Miller et al v. Davis et al

Filing 222

MEMORANDUM OPINION & ORDER: IT IS ORDERED that Third-Party Defendants Gov. Matthew G. Bevin and Commissioner of the Kentucky Dept. for Libraries and Archives Terry Manuel's Motion to Amend DE 208 be, and is hereby, DENIED. Signed by Judge David L. Bunning on 10/22/17.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 15-44-DLB-EBA
APRIL MILLER, et al.

vs.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

KIM DAVIS, individually and
in her official capacity, et al.
* *

* *

DEFENDANTS
* *

* *

* *

* *

* *

* *

This matter is before the Court upon Third-Party Defendants Governor Matthew G.
Bevin and Commissioner of the Kentucky Department for Libraries and Archives Terry
Manuel’s Motion to Amend. (Doc. # 208). Specifically, the Third-Party Defendants ask
the Court to amend its July 21, 2017 Memorandum Opinion and Order (Doc. # 206)—
which ordered the Commonwealth of Kentucky to pay Plaintiffs’ attorneys’ fees and
costs—and instead, assess the award against Defendant Kim Davis in her official
capacity and the entity she represents, the Office of the Rowan County Clerk.
Plaintiffs April Miller, Karen Roberts, Shantel Burke, Stephen Napier, Jody
Fernandez, Kevin Holloway, Aaron Skaggs, and Barry Spartman (collectively “Plaintiffs”),
Defendant Rowan County, Kentucky, and Defendant Kim Davis each having filed their
Responses in opposition to the Motion (Docs. # 213, 214, and 217), and Third-Party
Defendants having filed their Reply (Doc. # 220), the matter is ripe for the Court’s review.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On July 21, 2017, the Court granted Plaintiffs’ Motion for Attorneys’ Fees and
1

Costs, which brought this § 1983 litigation to a close.1 (Doc. # 206). In that Memorandum
Opinion and Order, the Court answered three questions. First, did Plaintiffs “prevail”
within the meaning of § 1988? Second, who pays? And third, how much? The answers
were: yes, the Commonwealth of Kentucky, and, $224,703.08, respectively. In the instant
Motion, Governor Bevin and Commissioner Manuel challenge the answer to the second
question: that Defendant Kim Davis, in her official capacity as Rowan County Clerk,
represented the Commonwealth of Kentucky with respect to issuing—or refusing to
issue—marriage licenses and therefore, the Commonwealth was liable for Plaintiffs’
attorneys’ fees and costs. For the reasons stated herein, Third-Party Defendants’ Motion
to Amend (Doc. # 208) is denied.
II.

ANALYSIS
A.

Standard of Review

Third-Party Defendants styled their Motion as one pursuant to Rule 59(e);
however, “by its own terms,” Rule 59(e) “applies only to judgments.” Dierig v. Lees
Leisure Indus., Ltd., No. 2:11-cv-125-DLB, 2012 WL 669968, *2 (E.D. Ky. Feb. 28, 2012).
Rule 60, by contrast, applies to both judgments and final orders. Fed. R. Civ. P. 60.
Because Rule 60 provides the appropriate means for considering the relief requested, the
Court will review Third-Party Defendants’ Motion to Amend under Rule 60.
Rule 60(b) allows the Court to grant relief from a final judgment or order due to:
(1) mistake; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied
judgment; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). Although

The facts of this case are fully outlined in the Memorandum Opinion and Order filed July
21, 2017. (Doc. # 206 at 2-7). Therefore, the Court will refrain from duplicating its detailed factual
account here.
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courts have considerable discretion in granting relief from a final judgment or order
pursuant to Rule 60(b), that power is “circumscribed by public policy favoring finality of
judgments and termination of litigation.” Blue Diamond Coal Co. v. Trustees of UMWA
Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). Therefore, “relief under Rule
60(b) is … extraordinary.” Zucker v. City of Farmington Hills, 643 F. App’x 555, 562 (6th
Cir. 2016).
Here, Third-Party Defendants do not predicate their motion on grounds of newly
discovered evidence, fraud, or a void or satisfied judgment. Instead, they claim that the
Court’s July 21, 2017 Memorandum Opinion and Order constitutes a clear error of law
and is manifestly unjust.2 (Doc. # 208-1 at 4).
B.

