Illinois Sitting Judge Shadur Raises Alchemy Analogy in Court of Appeal Decision.
Federal court costs are routinely rewarded to the prevailing party—especially the party winning a summary judgment motion or trial against a plaintiff. Even though this happened in the context of a summary judgment proceeding, the plaintiffs in the next case tried to argue they actually “won” because certain victorious positions set up the possibility for future wins by the plaintiffs in future cases. The defense also can recoup attorney’s fees if the plaintiffs’ civil rights case is frivolous. The next case discusses the creative cost argument raised by plaintiff and the defense plea that it might be entitled to fees if a clearer record was present on the frivolity ground for a fees award.
In San Diego Police Officers’ Assn. v. San Diego City Employees’ Retirement System, Case No. 07-56004 (9th Cir. June 10, 2009) (for publication), the Ninth Circuit affirmed a summary judgment granted in favor of the City of San Diego-related defendants and against the San Diego Police Officers’ Association based on various civil rights violations arising from pension contractual rights violations. The district judge determined that defendants, as prevailing parties, were entitled to an award of routine costs but denied recovery of attorney’s fees to either side. Both sides appealed the costs orders.
The Ninth Circuit, in a 3-0 opinion authored by Senior District Judge Shadur (sitting by designation), affirmed the summary judgment, affirmed the costs award against the plaintiff, and remanded the fee determination for further consideration.
German Alchemist. From woodcut. Attributed to Holbein (the Elder).
First up (for purposes of this blog) was the consideration of the costs award. Plaintiff argued that it actually prevailed despite entry of summary judgment in the defense’s favor, premised on the argument that one adverse finding in the process might mean plaintiff could gain concessions in future negotiations or get mileage in future cases. The Ninth Circuit’s reaction? Here you go: “Association seeks to emulate the alchemists in the Middle Ages in its effort to transmute the base metal of its total loss on the merits into the gold of ‘prevailing party’ status by asserting that the district court’s order materially altered its relationship with [Defendants] . . . . That just won’t work, and not just because any purported ‘prevailing party’ status for Association is wholly counterintuitive. After all, Association has obtained no judgment, consent decree or settlement that it can enforce against [Defendants] . . . . Its unproved and attenuated prospect of a better chance to assert a claim for the payment of wages and retirement benefits in some future case finds no support in the caselaw for ‘prevailing party’ status in this case.” (Slip Opn., at 6934.)
Next up was the fee denial under the federal civil rights statute.
Judge Shadur prefaced the Ninth Circuit’s discussion by noting that civil rights plaintiffs usually get fee awards, with defendants only recovering if they prove the plaintiff’s action was frivolous, unreasonable, or without objective foundation. (“ . . . it has been firmly established for nearly three decades that the award of attorneys’ fees under Section 1988 emulated George Orwell’s Animal Farm: ‘Some animals are more equal than others.’”)
The main problem was that the district judge did not explain her denial of the fee award, which required a remand to see exactly why she decided as she did. Otherwise, review by the federal court of appeals could not be an informed one.
BLOG OBSERVATION—Plaintiff might have been better off not appealing at all. The merits and costs determinations were affirmed, and now it faces another hearing on a substantial fee exposure. It may still turn out all right for plaintiff, but the scales could also tip the other way!