Argued and Submitted February 6, 2014, Seattle, Washington
Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:09-cv-05662-RBL. Ronald B. Leighton, District Judge, Presiding.
Robert W. Ferguson, Attorney General, Linda A. Dalton (argued), Senior Assistant Attorney General, Nancy J. Krier, Special Assistant Attorney General, Callie A. Castillo, Assistant Attorney General, Olympia, Washington, for Defendants-Appellants.
Noel H. Johnson (argued) and Kaylan L. Phillips, ActRight Legal Foundation, Plainfield, Indiana; Justin D. Bristol, Gourley Bristol Hembree, Snohomish, Washington, for Plaintiff-Appellee.
William R. Maurer (argued), William H. Mellor and Paul V. Avelar, Institute for Justice, Bellevue, Washington, for Amicus Curiae Institute for Justice.
David E. Roland, Freedom Foundation, Olympia, Washington, for Amicus Curiae Freedom Foundation.
Allen Dickerson, Center for Competitive Politics, Alexandria, Virginia, for Amicus Curiae Center for Competitive Politics.
Sarah A. Dunne and Nancy L. Talner, American Civil Liberties Union of Washington Foundation, Seattle, Washington, for Amicus Curiae American Civil Liberties Union of Washington Foundation.
Before: Raymond C. Fisher, Ronald M. Gould and Morgan Christen, Circuit Judges. Opinion by Judge Fisher.
FISHER, Circuit Judge.
Addressing an issue of first impression in this circuit, we hold that the term " costs" under Rule 39 of the Federal Rules of Appellate Procedure does not include attorney's fees recoverable as part of costs under 42 U.S.C. § 1988 and similar statutes. The district court therefore properly concluded that the statement in our previous opinion that " [e]ach party shall bear its own costs of appeal," Family PAC v. McKenna, 685 F.3d 800, 814 (9th Cir. 2011), did not preclude Family PAC, as prevailing party, from obtaining an award of appellate attorney's fees under § 1988.
Family PAC is a continuing political committee organized under Washington law. See id. at 803. In its 2009 federal lawsuit, Family PAC alleged that three provisions of Washington election law violated the First Amendment as applied to ballot measure committees: a provision requiring a political committee to report the name and address of each person contributing more than $25 to the committee, a provision requiring a political committee to report the occupation and employer of each person contributing more than $100
to the committee and a provision barring a political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election. See id. The defendants are the Washington State Attorney General and the members of the Washington State Public Disclosure Commission, which administers and enforces the challenged provisions. See id. at 804. Family PAC moved for summary judgment, which the district court granted in part and denied in part. See id. at 804-05. The court held that the $25 and $100 disclosure requirements survived exacting scrutiny but struck down the 21-day contribution limit as a violation of the First Amendment. See id.
After both sides appealed, we affirmed on all issues. We agreed with the district court that the $25 and $100 disclosure requirements survived exacting scrutiny, but held that the 21-day contribution limit was unconstitutional. See id. at 805-14. Given that each side had been partly successful on appeal, our opinion stated that " [e]ach party shall bear its own costs of appeal." Id. at 814; see Fed. R. App. P. 39(a).
Shortly thereafter, Family PAC asked us to transfer consideration of attorney's fees on appeal to the district court. See 9th Cir. R. 39-1.8. The defendants (collectively, " the state" ) opposed the motion, arguing that we had already precluded an award of attorney's fees by stating that each party would bear its own costs. In a January 2012 order, we granted Family PAC's motion to transfer consideration of attorney's fees on appeal to the district court. We " express[ed] no opinion as to whether an award of fees to any party is warranted" but expressly noted that " [o]ur instruction that each party shall bear its own costs on appeal did not address whether any party is entitled to attorney's fees under 42 U.S.C. § 1988."
On remand, Family PAC moved for an award of $148,987.62 in attorney's fees and expenses, including fees and costs on appeal, under 42 U.S.C. § 1988. Family PAC excluded from its request attorney's fees incurred solely on its unsuccessful claim challenging the $25 and $100 disclosure requirements. The state opposed the motion, arguing once again that appellate attorney's fees were not available because this court already had ordered the parties to bear their own costs.
With minor adjustments, the district court granted Family PAC's motion for fees. The court specifically rejected the state's argument that our allocation of costs under Federal Rule of Appellate Procedure 39 barred Family PAC from recovering appellate attorney's fees. Although the court recognized that this was an issue of first impression in this circuit, it noted that the Third, Fifth, Seventh and Eleventh Circuits had all rejected the proposition that " costs" under Rule 39 includes attorney's fees under § 1988. ...