Relief under Rule 60(b) is not warranted.

As a threshold matter, the Court notes that a Rule 60(b) motion is not the proper
vehicle to raise arguments that should have been raised before. “Rule 60(b) does not
allow a defeated litigant a second chance to convince the court to rule in his or her favor
by presenting new explanations, legal theories, or proof.” Tyler v. Anderson, 749 F.3d
499, 509 (6th Cir. 2014). Nor does Rule 60(b) “provide relief from the consequences of
a deliberate choice, even if subsequent events reveal the choice to have been unwise.”
Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 545 (6th Cir. 2012). The Third-Party
Defendants not only failed to raise these specific arguments in response to Plaintiffs’
Motion for Attorneys’ Fees and Costs, but elected not to participate in the briefing of
Plaintiffs’ Motion for Attorneys’ Fees and Costs at all. (Doc. # 206 at 24).

Construed to conform to the appropriate rule, these arguments are premised on Rule
60(b)(1) and 60(b)(6).
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Third-Party Defendants’ claims that they had been “dismissed” from this action and
that “no relief was sought against them in the Petition for Attorneys’ Fees” are belied by
the record.3 (Doc. # 220 at 3). Third-Party Defendants were not dismissed from this
action by way of a dispositive motion. Rather, the entire case was dismissed and stricken
from the Court’s active docket. (Doc. # 182). Upon the filing of Plaintiffs’ Motion for
Attorneys’ Fees and Costs (Doc. # 183), the case was revived for that limited purpose
(Doc. # 184), and briefing commenced. Third-Party Defendants were no less a party than
Plaintiffs, Defendant Kim Davis, or Defendant Rowan County.
Because of that lack of participation, Defendant Rowan County argues that ThirdParty Defendants’ Motion to Amend is procedurally improper and should be denied
because they had the opportunity to raise their arguments earlier and failed to do so.
(Doc. # 214 at 1-2). The Court agrees that Third-Party Defendants could have—and

Nor is it true that “there was no reason for the Third-Party Defendants to believe that any
party other than Davis was implicated as to the award of attorneys’ fees or that the Court would
order the fees paid by the generic entity ‘Commonwealth of Kentucky’ rather than by Davis in her
official capacity as Rowan County Clerk,” as Third-Party Defendants argue. (Doc. # 220 at 3). In
its July 21, 2017 Memorandum Opinion and Order, the Court explained:
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“As long as the governmental entity receives notice and an opportunity to respond,
an official-capacity suit imposes liability on the entity that he represents.” Alkire v.
Irving, 330 F.3d 802, 810 (6th Cir. 2003). The Commonwealth of Kentucky
certainly had notice and an opportunity to respond. The Commonwealth, via the
fiction of Ex Parte Young, was made a party to this action because of Davis’s thirdparty pleading. (Docs. # 34 and 39). Moreover, the Court’s Preliminary Injunction
Order further put the Commonwealth on notice of its potential liability for the
actions Davis took in her official capacity as Rowan County Clerk. (Doc. # 43 at
8) (“Thus, Davis likely acts for the State of Kentucky, and not as a final policymaker
for Rowan County, when issuing marriage licenses.”).
And finally, a review of the briefing on Plaintiffs’ Motion for Attorneys’ Fees and Costs left no room
for doubt as to whether that issue was before the Court. Defendant Rowan County argued
repeatedly that Defendant Kim Davis represented the Commonwealth, not the County, with
respect to her marriage-license duties (Docs. # 192, 196, and 203), and the Plaintiffs contested
that conclusion. (Doc. # 194 at 4-11). Thus, any argument that Third-Party Defendants did not
receive notice or an opportunity to respond is meritless.
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should have—raised these arguments earlier. However, because the purpose of Rule
60(b) is to provide courts an opportunity to “reconsider its judgment when that judgment
rests on a defective foundation,” the Court will exercise an abundance of caution and
consider Third-Party Defendants’ arguments. In re Abdur’Rahman, 392 F.3d 174, 179
(6th Cir. 2004), vacated on other grounds, 545 U.S. 1151 (2005); see also Charter Twp.
of Muskegon v. City of Muskegon, 303 F.3d 755, 760 (6th Cir. 2002) (“The general
purpose of Rule 60(b) … is to strike a proper balance between the conflicting principles
that litigation must be brought to an end and that justice must be done.”).
1.

