noting that § 1988 seeks to “reimburse with reasonable attorneys’ fee those who as ‘private attorneys general’ take it upon themselves to invoke and thereby invigorate federal constitutional and statutory rights”
How later courts described this case
- noting that § 1988 seeks to “reimburse with reasonable attorneys’ fee those who as ‘private attorneys general’ take it upon themselves to invoke and thereby invigorate federal constitutional and statutory rights”
- further quoting the House Report as stating that “the effective enforcement of civil rights statutes depends largely upon the efforts of private citizens ...,” and the Senate Report as stating that “civil rights laws depend heavily upon private enforcement, and fee awards have proven an essential remedy if private citizens are to have meaningful opportunity to vindicate important congressional policies which these laws contain.”
- allowing fees for time spent on “mock oral arguments” but reducing fees for travel costs associated with in-person moot courts on both the east and west coasts
- "a party is barred procedurally from raising for the first time on appeal an argument it failed to include in its Opening Brief"
Written by the judges who cited it.
The opinion
MANION, Circuit Judge,
dissenting.
I respectfully dissent. A court may award attorneys’ fees under 42 U.S.C. § 1988 only to “prevailing parties.” The majority holds that the plaintiffs “prevailed” against the intervening defendants “notwithstanding the fact that the inter-venors were not and could not themselves have been found guilty of violations of the plaintiffs’ constitutional rights_” In so holding, the majority thoroughly discusses, but does not find controlling, cases holding that § 1988 fee awards against a defendant are inappropriate absent the defendant’s liability on the underlying civil rights claims. I disagree.
In Kentucky v. Graham, 473 U.S. 159 , 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985), the *1078 Court held that § 1988’s fee-shifting provisions must be applied against the “pre-ex-isting background of substantive liability rules.” Id. at 171, 105 S.Ct. at 3108 . “Section 1988 simply does not create fee liability where merits liability is nonexistent.” Id. at 168 , 105 S.Ct. at 3107 . The fact that a plaintiff may prevail on the merits against one party does not entitle him to receive attorneys’ fees as a “prevailing party” from other parties who were not liable to plaintiff on the merits. Id.; see also Annunziato v. The Gan, Inc., 744 F.2d 244, 249-53 (2d Cir.1984).
The majority’s holding is also inconsistent with Hewitt v. Helms, — U.S. -, 107 S.Ct. 2672 , 96 L.Ed.2d 654 (1987). In Helms , the Court held that “moral victories” do not entitle a person to fees as a prevailing party. To “prevail”, a party must receive some relief, either through a judgment or otherwise, “which affects the behavior of the defendant towards the plaintiff.” 107 S.Ct. at 2676 (emphasis in original). Here, the only “relief” plaintiffs received with respect to the intervenors was the knowledge that the federal courts disagreed with the intervenors’ views concerning the constitutionality of the Illinois abortion statute. This is insufficient to allow them to collect fees as “prevailing parties.” In fact, plaintiffs here present a much less compelling case than that presented in Hewitt v. Helms. In Helms , the plaintiff established that the defendants violated his constitutional rights. Despite this, the Supreme Court completely denied the plaintiff attorneys’ fees; the defendants had avoided liability because they were immune from damages and because the plaintiff’s injunction request was rendered moot by the plaintiff's release from prison. If the plaintiff in Helms was denied attorneys’ fees despite his establishing as a “private attorney general” that the defendants violated his constitutional rights, it is difficult to see how plaintiffs in the present case can obtain fees against intervenors who did not violate any of plaintiffs’ rights and were not liable on the merits.
In upholding the district court’s award of fees, the majority relies primarily upon the fact that intervenors voluntarily entered the litigation and that their presence increased the cost of litigation to plaintiffs. These facts, however, do not make the in-tervenors liable to plaintiffs on plaintiffs’ 42 U.S.C. § 1983 claims. See Annunziato, 744 F.2d at 253-54 (“Since a party’s liability under § 1983 depends upon its alleged unconstitutional activities giving rise to the litigation, [the non-state actor defendant’s] post facto defense of this lawsuit ... cannot form a proper basis for ... fee liability under § 1988.”) (emphasis in original). Moreover, neither of these facts takes this case from under the rule applied in both Graham and Helms ; the award of attorneys’ fees against a particular defendant under § 1988 is governed by whether the plaintiff prevails against that particular defendant on the underlying § 1983 claim. Section 1988 simply does not create an independent federal cause of action for attorneys’ fees.
Finally, plaintiffs are not without protection from intervenors. Many potential in-tervenors will not be able to establish standing absent their own liability on the merits. Admittedly, many intervenors may be able to establish standing even though they may not be subject to liability under § 1983 (e.g., employees who may intervene to challenge or to uphold the adoption of an affirmative action plan) or, as in the present case, intervenors may be mistakenly permitted to litigate despite their lack of standing. However, neither of these groups of intervenors are engaging in activities that violate the civil rights laws. Furthermore, should such intervenors litigate in bad faith, vexatiously, or unreasonably, other litigants are adequately protected without having to resort to § 1988. See, e.g., Fed.R.Civ.P. 11; 28 U.S.C. § 1927 .
In short, to “prevail” against a particular defendant under § 1988, a party must “prevail” on the underlying civil rights claim against that particular defendant. Plaintiffs could not and did not prevail against the intervening defendants on their underlying civil rights claim. As such, it was inappropriate for the district court to assess attorneys’ fees against the intervening *1079 defendants under § 1988. I would reverse the decision of the district court.