CONSERVATION FORCE et al v. PORRINO, et al

Filing 26

OPINION filed. Signed by Judge Freda L. Wolfson on 4/25/2017. (km)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
CONSERVATION FORCE, ROBERT
:
Civil Action No. 16-04124 (FLW)(LHG)
VIDEN, JR., PETER HEFFERAN, CRAIG :
DEAR, VINCENT JAMES SPINELLA,
:
OPINION
RICHARD NORDLING, GARDEN
:
STATE TAXIDERMIST ASSOCIATION, :
and JOHN JANELLI d/b/a JANELLI
:
TAXIDERMY,
:
:
Plaintiffs,
:
:
v.
:
:
CHRISTOPHER S. PORRINO,
:
ATTORNEY GENERAL OF THE STATE :
OF NEW JERSEY, and BOB MARTIN,
:
COMMISSIONER OF THE NEW JERSEY :
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION,
:
:
Defendants.
:
___________________________________ :
Hon. Freda L. Wolfson, U.S.D.J.:
Before the Court is the motion of Plaintiffs Conservation Force, Robert Viden, Jr., Peter
Hefferan, Craig Dear, Vincent James Spinella, Richard Nordling, Garden State Taxidermist
Association, and John Janelli d/b/a Janelli Taxidermy (collectively “Plaintiffs”), for an award of
attorneys’ fees following this Court’s August 29, 2016 entry of a consent Order and Judgment
finding elements of N.J.S.A. 23:2A-6.1 (the “Act”) to be preempted under the Endangered
Species Act of 1973, 16 U.S.C. §§ 1531-1543 (the “ESA”), and dismissing, without prejudice
Plaintiffs’ claim under 42 U.S.C. § 1983. For the reasons set forth below, the Court finds that
Plaintiffs have failed to identify any statutory authority entitling Plaintiffs to fee-shifting and that

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a discretionary exercise of this Court’s equitable authority to award attorneys’ fees is not
warranted in this case. Plaintiffs’ motion for attorneys’ fees is, therefore, denied.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
In March 2016, the New Jersey Legislature passed a bill prohibiting, inter alia, the
possession, import, export, and transport of parts or products of the African elephant, leopard,
lion, and black and white rhino. September 28, 2016 Declaration of John J. Jackson, III, ¶ 9
(“Jackson Decl.”). On April 20, 2016, Plaintiff Conservation Force sent a letter and supporting
information packet to New Jersey Governor Chris Christie in opposition to the bill, arguing,
among other grounds, that the bill would be preempted by the ESA. Ibid. Governor Christie
vetoed the bill and submitted suggestions to the Legislature, without addressing the preemption
issue. Ibid. The Legislature accepted Governor Christie’s suggestions, and he signed the bill into
law on June 1, 2016. Ibid.
On June 30, 2016, Conservation Force, on behalf of itself, the Garden State Taxidermists
Association, and individual members of those organizations, served Governor Christie, and U.S.
Secretary of the Interior Sally Jewell, a Sixty-Day Notice of Intent to Sue (the “Notice”) for
alleged violation of the ESA. November 10, 2016 Declaration of John R. Renella, ¶ 4 (“Renella
Decl.”); Jackson Decl., ¶ 11.
On July 8, 2016, Plaintiffs filed the two-count Complaint in this action. Renella Decl., ¶
5; Jackson Decl., ¶ 12. In Count I, Plaintiffs raised a claim under the Supremacy Clause of the
United States Constitution that the Act was preempted by the ESA. Compl. ¶¶ 105-11. In Count
II, Plaintiffs raised a claim for violation of unspecified constitutional rights under 42 U.S.C. §
1983. Id. at ¶¶ 112-17. On July 13, 2016, the Court conducted a conference call with Plaintiffs’
and Defendants’ counsel. During the call, Defendants’ counsel questioned whether Plaintiffs’
suit was premature given that it had not yet been sixty days since Plaintiffs’ served their Notice.
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Renella Decl., ¶ 6. In response, Plaintiffs’ counsel indicated that the Notice concerned a different
matter. Renella Decl., ¶ 7. Also on the July 13 call, the Court, after a preliminary review of
Plaintiffs’ papers, converted Plaintiffs’ pending application for an order to show cause into a
motion for summary judgment on Count I of Plaintiffs’ Complaint only. See Dkt. No. 10, July
13, 2016 Text Order. The Court further set a briefing schedule that Defendants’ opposition
would be due on August 1, 2016, and Plaintiffs’ reply brief would be due on August 8, 2016.
On August 1, Defendants filed their Memorandum in Opposition, in which they conceded
that the Act was preempted by the ESA in certain circumstances and expressed the State of New
Jersey’s intent not to enforce the Act in a manner which would conflict with federal permits. The
Court requested that the parties’ counsel confer to determine whether, given the representations
made in Defendants’ Opposition, there was still a justiciable issue in the case and encouraged the
parties to pursue settlement.
Defendants’ and Plaintiffs’ counsel participated in a call on August 2, 2016. Renella
Decl., ¶ 10. Defendants represented that they would not take enforcement action against someone
acting pursuant to a federal permit or exemption under the ESA. Ibid. Plaintiffs’ counsel
requested that the parties sign a consent order to that effect, and Defendants’ counsel agreed to
take the proposal under consideration. Ibid. As part of their discussions, Plaintiffs offered to
waive any claim for attorneys’ fees in order to expedite resolution of the case. Jackson Decl., ¶
13.
On August 3, Plaintiffs’ counsel emailed Defendants’ counsel a draft consent judgment.
Defendants’ counsel reviewed the draft and called Plaintiffs’ counsel on August 4, 2016.
Renella Decl., ¶ 11. During the August 4 call, Defendants’ counsel indicated that Plaintiffs’
proposed language regarding the scope of preemption was broader than that to which Defendants