No legal error was committed.

Under Rule 60(b)(1), a court can vacate a final judgment or order because of
“mistake, inadvertence, surprise, or excusable neglect.” The Sixth Circuit has explained
that “a Rule 60(b)(1) motion is intended to provide relief in only two situations: (1) when
a party has made an excusable mistake or an attorney has acted without authority, or (2)
when the judge has made a substantive mistake of law or fact in the final judgment or
order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (citing Cacevic v. City
of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)); see also Pierce v. UMWA Welfare &
Ret. Fund for 1950 & 1974, 770 F.2d 449, 451 (6th Cir. 1985) (“a claim of legal error” is
“subsumed in the category of mistake under Rule 60(b)(1)”).
Third-Party Defendants claim that the “Court’s determination that the
Commonwealth of Kentucky is responsible for Plaintiffs’ fees and costs is clear error”
because the Plaintiffs prevailed against Defendant Kim Davis in her official capacity as
the Rowan County Clerk, not against the Commonwealth of Kentucky. (Doc. # 208-1 at
4).

Specifically, Third-Party Defendants argue that the Court “set up an incorrect

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dichotomy” between the Commonwealth and Rowan County, when it should have
assessed attorneys’ fees and costs “against the Office of the Rowan County Clerk.” Id.
at 2; 5-6. In support of this argument, Third-Party Defendants cite to a single and
incomplete line from Hutto v. Finney, 437 U.S. 678 (1979), and to a non-binding and
factually distinguishable case from the United States District Court for the District of South
Carolina. Id. at 5-6.
Third-Party Defendants have failed to establish any legal error. First and foremost,
Third-Party Defendants’ arguments suffer from a fatal flaw: they misunderstand—or
ignore—the nature of official-capacity actions.4 “Personal-capacity suits seek to impose
personal liability upon a government official for actions he takes under color of state law.”
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (internal citations omitted). “Officialcapacity suits, in contrast, ‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” Id. (quoting Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).
Plaintiffs prevailed against Defendant Kim Davis in her official capacity as Rowan
County Clerk when they obtained an injunction forcing her to issue marriage licenses.
(Docs. # 42 and 74) (enjoining Defendant Kim Davis in her official capacity). Therefore,
Plaintiffs’ suit—and merits’ success—was “in all respects other than name, to be treated
as a suit against the” government entity she represented. Graham, 473 U.S. at 166; see
also Brandon v. Holt, 469 U.S. 464, 471 (1985) (“a judgment against a public servant ‘in

In 1985, the Supreme Court noted that the distinction between official-capacity and
personal-capacity suits “apparently continues to confuse lawyers,” and endeavored “to define it
more clearly through concrete examples of the practical and doctrinal differences between
personal and official capacity actions.” Kentucky v. Graham, 473 U.S. 159, 165 (1985).
Apparently, thirty-two years later, the confusion continues. Therefore, this Court will “unravel
once again the distinctions between personal- and official-capacity suits.” Id. at 163.

