Hines v. City of Albany

16-1056-cv
Hines v. City of Albany
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2016 4
5
(Argued: October 13, 2016 Decided: July 6, 2017) 6
7
Docket No. 16‐1056‐cv 8
9
10
_____________________________________ 11
12
CONSTANCE HINES, MARSHAY HINES, 13
14
Plaintiffs‐Appellants, 15
16
v. 17
18
THE CITY OF ALBANY, BRIAN QUINN, Albany Police Officer, JAMES W. 19
TUFFEY, Albany Chief of Police, JEFF ROBERTS, ROBERT MULLIGAN, 20
Albany Police Officer, MICHAEL HAGGERTY, Albany Police Officer, 21
ROBERT SHUNCK, Albany Police Officer, JEFFREY HYDE, Albany Police 22
Officer, TIM HAGGERTY, Albany Police Officer, 23
24
Defendants‐Appellees.* 25
_____________________________________ 26
27
Before: 28
29
LIVINGSTON and LOHIER, Circuit Judges, and RAKOFF, District 30
Judge.** 31
* The Clerk of Court is directed to amend the caption as set forth above.
** Judge Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.

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Constance and Marshay Hines appeal from an order denying their 1
motion for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 after having 2
previously been granted partial summary judgment on their claim under 42 3
U.S.C. § 1983. After our affirmance on the merits, the District Court granted 4
the plaintiffs a reduced award of attorneys’ fees under Section 1988. The 5
defendants appealed this award, and the plaintiffs cross‐appealed. We 6
affirmed the District Court’s award of attorneys’ fees to the plaintiffs, stating 7
“[e]ach side is to bear its own costs with respect to these appeals.” The 8
plaintiffs then moved for an award of the attorneys’ fees incurred in litigating 9
the appeal and cross‐appeal. Relying principally on our instruction that 10
“[e]ach side is to bear its own costs,” the District Court denied the plaintiffs’ 11
motion for attorneys’ fees. Because we hold that our reference to “costs” in 12
the context of Federal Rule of Appellate Procedure 39 did not include 13
attorneys’ fees, we VACATE the order and REMAND to the District Court 14
for further proceedings consistent with this opinion. 15
16
PHILLIP G. STECK, Cooper Erving & 17
Savage LLP, Albany, New York, for 18
Plaintiffs‐Appellants. 19
20
STEPHEN J. REHFUSS, The Rehfuss 21
Law Firm, P.C., Latham, New York, for 22
Defendants‐Appellees. 23
24
LOHIER, Circuit Judge: 25
Constance and Marshay Hines appeal from an order of the United 26
States District Court for the Northern District of New York (Suddaby, C.J.) 27
denying their motion for attorneys’ fees and costs pursuant to 42 U.S.C. 28
§ 1988. This is the third time this case has been before us on appeal, starting 29
with our affirmance of the grant of partial summary judgment in the 30

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plaintiffs’ favor on their Section 1983 claim against the City of Albany, its 1
Chief of Police, and individual officers. Following our affirmance on the 2
merits, the District Court granted the plaintiffs a reduced award of attorneys’ 3
fees under 42 U.S.C. § 1988. The defendants appealed the fee award, and the 4
plaintiffs cross‐appealed. We affirmed the award in a summary order on 5
appeal, stating “[e]ach side is to bear its own costs with respect to these 6
appeals.” Hines v. City of Albany, 613 F. App’x 52, 56 (2d Cir. 2015). The 7
plaintiffs then moved for an award of the attorneys’ fees incurred in 8
defending against the defendants’ appeal and pursuing their cross‐appeal. 9
Relying principally on our instruction that “[e]ach side is to bear its own 10
costs,” the District Court denied the plaintiffs’ motion for attorneys’ fees. 11
Because we hold that our reference to “costs” in the context of Federal Rule of 12
Appellate Procedure 39 did not include attorneys’ fees, we VACATE the 13
order and REMAND to the District Court for further proceedings consistent 14
with this opinion. 15
BACKGROUND 16
In 2006 officers of the Albany Police Department arrested Constance 17
Hines’s son at her home as part of a drug investigation. During the course of 18