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had agreed to in their Opposition. Plaintiffs also wanted Defendants to promulgate regulations
incorporating the consent judgment’s terms. Renella Decl., ¶ 12. Defendants’ counsel informed
Plaintiffs’ counsel that Defendants could not agree to Plaintiffs’ proposed terms for a consent
judgment, and Plaintiffs’ counsel indicated that they would proceed with briefing the motion for
summary judgment on Count I. Renella Decl., ¶ 13; Jackson Decl., ¶ 13.
Plaintiffs filed their reply brief on August 8, 2016. The parties were called for another
telephone conference with the Court on August 9. The Court suggested that, given the position of
the parties in briefing, it appeared a consent order was possible, holding that some parts of the
Act were preempted and others were not preempted. The Court requested that the parties attempt
to draft such an order. Plaintiffs’ counsel volunteered to draft the order. Renella Decl., ¶ 15.
Plaintiffs’ counsel emailed Defendants’ counsel a draft of the order later in the day on
August 9, 2016. Defendants’ counsel provided comments and suggested changes to the draft by
email on August 15. Renella Decl., ¶ 16. On August 16, Plaintiffs’ counsel posed questions to
Defendants’ counsel by email regarding the comments and edits. Defendants’ counsel responded
to Plaintiffs’ counsel by email on August 17. Id. at ¶ 17. In their August 17 communications with
Plaintiffs’ Counsel, Defendants’ counsel requested that language be included in the consent order
dismissing Count II. Id. at ¶ 18 and Ex. B.
On August 18, Plaintiffs’ counsel emailed Defendants’ counsel a revised draft of the
proposed consent order. In response to Defendants’ counsel’s request to add language dismissing
Count II, Plaintiffs’ counsel wrote:
Plaintiffs have no intent to pursue Claim II at this time. But in an abundance of caution
and since the claim was not briefed, we do not wish to dismiss it with prejudice either.
We have revised the draft order to grant the motion on Count I and to dismiss Count II
without prejudice.

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Id. at Ex. B. Plaintiffs’ and Defendants’ counsel discussed the draft order by telephone on
August 23 and August 24. The parties finalized the order on August 24. Renella Decl., ¶ 19. On
August 26, 2016, Plaintiffs’ counsel submitted the proposed consent order to the Court for filing.
The court entered the Order and Judgment on August 29, 2016.
One month later, On September 28, 2016, Plaintiffs filed the present motion for
attorneys’ fees and costs, claiming statutory entitlement to fee-shifting under 6 U.S.C. § 1540(g)
and 42 U.S.C. § 1988, and requesting, in the alternative, that the Court exercise its equitable
powers to awards fees in this case.
II. STANDARD OF REVIEW
“Under the ‘American Rule,’ parties to litigation are to pay their own attorneys’ fees,
absent statutory authority and a court order providing otherwise.” People Against Police
Violence v. City of Pittsburgh, 520 F.3d 226, 231 (3d Cir. 2008) (quoting Buckhannon Bd. and
Care Home, Inc. v. West Virginia Dep't. of Health and Human Resources, 532 U.S. 598, 602
(2001)). As relevant to this case, Congress has provided statutory authorization for fee-shifting in
citizen suits under the ESA. Specifically, the ESA provides that “[t]he court, in issuing any final
order in any suit brought pursuant to paragraph (1) of [§ 1540(g)], may award costs of litigation
(including reasonable attorney and expert witness fees) to any party, whenever the court
determines such award is appropriate.” 16 U.S.C. § 1540(g)(4). Congress has also authorized fee
awards in § 1983 actions for the violation of constitutional rights. “In civil rights cases . . . courts
‘may allow the prevailing party . . . a reasonable attorney’s fee.’” People Against Police
Violence, 520 F.3d at 232 (quoting 42 U.S.C. § 1988(b)). “Pursuant to this authority, the
‘prevailing party’ in such cases is normally awarded attorneys’ fees, absent special