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his official capacity’ imposes liability on the entity that he represents”). And in an officialcapacity action, a plaintiff who prevails is “entitled to look for relief, both on the merits and
for fees, to the governmental entity.” Id. at 171. Therefore, the Court’s determination that
Plaintiffs had “prevailed” within the meaning of § 1988 gave rise to another question: Who
pays? Accordingly, it was incumbent upon the Court to determine which government
entity Davis represented when issuing—or refusing to issue—marriage licenses: the
Commonwealth of Kentucky or Rowan County?5
Despite Third-Party Defendants arguments to the contrary, this dichotomy was
neither false nor unnecessary because there were only two potential sources of
governmental authority. Rather, the dichotomy exists because the Office of the Rowan
County Clerk has “no greater separate identity” apart from the government entities which
the Rowan County Clerk acts for in her official capacity. Brandon, 469 U.S. at 472.
Therefore, an official-capacity claim against the Rowan County Clerk is a claim against
the government entity itself—either Rowan County or the Commonwealth of Kentucky.
The choice is binary; there is no nebulous place in between for recalcitrant county clerks.
As this Court held, and the Sixth Circuit has recognized, county officials
“sometimes wear multiple hats, acting on behalf of the county and the State.” Crabbs v.
Scott, 786 F.3d 426, 429 (6th Cir. 2015); see also Pusey v. City of Youngstown, 11 F.3d
652, 657 (6th Cir. 1993). Thus, the Court undertook a particularized inquiry, focusing on

Adopting Third-Party Defendants’ suggested approach—assessing attorneys’ fees and
costs against Defendant Kim Davis in her official capacity as Rowan County Clerk—would have
been to dodge a crucial question and create confusion for the parties. Undoubtedly, an Order
awarding Plaintiffs attorneys’ fees that failed to determine which government entity was liable for
those fees would have resulted in a game of “keep away” between the parties, where the
Commonwealth of Kentucky and Rowan County passed the attorney’s-fee buck back and forth
over prevailing Plaintiffs’ heads while both disclaimed responsibility for the fees.
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whether county clerks represent the Commonwealth or their respective counties in the
marriage-license context. (Doc. # 206 at 24-38). Six relevant factors controlled the
analysis: “(1) the State’s potential liability for a judgment; (2) how state statutes and courts
refer to the officer; (3) who appoints the officer; (4) who pays the officer; (5) the degree of
state control over the officer; and (6) whether the functions involved fall within the
traditional purview of state or local government.” Crabbs, 786 F.3d at 429 (citing Ernst v.
Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc); Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30, 44-45 (1994)). “Although some of the factors support[ed] a finding
that Davis represented Rowan County,” this Court concluded that the “bulk of the
evidence weigh[ed] heavily in favor of finding that county clerks, when issuing—or
refusing to issue—marriage licenses, represent the Commonwealth of Kentucky, not their
counties.” (Doc. # 206 at 37). Accordingly, the Court assessed Plaintiffs’ attorneys’ fees
and costs against the Commonwealth—the government entity that the Rowan County
Clerk represents in the marriage-license context.
The authority that Third-Party Defendants cite in their Motion to Amend fails to
convince the Court that it erred in engaging in such an analysis. Relying on Hutto v.
Finney, 437 U.S. 678 (1978), Third-Party Defendants claim that the Supreme Court
“analyzed the legislative history of the Civil Rights Attorney’s Fees Awards Act of 1976”
and “observed that ‘the legislative history is equally plain: it is intended that the attorneys’
fees like other items or costs, will be collected either directly from the official, in his official
capacity, from funds of his agency or under his control …” (Doc. # 208-1 at 5 (citing Hutto,
437 U.S. at 694)). Therefore, Third-Party Defendants claim, the attorneys’ fees and costs
“should have been assessed directly against the Office of the Rowan County Clerk.” Id.