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the arrest, Constance Hines and her daughter, Marshay Hines, were 1
themselves handcuffed, and the police seized and impounded Constance 2
Hines’s SUV. Hines v. City of Albany, No. 1:06‐CV‐01517 (NPM), 2011 WL 3
2620381, at *3, *6 (N.D.N.Y. July 1, 2011), aff’d sub nom. Hines v. Albany 4
Police Dep’t, 520 F. App’x 5 (2d Cir. 2013). The plaintiffs were released the 5
same day, but the SUV remained impounded for fifteen months. Id. at *10– 6
11, *15. 7
The plaintiffs sued under 42 U.S.C. § 1983, claiming that the police 8
illegally held them for over six hours and that the SUV was illegally seized 9
and retained without affording Constance Hines a hearing to contest the 10
seizure, as required by Krimstock v. Kelly, 306 F.3d 40, 68 (2d Cir. 2002). As 11
relevant here, a District Judge granted partial summary judgment in the 12
plaintiffs’ favor on the claims concerning unreasonable seizure and retention 13
of the SUV. Hines, 2011 WL 2620381, at *14–17. On appeal, we affirmed the 14
partial grant of summary judgment. Hines, 520 F. App’x at 6–7. The parties 15
thereafter settled, and the plaintiffs received $10,000 for having lost the use of 16
the SUV. 17

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The plaintiffs moved for an award of $213,395 in attorneys’ fees and 1
$1,548.62 in costs under 42 U.S.C. § 1988. See Hines v. City of Albany, No. 2
1:06‐CV‐1517 (GTS/RFT), 2014 WL 12613275, at *2 (N.D.N.Y. June 5, 2014). 3
Concluding that the plaintiffs were the prevailing party, the District Court 4
awarded them attorneys’ fees in the reduced amount of $132,217.75 and costs 5
of $1,548.62. Id. at *5, 8–9. 6
Unhappy with this result, the defendants appealed the award of 7
attorneys’ fees, arguing that the plaintiffs were not the “prevailing party” 8
under Section 1988 in light of their “de minimis” relief, and, in the alternative, 9
that the plaintiffs’ award should be reduced. The plaintiffs cross‐appealed, 10
seeking an increase in the award based on the full rates and hours billed. We 11
affirmed the District Court’s award in a summary order, which we concluded 12
by stating “[e]ach side is to bear its own costs with respect to these appeals.” 13
Hines, 613 F. App’x at 56. 14
As relevant here, the plaintiffs then moved before the District Court for 15
an award of attorneys’ fees of $13,642.50 incurred while defending against the 16
defendants’ appeal and pursuing their cross‐appeal. The District Court 17
denied the plaintiffs’ motion, concluding that our mandate that each party 18

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“bear its own costs” with respect to the appeals “foreclosed the possibility of 1
an award of attorney’s fees under Section 1988, which are part of the ‘costs’ 2
under that statute.” Hines v. City of Albany, No. 1:06‐CV‐1517 (GTS/RFT), 3
2016 WL 7166103, at *2 (N.D.N.Y. Mar. 22, 2016). In other words, because 4
Section 1988 permits attorneys’ fees to be included “as part of the costs” that 5
may be awarded to a prevailing party in a civil rights action, the District 6
Court reasoned that our reference to costs must have included attorneys’ fees. 7
See id. 8
This appeal followed. 9
DISCUSSION 10
We ordinarily review a denial of attorneys’ fees under Section 1988 for 11
abuse of discretion, Panetta v. Crowley, 460 F.3d 388, 399 (2d Cir. 2006), 12
recognizing that “[a]lthough a district court typically has wide discretion in 13
choosing whether to deny attorneys’ fees, . . . this discretion is narrowed by a 14
presumption that successful civil rights litigants should ordinarily recover 15
attorneys’ fees unless special circumstances would render an award unjust,” 16
Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir. 2001). Where, as here, “an 17
appellant’s contention on appeal regarding an award of attorneys’ fees is that 18

