific definition of costs. The Civil Rights Attorney's Fees Awards Act of 1976, meanwhile, is one of a number of federal fee shifting statutes that allow a prevailing party to recover “a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b).¹ The question presented here is how these two provisions— Rule 39 and § 1988—interact. Relying on Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), and Azizian v. Federated Department Stores, Inc., 499 F.3d 950 (9th Cir.2007), the state argues that, because Rule 39 does not define costs, the term must be understood as encompassing all “costs” defined by federal law, including appellate attorney's fees recoverable as part of costs under § 1988 and similar statutes. The state contends that, because appellate fees under § 1988 are “costs” under Rule 39, this court's previous direction that “[e]ach party shall bear its own costs of appeal” precludes Family PAC from recovering appellate attorney's fees. We disagree.

The Supreme Court first considered the relationship between § 1988 and another statute allowing for the recovery of “costs” in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), superseded by statute as stated in G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824, 830 (10th Cir.1990). Roadway Express involved a former version of 28 U.S.C. § 1927, a statute providing that lawyers who multiply court proceedings vexatiously may be assessed the excess “costs” they create. See id. at 757, 100 S.Ct. 2455.² Although § 1927 did not define “costs,” the Court concluded that it excluded attorney's fees. The Court reasoned, first, that when Congress enacted the original version of § 1927 in 1813, the United States adhered more closely than it does today to the American Rule, under which “attorney's fees ordinarily are not among the costs that a winning party may recover.” Id. at 759, 100 S.Ct. 2455. The Court “assume[d] that Congress followed that rule when it approved the 1813 Act.” Id. Second, the Court noted that Congress had “approved a comprehensive measure setting the fees and costs for all federal actions” in 1853. See id. This measure enacted the predecessors of both § 1927 and 28 U.S.C. § 1920, and § 1920 includes its own express definition of costs. In light of this history, the Court reasoned that “ § 1920 and § 1927 should be read together as part of the integrated statute approved in § 1853,” and, hence, § 1927 should be understood as incorporating § 1920's specific definition of costs. Id. at 760, 100 S.Ct. 2455. As this definition did not include attorney's fees recoverable as part of costs, the Court concluded that the term “costs” under § 1927 also excluded such fees.

The Supreme Court returned to the interplay between § 1988 and another statute allowing the recovery of costs in Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Marek involved Federal Rule of Civil Procedure 68. Rule 68shifts to the offeree the “costs” incurred subsequent to an offer of judgment if the judgment finally obtained is not more favorable than the offer.³ Like former § 1927, at issue in Roadway Express,Rule 68 did not define the term “costs.” In contrast to Roadway Express, however, the Court concluded that “costs” under Rule 68 includes attorney's fees recoverable as part of costs. The Court observed that by the time Rule 68 was adopted in the late 1930s, a number of federal statutes provided for an award of attorney's fees as part of costs. See id. at 7–8, 105 S.Ct. 3012. Because “[t]he authors of Federal Rule of Civil Procedure 68 were fully aware of these exceptions to the American Rule,” th...