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at 5-6.
The error in Third-Party Defendants’ reasoning is exposed by context and a
complete reading of Hutto:
The legislative history is equally plain: “[I]t is intended that the attorneys’
fees, like other items of costs, will be collected either directly from the
official, in his official capacity, from funds of his agency or under his control,
or from the State or local government (whether or not the agency or
government is a named party.)” S. Rep. No. 94-1011, p. 5 (1976), U.S.
Code Cong. & Admin. News 1976, pp. 5908, 5913. The House Report is in
accord: “The greater resources available to governments provide an ample
base from which fees can be awarded to the prevailing plaintiff in suits
against governmental officials or entities.” H.R. Rep. No. 94-1558, p. 7
(1976). The Report adds in a footnote that: “Of Course, the 11th
Amendment is not a bar to the awarding of counsel fees against state
governments. Fitzpatrick v. Bitzer.” Id. at 7 n.14. Congress’ intent was
expressed in deed as well as words. It rejected at least two attempts to
amend the Act and immunize state and local governments from awards.
Hutto, 437 U.S. at 694 (emphasis added).
Put simply, the portion of the quotation from Hutto that the Third-Party Defendants
eliminated and replaced with an ellipsis undermines their argument. Hutto does not
compel the Court to assess attorneys’ fees directly against the government “official, in his
official capacity” or “from funds of his agency or under his control.”6 Id. Instead, Congress
clearly contemplated—and Hutto permits—prevailing parties to collect attorneys’ fees and
costs from the government entity that the official represented in his or her official capacity.
Id. That is exactly what this Court did—it assessed Plaintiffs’ attorneys’ fees and costs
against the government entity that Defendant Kim Davis represented when she refused
to issue marriage licenses—the Commonwealth of Kentucky.

And even if it did, such language creates a distinction without a difference. An attorney’sfee award against a government official in his or her official capacity is an attorney’s-fee award
against the government entity that the official represents. So too is an attorney’s-fee award
against a government agency or its funds.
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Moreover, Third-Party Defendants fail to cite to any controlling case where a court
assessed attorneys’ fees and costs directly against a government official in their official
capacity or an arm or department of a government entity; let alone a case where it was
unclear which government entity the government official or department represented. In
fact, the case Third-Party Defendants cite and urge this Court to follow—Summers v.
Adams, No. 3:06-cv-2265, 2010 WL 2179571 (D.S.C. May 26, 2010)—does not support
such an approach.7
In Summers, the federal district court permanently enjoined Defendants Maria S.
Adams, in her official capacity as the Director of the South Carolina Department of Motor
Vehicles, and Jon Ozmint, in his official capacity as the Director of the Department of
Corrections of South Carolina, from implementing the “I Believe” Act, which authorized
the South Carolina Department of Motor Vehicles to issue a license plate containing the
words “I Believe” and a cross superimposed on a stained-glass window. Summers, 2010
WL 2179571, at *1. When presented with a Motion for Attorneys’ Fees pursuant to 42
U.S.C. § 1988, both defendant-departments urged the district court to “shift responsibility
for fees and expenses from the state agencies charged with implementing the ‘I Believe’

