Family Pac v. Robert Ferguson ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAMILY PAC, No. 12-35640
Plaintiff-Appellee,
D.C. No.
v. 3:09-cv-05662-
RBL
ROBERT FERGUSON, in his official
capacity as Attorney General of
Washington; AMIT RANADE, OPINION
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.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
2 FAMILY PAC V. FERGUSON
Argued and Submitted
February 6, 2014—Seattle, Washington
Filed March 19, 2014
Before: Raymond C. Fisher, Ronald M. Gould
and Morgan Christen, Circuit Judges.
Opinion by Judge Fisher
SUMMARY*
Civil Rights / Attorneys’ Fees
The panel affirmed in part and reversed in part the district
court’s order awarding attorneys’ fees and costs to plaintiff
Family PAC, a continuing political committee organized
under Washington law that had prevailed, in part, in a
previous lawsuit alleging that provisions of Washington state
election law violated the First Amendment as applied to
ballot measure committees.
The panel held that the term “costs” under Rule 39 of the
Federal Rules of Appellate Procedure did not include
attorneys’ fees recoverable as part of costs under 42 U.S.C.
§ 1988 and similar statutes. The panel determined that the
district court therefore properly concluded that the statement
in the previous opinion that “[e]ach party shall bear its own
costs of appeal,” Family PAC v. McKenna, 685 F.3d 800, 814
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FAMILY PAC V. FERGUSON 3
(9th Cir. 2011), did not preclude Family PAC, as prevailing
party, from obtaining an award of appellate attorneys’ fees
under § 1988.
COUNSEL
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, Washington, for
Defendants-Appellants.
Noel H. Johnson (argued) and Kaylan L. Phillips, ActRight
Legal Foundation, Plainfield, Indiana; Justin D. Bristol,
Gourley Bristol Hembree, Snohomish, Washington, for
Plaintiff-Appellee.
William R. Maurer (argued), William H. Mellor and Paul V.
Avelar, Institute for Justice, Bellevue, Washington, for
Amicus Curiae Institute for Justice.
David E. Roland, Freedom Foundation, Olympia,
Washington, for Amicus Curiae Freedom Foundation.
Allen Dickerson, Center for Competitive Politics, Alexandria,
Virginia, for Amicus Curiae Center for Competitive Politics.
Sarah A. Dunne and Nancy L. Talner, American Civil
Liberties Union of Washington Foundation, Seattle,
Washington, for Amicus Curiae American Civil Liberties
Union of Washington Foundation.
4 FAMILY PAC V. FERGUSON
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. 2011), 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
FAMILY PAC V. FERGUSON 5
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; see Fed. 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
6 FAMILY PAC V. FERGUSON
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
1
Section 1988(b) states:
In any action or proceeding to enforce a provision
of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of
FAMILY PAC V. FERGUSON 7
these two provisions – Rule 39 and § 1988 – interact.
Relying on Marek v. Chesny, 473 U.S. 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
(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”
this title, title IX of Public Law 92-318, the Religious
Freedom Restoration Act of 1993, the Religious Land
Use and Institutionalized Persons Act of 2000, title VI
of the Civil Rights Act of 1964, or section 13981 of this
title, the court, in its discretion, may allow the
prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs, except
that in any action brought against a judicial officer for
an act or omission taken in such officer's judicial
capacity such officer shall not be held liable for any
costs, including attorney’s fees, unless such action was
clearly in excess of such officer’s jurisdiction.
42 U.S.C. § 1988(b) (emphasis added).
8 FAMILY PAC V. FERGUSON
they create. See id. at 757.2 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. 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 Ҥ 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. 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 (1985). Marek involved Federal
2
At the time, § 1927 stated:
Any attorney or other person admitted to conduct
cases in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
as to increase costs unreasonably and vexatiously may
be required by the court to satisfy personally such
excess costs.
Roadway Express, 447 U.S. at 756 n.3.
