Family PAC v. Ferguson

The term “costs” in Rule 39 of the Federal Rules of Appellate Procedure does not include attorney’s fees.

The Washington State Attorney General and the members of the Washington State Public Disclosure Commission appealed a motion for attorney’s fees in favor of Family PAC, a continuing political committee. Previously, in Family PAC v. McKenna, the Ninth Circuit ordered each party to bear their own costs. Family PAC subsequently filed a motion to recover attorney’s fees. The district court rejected the argument that the allocation of costs under Rule 39 of the Appellate Procedure barred Family PAC from recovering appellate attorney’s fees, and granted Family PAC’s motion. The Ninth Circuit held 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 panel explained that the costs as defined by Rule 39 and §1920 were all administrative costs, therefore did not include attorney’s fees. Ultimately, the panel held that the district court was correct to award attorney’s fees to Family PAC in the previous appeal because the courts previous holding in Family PAC that “[e]ach party shall bear its own costs of appeal,” didn’t “preclude Family PAC, as prevailing party, from obtaining an award of appellate attorney’s fees under § 1988.” AFFIRMED in part, REVERSED in part.