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circumstances.” Id. (quoting Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 163 (3d Cir.
2002)).
Parties are considered “prevailing parties” if “they succeed on any significant issue in
litigation which achieves some of the benefits the parties sought in bringing suit.” J.O. ex rel.
C.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)) (internal quotation marks omitted). To “succeed” under
this standard, a party must achieve a “court-ordered ‘change in the legal relationship between the
plaintiff and the defendant.’” Buckhannon, 532 U.S. at 604 (quoting Texas State Teachers Ass'n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)). Therefore, courts may not award fees
based on a “catalyst theory;” a plaintiff does not become a “prevailing party” solely because his
lawsuit causes a voluntary change in the defendant’s conduct. In that situation, the change in
legal relationship lacks the requisite “judicial imprimatur.” Id. at 601, 605.
III. ANALYSIS
In the present motion, Plaintiffs seek an award of attorneys’ fees on three alternative
bases. First, Plaintiffs contend they are entitled to attorneys’ fees as a prevailing party under the
citizen suit provision of the ESA, 6 U.S.C. § 1540(g). Second, Plaintiffs’ contend that they are
entitled to attorneys’ fees as a prevailing party on a federal constitutional claim, pursuant to 42
U.S.C. § 1988. Third and finally, Plaintiffs contend that the Court should exercise its discretion
to award attorneys’ fees to Plaintiffs, pursuant to the Court’s inherent equitable powers. As
explained below, neither statutory provision provides for fee-shifting in this case, and an exercise
of the Court’s equitable powers is not warranted.
A. 16 U.S.C. § 1540(g)(4)
Plaintiffs contend that they may be awarded attorneys’ fees as a “prevailing party” under
the citizen suit provision of the ESA. Although the parties have extensively briefed the issue of
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whether Plaintiffs may qualify as a “prevailing party” under the statute on numerous grounds, the
Court first addresses the threshold question of whether this matter in fact involved a “citizen
suit” for which the ESA provides attorneys’ fee awards. The ESA authorizes an award of
attorneys’ fees in only certain, limited circumstances.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of
this subsection, may award costs of litigation (including reasonable attorney and expert
witness fees) to any party, whenever the court determines such award is appropriate.
16 U.S.C. § 1540(g)(4). 16 U.S.C. § 1540(g)(1), the “paragraph (1)” mentioned above, in turn
authorizes three types of citizen suits under the ESA. Two of the three types of suits may only be
brought against the Secretary of the Interior, who is not a defendant in this case. Accordingly,
here, Plaintiffs’ case could only be brought as a citizen suit under § 1540(g)(1)(A), which
provides in relevant part:
(g) Citizen suits
(1) Except as provided in paragraph (2) of this subsection any person may commence a
civil suit on his own behalf-(A) to enjoin any person, including the United States and any other governmental
instrumentality or agency (to the extent permitted by the eleventh amendment to the
Constitution), who is alleged to be in violation of any provision of this chapter or
regulation issued under the authority thereof.
This authorization to sue is limited by § 1540(g)(2), the “paragraph (2)” mentioned above, which
provides, in relevant part, that:
(2)(A) No action may be commenced under subparagraph (1)(A) of this section-(i) prior to sixty days after written notice of the violation has been given to the Secretary
[of the Interior], and to any alleged violator of any such provision or regulation.
16 U.S.C. § 1540(g)(2)(A)(i). Accordingly, plaintiffs are required to provide sixty days’ notice to
both the Secretary of the Interior and any other defendants before bringing a citizen suit under
the ESA.

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“The notice requirement under [the] ESA is jurisdictional.” Virgin Islands Tree Boa v.
Witt, 918 F. Supp. 879, 895 (D.V.I.), aff'd sub nom. Virgin Islands Tree Boa, (Epicrates
Monensis Granti) v. Witt, 82 F.3d 408 (3d Cir. 1996) (citations omitted). See also Hawksbill Sea
Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461, 464 (3d Cir. 1997) (observing the
Court’s prior precedent that dismissal of ESA claims is “compelled” by “failure to satisfy the
statute’s notice requirements”). The Third Circuit has therefore observed that § 1540(g) “and its
accompanying regulations . . . must be given effect, and as we read them, they mandate that, . . .
notice . . . [i]s required before filing suit.” id. at 465. In affirming the district court below, the
Third Circuit in Hawksbill concluded:
Plaintiffs, who were represented by counsel at all times, failed to comply with this
requirement. On this basis, the district court noted that, even if plaintiffs could establish
sufficient evidence to merit the issuance of injunctive relief . . . , ‘this court would
dismiss these claims for failure to comply with the ESA's notice requirement.’ Although
the district court did not formally dismiss plaintiffs' claims . . ., it should have done so.”
Ibid. (emphasis added). Accordingly, in this Circuit, the ESA’s notice requirement imposes a
jurisdictional threshold, mandating dismissal of actions in which the plaintiff has failed to
provide adequate notice.
The Complaint in this case contains two counts, neither of which on its face purports to
be a citizen suit under the ESA: Count I raises a claim under the Supremacy Clause of the United
States Constitution, and Count II raises a claim under 42 U.S.C. § 1983. Even granting, as the
Court does for the purposes of this motion, that either or both of these claims could be properly
brought as citizen suits under the ESA under some circumstances, it is evident in the case at bar
that they were not. Firstly, Plaintiffs plainly failed to comply with the ESA’s notice
requirements. It is undisputed that Defendants were served with Plaintiffs’ Sixty-Day Notice of
Intent to Sue on June 30, 2016. Renella Decl., ¶ 4; Jackson Decl., ¶ 11. Plaintiffs filed the

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Complaint in this case just over a week later, on July 8, 2016. Pursuant to 16 U.S.C. §
1540(g)(2)(A)(i), therefore, “no action” by Plaintiffs could have been “commenced under” the
citizen suit provision of the ESA in their July 8 Complaint. See Hawksbill, 126 F.3d at 464-65.
Secondly, from the very early stages of this case, the parties recognized that Plaintiffs
could not raise and were not raising a citizen suit under the ESA, precisely because of Plaintiffs’
failure to comply with the notice requirements. In the Court’s July 13, 2016 conference call with
the parties, Defendants’ counsel raised the issue of whether Plaintiffs’ suit under the ESA might
be barred because Plaintiffs’ 60-day notice had been served on Defendants just one week prior to
the filing of Plaintiffs’ Complaint. Renella Decl., ¶ 7. In response, Plaintiffs’ counsel represented
that the ESA’s notice requirement did not provide a barrier to the present suit, because the 60day notice related to a different matter than that raised in the Complaint. Ibid. In doing so,
Plaintiffs made clear that they intended to proceed on the claims raised in the Complaint,
including Count I, on some jurisdictional basis other than the ESA. Specifically, in their July 8,
2016 Complaint, Plaintiffs asserted that “[t]he Court has jurisdiction under 28 U.S.C. § 1331
(federal question jurisdiction), because the claims arise under § 6 of the ESA, 16 U.S.C. §
1535(f)), the U.S. Constitution, U.S. Const. art. VI, cl. 2 [the Supremacy Clause], and 42 U.S.C.
§ 1983.” Compl. ¶ 13. In the telephonic conference, Plaintiffs’ counsel effectively disclaimed
jurisdiction under the ESA in response to Defendants’ counsel’s concerns about the lack of an
appropriate 60-day notice prior to the filing of the Complaint. 1 From July 13 forward, then, the
only bases of the Court’s jurisdiction over this matter could have been the Supremacy Clause and