FAMILY PAC V. FERGUSON 9
Rule of Civil Procedure 68. Rule 68 shifts 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. Because “[t]he authors of Federal Rule of Civil
Procedure 68 were fully aware of these exceptions to the
American Rule,” the “most reasonable inference” was that
“the term ‘costs’ in Rule 68 was intended to refer to all costs
properly awardable under the relevant substantive statute or
other authority.” Id. at 8–9. The court concluded that,
“absent congressional expressions to the contrary, where the
underlying statute defines ‘costs’ to include attorney’s fees,
we are satisfied such fees are to be included as costs for
purposes of Rule 68.” Id. at 9. The Court distinguished
Roadway Express, stating:
We held in Roadway Express that § 1927
came with its own statutory definition of
costs, and that this definition did not include
attorney’s fees. The critical distinction here is
that Rule 68 does not come with a definition
3
Under Rule 68, “[i]f the judgment that the offeree finally obtains is not
more favorable than the unaccepted offer, the offeree must pay the costs
incurred after the offer was made.” Fed. R. Civ. P. 68(d).
10 FAMILY PAC V. FERGUSON
of costs; rather, it incorporates the definition
of costs that otherwise applies to the case.
Id. at 9 n.2.
We applied these Supreme Court precedents in Azizian v.
Federated Department Stores, Inc., 499 F.3d 950 (9th Cir.
2007). The issue there was whether the term “costs” in
Federal Rule of Appellate Procedure 7, which permits a
district court to require an appellant to file a bond to ensure
payment of “costs” on appeal, includes attorney’s fees
recoverable as part of costs.4 Like former § 1927 and Rule
68, Rule 7 does not define costs. Following Marek, we
observed that, at the time of Rule 7’s adoption in 1968, “a
number of federal statutes . . . had departed from the
American rule by defining ‘costs’ to include attorney’s fees.”
Id. at 958. “Because against this background of varying
definitions of costs, Rule 7’s drafters did not define the term,”
we concluded that the drafters “likely intended it to refer to
all costs properly awardable at the conclusion of the appeal,
including attorney’s fees authorized by relevant statutory
authority.” Id. (alterations and internal quotation marks
omitted). We therefore held that “costs” under Rule 7 include
attorney’s fees recoverable as part of costs.
Roadway Express, Marek and Azizian guide our analysis
here, but none of those decisions is squarely on point. Rather,
Rule 39 falls between Roadway Express on the one hand and
Marek and Azizian on the other.
4
Rule 7 states: “In a civil case, the district court may require an
appellant to file a bond or provide other security in any form and amount
necessary to ensure payment of costs on appeal. Rule 8(b) applies to a
surety on a bond given under this rule.” Fed. R. App. P. 7.
FAMILY PAC V. FERGUSON 11
In one respect, this case is analogous to Marek and
Azizian. When Rule 39 was adopted in the late 1960s, a
number of federal statutes provided for an award of attorney’s
fees as part of costs. Because the authors of Rule 39
undoubtedly were aware of these exceptions to the American
Rule, we could reasonably infer that they intended the term
“costs” in Rule 39 to refer to all costs properly awardable
under federal law, including attorney’s fees recoverable as
part of costs. See Marek, 473 U.S. at 8–9; Azizian, 499 F.3d
at 958.
In another respect, however, Roadway Express supplies
the stronger analogy. There is an essential difference
between Rules 7 and 68, which are silent as to the types of
costs contemplated, and Rule 39, which is not. Unlike Rules
7 and 68, the language and context of Rule 39 offer insight
into the meaning of the term “costs” under the rule. First,
Rule 39(e) specifically enumerates the costs on appeal that
may be awarded in the district court:
The following costs on appeal are taxable in
the district court for the benefit of the party
entitled to costs under this rule:
(1) the preparation and transmission of the
record;
(2) the reporter’s transcript, if needed to
determine the appeal;
(3) premiums paid for a supersedeas bond or
other bond to preserve rights pending appeal;
and
12 FAMILY PAC V. FERGUSON
(4) the fee for filing the notice of appeal.
