NATIONAL ORGANIZATION FOR MARRIAGE et al v. MCKEE et al

Filing 276

DECISION AND ORDER ON DEFENDANTS' BILL OF COSTS AND PLAINTIFFS' PETITION FOR FEES AND EXPENSES - granting 250 Bill of Costs; granting in part 253 Motion for Attorney Fees and Costs. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NATIONAL ORGANIZATION FOR
MARRIAGE AND AMERICAN
PRINCIPLES IN ACTION,

)
)
)
)
PLAINTIFFS
)
)
v.
)
)
WALTER F. McKEE, in his official )
capacity as member of the
)
Commission on Governmental Ethics )
)
and Election Practices, ET AL.,
)
DEFENDANTS
)

CIVIL NO. 09-538-B-H

DECISION AND ORDER ON DEFENDANTS’ BILL OF COSTS AND
PLAINTIFFS’ PETITION FOR FEES AND EXPENSES
In this case, the parties litigated a potpourri of issues concerning the
constitutionality of Maine’s regulation of ballot question committees, political
action committees, independent expenditures, and attribution and disclaimer
statements in political communications involving candidate elections.

The

lawsuit now has concluded, with the United States Supreme Court declining to
grant a petition for certiorari for the second time. Nat’l Org. for Marriage v.
McKee, 133 S. Ct. 163 (2012).

The Maine Attorney General’s office has

requested costs under Rule 54(d), which provides that unless a statute, Federal
Rule, or court order is to the contrary, costs “should be allowed to the
prevailing party.” The Attorney General’s office asserts that the state-related
defendants prevailed on all four counts of the original complaint, and that they

also prevailed on the four additional counts that the plaintiffs asserted in their
second amended complaint—with the exception of one issue, a Commission on
Governmental Ethics and Election Practices regulation that required disclosure
within 24 hours of any independent expenditures over $250.

The Attorney

General’s office asserts that its requested costs ($8543.94 for transcripts and
for printing) had nothing to do with that narrow issue.
In response, the plaintiffs do not challenge the taxability of the requested
costs or the assertion that they were unrelated to the one issue on which the
plaintiffs prevailed. But the plaintiffs argue that on account of the issue on
which they did prevail, they are the prevailing party under the applicable
caselaw, and that they are therefore not subject to a costs award under Rule
54. Instead, they request an award in their favor of attorney fees and expenses
in the amount of $54,552.78 under 42 U.S.C. § 1988 (“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” in a successful lawsuit under
§ 1983).
In turn the Attorney General’s office does not challenge the plaintiffs’
right to attorney fees on the issue on which the plaintiffs prevailed, but does
challenge the reasonableness of the amount requested, saying that it should be
reduced to $13,157.15.

2

Were this not a civil rights lawsuit, I would have no question but that
costs should be awarded to the defendants as the prevailing party.1
prevailed on virtually every issue in the litigation.

They

The one issue where the

plaintiffs prevailed was narrow, a minor part of the lawsuit, and barely argued
by the parties. I will return to the defendants’ entitlement to costs later.
First, however, governing Supreme Court caselaw makes clear that the
plaintiffs are entitled to attorney fees and expenses here for their success on
the 24-hour reporting requirement, because they prevailed on that issue, and it
was not insignificant.2
The Supreme Court tells us that in a case such as this, “the degree of the
plaintiff’s success in relation to the other goals of the lawsuit is a factor critical
to the determination of the size of a reasonable fee.” Tex. State Teachers Ass’n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989) (citing Hensley v.
Eckerhart, 461 U.S. 424 (1983)).

It says that “the district courts should

exercise their equitable discretion in such cases to arrive at a reasonable fee
award, either by attempting to identify specific hours that should be eliminated
or by simply reducing the award to account for the limited success of the
plaintiff.” Id.
1 I would not use my discretion to disallow costs to the defendants. This is not the case of a
penurious plaintiff, but a lawsuit over significant fundraising by plaintiffs who are recurrent
litigants.
2 In Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989), the
Supreme Court said that plaintiffs cross the threshold to a fee award of some sort if they have
succeeded “on any significant issue in litigation which achieve[d] some of the benefit the parties
sought in bringing suit” (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau
v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978))).

3

The plaintiffs say that they have significantly discounted their request
($54,552.78) and have limited it to amounts clearly related to the issue on
which they prevailed (and issues that cannot be separated from that issue).
The defendants say that the hourly rates are too high and that the time is
excessive for this narrow claim, which was not presented in the first complaint,
was argued only in a few short paragraphs of the second amended complaint,
Second Am. Compl. ¶¶ 106-109 (ECF No. 114), and in two sentences of the
plaintiffs’ third motion for a preliminary injunction, Third Mot. for Prelim. Inj.
47 (ECF No. 115), and was never appealed.
I conclude that the record supports the hourly rates.

