Carl Wesley Thomas v. Paul Bible , 983 F.2d 152 ( 1993 )

REINHARDT, Circuit Judge:

Carl Wesley Thomas, who unsuce$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 Thomas appealed and we affirmed the lower court’s decision in an unpublished memorandum disposition. 896 F.2d 555.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 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 ease” 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 eases 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 (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 plaintiffs’ action itself was frivolous with respect to one defendant but in our discretion declined to award attorneys’ fees on appeal to that defendant because that defendant had made arguments on appeal that were themselves frivolous. 939 F.2d at 709-10, 710 n. 10.

Because, by necessary implication, we previously determined that Thomas’ action was not frivolous, the preclusive doctrine of law of the case is applicable. Milgard, 902 F.2d at 715. While courts have some discretion not to apply the doctrine of law of the case, Merritt, 932 F.2d at 1320, that discretion is limited. Depending on the nature of the case or issue and on the level or levels of the courts or courts involved, a court may have discretion to reopen a previously resolved question under one or more of the following circumstances:

(1) the first decision was clearly erroneous;

(2) an intervening change in the law has occurred;

(3) the evidence on remand is substantially different;

(4) other changed circumstances exist;

(5) a manifest injustice would otherwise result.

Milgard, 902 F.2d at 715; United States v. Tham, 960 F.2d 1391, 1397 (9th Cir.1991); United States v. Estrada-Lucas, 651 F.2d 1261, 1263-65 (9th Cir.1980). None of the requisite conditions exists here. Hence, the district court’s failure to apply the doctrine of law of the case constitutes an abuse of discretion. Since our prior determination that Thomas’ action was non-frivolous is binding on the district court, its award of attorneys’ fees to defendants, which would be authorized under 42 U.S.C. § 1988 only if the action were frivolous, is in error.⁴

REVERSED.

1 . Ninth Circuit rule 36-3 prohibits citation of unpublished decisions except where relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Citation of the memorandum opinion is appropriate in the present circumstances under the first exception.

2 . The dissent rejects this conclusion for two reasons. First, the dissent considers "our characterization of the appeal as not frivolous [ ]as functionally equivalent to a discretionary decision not to award attorney’s fees.” The fact is that if an appeal is non-frivolous we cannot award appellate fees under Fed.R.App.P. 38, but if an appeal is frivolous Fed.R.App.P. 38 gives us discretion to grant or deny fees. While the end result may be the same in either circumstance, for purposes of law of the case doctrine the consequences of relying on one ground rather than the other are entirely different. In one case we resolve a legal issue, in the other we exercise our discretionary authority. One, therefore, leads to law of the case as to the underlying issue; the other does not. The dissent’s novel "functionally equivalent” concept ignores this distinction as well as the express holding of Thomas I.

Second, the dissent suggests we have overlooked the fact that the Supreme Court’s standard for the award of defendant attorneys’ fees under 42 U.S.C. § 1988 is stated in the disjunctive. We have not. The terms "frivolous”, "unreasonable" and "without foundation” as used in this context do not have appreciably different meanings. If they did, then a claim could, paradoxically, be frivolous but yet reasonable and with foundation. There is simply no support in logic or precedent for the dissent’s reading of Christiansburg. See, e.g., Learned v. Bellvue, 860 F.2d 928, 934 (9th Cir.1988), cert. denied, 489 U.S. 1079, 109 S.Ct. 1530, 103 L.Ed.2d 835 (1989) (citing a number of different formulations of the appropriate test and treating them interchangeably).

3 . Equal Employment Opportunity Comm’n v. Bruno's Restaurant, 976 F.2d 521, 525 (9th Cir.1992), is not to the contrary. There we affirmed a discretionary award of attorneys’ fees but declined to impose fees on appeal.

4 . Our resolution of the appeal on these grounds makes it unnecessary to consider Thomas' alternative contentions.