Fed. R. App. P. 39(e). These are all administrative costs, not
attorney’s fees. Second, although Rule 39 – like former
§ 1927 – does not include a definition of costs in its text, the
advisory committee’s note accompanying the adoption of
Rule 39 makes plain that the rule is premised on § 1920. See
Fed. R. App. P. 39 advisory committee’s note (“Statutory
authorization for taxation of costs is found in 28 U.S.C.
§ 1920.”). Like Rule 39(e), § 1920 enumerates a set of
uniformly administrative costs, not including attorney’s fees:
A judge or clerk of any court of the United
States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
FAMILY PAC V. FERGUSON 13
fees, expenses, and costs of special
interpretation services under section 1828 of
this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
28 U.S.C. § 1920.5 Taken together, Rule 39(e) and the
drafter’s invocation of § 1920 lead us to conclude that the
drafters intended “costs” under Rule 39 to refer narrowly to
administrative costs, not to attorney’s fees.
This interpretation finds support in several other ways.
First, it is consistent with the weight of authority from other
circuits. Although one circuit has held that “costs” under
Rule 39 include attorney’s fees recoverable as part of costs,
see Montgomery & Assocs., Inc. v. Commodity Futures
Trading Comm’n, 816 F.2d 783, 784–85 (D.C. Cir. 1987),
five other circuits have rejected that proposition, see Pedraza
v. United Guarantee Corp., 313 F.3d 1323, 1330 n.12 (11th
Cir. 2002) (citing McDonald, infra, for the “undoubtedly”
correct and “uncontroversial conclusion that attorneys’ fees
are not included among the ‘costs’ contemplated by Rule
39”); McDonald v. McCarthy, 966 F.2d 112, 118 (3d Cir.
1992) (“[W]e conclude that an order from this court pursuant
to Rule 39 that each party bear its own costs does not
foreclose the ‘prevailing party’ from recovering attorneys’
fees under section 1988.”); Chem. Mfrs. Ass’n v. EPA,
5
The current version of § 1920 differs only slightly from the version in
effect at the time of Roadway Express. See Judicial Administration and
Technical Amendments Act of 2008, Pub. L. No. 110-406, § 6, 122 Stat.
4291 (2008) (adopting minor amendments to § 1920).
14 FAMILY PAC V. FERGUSON
885 F.2d 1276, 1278 (5th Cir. 1989) (holding that Rule 39
covers the “more routine allocations of costs,” not recovery
of attorney’s fees); Kelley v. Metro. Cnty. Bd. of Educ.,
773 F.2d 677, 681 (5th Cir. 1985) (en banc) (holding that “an
award of costs pursuant to Fed. R. App. P. 39(a) is separate
and distinct from and totally unrelated to an award of
attorney’s fees pursuant to the directions of § 1988” (footnote
omitted)), disapproved of on other grounds by Pennsylvania
v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711,
718 n.4 (1987); Robinson v. Kimbrough, 652 F.2d 458, 463
(5th Cir. 1981) (holding that an order to pay costs “cannot be
construed as a judicial directive pertaining to attorneys’ fees”
under § 1988 and noting that Rule 39 “refers only to the usual
costs of appeal,” not to attorney’s fees); Terket v. Lund,
623 F.2d 29, 33 (7th Cir. 1980) (holding that, although
§ 1988 states that attorney’s fees may be awarded as part of
costs, “the award of attorneys’ fees under § 1988 is a decision
distinct from the decision on the merits and from the normal
taxing of costs”); Farmington Dowel Prods. Co. v. Forster
Mfg. Co., 421 F.2d 61, 91 (1st Cir. 1969) (“We have already
disposed of the ‘cost of suit’ contention by our prior order
that ‘no costs’ are to be awarded for these cross appeals.