The Attorney

General’s office measures them against the respective lawyers’ experience at
the outset of the lawsuit, but the precedents support using the rates at the
time of the award (as a rough offset for the lack of interest on attorney fees that
are so long delayed in payment). See Perdue v. Kenny A., 130 S. Ct. 1662,
1675 (2010); Missouri v. Jenkins, 491 U.S. 274, 282 (1989). As for the hours, I
conclude that the Tex. State Teachers/Hensley exercise (“attempting to identify
specific hours that should be eliminated,” Tex. State Teachers, 489 U.S. at
789-90) is not satisfactory in this complex and multi-faceted case that
stretched over years and courts and issues.

That mathematical attempt at

segregation would produce only a false precision. Although I recognize that the
plaintiffs have made an effort at limiting their fees, the requested amount still
outstretches their limited success. I therefore use the alternate approach of
4

“simply reducing the award to account for the limited success of the plaintiff.”
Id.3
I conclude that $54,552.78 is too much for the limited success that the
plaintiffs obtained. A lawsuit on that issue alone (a regulation that the statute
did not even require) should have been simple and straightforward factually
and legally (even though ballot-related cases are long and abundant).

The

limited treatment in the briefing and my brief treatment of it in the decision
demonstrate the simplicity of the issue.

But by the same token, the

defendants’ proposed award, $13,157.15, is clearly insufficient for litigating the
constitutional claim in a federal court, with the necessity of providing context
to the claim and dealing with the Attorney General’s defense.

An award of

$30,000 accounts appropriately for the plaintiffs’ limited success on this
narrow issue, including their fee petition, while recognizing the realities of
litigating a constitutional claim in federal court.4 Except for the $450 fee for
filing a mandamus petition that related solely to discovery unrelated to the
issue on which they prevailed, I also allow the plaintiffs’ claimed expenses, i.e.,
$2,193.78.

3 As the Supreme Court said in 2011, “trial courts need not, and indeed should not, become
green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough
justice, not to achieve auditing perfection. So trial courts may take into account their overall
sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Fox v.
Vice, 131 S. Ct. 2205, 2216 (2011).
4 I reiterate that the defendants immediately conceded the issue after this court’s ruling, did
not appeal, and obtained an immediate change in the regulation.

5

Section 1988 characterizes that attorney fee recovery for the plaintiffs as
“part of the costs.” Can the defendants then receive, simultaneously, a costs
award under Rule 54(d) as a “prevailing party”?

The parties have not

addressed the caselaw on this issue. My own research reveals a handful of
circuit court of appeals cases, district court cases from California, Florida,
Kansas, and New York, as well as two Supreme Court decisions, all of which I
discuss below.
The Federal Circuit has staked out the strongest position, holding that in
patent cases there can be, “by definition,” only one prevailing party, regardless
of the fact that the outcome of a particular lawsuit might be mixed. Shum v.
Intel Corp., 629 F.3d 1360, 1363 (Fed. Cir. 2010).

(Ironically, in Shum the

panel could not agree on who was the prevailing party.)

Shum reasoned

primarily from the wording of Rule 54(d) and its use of the definite article “the”
in referring to “the prevailing party” (as opposed to referring to “a prevailing
party”): “For the purposes of costs and fees, there can be only one winner. A
court must choose one, and only one, ‘prevailing party’ to receive any costs
award.”

Id. at 1367.

But Shum, a patent case, did not have to deal with

section 1988 and its award of attorney fees to a plaintiff for success on any
significant claim as part of costs. Instead, the Shum court assessed who
prevailed on the “central issue” in the case, id. at 1368, a test that the
Supreme Court explicitly rejected for civil rights cases, see Tex. State Teachers,
489 U.S. at 790. In civil rights cases, a plaintiff can prevail on a “significant”
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claim, thus meeting the fee-award threshold, while the defendant prevails on
the “central” issue in the case. Shum does not resolve that dilemma.
The Tenth Circuit has also addressed the issue, albeit less definitively.
In Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1233-35 (10th Cir. 2001),
the court dealt with a civil rights case in which the plaintiff received a partial
attorney fee award. The court held that a magistrate judge then “clearly erred”
in treating both sides as prevailing parties and awarding costs to both parties
under Rule 54. The court stated: “In general, the litigant who is the prevailing
party for purposes of attorney’s fees is also the prevailing party for purposes of
costs.” Id. at 1234; see also 10 Moore’s Federal Practice § 54.101[3] (3d ed.
2012) (“If the litigant is a ‘prevailing party’ under the fee-shifting statute, the
litigant ought to be considered a ‘prevailing party’ for purposes of costs.”). But
the Tenth Circuit also relied on the fact that “[u]sually the litigant in whose
favor judgment is rendered is the prevailing party for purposes of Rule
54(d)(1).”