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the district court made an error of law in granting or denying such an award, 1
the district court’s rulings of law are reviewed de novo.” Union of 2
Needletrades, Indus. & Textile Emps. v. INS, 336 F.3d 200, 203 (2d Cir. 2003) 3
(quotation marks omitted). 4
1. The Meaning of Costs Under Rule 39 5
An award of costs on appeal is granted pursuant to Federal Rule of 6
Appellate Procedure 39, which describes the manner in which costs should be 7
taxed without explicitly defining the costs themselves.1 See Adsani v. Miller, 8
139 F.3d 67, 74 (2d Cir. 1998). “Rule 39 provides only that (unless the court 9
orders otherwise) costs on appeal go to the winner, and that certain 10
procedures be followed in the taxing of these costs . . . .” Id. at 74–75. The 11
Advisory Committee’s notes to Rule 39 in turn refer to 28 U.S.C. § 1920, which 12
provides “[s]tatutory authorization” for certain enumerated costs that may be 13
1 Rule 39 is divided into five subdivisions. The first four subdivisions
describe (a) against whom costs will be assessed, (b) when costs may be
assessed for or against the United States, (c) the maximum rate for costs of
briefs, appendices, and copies of records, and (d) the procedure by which a
party seeking costs may claim them. The fifth subdivision provides that
certain administrative costs incurred on appeal will be taxed in the district
court. See Fed. R. App. P. 39.

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taxed under Rule 39. Fed. R. App. P. 39 advisory committee’s note to 1967 1
adoption (providing that “[s]tatutory authorization of costs is found in 28 2
U.S.C. § 1920”); see also 28 U.S.C. § 1920 (identifying what “may” be “tax[ed] 3
as costs”). The costs listed under Section 1920 do not include attorneys’ fees,2 4
reflecting the “‘American rule’ that attorney’s fees ordinarily are not among 5
the costs that a winning party may recover.” Roadway Express, Inc. v. Piper, 6
447 U.S. 752, 759 (1980); see also Marek v. Chesny, 473 U.S. 1, 8 (1985). But the 7
American rule is not absolute; it yields to a federal statute authorizing an 8
award of attorneys’ fees to a prevailing party. See Roadway Express, 447 U.S. 9
at 759–61; Marek, 473 U.S. at 8–9; Adsani, 139 F.3d at 74. 10
Here, as noted, the District Court denied the plaintiffs’ motion for 11
attorneys’ fees because it interpreted our instruction that “[e]ach side is to 12
bear its own costs” to bar an award of attorneys’ fees. Hines, 613 F. App’x at 13
56. We have not previously considered whether an award of costs on appeal 14
2 “Section 1920 lists clerk’s and marshal’s fees, court reporter charges, printing
and witness fees, copying costs, interpreting costs, and the fees of court‐
appointed experts. Section 1920 also permits the assessment of the attorney
‘docket’ fees set by 28 U.S.C. § 1923.” Roadway Express, Inc. v. Piper, 447
U.S. 752, 758 (1980).

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pursuant to Rule 39 includes attorneys’ fees under a separate statute, Section 1
1988, which authorizes attorneys’ fees “as part of [] costs.” To answer that 2
question we turn to the Supreme Court’s decisions in Roadway Express and 3
Marek, as well as our decision in Adsani. 4
In Roadway Express, the Supreme Court held, as relevant here, that 5
attorneys’ fees sought under Section 1988 were not part of the costs that could 6
be assessed under 28 U.S.C. § 1927 against a party found to have engaged in 7
vexatious litigation. 3 447 U.S. at 760–61. The Court observed that costs under 8
Section 1927 were “generally . . . defined . . . according to 28 U.S.C. § 1920,” 9
which, as we have noted, does not include attorneys’ fees in its enumeration 10
of costs, and so the Court declined to look beyond those two provisions—for 11
example, to Section 1988. Id. at 757, 761. Later, in Marek, the Supreme Court 12
held that attorneys’ fees under Section 1988 could be awarded under the cost‐ 13
3 At the time, “Section 1927 provide[d] that lawyers who multiply court
proceedings vexatiously may be assessed the excess ‘costs’ they create. The
provision, however, [did] not define the critical word [‘costs’].” Roadway
Express, 447 U.S. at 757; see 28 U.S.C. § 1927 (1976).