1

In their briefing for this very motion, Plaintiffs again conceded that “Plaintiffs did not rely on
the ESA for jurisdiction” in this case. Reply, 3.
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§ 1983. As explained in Section III(B), infra, § 1983 cannot provide jurisdiction for Count I, a
federal preemption claim.
The Supremacy Clause itself, however, provides jurisdiction over private suits, like
Count I, bringing facial challenges to state laws on the basis of their conflict with federal law.
The Supreme Court clearly held as much in Shaw v. Delta Air Lines, 463 U.S. 85, 96 n. 14
(1983), where it concluded that “[a] plaintiff who seeks injunctive relief from state regulation, on
the ground that such regulation is preempted by a federal statute which, by virtue of
the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which
the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.” See also Lewis v.
Alexander, 685 F.3d 325, 345–46 (3d Cir. 2012) (“Supreme Court precedent establishes that the
Supremacy Clause creates an independent right of action where a party alleges preemption
of state law by federal law.”). The Third Circuit has long abided by this rule, holding in St.
Thomas–St. John Hotel & Tourism Ass'n v. Gov't of the U.S.V.I., 218 F.3d 232, 240 (3d Cir.
2000), that a “state or territorial law can be unenforceable as preempted by federal law even
when the federal law secures no individual substantive rights for the party arguing preemption . .
. . The Supreme Court has recognized that such a challenge presents a federal question which the
federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.” The Third Circuit reaffirmed
the continuing authority of St. Thomas-St. John Hotel, as recently as 2012, in its decision in
Lewis, 685 F.3d at 346.
In this case, after Plaintiffs acknowledged the inadequacy, and indeed the inapplicability
of their 60-day notice in this case on July 13, there was no possibility of a citizen suit claim in
this action on which Plaintiffs could have prevailed. Therefore, this Court instead exercised
jurisdiction over Count I solely on the basis of the Supremacy Clause, not the ESA. In the

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absence of a citizen suit under the ESA, § 1540(g)(4) cannot provide a basis for an award of
attorneys’ fees to Plaintiffs. Stated simply, Plaintiffs have failed to provide any authority for the
proposition that this Court may grant attorneys’ fees for a statutory claim over which this Court
lacked jurisdiction. The jurisdiction of this Court over Count I has been premised exclusively on
the Supremacy Clause of the United States Constitution from the earliest days of this suit, and
this Court entered the consent Order and Judgment in this case under that jurisdictional authority.
In reply, Plaintiffs do not dispute that they failed to comply with the ESA’s notice
requirement, but instead argue that they may be entitled to attorneys’ fees under the citizen suit
provision, “because the case turned on ESA preemption, although the ESA did not yet provide
jurisdiction.” Reply, 2. Plaintiffs’ briefing does not expand on this bald statement, but instead
merely asserts that the ESA was “central” to the issues in the case, and offers a series of nonbinding, out-of-circuit cases for the proposition that other district courts have awarded attorneys’
fees under the ESA, even where no live ESA claim remained in the case. Ibid. The Court finds
each of these cases clearly distinguishable from the case at bar, and therefore unpersuasive that
Plaintiffs may use provisions of the ESA to secure fees in a case decided under the Supremacy
Clause.
In Friends of Animals v. Salazar, 696 F. Supp. 2d 16 (D.D.C. 2010), the plaintiff brought
a suit for a declaratory judgment and injunctive relief against, inter alia, the Secretary of the
Interior (i) for failure to make a 90-day finding on plaintiff’s endangered-species petition and (ii)
for missing the 12-month deadline for making another finding on plaintiff’s petition. Id. at 18.
The Court dismissed plaintiff’s 12-month claim for failure to provide defendants with proper
notice under the ESA, but found plaintiff’s suit to have prompted defendants’ ultimate issuance
of the 90-day finding. The court, relying on the law of its circuit, which this court observes

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would not have been binding on this Court in any event, found plaintiff to be a prevailing party
under the ESA on its 90-day claim, and so entitled to attorneys’ fees. Ibid.
Unlike this case, however, defendants there “d[id ] not dispute that Plaintiff [wa]s entitled
to reasonable fees for the filing of its 90–day finding claim,” arguing only that the fees requested
were unreasonable. Id. at 18. There was thus no issue in Friends of Animals as to whether a valid
ESA claim existed; defendants conceded that one did. Furthermore, directly counter to Plaintiffs’
argument in this case, the Friends of Animals court made plain that only the claim for which
defendants were provided proper ESA notice was eligible for an award of attorneys’ fees. The
Court explained that:
Plaintiff's claim regarding Defendants’ failure to issue a 12–month finding is distinct
from its claim regarding a 90–day finding and, in fact, the 12–month claim was not even
properly part of this lawsuit. Plaintiff therefore may recover fees for work expended on
the notice letter and Complaint to the extent that work was related to its 90–day finding
claim, but not for work related to its 12–month finding claim.
Id. at 19. The court was clear that the claim for which no notice had been provided was “not even
properly part” of the case, and, therefore, that no attorneys’ fees would be awarded for that
claim.
Similarly, in S. Yuba River Citizens League & Friends of River v. Nat'l Marine Fisheries
Serv., No. 06-CV-2845, 2012 WL 1038131 (E.D. Cal. Mar. 27, 2012), there was no question that
the “[p]laintiffs’ fee request [wa]s pursuant to the Endangered Species Act citizen suit provision,
16 U.S.C. § 1540(g)(4).” Plaintiff brought a claim for a “take” of listed fish species in violation
of the ESA, and the defendant did not challenge that proper notice had been given. Id. at *1-2,
aff'd sub nom. S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 581 F. App'x 693
(9th Cir. 2014). Simply put, the critical, and threshold inquiry of whether a citizen suit had been
properly brought was not before the court in S. Yuba River.

