St. Louis Effort for AIDS; Planned Parenthood of the St. Louis Region and Southwest Missouri Plaintiffs - Appellants
Director Chlora Lindley-Myers, in her official capacity as Director of the Missouri Department of Insurance, Financial Institutions, and Professional Registration Defendant-Appellee Consumers Council of Missouri; Dr. William Fogarty; Dr. Wayne Letizia; Missouri Jobs With Justice; Jeanette Mott Oxford; Chris Worth Plaintiffs
Submitted: September 21, 2017
from United States District Court for the Western District of
Missouri - Jefferson City
COLLOTON, BENTON, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE.
Louis Effort for AIDS and Planned Parenthood of the St. Louis
Region and Southwest Missouri sued to enjoin the Health
Insurance Marketplace Innovation Act of 2013 (HIMIA),
§§ 376.2000-376.2014 RSMo Supp. 2013. The district
court granted summary judgment to Effort for AIDS but denied
attorney's fees under 42 U.S.C. § 1988(b). Effort
for AIDS appeals this denial. Having jurisdiction under 28
U.S.C. § 1291, this court reverses and remands.
for AIDS challenged many provisions of the HIMIA on
preemption, due process, and First Amendment grounds. The
district court granted a preliminary injunction based on the
preemption claims. St. Louis Effort for AIDS v.
Huff, 996 F.Supp.2d 798, 810 (W.D. Mo. 2014). On appeal,
this court affirmed in part. See 782 F.3d 1016, 1028
(8th Cir. 2015). On remand, the district court granted
summary judgment to Effort for AIDS, finding preemption of
three provisions. See 170 F.Supp.3d 1219, 1226 (W.D.
Mo. 2016). On these three provisions, Effort for AIDS claimed
(1) preemption and (2) violation of the First Amendment. In
all the decisions, the courts did not address the First
Amendment claim (except for this court's comment on a
provision not invalidated). See 782 F.3d at 1027-28.
for AIDS sought attorney's fees under 42 U.S.C. §
1988(b): "In any action or proceeding to enforce a
provision of section . . . 1983 . . . the court, in its
discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee . . . ."
for AIDS's First Amendment claim could be fee-generating,
that is, success on it could be the basis for attorney's
fees under § 1988(b). But preemption claims-the sole
prevailing legal theory-are not fee-generating, because
§ 1983 does not provide a remedy for Supremacy Clause
violations. See Armstrong v. Exceptional Child Center,
Inc., 135 S.Ct. 1378, 1383 (2015) ("[T]he Supremacy
Clause is not the source of any federal rights . . . ."
(internal quotation marks omitted)).
to the district court, fees could be awarded if: (1) the
First Amendment claims are substantial, and (2) the First
Amendment and preemption claims arise from a common nucleus
of operative fact. The district court found the first
condition-not disputed on appeal-but not the second.
According to the district court, although the claims
challenged the same HIMIA provisions, the legal theories
involved different considerations and did not arise from a
common nucleus of operative fact.
court reviews de novo the legal issue whether § 1988(b)
authorizes a grant of attorney's fees. See
Phelps-Roper v. Koster, 815 F.3d 393, 398 (8th Cir.
"basic point of reference when considering the award of
attorney's fees is the bedrock principle known as the
American Rule: Each litigant pays his own attorney's
fees, win or lose, unless a statute or contract provides
otherwise." Baker Botts LLP v. ASARCO LLC, 135
S.Ct. 2158, 2164 (2015), quoting Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 252-53 (2010). A
litigant seeking fees under statute must show "explicit
statutory authority." Baker Botts, 135 S.Ct. at
2164, quoting Buckhannon Bd. & Care Home, Inc. v.
West Virginia Dep't of Health & Human Res., 532
U.S. 598, 602 (2001).
private actions brought under 42 U.S.C. § 1983 and other
specified measures designed to secure civil rights, "
Congress established § 1988(b) as "an exception to
the 'American Rule' . . . ." Sole v.
Wyner, 551 U.S. 74, 77 (2007). Section 1988(b)'s
authority for fees in § 1983 cases is not
"extinguished" if the court decides the case on
alternative, non-fee-generating grounds. Smith v.
Robinson, 468 U.S. 992, 1006 (1984), citing Maher v.
Gagne, 448 U.S. 122, 132 (1980) ("Congress was
acting within its enforcement power in allowing the award of
fees in a case in ...