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shifting provision of Rule 68 of the Federal Rules of Civil Procedure.4 Marek, 1
473 U.S. at 11–12. The Court distinguished Roadway Express by explaining 2
that unlike Section 1927, which was understood to incorporate Section 1920’s 3
definition of costs that “did not include attorney’s fees,” “Rule 68 does not 4
come with a definition of costs” but “incorporates the definition of costs that 5
otherwise applies to the case.” Id. at 9 n.2. 6
In Adsani, we considered whether a district court could require an 7
unsuccessful plaintiff alleging copyright infringement to post a bond under 8
Rule 7 of the Federal Rules of Appellate Procedure to cover attorneys’ fees 9
incurred on appeal.5 139 F.3d at 69–71. After reviewing Roadway Express 10
and Marek, we determined that Rule 7 did not define costs and that Rule 39 11
also did not supply a definition of costs for Rule 7. Id. at 74. We therefore 12
read Rule 7 together with the relevant underlying substantive statute in the 13
4 Rule 68 provides in relevant part: “If the judgment that the offeree finally
obtains is not more favorable than the unaccepted offer, the offeree must pay
the costs incurred after the offer was made.” Fed. R. Civ. P. 68(d).
5 Rule 7 provides that, in a civil case, a district court “may require an
appellant to file a bond . . . in any form and amount necessary to ensure
payment of costs on appeal.” Fed. R. App. P. 7.

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case, Section 505 of the Copyright Act, 17 U.S.C. § 505, to conclude that 1
attorneys’ fees were properly included in a Rule 7 bond. Id. at 75, 79. 2
Roadway Express, Marek, and Adsani suggest that not every reference 3
to “costs” on appeal includes attorneys’ fees under a relevant substantive 4
statute. Instead, where a rule concerning costs defines them without 5
reference to attorneys’ fees, or where the context of the rule suggests the 6
incorporation of such a definition, attorneys’ fees are not part of the costs to 7
be taxed under that rule. This remains true even where the underlying 8
substantive statute under which attorneys’ fees are sought itself refers to the 9
availability of attorneys’ fees “as part of costs.” Accordingly, while we 10
recognized in Adsani that Rule 39 does not define costs, 139 F.3d at 75, the 11
Rule is not silent as to the scope of those costs, either. Subsections (c) and (e) 12
list certain administrative costs, see L‐3 Commc’ns Corp. v. OSI Sys., Inc., 607 13
F.3d 24, 29 (2d Cir. 2010) (referencing these subsections and explaining that 14
Rule 39 “determines what costs are available”), and, as discussed, the 15
Advisory Committee’s notes identify 28 U.S.C. § 1920, which excludes 16
attorneys’ fees in its list of costs, as the Rule’s statutory authorization. We 17

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therefore hold that Rule 39 “costs” do not include Section 1988 attorneys’ 1
fees.6 2
Certainly, we may separately rule on a request for attorneys’ fees on 3
appeal pursuant to a fee‐shifting statute that authorizes such fees. See, e.g., 4
Perez v. Westchester Cty. Depʹt of Corr., 587 F.3d 143, 156 (2d Cir. 2009); 5
Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 101 (2d Cir. 1997); Cohen v. 6
W. Haven Bd. of Police Comm’rs, 638 F.2d 496, 506–07 (2d Cir. 1980). But 7
when we do that we typically (but, unfortunately, not always) say so 8
explicitly, consistent with the recognition that the term “costs” under Rule 39 9
6 Holding otherwise makes little practical sense in light of the different
degrees of discretion afforded to courts with respect to the taxation of costs on
one hand, and the award of attorneys’ fees on the other. While courts have
“wide discretion in the taxation of costs,” DLC Mgmt. Corp. v. Town of Hyde
Park, 179 F.3d 63, 64 (2d Cir. 1999) (per curiam), the discretion to deny
attorneys’ fees to a prevailing plaintiff in a civil rights case is “narrow,” N.Y.
Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68 (1980), such that, “in [the] absence
of special circumstances,” they “must” be awarded, Indep. Fed’n of Flight
Attendants v. Zipes, 491 U.S. 754, 761 (1989). As the Ninth Circuit explained
in similar circumstances in Family PAC v. Ferguson, 745 F.3d 1261, 1268 (9th
Cir. 2014), we may ordinarily find that a plaintiff is not entitled to costs
where, for example, he prevails only on a portion of his appeal, yet he might
nonetheless still be entitled to attorneys’ fees as a prevailing party in such
circumstances. A ruling on Rule 39 costs therefore should not, and we hold
does not, resolve the question of whether the plaintiff is entitled to attorneys’
fees under a separate statutory provision.

