acknowledging that “[a] prevailing defendant should only recover upon a finding by the district court that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith” (internal quotation marks omitted)
How later courts described this case
- acknowledging that “[a] prevailing defendant should only recover upon a finding by the district court that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith” (internal quotation marks omitted)
- holding that a finding that “the claims are without merit, does not necessarily support the conclusion that the plaintiff’s claims were frivolous, unreasonable, or groundless”
- stating that reference to facts which “came to light during the extensive discovery” is exactly the type of post hoc reasoning prohibited by Christiansburg
- holding that § 1927 sanctions are appropriate if an attorney “knows or reasonably should know that a claim pursued is frivolous.”
Written by the judges who cited it.
The opinion
CLAY, Circuit Judge,
concurring.
I respectfully cannot fully embrace the reasoning of either of my learned colleague’s opinions. However, because I ultimately agree that the district court abused its discretion in awarding Defendants attorney’s fees, and because I share in the concern that awarding attorney’s fees to defendants under § 1988 in a case such as this may have a chilling effect on potentially meritorious civil rights plaintiffs, I join in the result reached by Judge Hood.
As the Supreme Court made clear in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-18 , 98 S.Ct. 694 , 54 L.Ed.2d 648 (1978), for policy reasons, a prevailing *557 civil rights-plaintiff is .presumptively- entitled to reasonable attorney’s fees unless a showing of “special -circumstances” is made. These.policy reasons include Congress’ concern for the vigorous enforcement of civil rights and the role of plaintiffs in achieving this enforcement,- -..Id. Because policy considerations such as these are absent in the case of a prevailing civil rights defendant, attorney’s fees are presumptively unavailable, where such fees are awarded only “upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation....” Id. at 421 , 98 S.Ct. 694 . Indeed, “[a]warding attorney’s fees to prevailing defendants in civil rights actions in only the most extreme and egregious cases of misconduct, yet awarding attorney[’s] fees to prevailing civil rights plaintiffs on a regular, basis under § 1988, comports with the purpose of § 1983 as a vehicle for the enforcement of civil rights and prevents defendants— who often times are in a superior position simply by'virtue of being able to afford top legal counsel — from using a heavy hand to prevent plaintiffs with potentially meritorious claims from pursuing those claims.” Roane v. City of Mansfield, No. 98-4560, 2000 WL 1276745 , at *1 (6th Cir. Aug.28, 2000) (Clay, J.) (citing York v. Ferris State Univ., 36 F.Supp.2d 976, 980-83 (W.D.Mich.1998); Jeffrey J. Fowler, Annotation, Right of Prevailing Defendant to Recover Attorneys’ Fees Under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.A. § 2000E-5(k)), 134 A.L.R. FED. 161, 1997 WL 260114 (1996)).
In the matter at hand, although the record as it now stands appears unsup-portive of Plaintiffs’ First Amendment retaliation claim under § 1983, as well as ;their conspiracy claims under § 1985 and § 1986,1 cannot agree that these claims as brought were “unreasonable” or “without foundation.” See.Christiansbwrg, 434 U.S. at 421 , 98 S.Ct. 694 . While I find several of -Riddle’s actions leading to the filing of this suit to be troubling, it is not only Riddle’s actions leading to the filing of this lawsuit that are at issue; rather, it is also Defendants’ actions that are at issue and whether. Plaintiffs could have reasonably believed- that these actions provided a foundation for relief. See id. Because I fipd that the record provides Plaintiffs with reasonable grounds for bringing these .claims, I therefore conclude that Defendants are not entitled to attorney’s fees. See id. (stating that “it is important -that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, [or because upon further discovery it is clear that a plaintiff cannot prevail,] his action must have been unreasonable or without foundation”).
Under the facts of this case, it is this result that advances Congress’ intent of entrusting the' vigorous enforcement of the civil rights statutes to plaintiffs who servé in this regard as “private attorneyfs] general.” See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 , 88 S.Ct. 964 , 19 L.Ed.2d 1263 (1968) (“When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law.”). To'be sure, it is rare that civil rights cases are based on direct evidence, see Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir.1998); instead, these eases are developed and ultimately decided on circumstantial evidence which may' not be fully fleshed out until after discovery. Therefore, a court should not impose attorney’s fees on the civil rights plaintiff who files a reasonably founded claim, but ultimately loses his case on summary judgment after discovery is completed. To hold otherwise 1 would unjustifiably add to *558 the jurisprudence awarding attorney’s fees to civil rights defendants which, in turn, may ultimately dissuade future civil rights plaintiffs from proceeding with potentially meritorious claims, thus stifling the enforcement of the civil rights statutes contrary to congressional intent. See Newman, 390 U.S. at 402 , 88 S.Ct. 964 .
Similarly, because I do not believe that Plaintiffs’ counsel intentionally pursued meritless claims, I agree with Judge Hood that the district court abused its discretion in awarding Defendants’ fees under 28 U.S.C. § 1927 . I perceive the actions of Plaintiffs’ counsel here to be consistent with normal vigorous advocacy exhibited by a plaintiffs counsel in the rightness of his cause, however wrong he ultimately may be. To the extent that Plaintiffs’ counsel may have been over zealous, Defendants’ counsel as well appears to have been just as overbearing in this case.
For the above stated reasons, I join in the result reached by Judge Hood finding that the district court abused its discretion in awarding Defendants attorney’s fees under 42 U.S.C. § 1988 and 28 U.S.C. § 1927 .