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Finally, the question before the district court in Conservation Law Found. of New
England, Inc. v. Watt, 654 F. Supp. 706 (D. Mass. 1984), was whether plaintiff’s counsel could
recover attorneys’ fees for work on a live claim in the case for which only a co-plaintiff, but not
plaintiff itself, could recover. The district court found that the ESA claims in that case “all
involved a common core of facts and were based on related legal theories,” and therefore
plaintiff could recover attorneys’ fees for work performed on a claim belonging to co-plaintiff.
Id. at 707. There was no suggestion that co-plaintiff’s claim was not properly noticed or
otherwise not legitimately a part of the case. Here, by contrast, Plaintiffs seek to recover for an
alleged ESA claim for which there was no jurisdiction due to the absence of a proper ESA
notice, and which, therefore, was not part of the case before the Court. Instead, the claim before
the Court in Count I was bought solely under the auspices of the Supremacy Clause, not the
ESA. In the absence of any persuasive authority to the contrary therefore, Plaintiffs’ arguments
do not disturb this Court’s finding that the ESA’s citizen suit provision provides no basis for the
award of attorneys’ fees in this case.
B. 42 U.S.C. § 1988(b)
In adjudicating Plaintiffs’ claim for attorneys’ fees under the ESA, the question posed to
the Court was whether there had ever been a proper ESA citizen suit before the Court, which
might entitle Plaintiffs to fees under the statute. As explained above, the Court has found that
there was no such citizen suit due to Plaintiffs’ failure to comply with the ESA’s notice
requirements, and that the claim was simply preempted under the Supremacy Clause in Count I.
By contrast, in evaluating Plaintiffs’ claim for attorneys’ fees under 42 U.S.C. § 1988(b), there is
no question that Plaintiffs at least initially raised a claim under § 1983, which could entitle
Plaintiffs to fees under § 1988. Count II of the Complaint clearly purports to bring an action

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under § 1983. The question before the Court on Plaintiffs’ present motion under § 1988,
therefore, is whether Plaintiffs are a “prevailing party” entitled to attorneys’ fees for the purposes
of their § 1983 claim.
This matter was resolved through a consent order and judgment, drafted jointly by the
parties and entered by this Court. In that Order and Judgment, the Court ruled on Count I, inter
alia, that by action of the Supremacy Clause of the United States Constitution, the Act was
preempted by and void under the ESA to the extent it prohibited any activity that is authorized
pursuant to an exemption or permit provided for in the ESA. In addition, I dismissed Count II,
Plaintiffs’ § 1983 claim, without prejudice. As noted above, parties are considered “prevailing
parties” if “they succeed on any significant issue in litigation which achieves some of the
benefits the parties sought in bringing suit.” J.O. ex rel. C.O., 287 F.3d at 271. To “succeed”
under this standard, a party must achieve a “court-ordered change in the legal relationship
between the plaintiff and the defendant.” Buckhannon, 532 U.S. at 604 (quotation omitted). In
Count I, Plaintiffs’ preemption claim, Plaintiffs clearly succeeded on a significant issue in the
litigation and achieved some benefit to the parties bringing the suit as reflected in this Court’s
August 29 Order and Judgment.
The difficulty for Plaintiffs, however, is that § 1988 does not authorize awards of
attorneys’ fees in preemption cases, like that brought in Count I. Although the Third Circuit has
not addressed the issue, every circuit court to have considered the question has found that
“preemption of state law under the Supremacy Clause—being grounded not on individual rights
but instead on considerations of power—will not support an action under § 1983, and will not,
therefore, support a claim for attorneys’ fees under § 1988.” Segundo v. City of Rancho Mirage,
813 F.2d 1387, 1394 (9th Cir. 1987). See Planned Parenthood of Houston & Se. Texas v.

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Sanchez, 480 F.3d 734, 738 (5th Cir. 2007) (“Plaintiffs' Supremacy Clause claim was not
actionable under § 1983. It follows that their Supremacy Clause claim, standing alone, would not
support an award of attorney's fees under § 1988.”); Md. Pest Control Assoc. v. Montgomery
County, 884 F.2d 160, 163 (4th Cir.1989) (“[F]ederal preemption of local ordinances pursuant to
the Supremacy Clause is not actionable under Section 1983. Therefore, there can be no award of
attorney's fees under Section 1988.”); Boston & Me. Corp. v. Town of Ayer, 330 F.3d 12, 18 (1st
Cir.2003) (same); Gustafson v. City of Lake Angelus, 76 F.3d 778, 792 (6th Cir. 1996) (same). 2
In the absence of guidance from the Third Circuit, this Court adopts the consensus view that
prevailing on a federal preemption claim alone cannot give rise to an award of attorneys’ fees
under § 1988.
In their motion, however, Plaintiffs argue that, where, as here, Plaintiffs raise both a
federal preemption claim (Count I) and a separate § 1983 claim based on the same nucleus of
operative facts (Count II), courts are empowered to award attorneys’ fees under § 1988 for both
the preemption claim and the § 1983 claim, even when the Court has found Plaintiffs to have
prevailed on the preemption claim only. 3 In support of this counterintuitive argument, Plaintiffs
rely almost exclusively on the unreported decision of the Middle District of Pennsylvania in
Lozano v. City of Hazleton, No. 3:06CV1586, 2015 WL 5895545 (M.D. Pa. Oct. 6, 2015). In