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does not include attorneys’ fees. See, e.g., Russman v. Bd. of Educ. of City of 1
Watervliet, 150 F.3d 219, 222 (2d Cir. 1998) (“Each party shall bear their own 2
costs and attorneys’ fees.”); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1215 (2d 3
Cir. 1993) (“Each party to bear its own costs, including attorney’s fees.”); 4
DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985) (“[A]ttorney’s fees 5
should not be awarded for this appeal. No costs.”); G. Ricordi & Co. v. 6
Paramount Pictures, Inc., 189 F.2d 469, 472 (2d Cir. 1951) (“Each party shall 7
bear its own appellate costs and no attorney’s fees are awarded to either 8
party.”). 9
Turning to our order in this case, we expressly distinguished between 10
“costs” and “attorneys’ fees” in the body of the order, but our decretal 11
language referred only to costs. See Hines, 613 F. App’x at 53, 56 (recognizing 12
that the appeal concerned an order granting “attorneys’ fees and costs 13
pursuant to 42 U.S.C. § 1988,” but ordering only that “[e]ach side bear its own 14
costs”). This careful distinction reinforces our view that the “costs” denied on 15
this appeal did not include attorneys’ fees. 16
Consistent with our holding above, we therefore conclude that our 17
denial of costs under Rule 39 did not foreclose an award of attorneys’ fees 18

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because such fees were not expressly denied. In doing so, we agree with a 1
majority of our sister circuits that have considered the question and similarly 2
distinguished an award of costs under Rule 39 from an award of attorneys’ 3
fees under Section 1988 or similar fee‐shifting statutes. See Family PAC v. 4
Ferguson, 745 F.3d 1261, 1269 (9th Cir. 2014); McDonald v. McCarthy, 966 5
F.2d 112, 118–19 (3d Cir. 1992); Chem. Mfrs. Ass’n v. EPA, 885 F.2d 1276, 1278 6
(5th Cir. 1989); Lattimore v. Oman Constr., 868 F.2d 437, 440 n.6 (11th Cir. 7
1989), abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 8
556, 567 (1992); Kelley v. Metro. Cty. Bd. of Educ., 773 F.2d 677, 681 (6th Cir. 9
1985) (en banc); Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 10
91 (1st Cir. 1969). But see Montgomery & Assocs., Inc. v. CFTC, 816 F.2d 783, 11
784 (D.C. Cir. 1987) (holding that a party’s failure to timely file a bill of costs 12
pursuant to Rule 39(d) foreclosed an award of attorneys’ fees under the fee‐ 13
shifting provision of the Commodity Exchange Act). 14

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2. Defendants’ Remaining Arguments 1
In urging affirmance, the defendants advance two other arguments that 2
merit discussion.7 First, they assert that because the plaintiffs’ fee application 3
does not concern the merits of the underlying case, an award of fees “only 4
[affects] the economic interests of Plaintiffs’ counsel” without implicating the 5
policy concerns of Section 1988. Appellees’ Br. at 10. Second, they claim that 6
the plaintiffs were not the prevailing party on the prior appeal because our 7
summary order “left the District Court’s original decision completely 8
unaltered” and did not “effect[] [a] material alteration of the legal relationship 9
between the parties,” id. at 12, as required by Buckhannon Board & Care 10
Home, Inc. v. West Virginia Department of Health & Human Resources, 532 11
U.S. 598 (2001). We reject both arguments. 12
A. The Purpose of Section 1988 13
We think the policy concerns supporting an award of fees on the 14
underlying merits of a case before a district court apply with equal force to 15
7 The District Court indicated that, even if Rule 39 costs did not include
attorneys’ fees, it “would find that each side should bear its own costs and
fees, for the reasons stated in Defendants’ memorandum of law.” Hines, 2016
WL 7166103, at *2.

