Whitford, William et al v. Nichol, Gerald et al

Filing 347

ORDER: It is ordered that the Assembly's motion for attorney's fees, Dkt. 326 , is denied. The WEC and the Assembly's requests for an award of costs, Dkt. 328 and Dkt. 330 , are denied. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 8/22/2019. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT,
ROGER ANCLAM, WARREN BRAUN,
HANS BREITENMOSER, JUDITH BREY,
BRENT BRIGSON, EMILY BUNTING,
SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY
B. DALEY, MARGARET LESLIE DEMUTH, DANIEL
DIETERICH, MARY LYNNE DONOHUE, LEAH
DUDLEY, JENNIFER ESTRADA,
BARBARA FLOM, HELEN HARRIS,
GAIL HOHENSTEIN, WAYNE JENSEN,
WENDY SUE JOHNSON, MICHAEL LECKER,
ELIZABETH LENTINI, NORAH MCCUE,
JANET MITCHELL, DEBORAH PATEL,
JANE PEDERSEN, NANCY PETULLA,
ROBERT PFUNDHELLER, SARA RAMAKER,
ROSALIE SCHNICK, ALLISON SEATON,
JAMES SEATON, ANN E. STEVNING-ROE,
LINEA SUNDSTROM, MICHAEL SWITZENBAUM,
JEROME WALLACE, DONALD WINTER,
EDWARD WOHL, and ANN WOLFE,

OPINION and ORDER
15-cv-421-jdp

Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY,
ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and
MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.
Before the court are Defendants Wisconsin Election Commission members’ Bill of Costs
as well as Intervenor-Defendant Wisconsin State Assembly’s Bill of Costs and motion for

attorney’s fees. For the reasons explained below, we deny the Assembly’s motion for attorney’s
fees and decline to award costs to either defendant.
BACKGROUND
Plaintiffs, registered voters who support the election of Democratic candidates and the
implementation of Democratic policies, filed this action against the members of the Wisconsin
Election Commission (collectively, “WEC”) asserting that Wisconsin’s Assembly redistricting
map constitutes an unconstitutional partisan gerrymander. Plaintiffs claimed that the Republicancontrolled legislature created and enacted a redistricting plan (“Act 43”) that systematically dilutes
the voting strength of Democratic voters statewide. After a four-day trial, a majority of the court
concluded that the redistricting plan embodied in Act 43 constituted an unconstitutional
gerrymander. See Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016). The WEC appealed
to the Supreme Court pursuant to 28 U.S.C. § 1253. The Court vacated this court’s judgment and
remanded the case to allow the court to address the issue of standing. Gill v. Whitford, 138 S. Ct.
1932 (2018). On remand, the Wisconsin State Assembly moved for, and was granted, leave to
intervene as an additional defendant.
On January 7, 2019, the defendants requested that the court stay the case pending the
resolution of Rucho v. Common Cause, No. 18-422 (U.S.), and Lamone v. Benisek, No. 18-726
(U.S.), two cases pending before the Supreme Court that raised partisan gerrymandering claims.
The court denied the stay and allowed discovery to proceed but rescheduled the trial to a date after
which it anticipated that the Supreme Court would issue its decisions in Rucho and Lamone. Dkt.
No. 42. On June 27, 2019, the Supreme Court held in Rucho v. Common Cause that “partisan
gerrymandering claims present political questions beyond the reach of the federal courts.” 139 S.
Ct. 2484, 2506–07 (2019). The parties thereafter moved to dismiss this case based on the Supreme

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Court’s decision. On July 2, 2019, the court dismissed the suit without prejudice for lack of
jurisdiction and entered judgment the following day. On July 15, 2019, the WEC filed a Bill of
Costs, requesting a total of $19,308.59 in costs, and the Assembly filed a Bill of Costs requesting
$45,043.40 in costs. The Assembly also filed a motion for attorney’s fees.
ANALYSIS
A. Bill of Costs
The WEC and the Assembly both request their costs associated with this litigation. The
Assembly contends it is entitled to costs as a prevailing party under Rule 54(d)(1) of the Federal
Rules of Civil Procedure, which states in pertinent part, “Unless a federal statute, these rules, or a
court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” The Rule “codifies a venerable presumption that prevailing parties are entitled
to costs.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013). Plaintiffs argue, on the other
hand, and the WEC concedes, that requests for costs where, as here, a case is dismissed for lack
of jurisdiction are controlled by 28 U.S.C. § 1919, which states, “Whenever any action or suit is
dismissed in any district court, the Court of International Trade, or the Court of Federal Claims for
want of jurisdiction, such court may order the payment of just costs.” The WEC argues that it
should be awarded its costs as a matter of justice under § 1919.
We agree with Plaintiffs and the WEC that the award of costs in this case is governed by
§ 1919. There was no judgment on the merits; the case was dismissed for lack of jurisdiction. By
its plain language, § 1919 therefore applies. We also read § 1919, as has every other court to
address the issue in a decision brought to our attention, as an exception to the presumption in favor
of awarding costs to the prevailing party codified in Rule 54(d)(1). See, e.g., Otay Land Co. v.
United Enters. Ltd., 672 F.3d 1152, 1156 (9th Cir. 2012) (“Unlike Rule 54(d)(1), . . . a cost award