2

Although the Supreme Court has not yet ruled on this issue, its holding in Golden State Transit
Corp. v. City of Los Angeles, 493 U.S. 103 (1989), suggests that it would reach a similar
conclusion. There, the Supreme Court held that the Supremacy Clause, of its own force, does not
create rights enforceable under § 1983, and therefore “it would obviously be incorrect to assume
that a federal right of action pursuant to § 1983 exists every time a federal rule of law pre-empts
state regulatory authority.” Id. at 107-08.
3
This Court notes that Defendants disagree that Plaintiffs have indeed stated a valid, separate §
1983 claim, but, for the purposes of this motion, the Court will assume that Plaintiffs have done
so. If the Court were to have found that Plaintiffs failed to state a § 1983 claim, then attorneys’
fees would clearly not be warranted in this matter because, as noted above, § 1988 does not
provide for fee shifting in cases brought under the Supremacy Clause alone.
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Lozano, the district court found that defendant’s municipal ordinances were preempted by
federal immigration law and that the ordinances violated plaintiffs’ Fourteenth Amendment
constitutional right to due process. Id. at *1. The Third Circuit affirmed on the basis of federal
preemption only. Plaintiffs then moved in the district court for an award of attorneys’ fees under
§ 1988. Concerning the fees incurred in the appeal before the Third Circuit, defendant argued
that plaintiffs had prevailed only on their federal preemption claim, and therefore were not
entitled to fees because § 1988 does not provide for fee shifting in preemption cases. The Middle
District of Pennsylvania accepted, arguendo, that the Third Circuit would agree with, inter alia,
the Sixth Circuit in Gustafon and the Fifth Circuit in Planned Parenthood that federal
preemption claims do not fall under the attorneys’ fees provision of § 1988. The district court,
however, did not find this an absolute bar to a fee award in the case, holding
Where, however, a case involves both federal preemption issues and civil
rights/constitutional issues and the plaintiff prevails on the federal preemption claim, the
plaintiff may recover fees for both if the claims arise from a “common nucleus of
operative facts”. . . . The Third Circuit has explained as follows:
We have previously addressed situations where a plaintiff brought a § 1983 claim
that supports a grant of attorney's fees and another claim that does not, and the
court found in favor of the plaintiff on the non-fee bearing claim but did not
address the § 1983 claim. Recognizing that courts will often justifiably refrain
from addressing a constitutional question where it can be avoided, we have held
that such a plaintiff may obtain attorney's fees even though the § 1983 claim was
not decided provided that 1) the § 1983 claim of constitutional deprivation was
substantial; and 2) the successful pendant claims arose out of a common nucleus
of operative facts.
Lozano, 2015 WL 5895545, at *6 (quoting Planned Parenthood, 480 F.3d at 739). The Lozano
court went on to conclude:
Stated differently, the law provides that where a plaintiff prevails in a case raising both
constitutional claims that support an attorney's fee award and claims that do not support
attorney's fees, fees can be awarded even if the court does not address the constitutional
claim. In such situations, fees can be awarded when the unaddressed claim of