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the defense of that award on appeal. In enacting Section 1988, Congress 1
asserted that the “‘civil rights laws depend heavily upon private enforcement, 2
and fee awards have proved an essential remedy if private citizens are to 3
have a meaningful opportunity to vindicate the important Congressional 4
policies which [those] laws contain.’” Hensley v. Eckerhart, 461 U.S. 424, 445 5
(1983) (Brennan, J., concurring in part and dissenting in part) (quoting S. Rep. 6
No. 94–1011, at 2 (1976)); see H.R. Rep. No. 94‐1558 (1976). “Congress enacted 7
§ 1988 solely to make certain that attorneys representing plaintiffs whose 8
rights had been violated could expect to be paid . . . .” Hensley, 461 U.S. at 9
454. With that understanding in mind, we have held that a “culpable 10
defendant should not be allowed to cause the erosion of fees awarded to the 11
plaintiff for time spent in obtaining the favorable judgment by requiring 12
additional time to be spent thereafter without compensation.” Weyant v. 13
Okst, 198 F.3d 311, 316 (2d Cir. 1999). “[T]o hold otherwise would permit a 14
deep pocket losing party to dissipate the incentive provided by an award 15
through recalcitrance and automatic appeals.” Gagne v. Maher, 594 F.2d 336, 16
344 (2d Cir. 1979) (quotation marks omitted), aff’d, 448 U.S. 122 (1980). It 17
would also run contrary to the “presumption that successful civil rights 18

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litigants should ordinarily recover attorneys’ fees.” Raishevich, 247 F.3d at 1
344. 2
Prevailing parties under Section 1988 are therefore entitled to recover a 3
reasonable fee for preparing and defending a fee application. See Weyant, 4
198 F.3d at 316. That includes attorneys’ fees incurred as a result of appeals 5
related to the defense of a fee award. See id. at 317; see also Perez, 587 F.3d at 6
156 (remanding “to determine a reasonable fee award” for time prevailing 7
plaintiff “spent defending their award on appeal”). We are mindful of the 8
Supreme Court’s admonition that disputes over attorneys’ fees “should not 9
result in a second major litigation.” Hensley, 461 U.S. at 437; cf. Goodman v. 10
Heublein, Inc., 682 F.2d 44, 48 (2d Cir. 1982) (denying appellate attorneys’ fees 11
where the case was six years old and the court deemed it to have “gone on 12
long enough”). But we conclude that the plaintiffs here were entitled to 13
attorneys’ fees on appeal under Section 1988 even though it was their third 14
fee application. 15
B. Prevailing Party Status 16
We are also not persuaded by the defendants’ claim that the plaintiffs 17
were not the “prevailing party” on their prior appeal. Buckhannon, on which 18

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the defendants rely, concerned only whether a party could be a “prevailing 1
party” if it “failed to secure a judgment on the merits or a court‐ordered 2
consent decree” and instead obtained only a “voluntary change in the 3
defendant’s conduct.” 532 U.S. at 600. The Supreme Court in Buckhannon 4
did not insist on an alteration in the parties’ legal relationship at every stage 5
of a defendant’s post‐judgment challenge. Such a requirement would 6
unreasonably foreclose an award of fees for services rendered in connection 7
with an appeal whenever a plaintiff prevails before the district court and is 8
affirmed on appeal. It suffices that the plaintiffs were the prevailing party on 9
the merits of their claim and successfully defended against the defendants’ 10
challenge to that award. 11
CONCLUSION 12
We have considered the defendants’ remaining arguments and 13
conclude that they are without merit. For the foregoing reasons, the order of 14
the District Court is VACATED and the matter is REMANDED to the District 15
Court with instructions to determine a reasonable award of attorneys’ fees 16
consistent with this opinion. Plaintiffs‐appellants are also entitled to recover 17

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reasonable attorneys’ fees in connection with this appeal. We leave it to the 1
District Court on remand to determine the amount of fees. 2

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