There is, however, case law from the Seventh Circuit, which supports the Court’s
approach. See Herbst v. Ryan, 90 F.3d 1300 (7th Cir. 1996). In Herbst, the Seventh Circuit
affirmed the district court’s assessment of attorneys’ fees under 42 U.S.C. § 1988 after the parties
entered into a consent decree enjoining enforcement of various amendments to Illinois’s abortion
law. Id. at 1302. Specifically, the plaintiffs sought declaratory and injunctive relief against: “(1)
the State’s Attorney of Cook County, in his official capacity and as the representative of a class
of the State’s Attorneys from 102 Illinois counties; (2) the Attorney General of Illinois, in his official
capacity; and (3) the Director of the Illinois Department of Public Health, in his official capacity.”
Id. In addition to finding that “the Attorney General of the State and the State Director of Public
Health clearly undertook the defense of the challenged amendments on behalf of the state,” the
district court found that the State’s Attorneys, who technically represented their respective
counties, “also undertook the defense of the constitutionality of this state statute and the state
policy that it embodied,” and were “operating as officers of the state.” Id. at 1306. Therefore, the
district court concluded—and the Seventh Circuit agreed—“that the State of Illinois ought to bear
the responsibility for the fee award.” Id.
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Act to the State of South Carolina as an entity.” Id. Having determined that “an award
against Defendants in their official capacity could be an award against the State itself”
and “leaving it to [Defendants], as directors of state agencies, to work with others in state
government to determine how best to allocate the award, the district court “decline[d] the
invitation to shift fees to the State and, instead,” permitted prevailing plaintiffs to collect
directly against the defendant department-heads, “in their official capacity, jointly and
severally.” Id. at *1; *7.
In the simplest terms, Summers is inapposite—the facts in that case presented a
choice between assessing fees against individual state agencies or the State of South
Carolina. In terms of legal consequence, this is a choice of “six of one, half a dozen of
the other.” Because the state officials were sued in their official capacities as the directors
of state departments, an award of attorneys’ fees and costs against them was “in all
respects other than name,” an award against the State of South Carolina. Graham, 473
U.S. at 166. Summers did not present the difficult question presented in this case—
whether county clerks, in their official capacity, represent the Commonwealth of Kentucky
or their respective counties with respect to their marriage-licenses duties. Therefore, the
Court finds Summers to be factually distinguishable and unpersuasive. Accordingly, there
was no legal error committed in the Court’s July 21, 2017 Memorandum Opinion and
Order, and relief under Rule 60(b)(1) is not warranted.
2.

The imposition of fee liability is not manifestly unjust.

Relief under Rule 60(b)(6), although it may read like a “catch-all” provision, is
afforded “only in exceptional or extraordinary circumstances.” Blue Diamond Coal Co.,
249 F.3d at 524 (citing Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)).

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“[B]ecause ‘almost every conceivable ground for relief is covered’ under the [five] other
subsections of Rule 60(b) … courts must apply Rule 60(b)(6) relief only in ‘unusual and
extreme situations where principles of equity mandate relief.’” Id. (quoting Olle, 910 F.2d
at 365).
Third-Party Defendants claim that “an award of fees and costs against the
Commonwealth of Kentucky would be unjust under the circumstances of this case”
because Defendant Kim Davis’s refusal to issue marriage licenses “was not conduct that
was directed or approved by any state official.” (Doc. # 208-1 at 7). In support of this
argument, Third-Party Defendants rely on the Court’s discretion to deny attorneys’ fee
awards when “special circumstances … render such an award unjust.” Id.
In certain situations, “[e]ven a prevailing party may not be entitled to attorneys’ fees
if ‘special circumstances would render such an award unjust.’” Déjà Vu v. Metro. Gov’t
of Nashville & Davidson Cty., Tenn., 421 F.3d 417, 422 (6th Cir. 2005) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983)). In its July 21, 2017 Memorandum Opinion and
Order, the Court considered whether special circumstances existed to justify the denial
of attorneys’ fees and found that they did not:
“[S]pecial circumstances” do not exist to justify the denial of attorneys’ fees.
Hensley, 461 U.S. at 446. Although the Sixth Circuit has acknowledged that
the “special circumstances” doctrine exists, a non-prevailing party must
make a “strong showing” to establish such special circumstances. Déjà Vu,
421 F.3d at 422. In fact, the Sixth Circuit “has never … found a ‘special
circumstance’ justifying the denial of fees.” McQueary v. Conway, 614 F.3d
591, 604 (6th Cir. 2010). A prevailing party’s “bad acts” during the course
of litigation are not a special circumstance. Wikol v. Birmingham Pub. Schs.
Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004). Nor is a defendant’s good
faith. Morscott, Inc. v. City of Cleveland, 936 F.2d 271, 273 (6th Cir. 1991).
Thus, there are no special circumstances that would render an attorneys’
fee award unjust.
(Doc. # 206 at 22 n.20).
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Nothing in Third-Party Defendants’ Motion alters the Court’s conclusion.8 ThirdParty Defendants’ argument that neither the Governor nor the Commissioner of the
Kentucky Department for Libraries and Archives “direct[ed], ratif[ied], or approve[d]”
Defendant Kim Davis’s decision to withhold marriage licenses is irrelevant.