Id. (quoting 10 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2667 (3d ed. 2012)). That made Barber easy, because
the plaintiff had successfully challenged his employer’s treatment of him and
the court had entered judgment solely in the plaintiff’s favor.5

Here, in

contrast, this court’s judgment was in favor of the defendants on all but one
count and in favor of the plaintiffs on only part of that count. See Judgment,

Albeit he succeeded on one theory, hostile environment, and not on other theories of
discriminatory termination and retaliatory discharge.

5

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Feb. 18, 2011 (ECF No. 219) (Counts I-IV); Am. Judgment, Nov. 14, 2011 (ECF
No. 231) (Counts V-VIII). Finally, Barber proceeded to highlight the trial court’s
discretion under Rule 54((d)(1) to award or not award costs, and noted the
options of denying costs to both sides or “apportion[ing] costs among the
parties or . . . reduc[ing] the size of the prevailing party’s award to reflect the
partial success.”

254 F.3d at 1234-35.

It is unclear whether Barber’s

reference to “apportioning costs” means that the trial court can award costs to
both opposing parties (as long as they are not both called prevailing parties),
but that is how the District of Kansas has interpreted it in Bell v. Bd. of Cnty.
Comm’rs of Jefferson Cnty., 2007 WL 1411613 (D. Kan. May 10, 2007). In any
event, Barber concludes that when the court exercises its discretion “the
identification of the prevailing party may [in the end] become so unimportant
as to be almost immaterial.” Id. at 1235.
The Second Circuit mentioned the issue in passing in Dattner v. Conagra
Foods, Inc., 458 F.3d 98, 101 (2d Cir. 2006), stating in dictum that “in general,
a litigant who is a prevailing party for purposes of attorney’s fees is also the
prevailing party for purposes of costs.” Dattner was not a civil rights attorney
fee case, but a case where the defendants obtained a dismissal on a forum non
conveniens argument, not on the merits, yet petitioned for their costs.

The

Second Circuit borrowed the attorney fee cases’ requirement that to be a
prevailing party, a party must obtain a “judicially sanctioned change in the
legal relationship of the parties,” id. (quoting Buckhannon Bd. & Care Home
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Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598, 605 (2001)).6 The
Second Circuit concluded that the defendant’s success on its forum non
conveniens argument did not meet that standard and did not make it a
prevailing party for costs.
I have found no Circuit Court case stating clearly that both parties can
be awarded costs.
As for trial courts, the Southern and Middle Districts of Florida look at a
case claim-by-claim and may award costs on one claim to one of the parties
and to the opposing party on a different claim. James v. Wash Depot Holdings,
Inc., 242 F.R.D. 645, 648 (S.D. Fla. 2007) (citing Stewart v. Town of Zolfo
Springs, 1998 WL 776848, at *1 (M.D. Fla. Sept. 16, 1998)).

Similarly, in

EEOC v. Colgate-Palmolive Co., 617 F. Supp. 843 (S.D.N.Y. 1985), a case where
both sides prevailed on some claims, the Southern District of New York
awarded one-third of the plaintiff’s costs and two-thirds of the defendant’s
costs.

The District of Kansas has repeated the Tenth Circuit’s statement in

Barber that only one party can be classified as the prevailing party, has
recognized a civil rights plaintiff obtaining a partial fee award as “the prevailing
party even though his success was minimal,” but then has used the Barber
“discretion to apportion costs” so as to award the defendant 90% of its costs.
Bell v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 2007 WL 1411613, at *2-3 (D.
See also Andretti v. Borla Performance Indus., 426 F. 824, 835-36 (6th Cir. 2005) (finding a
judicially sanctioned change in the legal relationship and awarding costs); Miles v. State of
California, 320 F.3d 986, 989 (9th Cir. 2003) (same).
6

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Kan. May 10, 2007).

In the Northern District of California, one judge has

declined in a civil rights case to follow the Federal Circuit’s Shum precedent
that there can be only one prevailing party (calling it “foreign authority”),
Ambat v. City and Cnty. of San Francisco, 2012 WL 2598278, at *3 (N.D. Cal.
July 5, 2012), and has awarded attorney fees and partial costs to the plaintiff
while at the same time awarding costs to the defendant. In Oracle America,
Inc. v. Google Inc., 2012 WL 3822129, at *1 (N.D. Cal. Sept. 4, 2012), on the
other hand, a different judge in that district concluded that Shum was
controlling authority in a patent case and that “[e]ven if the action results in a
mixed judgment, the district court must nonetheless pick one side as the
‘prevailing party’ for purposes of taxing costs” (citing Shum, 629 F.3d at 136667).
In Hensley, the United States Supreme Court noted that a single civil
rights lawsuit could contain “distinctly different claims for relief that are based
on different facts and legal theories.” 461 U.S. at 434. The Court said that, if
that were the case, “these unrelated claims [must] be treated as if they had
been raised in separate lawsuits.”

