Thomas v. Bible, No. 90-15558

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT; NOONAN
Citation983 F.2d 152
PartiesCarl Wesley THOMAS, Plaintiff-Appellant, v. Paul BIBLE, et al., Defendants-Appellees.
Docket NumberNo. 90-15558
Decision Date07 January 1993

Page 152

983 F.2d 152
Carl Wesley THOMAS, Plaintiff-Appellant,
v.
Paul BIBLE, et al., Defendants-Appellees.
No. 90-15558.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 11, 1992.
Decided Jan. 7, 1993.

Page 153

Bruce Judd, Las Vegas, NV, for plaintiff-appellant

Gloria Stendardi, Deputy Atty. Gen., Las Vegas, NV, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before: REINHARDT, NOONAN, and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

Carl Wesley Thomas, who unsucc$essfully charged the members of the Nevada Gaming Commission and others with violating his civil rights, appeals the district court's award of attorneys' fees to the defendants. Because the award is contrary to law, we reverse.

Thomas brought a § 1983 action in which he alleged that the Commission's decision to exclude him from licensed gaming establishments violated his Fifth Amendment right against self-incrimination and the Fourteenth Amendment guaranties of due process and equal protection of the laws. The district court granted defendants' motion for summary judgment in a thirty-two page order. 694 F.Supp. 750. Thomas appealed and we affirmed the lower court's decision in an unpublished memorandum disposition. 896 F.2d 555. We held, inter alia, that Thomas' appeal was not frivolous. Prior to our decision, the district court had entered an order staying defendants' motion for attorneys' fees until resolution of the appellate proceedings. Following our affirmance of its decision on the merits, the district court issued a one-page order granting defendants' motion for fees under 42 U.S.C. § 1988 in the amount of $39,695.00.

A district court may award a prevailing defendant attorneys' fees under 42 U.S.C. § 1988 only if it "finds that the plaintiff's action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith." Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). Attorneys' fees awards are reviewed for abuse of discretion. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Elks Nat. Foundation v. Weber, 942 F.2d 1480, 1483, 1485 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992). If a district court makes an error of law in such a case, a court of appeals will reverse the judgment under the abuse of discretion standard. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460, 110 L.Ed.2d 359 (1990). Thomas asserts that the district court abused its discretion because 1) the previous panel's conclusion that his appeal was not frivolous necessarily implies that his action was itself non-frivolous; 1 2) the district court failed to

Page 154

make the requisite finding of frivolousness; and 3) the district court offered no support for the amount of the fee award.

Although not expressly denominated as such, Thomas' first argument amounts to a contention that the panel's decision as to frivolousness operates as law of the case. Under that doctrine a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case. Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir.1990). Moreover, " 'under "law of the case" doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.' " Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991) (quoting Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979)). For the doctrine to apply, the issue in question must have been " 'decided either expressly or by necessary implication in [the] previous disposition.' " Milgard, 902 F.2d at 715 (quoting Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir.1982)). The applicability of law of the case here turns on whether we implicitly determined previously that Thomas' action was not frivolous.

There may be cases in which a non-frivolous or even a meritorious appeal could be taken from an order granting summary judgment against a plaintiff who has filed a frivolous action. For example, if the district court fails to adhere to the procedural requirements of Fed.R.Civ.P. 56 before granting summary judgment, an appeal of such an order would not be frivolous, even though the underlying action is. However, in this case we addressed the merits of Thomas' claims exclusively. The question before us previously was whether the award of summary judgment for defendants on the merits was proper. In such circumstances, the merits of the appeal are inseparable from the merits of the underlying action. In refusing to award fees on the ground that Thomas' appeal of the district court's order was not frivolous, by necessary implication we decided that Thomas' action itself was not frivolous. 2

While our previous decision to deny fees on appeal rested on our conclusion that the appeal was not frivolous, not every decision to deny appellate fees is the result of a such a determination. Because appellate sanctions are discretionary, it does not necessarily follow that we will award fees even where a district court's award of attorneys' fees under 42 U.S.C. § 1988 is upheld on appeal. 3 Elks, 942 F.2d at 1485

Page 155

(citing Price v. Hawaii, 939 F.2d 702 (9th Cir.1991)); cf. Fed.R.Civ.P. 11 (sanctions are mandatory if violation is found). In Price v. Hawaii, we affirmed a lower court decision that the...

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307 practice notes
  • Love v. Scribner, Case No. 06cv640-WQH-RBB.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 18, 2010
    ...been decided by the same or a higher court. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.1993)). In Love's case, the Ninth Circuit explained, "The prosecution appears to have defined the term `social worker' broadly to......
  • Shukry v. Neotti, No. 2:09-cv-00669-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 15, 2011
    ...U.S.C. § 2254(e)(1); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002))). 22. Docket No. 10. 23. Docket No. 20. 24. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) (citations omitted). 25. City of Los Angeles, Harbor Div. v. Santa Monica, 254 F.3d 882, 885 (9th Cir. 2001). 26. Jeffr......
  • City of S.F. v. Purdue Pharma L.P., Case No. 3:18-cv-07591-CRB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 30, 2020
    ...adjudicated by the MDL court. See In re Nat'l Prescription Opiate Litig., 956 F.3d 838, 845 (6th Cir. 2020); see also Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) ("[A] court is generally precluded from reconsidering an issue that hasPage 5 already been decided by the same court, or a......
  • Gains v. Kernan, No. CIV S-03-0059 LKK EFB P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 2011
    ...from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). See also United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991) (doctrine of law of the case "precludes a court from......
  • Request a trial to view additional results
307 cases
  • Love v. Scribner, Case No. 06cv640-WQH-RBB.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 18, 2010
    ...been decided by the same or a higher court. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.1993)). In Love's case, the Ninth Circuit explained, "The prosecution appears to have defined the term `social worker' broadly to......
  • Shukry v. Neotti, No. 2:09-cv-00669-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 15, 2011
    ...U.S.C. § 2254(e)(1); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002))). 22. Docket No. 10. 23. Docket No. 20. 24. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) (citations omitted). 25. City of Los Angeles, Harbor Div. v. Santa Monica, 254 F.3d 882, 885 (9th Cir. 2001). 26. Jeffr......
  • City of S.F. v. Purdue Pharma L.P., Case No. 3:18-cv-07591-CRB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 30, 2020
    ...adjudicated by the MDL court. See In re Nat'l Prescription Opiate Litig., 956 F.3d 838, 845 (6th Cir. 2020); see also Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) ("[A] court is generally precluded from reconsidering an issue that hasPage 5 already been decided by the same court, or a......
  • Gains v. Kernan, No. CIV S-03-0059 LKK EFB P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 2011
    ...from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). See also United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991) (doctrine of law of the case "precludes a court from......
  • Request a trial to view additional results

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