A recent New York Law Journal story by B. Colby Hamilton, “Circuit, Again, Grants Attorney Fees—This Time for Appeal Work” reports that plaintiffs attorneys are able to collect fees for an appeal initiated by the defendants in back-and-forth litigation between the U.S. Court of Appeals for the Second Circuit and the court of the chief judge of the Northern District, Glenn Suddaby.

This is the third time the circuit has reviewed actions in the case Hines v. City of Albany, 16-1056-cv, Judge Raymond Lohier Jr. noted in writing for the panel, which included Judge Debra Ann Livingston and Southern District Judge Jed Rakoff, sitting by designation.

The initial case stemmed from a civil rights action taken against the city of Albany, which settled allegations of illegally seizing a vehicle for return of the SUV and $10,000.  The settlement allowed for the city to appeal, which it opted to, setting off a series of appeals and counter-appeals specifically over attorney fees.

The circuit previously ordered the plaintiffs to recover attorney fees on the initial litigation.  The order dealt with attempts by the plaintiffs to recover attorney fees on the defense of the appeal by the city.  The court, interpreting a reading of the circuit's previous decision in the case that "each side is to bear its own costs with respect to these appeals," denied the fees.

At issue was the interpretation of U.S. Code Section 1988, which deals with attorney fees in civil rights litigation, and how that section of law is dealt with under Federal Rule of Appellate Procedure 39, which describes how award costs should be taxed on appeal.  The term "costs," which was open to some interpretation, needed to be separated from attorney fees, the circuit found.

While Rule 39 costs were denied, the circuit's decision "did not foreclose an award of attorneys' fees because such fees were not expressly denied."  "In doing so, we agree with a majority of our sister circuits that have considered the question and similarly distinguished an award of costs under Rule 39 from an award of attorneys' fees under Section 1988 or similar fee-shifting statutes," Lohier wrote for the panel.  The case was, again, remanded to the district for a "reasonable award" of fees on the previous appeal, as well as on the appeal that resulted in the opinion.

Cooper Erving & Savage partner Phillip Steck, who represented the plaintiffs, said the decision is a boon in the Northern District, which he believes is less receptive to these kinds of cases than other district courts in the state.  "This is a region of the country that's not particularly hospitable to civil rights actions," he said, "so it's very important for those of us who're willing to take these kinds of cases on.  The district court said very clearly that we had already gotten enough fees. It's not our fault they keep appealing."

Being able to recover in these sorts of cases, especially for a smaller firm like Cooper Erving & Savage that has just over a dozen attorneys on staff, is critical, Steck said, "otherwise it makes it impossible to practice in this field."