Id. at 435.

Therefore, even though a

plaintiff might receive an attorney fee award for a successful claim, the Court
observed in a footnote that if one of the unsuccessful claims were frivolous, a
defendant might simultaneously recover an attorney fee for responding to it.
Id. at n.10.

In other words, Hensley seems to recognize the availability of

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“costs” to both parties, at least when the costs are attorney fees. The Supreme
Court later confirmed that Hensley means exactly that:
In Hensley, we noted the possibility that a plaintiff might
prevail on one contention in a suit while also asserting an
unrelated frivolous claim. In this situation, we explained, a
court could properly award fees to both parties—to the
plaintiff, to reflect the fees he incurred in bringing the
meritorious claim; and to the defendant, to compensate for
the fees he paid in defending against the frivolous one. We
thus made clear that a court may reimburse a defendant for
costs under § 1988 even if a plaintiff’s suit is not wholly
frivolous. Fee-shifting to recompense a defendant (as to
recompense a plaintiff) is not all-or-nothing.

Fox v. Vice, 131 S. Ct. 2205, 2214 (2011) (citation omitted).7
This case fits the Hensley/Fox model. As I noted earlier in the progress
of the case, it really should have been two cases. See Nat’l Org. for Marriage v.
McKee, 723 F. Supp. 2d 245, 249 n.5 (D. Me. 2010), aff’d in part and vacated
in part, 649 F.3d 34 (1st Cir. 2011) (noting that adding Counts V-VIII “turns
out to have been unwise” and that “[e]ven NOM says that ‘[r]unning the two
parts together―even considering the two parts together―creates confusion’”).
That is essentially how it proceeded on appeal, with two appeals, two First
Circuit decisions, and two petitions for certiorari. See Nat’l Org. for Marriage v.
McKee, 649 F.3d 34 (1st Cir. 2011) (Counts V-VIII), cert. denied, 132 S. Ct.
1635 (2012); Nat’l Org. for Marriage v. McKee, 669 F.3d 34 (1st Cir. 2012)
7 It is more difficult for a defendant to recover attorney fees in a civil rights case. Although the
statute says that a prevailing party can recover fees as part of the costs, the Supreme Court
has held that while a plaintiff can recover them if it prevails on a significant claim, a defendant
must show that the plaintiff’s claim was frivolous, unreasonable or without foundation in order
to obtain an attorney fee award. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978). Thus an award of costs to a defendant does not automatically entitle a defendant to
attorney fees. See, e.g., Head v. Medford, 62 F.3d 351, 354-56 (11th Cir. 1995).

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(Counts I-IV), cert. denied, 133 S. Ct. 163 (2012). If I had denied the motion to
amend, the result would have been that the defendants won the “first case”
entirely, Nat’l Org. for Marriage v. McKee, 765 F. Supp. 2d 38 (D. Me. 2011),
and the plaintiffs prevailed on only a narrow issue in the “second case,” Nat’l
Org. for Marriage v. McKee, 723 F. Supp. 2d 245 (D. Me. 2010), aff’d in part
and vacated in part, 649 F.3d 34 (1st Cir. 2011).

For the costs that the

defendants have requested here, some relate solely to the “first case”
(deposition transcripts before the second amended complaint was filed) and the
rest could be allocated (printing costs for two separate appeals and printing
costs for certiorari briefs for two separate appeals). As Hensley implies, costs
awards should not depend solely on how a case is structured. To be sure, in
many cases, it will be impractical to break down each incurred cost and claim,
but not so here where it is undisputed that the defendants’ claimed costs are
unrelated to the plaintiffs’ successful claim. At the very least, the defendants
should recover their costs with respect to the “first case.” But I also agree with
the trial court decisions that look at the case claim-by-claim and that award
costs to a defendant even while awarding attorney fees on a narrow issue to a
plaintiff. That seems to me most consistent with Hensley and Fox.
In conclusion, there is no First Circuit authority; other circuit authority
is ambivalent, ambiguous, and/or distinguishable (i.e., Federal Circuit law for
patent cases); some district courts are awarding costs to defendants while
allowing civil rights attorney fees to plaintiffs; and the reasoning of the
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Supreme Court in Hensley and Fox seems to support that approach in the
appropriate case. I therefore award the defendants, who generally prevailed on
the lawsuit, their costs that are unrelated to the plaintiffs’ successful claim.
Consequently, the plaintiffs are awarded $32,193.78 in attorney fees and
expenses as part of costs under 42 U.S.C. § 1988 and Rule 54(d), and the
defendants are awarded costs in the amount of $8,543.94.
SO ORDERED.
DATED THIS 11TH DAY OF JANUARY, 2013
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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