The

Commonwealth of Kentucky is liable for Plaintiffs’ attorneys’ fees and costs because
Defendant Kim Davis acted on behalf of the Commonwealth when she refused to issue
marriage licenses. Accordingly, Plaintiffs were “entitled to look for relief, both on the
merits and for fees, to the governmental entity” that Davis represented in her official
capacity—the Commonwealth of Kentucky.9 Graham, 473 U.S. at 171.

Because the Court already considered and decided this issue, Third-Party Defendants’
claim that “special circumstances” exist could also be characterized as an argument that the Court
committed legal error under Rule 60(b)(1). Whether a challenge under Rule 60(b)(1) or (b)(6),
the argument fails.
8

Third-Party Defendants’ citation to May v. Cooperman, 578 F. Supp. 1308 (1984), a nonbinding case from the United States District Court for the District of New Jersey, fails to convince
the Court otherwise. The May Court found that the “position of the State defendants present[ed]
a special circumstance in which the award of fees would be unjust” because the “State
defendants, and the executive branch of the State” had “consistently … refus[ed] to defend” the
challenged, unconstitutional statute. May, 578 F. Supp. At 1315-16. Instead, the Court assessed
fees against the “intervenor-defendants representing the New Jersey Legislature,” who “actively
litigated this case from the day plaintiffs filed suit.” Id. at 1316.
9

First, this case is factually distinguishable and thus unpersuasive. Here, the Court
imposed attorney’s-fee liability on the Commonwealth because that is the government entity that
Defendant Kim Davis represented in her official capacity. Second, the willingness of the May
Court to find “special circumstances” is inconsistent with Sixth Circuit precedent that has not yet
found “special circumstances” in any case. See McQueary, 614 F.3d at 604. And lastly, if the
Court were inclined to find “special circumstances” in such a situation, it would require much more
than the refusal to direct, endorse, approve, or ratify the unconstitutional conduct of a state official.
See e.g., Dickinson v. Ind. State Election Bd., 817 F. Supp. 737 (S.D. Ind. 1992) (requiring a
defendant to “support” the plaintiff to be relieved from attorneys’ fees and costs). Therefore, even
assuming arguendo that the Governor and the Commissioner of the Kentucky Department for
Library and Archives did not direct, ratify, or approve Defendant Kim Davis’s conduct—a fact that,
as Defendants Rowan County and Kim Davis argue, is up for debate—the Court declines to find
that such “neutrality” constitutes “special circumstances” that would render an attorneys’ fee
award unjust.
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Moreover, Third-Party Defendants have fallen woefully short of establishing the
“exceptional or extraordinary circumstances” required to warrant relief under Rule
60(b)(6). Blue Diamond Coal Co., 249 F.3d at 524. At most, Third-Party Defendants
have simply—and improperly—re-argued matters that have previously been decided.
That Third-Party Defendants wish to avoid liability for Plaintiffs’ attorneys’ fees and costs
hardly renders the circumstances extraordinary. Nor is the Court persuaded by the
argument that there is a manifest injustice that must be corrected. Therefore, Third-Party
Defendants’ Motion to Amend is denied.
III.

CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED that Third-Party Defendants Governor Matthew G. Bevin and

Commissioner of the Kentucky Department for Libraries and Archives Terry Manuel’s
Motion to Amend (Doc. # 208) be, and is hereby, DENIED.
This 22nd day of October, 2017.

K:\DATA\Opinions\Ashland\15-44 MOO re Mtn to Amend.docx

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