However, we did not intend by that order to preclude a
motion for plaintiff’s reasonable attorney’s fee under section
4 [of the Clayton Act, 15 U.S.C. § 15,] arising from these
cross appeals.”). Several of these decisions postdate Marek,
and these courts have distinguished Marek on the ground that,
whereas Rule 68 is silent as to the type of costs it covers,
Rule 39 is not. As the Fifth Circuit explained en banc in
Kelley:
In determining that the cost-shifting provision
of Rule 68 encompasses an award of attorneys
fees under § 1988, the Marek Court, in
FAMILY PAC V. FERGUSON 15
footnote 2, distinguished its prior opinion in
Roadway Express, Inc. v. Piper, 447 U.S. 752
(1980). The Court observed that, unlike Rule
68, the cost provision at issue in Roadway
(28 U.S.C. §§ 1920 and 1927) specifically
enumerated the type of costs awardable as
sanctions under certain circumstances, thus
making it inappropriate for the Court to
interpret “costs” as including § 1988
attorney’s fees. In other words, the Marek
Court recognized a critical distinction
between interpretation of “costs” where the
relevant statute sets forth its own definition of
the term, as opposed to situations where
“costs” are undefined. As appellate Rule 39
specifically delineates the “costs” to which it
applies, i.e. the “traditional” costs of printing
briefs, appendices, records, etc., the
pronouncements of Marek render it
inappropriate for this court to judicially-
amend Rule 39’s cost provisions to include
§ 1988 attorney’s fees.
Kelley, 773 F.2d at 681 n.5. The Third Circuit employed
similar reasoning:
The Marek Court’s distinction regarding
Roadway Express is particularly important in
this case because Rule 39, like section 1927
which was at issue in Roadway Express, is not
silent as to the definition of “costs.” Rule 39
defines costs as including normal
administrative costs such as those incurred in
16 FAMILY PAC V. FERGUSON
preparing the record, filing fees, and the cost
of the reporter’s transcript.
McDonald, 966 F.2d at 116. The rule proposed by the state
is against this great weight of authority.
Second, that “costs” under Rule 39 do not include
attorney’s fees is consistent with our own analysis in Azizian.
Although we held that attorney’s fees may be considered part
of costs under Appellate Rule 7, we assumed that attorney’s
fees were not costs under Rule 39, noting that there was “no
indication” that Rule 7 and Rule 39 shared a common
definition of costs, and citing Singer v. Shannon & Luchs Co.,
868 F.2d 1306, 1307 (D.C. Cir. 1989) (per curiam), for the
proposition that “the term ‘costs’ in Rule 39 excludes
attorneys’ fees.” Azizian, 499 F.3d at 958–59 (emphasis
added). In short, the conclusion that “costs” under Rule 39
do not include attorney’s fees is consistent not only with the
weight of authority from other circuits but also with our own
understanding of Rule 39 in Azizian.6
Third, the reading the state proposes would undermine the
purposes of § 1988. Under longstanding circuit practice, we
will sometimes direct the parties to pay their own costs when,
as here, there is a mixed judgment. See Exxon Valdez v.
Exxon Mobil Corp., 568 F.3d 1077, 1081 (9th Cir. 2009)
(noting that “our usual practice when each side wins
6
That, in fact, has been our view for more than 30 years. See N. Plains
Res. Council v. EPA, 670 F.2d 847, 848 n.1 (9th Cir. 1982) (“The costs of
litigation covered by [the Clean Air Act, 42 U.S.C. § 307(f),] are not the
same costs this court is authorized to award under Fed. R. App. Pro. 39.
Therefore, Rule 39’s 14-day time limit for filing costs bills does not apply
to motions for attorney’s fees filed pursuant to § 307(f).”), vacated on
other grounds, 464 U.S. 806 (1983).
FAMILY PAC V. FERGUSON 17
something and loses something” is to “exercise our discretion
by requiring each party to bear its own costs”). This is in
keeping with the general policy embodied by Rule 39 linking
the taxation of costs with the results of the appeal. See Fed.
