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St. Louis Effort for AIDS v. Lindley-Myers

United States Court of Appeals, Eighth Circuit

December 18, 2017

St. Louis Effort for AIDS; Planned Parenthood of the St. Louis Region and Southwest Missouri Plaintiffs - Appellants
v.
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

         Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         St. 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.

         I.

         Effort 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.

         Effort 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 . . . ."

         Effort 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)).

         According 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.

         This 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. 2016).

         II.

         The "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).

         "For 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 ...


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