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constitutional deprivations are substantial and arise with the pendant non-constitutional
claims from a common nucleus of operative fact.
Id. at *6 (quotation omitted). Under this standard, the district court found that “[i]n the instant
case, the constitutional claims and the preemption claims all arose from a common nucleus of
operative facts–namely the defendant’s ordinances,” and found that the claims were
“substantial.” Id. at *7.
Here, Plaintiff contends that the facts of this case are similar to Lozano, and that the
Court should therefore apply the “substantial” and “common nucleus of operative facts” test to
find a fee award warranted here. The Lozano court, however, was mistaken as to the controlling
law, and, even had it not been, the different procedural posture of this case would prevent a fee
award under the standard applied in Lozano.
Firstly, the Lozano court mistakenly treated the decision of the Fifth Circuit in Planned
Parenthood as controlling precedent, when its effect in this circuit is only persuasive at best.
Critically, the Lozano court misattributed the block quotation setting forth the substantial and
common nucleus of operative facts test as coming from an opinion of the Third Circuit, when it
was drawn directly from the holding of the Fifth Circuit in Planned Parenthood. Plaintiffs have
provided no authority suggesting that the Third Circuit would adopt the Fifth Circuit’s rule,
which, despite the Fifth Circuit’s arguments to the contrary, would appear to undermine the
consensus of other circuits, which have found that parties prevailing on the basis of preemption
alone may not recover fees under § 1988.
More importantly, however, even were this Court to apply the Fifth Circuit’s standard in
this case, it would not entitle Plaintiffs to an award of fees under § 1988. As explained, above,
the Lozano opinion upon which Plaintiff heavily relies adopted the standard of the Fifth Circuit
in Planned Parenthood. In that case, the district court below had granted plaintiffs a preliminary
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injunction on the basis of both federal preemption and a violation of plaintiffs’ right to privacy
under the Due Process Clause of the Fourteenth Amendment. Id. at 738. On appeal, the Fifth
Circuit readily found that fees under § 1988 were warranted for plaintiffs’ successful § 1983
claim. Turning to the fees requested on plaintiffs’ preemption claim, the circuit court observed:
We have previously addressed situations where a plaintiff brought a § 1983 claim that
supports a grant of attorney's fees and another claim that does not, and the court found in
favor of the plaintiff on the non-fee bearing claim but did not address the § 1983 claim.
Recognizing that courts will often justifiably refrain from addressing a constitutional
question where it can be avoided, we have held that such a plaintiff may obtain attorney's
fees even though the § 1983 claim was not decided “provided that 1) the § 1983 claim of
constitutional deprivation was substantial; and 2) the successful pendant claims arose
out of a common nucleus of operative facts.” . . . Given our willingness to allow
attorney's fees based on a successful pendant claim where the § 1983 claim was not
addressed by the court, it would make no sense to deny attorney's fees for either claim
where the § 1983 claim was also successful. Therefore, where a plaintiff prevails on both
a § 1983 claim and a Supremacy Clause claim that are based on a “common nucleus of
operative facts,” the plaintiff may recover attorney's fees for both claims.
Here, because Plaintiffs' Supremacy Clause and unconstitutional condition claims arise
from a common nucleus of operative facts, Plaintiffs would be entitled to attorney's fees
on both claims if they could show that they qualify as “prevailing parties” on the basis of
their success in obtaining a preliminary injunction from the district court.
Id. at 739 (emphasis added). It was this language upon which the Court relied in Lozano. In
context, however, it is clear that in Planned Parenthood, the Fifth Circuit held that where a court
is presented with both a federal preemption and a § 1983 claim, and determines, in the interest of
constitutional avoidance, to grant relief on the preemption claim only, attorneys’ fees for both
claims may be recoverable under § 1988. Although this Court does not necessarily agree with the
Fifth Circuit’s holding, the logic of its position is evident: where a plaintiff presents two live, and
potentially meritorious claims for relief to the court, one fee-bearing and the other not, and a
court doctrine, like constitutional avoidance, leads the court on its own initiative to rule in
plaintiff’s favor on only the non-fee-bearing claim, without reaching the fee-bearing claim, the

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plaintiff should not be penalized by cutting off access to § 1988 fee-shifting. Such logic does not
apply here.
In this matter, the court entered judgment partially in favor of Plaintiffs on Plaintiffs’
Count I preemption claim and dismissed Plaintiffs’ Count II § 1983 claim, without prejudice, on
the basis of a consent Order and Judgment submitted jointly by the parties. Plaintiffs,
accordingly, voluntarily dismissed their § 1983 claim before it was ever fully briefed to or
considered by this Court, as Plaintiffs’ counsel made clear in his August 18, 2016 e-mail to
Defendants’ counsel concerning the draft consent order. Renella Decl., Ex. B (“Plaintiffs have no
intent to pursue Claim II at this time” “the claim was not briefed”). It would thus be incongruous
to permit Plaintiffs to consent to the voluntary dismissal of their § 1983 claim without prejudice,
and nevertheless hold that, because Plaintiffs obtained some relief on their Count I preemption
claim by the same consent order, they are a prevailing party entitled to attorneys’ fees under §
1988.
Moreover, the dismissal of Plaintiffs’ § 1983 claim was, by agreement, without prejudice
to their ability to refile. Plaintiffs have not provided, and this Court has not identified any case in
which a plaintiff has been found to be a prevailing party entitled to attorneys’ fees on the basis of
a claim that the plaintiff voluntarily dismissed without prejudice. In short, the procedural posture
of the case before this Court in entering the consent Order and Judgment was vastly different
than that described by the Fifth Circuit in Planned Parenthood. This Court was not presented
with two live claims, of which it chose only one on which to enter judgment, mooting the other;
rather, only one claim, Plaintiffs’ Count I preemption claim was ever finally adjudicated by this
Court, and Plaintiffs made no effort to pursue their § 1983 claim in this case. Accordingly,
because Plaintiffs prevailed in this action on their Count I preemption claim only, because

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federal preemption claims brought independently under the Supremacy Clause do not provide a
basis for the recovery of attorneys’ fees under § 1988, and because Plaintiffs have provided no
authority showing that Plaintiffs’ voluntarily dismissed § 1983 claim may provide an alternative
basis for fee shifting, § 1988 does not provide statutory authority for an award of attorneys’ fees
in this case.
C. The Court’s Equitable Authority
“Although the traditional American rule ordinarily disfavors the allowance of attorneys’
fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their
equitable powers, may award attorneys’ fees when the interests of justice so require.” Hall v.
Cole, 412 U.S. 1, 4–5 (1973). The Supreme Court has identified two circumstances in which the
exercise of the courts’ equitable powers is warranted. “Firstly, attorneys’ fees may be appropriate
where a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. at 5
(quotation omitted). “In this class of cases, the underlying rationale of ‘fee shifting’ is, of course,
punitive, and the essential element in triggering the award of fees is therefore the existence of
‘bad faith’ on the part of the unsuccessful litigant.” Ibid.
Secondly, attorneys’ fees may be appropriate where “plaintiff's successful litigation
confers ‘a substantial benefit on the members of an ascertainable class, and where the court's
jurisdiction over the subject matter of the suit makes possible an award that will operate to
spread the costs proportionately among them.’” Ibid. (citation omitted). “‘Fee shifting’ is
justified in these cases, not because of any ‘bad faith’ of the defendant but, rather, because (t)o
allow the others to obtain full benefit from the plaintiff's efforts without contributing equally to
the litigation expenses would be to enrich the others unjustly at the plaintiff's expense.” Id. at 5-6
(quotations omitted) (alteration in original).