R. App. P. 39(a). In the case of the same mixed result,
however, the partially prevailing plaintiff may well be
entitled to an award of attorney’s fees under § 1988, because
“plaintiffs may be considered ‘prevailing parties’ for
attorney’s fees purposes if they succeed on any significant
issue in litigation which achieves some of the benefit the
parties sought in bringing suit.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (emphasis added) (internal
quotation marks omitted).7
7
As former Chief Judge Gonzalez explained in Thalheimer v. City of
San Diego, No. 09CV2862-IEG(BGS), 2012 WL 1463635, at *3 (S.D.
Cal. Apr. 26, 2012):
Fed. R. App. P. 39 defines costs as the traditional
administrative-type costs, such as preparation and
transmission of the record, reporter’s transcript,
premiums paid for an appeals bond, and filing fee.
Those costs are initially determined by the clerk, not
the court, to be included in the mandate. Fed. R. App.
P. 39(d). Furthermore, the court applies a different
standard to determine whether a party is entitled to
attorney’s fees as a prevailing party under 42 U.S.C.
§ 1988, or costs under Fed. R. App. P. 39. For
purposes of § 1988, a “prevailing party” is one who
“succeed[s] on any significant issue in litigation which
achieves some benefit the parties sought in bringing
suit.” Hensley, 461 U.S. at 433. By contrast, an award
of costs under Fed. R. App. P. 39 turns on whether
there is a clear winner in the appeal. Exxon Valdez v.
Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir. 2009). The
usual practice, when each side wins something and
18 FAMILY PAC V. FERGUSON
Fourth, the state ignores the timing of the determinations
we make under Rule 39 and § 1988. Under our General
Orders, we typically address the taxation of costs when we
file a disposition resolving an appeal on the merits. See 9th
Cir. Gen. Order 4.5(e) (“Every disposition in a civil case
where there is a mixed judgment, the lower tribunal’s
judgment is vacated, or where the panel determines that costs
shall be unequally divided among the losing parties shall
indicate in its text or in a separate order which party or parties
shall bear the costs.”). Attorney’s fees, by contrast, are
addressed by motions that are filed and decided later. See 9th
Cir. R. 39-1.6(a) (providing that “a request for attorneys’ fees
shall be filed no later than 14 days after the expiration of the
period within which a petition for rehearing may be filed”).
When ruling on costs at the time of a disposition, we do not
preclude or deny a motion for attorney’s fees that has not yet
been presented to us.
In sum, we conclude that this case is closer to Roadway
Express than to Marek. In light of those decisions, the
decisions of other circuits, our understanding of Rule 39 in
Azizian and the practical problems posed by the state’s
proposed rule, we hold that the term “costs” under Federal
Rule of Appellate Procedure 39 does not include attorney’s
loses something, is to require each party to bear its own
costs on appeal under Fed. R. App. P. 39. Id.
See also Chem. Mfrs. Ass’n, 885 F.2d at 1278 (“differentiating the nature
and practice of fee awards” from the allocation of costs under Rule 39);
Terket, 623 F.2d at 33 (explaining that the award of attorney’s fees under
§ 1988 “involves an exercise of . . . judgment requiring an examination of
factors beyond the issues decided with the merits of the suit and also
different from the largely ministerial task of taxing the traditional items of
costs”).
FAMILY PAC V. FERGUSON 19
fees recoverable as part of costs under 42 U.S.C. § 1988 and
similar statutes. The district court properly awarded
attorney’s fees to Family PAC for the previous appeal.
CONCLUSION
For the reasons stated here and in a contemporaneously
filed memorandum disposition, the order of the district court
awarding attorney’s fees and costs to Family PAC is affirmed
in part and reversed in part. Costs of this appeal are awarded
to Family PAC.
AFFIRMED IN PART; REVERSED IN PART.