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under § 1919 does not turn on prevailing party status and lies within the sound discretion of the
district court.”); Hygienics Direct Co. v. Medline Indus., Inc., 33 F. App’x 621, 625 (3d Cir. 2002)
(“Because there is a statute, 28 U.S.C. § 1919, that expressly covers the situation here, i.e.,
dismissal for lack of subject matter jurisdiction, Rule 54(d)(1) is not applicable.”); Callicrate v.
Farmland Indus., Inc., 139 F.3d 1336, 1340 n.8 (10th Cir. 1998) (noting that “there is a
fundamental distinction between awarding costs under § 1919, and under § 1920 and Fed. R. Civ.
P. 54(d),” because § 1919 is permissive and “unlike costs awarded under Rule 54, costs awarded
under § 1919 are not subject to a presumption that they shall be awarded to a prevailing party”);
see also, e.g., U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., No. 94-7316, 2007 WL 4270622, at
*2 (E.D. Pa. Dec. 3, 2007) (“Section 1919 is an express carve out from Rule 54(d) and § 1920 . . .
.”); Ohio Cas. Ins. Co. v. Reed, No. 1:04-cv-2027-DFH-WTL, 2006 WL 3240501, at *1 n.1 (S.D.
Ind. Nov. 2, 2006) (noting that “Rule 54(d) cannot serve as the basis for an award of costs because
defendants are not ‘prevailing parties’ under Rule 54(d) when the action is dismissed for lack of
subject matter jurisdiction” and that § 1919 would apply instead); Ericsson GE Mobile Commcn’s,
Inc. v. Motorola Commcn’s & Elecs., Inc., 179 F.R.D. 328, 330 (N.D. Ala. 1998) (“Why is § 1919
controlling? Simply because this case was dismissed for lack of jurisdiction. Section 1919 was
expressly and specifically designed to cover such a situation.”); Edward W. Gillen Co. v. Hartford
Underwriters Ins. Co., 166 F.R.D. 25, 27 (E.D. Wis. 1996) (“The parties erroneously assert this
case is controlled by Rule 54. Rather, it is governed by 28 U.S.C. 1919.”). To hold otherwise would
be to read § 1919 out of existence.
Notwithstanding this authority and the plain language of the statute, the Assembly
maintains that § 1919 does not displace Rule 54(d)(1) and that it is entitled to costs under Rule
54(d). The Assembly’s argument is predicated almost entirely on Marx v. General Revenue Corp.,

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568 U.S. 371 (2013). In Marx, the Supreme Court addressed the application of Rule 54(d) to the
Fair Debt Collection Practices Act’s (“FDCPA”) remedial scheme. There, the district court found
that Marx had failed to prove a violation of the FDCPA and awarded costs to the defendant
pursuant to Rule 54(d)(1). The plaintiff moved to vacate the award of costs, arguing that
§ 1692k(a)(3) of the FDCPA set forth the exclusive basis for awarding costs in FDCPA cases.
That section provides, in relevant part, “On a finding by the court that an action under this section
was brought in bad faith and for the purpose of harassment, the court may award to the defendant
attorney’s fees reasonable in relation to the work expended and costs.” § 1692k(a)(3). Because it
had not found the action was brought in bad faith, the plaintiff argued the court lacked any basis
to award either attorney’s fees or costs to the defendant. The district court denied the motion,
finding that § 1692k(a)(3) did not displace its discretion to award costs under Rule 54(d)(1), and
the Tenth Circuit affirmed.
The Supreme Court granted certiorari to address “whether a prevailing defendant in an
FDCPA case may be awarded costs where the lawsuit was not brought in bad faith and for the
purpose of harassment.” 568 U.S. at 376. In other words, the issue in Marx was whether a district
court retains discretion to award statutory costs to the prevailing defendant under Rule 54(d)(1),
notwithstanding the provision of the FDCPA allowing an award to the defendant of reasonable
attorney’s fees, as well as costs, upon a finding that the action was brought in bad faith. That, of
course, is not the issue here. There is no dispute in this case that the court has discretion to award
costs to the defendants; the issue here is whether Rule 54(d)(1)’s presumption in favor of costs to
the prevailing party applies when a case is dismissed for lack of jurisdiction. Marx is silent on that
issue. What Marx did say is that “[a] statute may limit a court’s discretion in several ways, and it
need not expressly state that it is displacing Rule 54(d)(1) to do so.” Id. at 377. As the above cases

