District Court Did Not Identify Special Circumstances Rendering a Fee Award Unjust Under Civil Rights Fee-Shifting Statute.
Six media corporation plaintiffs obtained both a preliminary injunction and permanent injunction against the Nevada Secretary of State pursuant to the federal civil rights statute, which also has a fee-shifting statute in 42 U.S.C. § 1988(b). Plaintiffs then sought fees pursuant to section 1988, but the district court denied the request based on finding unarticulated “special circumstances” that would make a fee award unjust.
On appeal, the Ninth Circuit—in a per curiam opinion—reversed and remanded. American Broadcasting Companies, Inc. v. Miller, Case No. 07-15227 (9th Cir. Dec. 12, 2008) (published).
The Court of Appeals observed that a prevailing party should normally be awarded fees under section 1988, with a district court needing to issue findings of fact and conclusions of law identifying the “special circumstances” for departure and explaining why a fee award was determined to be unjust. Sethy v. Alameda County Water Dist., 602 F.2d 894, 897 (9th Cir. 1979) (per curiam). The district judge’s single-sentence did not identify the special circumstances, requiring reversal and a remand.
The district judge did cite Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996) as a basis for finding “special circumstances,” but the Ninth Circuit was unimpressed. Thorsted had previously been found to be based on factors “largely unique to that case.” Democratic Party v. Reed, 388 F.3d 1281, 1285 (9th Cir. 2004).
Instead of Thorsted, the district court should have focused on the bipartite test in Mendez v. County of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2008) to determine if “special circumstances” existed to depart from the presumptive fee recovery rule: (1) whether awarding fees would further the purposes of section 1988; and (2) whether the balance of equities favored/disfavored the denial of fees. Again, the Ninth Circuit stressed that an award of fees was the general rule, unless there was a strong likelihood of success on the merits and strong likelihood of a substantial judgment at the litigation’s outset.
The fee denial judgment was vacated and remanded for the district court to conduct an analysis under Mendez as well as enter the findings required by Sethy.