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Over time, these two exceptions to the American rule outlined in Hall have become
known in the Third Circuit as the “bad faith” exception and the “common benefit doctrine”
respectively. The Third Circuit has held that in order for the district court to properly exercise its
discretion under the bad faith exception, “the district court must balance the equities between the
parties . . . . Thus, a district court may, in its discretion, refuse to award attorney's fees even
where it finds the existence of bad faith, if, in balancing the equities, it nevertheless determines
that an award in a particular case would not serve the interests of justice.” Perichak v. Int'l Union
of Elec. Radio & Mach. Workers, Local 601, AFL-CIO, 715 F.2d 78, 80 (3d Cir. 1983). The
Third Circuit has further provided a two-step inquiry implementing the balancing test. “First [a
court] must . . . determine[ ] whether the plaintiff's action was brought in ‘bad faith.’ If it was
not, no fees under the ‘bad faith’ exception may be awarded. If, however, a finding of ‘bad faith’
is made, then the district court must proceed to exercise its discretion either in favor of or against
the successful party who seeks fees.” Ibid.
Here, Plaintiffs contend that Defendants acted vexatiously prior to the litigation in
passing the Act in the first instance. I do not find such conduct to fall within the commonly
accepted legal understanding of vexatious conduct, and even if it did, Defendants have
consistently maintained throughout the litigation that Defendants did not intend to enforce the
Act in the manner described by the Plaintiffs as evidencing “antipathy” towards licensed hunters
or leading to the “obstruction” of legitimate conservation purposes. The final consent Order and
Judgment reflect Defendants’ understanding of the limited applicability of the Act. Plaintiffs,
however, further contend that Defendants acted in bad faith by failing to immediately concede
preemption 1) after receiving Plaintiffs’ letter to Governor Christie; 2) after receiving Plaintiffs’
60-day notice of intent to sue; and 3) after the initial conference with the Court in this case.

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Failing to immediately concede to Plaintiffs’ demands in this case clearly does not rise to the
level of bad faith. There is no evidence that Defendants lacked a good faith basis to disagree with
Plaintiffs’ interpretation of the extent of preemption in this case, and, indeed, it is undisputed that
the consent Order and Judgment entered on August 29 differs in its language from that proposed
by Plaintiff on August 3. Renella Decl., ¶ 19. Accordingly, there are no grounds for the
application of the bad faith exception in this case. 4
The Third Circuit has explained that the common benefit doctrine from Hall also
establishes a multi-part test for the exercise of the Court’s equitable authority. “This test entails
satisfying three distinct elements: (1) the plaintiff must confer a substantial benefit; (2) to
members of an ascertainable class; and (3) the court must ensure that the costs are proportionally
spread among that class.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 145 (3d Cir.
1998) (citation omitted). “Because this test may be read literally to include every lawsuit against
any institutional defendant, [the Third Circuit] ha[s] refined this language further.” Ibid. Courts
in the Third Circuit thus also inquire “(1) whether the benefits may be traced with some
accuracy; (2) whether the class of beneficiaries are readily identifiable; and, (3) whether there is
a reasonable basis for confidence that the costs may be shifted with some precision to those
benefitting.” Ibid.

4

Plaintiffs’ allegations of bad faith in this case are particularly surprising given the history of
negotiations between the parties concerning the consent Order and Judgment. Plaintiffs agreed to
forgo a fee motion in order to expedite resolution of the matter as recently as during or shortly
after the parties’ August 4, 2016 telephone conference. Jackson Decl., ¶ 13. The parties were in
fact able to reach agreement on a consent order just twenty days later on August 24, 2016.
Renella Decl., ¶ 19. In the interim, the only work by Plaintiffs’ counsel not related to the actual
negotiation and drafting of the consent order itself, entailed finishing the drafting of a fifteenpage reply brief, due August 8. The completion of drafting a brief alone would not seem to have
substantially changed the position of the parties between August 4 and August 24, so as to merit
so substantial a change in Plaintiffs’ position on attorneys’ fees.
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Here, granting that Plaintiffs have secured a substantial benefit to at least some citizens of
the State of New Jersey, the Court nevertheless finds that Plaintiffs’ have not identified a readily
ascertainable class of beneficiaries. “[L]awful hunters and related businesses” are not a readily
identifiable group, and indeed Plaintiff has provided no evidence or exhibits permitting the Court
to make such a determination. Plaintiff’s Moving Brief, 12. More importantly, the court has no
reasonable basis for confidence that the costs of the litigation may be shifted with some precision
to the alleged beneficiaries, such as they are. On the contrary, an award of attorneys’ fees in this
case would draw upon the State Treasury, spreading the costs to all citizens of the State of New
Jersey, without regard to the benefit or lack thereof received by those citizens as a result of
Plaintiffs’ action; the benefits of which clearly and admittedly accrued primarily to African big
game hunters and their associates. Accordingly, as this Court cannot possibly ensure that the
costs of this litigation would be spread proportionally among the beneficiaries of this action in
the event of an award of attorneys’ fees to Plaintiffs, the common benefit doctrine does not
provide a basis for the exercise of the Court’s equitable powers in this case.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for attorneys’ fees is denied.

Dated: _____4/25/2017_____________

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge

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