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hold, § 1919, by its plain terms, clearly displaces Rule 54(d)(1) where an action is dismissed for
lack of jurisdiction. That is what occurred here. Rule 54(d)(1) thus does not apply.
There remains the question of whether an award of costs to the defendants is just. While
the Seventh Circuit has not addressed what constitute “just costs” under § 1919, the Ninth Circuit
has instructed that, in awarding “‘just costs’ under [Section] 1919, a district court should consider
what is most fair and equitable under the totality of the circumstances.” Otay Land Co., 672 F.3d
at 1157. Upon consideration of the totality of the circumstances surrounding the case, we conclude
that requiring the individual Plaintiffs to pay the defendants’ costs under § 1919 would not be just.
Plaintiffs brought this action to remedy what they in good faith believed was the unconstitutional
diminishment of their ability to cast a vote for meaningful representation in the State Assembly. A
majority of this court initially ruled in their favor. The Supreme Court vacated the court’s decision
and remanded the case to allow Plaintiffs the opportunity to establish standing. Gill, 138 S. Ct. at
1934. But before Plaintiffs had the opportunity to present their evidence of standing, the Court
ruled that partisan gerrymandering cases were not justiciable. In so ruling, the Court did not hold
that Act 43 was lawful; in fact, the majority acknowledged that “[e]xcessive partisanship in
districting leads to results that reasonably seem unjust,” Rucho, 139 S. Ct. at 2506, and is
“incompatible with democratic principles.” Id. (quoting Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015)). Instead, the Court held that such claims
present political questions beyond the reach of the federal courts. Id. at 2506–07.
It was not unreasonable for Plaintiffs to seek redress in the federal courts. Indeed, more
than thirty-five years ago, a majority of the Court appeared to have held that such claims were
justiciable. See Davis v. Bandemer, 478 U.S. 109 (1986). And even though eighteen years later a
plurality rejected the tests for the constitutionality of districting plans that lower courts had

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attempted to apply in the meantime, see Vieth v. Jubelirer, 541 U.S. 267 (2004), the central holding
of Bandemer that political gerrymandering claims may be justiciable was not overturned. Instead,
interested parties and lower courts were left to continue their search for a judicially discernable
and manageable standard for identifying unconstitutional partisan gerrymanders. That is what
Plaintiffs sought to accomplish with this lawsuit. When the Court unequivocally held in Rucho
that such claims were not justiciable, Plaintiffs immediately agreed to dismissal.
The Assembly argues that Plaintiffs unreasonably opposed the defendants’ request to stay
the case after the Supreme Court granted certiorari in Rucho and Lamone and it became clear that
the Court’s decision in those cases could dispose of this case too, as it ultimately did. “From that
point on,” the Assembly argues, “Plaintiffs bore the risk of forging ahead with costly litigation.”
Assembly Mot. for Atty’s Fees at 2, Dkt. No. 326. But this argument ignores the fact that this
court, realizing time was of the essence if any remedy were to be possible before the 2020
elections, denied the defendants’ motion to stay the case entirely and instead moved the trial to
commence shortly after the Court’s term would end. Plaintiffs cannot be faulted for opposing a
stay which would have risked rendering their claims moot, especially where the court likewise
concluded that a stay was not warranted.
To be sure, both the WEC and the Assembly incurred substantial costs in defending against
Plaintiffs’ action. But Plaintiffs, or those who supported their effort, also incurred significant costs
in their attempt to eliminate a practice the Court made clear it did not condone. The Assembly and
the members of the WEC, sued in their official capacity and thus entitled to indemnification from
the State, are in a better position to absorb those costs than the individual Plaintiffs who brought
the action. Under these circumstances, we conclude that justice is best served by leaving each to
bear their own costs.

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B. Motion for Attorney’s Fees
The Assembly also seeks attorney’s fees pursuant to 42 U.S.C. § 1988. In an action to
enforce civil rights, “the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of costs . . . .” 42 U.S.C. § 1988(b). To recover
attorney’s fees, the defendant must demonstrate that the “plaintiff brought this action in subjective
bad faith, or that ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.’” Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45
F.3d 223, 227–28 (7th Cir. 1995) (quoting Christiansburg Garmet Co. v. EEOC, 434 U.S. 412,
421 (1978)). A lawsuit is frivolous “if it has no reasonable basis, whether in fact or in law.” Roger
Whitmore’s Auto. Servs. v. Lake Cty., Ill., 424 F.3d 659, 675 (7th Cir. 2005) (quoting Tarkowski
v. Cty. of Lake, 775 F.2d 173, 176 (7th Cir. 1985)). In this case, the court dismissed the case for
lack of jurisdiction based on the Supreme Court’s decision that “partisan gerrymandering claims
present political questions beyond the reach of the federal courts.” Rucho, 139 S. Ct. at 2506–07.
It does not follow that, because Plaintiffs’ claims were ultimately nonjusticiable, Plaintiffs’ claims
were frivolous at the outset of the litigation. For the reasons explained above, an award of
attorney’s fees is not warranted. Accordingly, the court denies the Assembly’s motion for
attorney’s fees.

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ORDER
IT IS ORDERED that the Assembly’s motion for attorney’s fees, Dkt. 326, is DENIED.
The WEC and the Assembly’s requests for an award of costs, Dkt. 328 and Dkt. 330, are DENIED.
Entered August 22, 2019.
BY THE COURT:
/s/________________________________________
KENNETH F. RIPPLE
Circuit Judge
/s/________________________________________
WILLIAM C. GRIESBACH
District Judge
/s/________________________________________
JAMES D. PETERSON
District Judge

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