HomeMy WebLinkAbout119-11 RESOLUTIONRESOLUTION NO. 119-11
A RESOLUTION TO AUTHORIZE THE CITY ATTORNEY TO APPEAL
THE AWARD OF ATTORNEYS FEES AND COSTS IN THE ROGERS
GROUP, INC. v. CITY OF FAYETTEVILLE CASE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
the City Attorney to appeal the award of attorneys fees and costs in the Rogers Group, Inc. v.
City of Fayetteville case.
PASSED and APPROVED this 5th day of July, 2011.
APPROVED: ATTEST:
B
By: fPUMSLY111c U Lc Cb k(L
0 LD J.� 1. i , Mayor SONDRA E. SMITH, City Ierk/.Treasurer
AGENDA REQUEST
FOR: COUNCIL MEETING OF JULY 5, 2011
FROM: KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A Resolution To Authorize The City Attorney To Appeal The Award Of Attorneys Fees And
Costs In The Rogers Group, Inc. v. City Of Fayetteville Case
APPROVED FOR AGENDA:
Kit illiams, City Attorney
,),,.e ?l(i 24-1
Date
06-29-11 A08:49 RCVD
cl •
rade
Departmental Correspondence
ARKANSAS
www.accessfayettertille.org
LEGAL
DEPARTMENT
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
Vicki Deaton, Internal Auditor
FROM: Kit Williams, City Attorne
DATE: June 20, 2011
RE: Reduced Attorneys fees awarded in Rock Quarry Case
Kit Williams
City Attorney
Jason B. Kelley
Assistant City Attorney
Late Friday afternoon, the United States District Court filed an Order in the
Rogers Group, Inc. v. City of Fayetteville case partially granting Rogers Group,
Inc.'s Motion For Attorneys Fees. The City of Fayetteville had opposed such
Motion and argued that no attorney fees should be awarded or, if any were
awarded, such fees should be substantially reduced (especially for those attorneys'
fees claimed for lobbying work done by Rogers Group, Inc.'s attorneys while the
ordinance was being considered by the Fayetteville City Council).
Although the District Court determined it had the legal authority to award
attorney fees in this case, it reduced Rogers Group, Inc.'s demand by over
$55,000.00. Because of our insurance coverage for 42 U.S.C. § 1983 litigation, the
City's cost should be about $20,000.00.
The City will now have to decide whether or not to appeal this award of
attorneys' fees and costs. 1 will discuss this issue with you during the June 28,
2011 City Council Agenda meeting.
RESOLUTION NO.
A RESOLUTION TO AUTHORIZE THE CITY ATTORNEY TO APPEAL
THE AWARD OF ATTORNEYS FEES AND COSTS IN THE ROGERS
GROUP, INC. v. CITY OF FAYETTEVILLE CASE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby
authorizes the City Attorney to appeal the award of attorneys fees and costs in the
Rogers Group, Inc. v. City of Fayetteville case.
PASSED and APPROVED this 51' day of July, 2011.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
v�e..evi�le
Departmental Correspondence
ARKANSAS
www.accessfayetteville.org
LEGAL
DEPARTMENT
TO: Mayor Jordan
City Council
FROM: Kit Williams, City Attorney
DATE: August 30, 2011
RE: City's Brief filed in 8th Circuit Court of Appeals
Kit Williams
City Attorney
Jason B. Kelley
Assistant City Attorney
Although I had to average eleven, hours days last week and worked until
after ten on Wednesday and until 11:24 p.m. on Thursday, we finally got the City's
Appellate Brief, Addendum and Appendix finished and filed at the Eighth Circuit
Court of Appeals in St. Louis yesterday. I want to thank Assistant City Attorney
Jason Kelley for preparing the Addendum (the most important portions of the
record) and for his proofreading and suggestions about editing of the Brief. I also
need to thank Joel Farthing of the Bassett Firm (hired by our insurance company)
for having to put together, print and deliver to St. Louis the over 900 page
Appendix which is the full record (except for briefs, supporting summaryjudgment
and other motions) in this case and for his comments and advice on the Brief.
I have attached this Brief for your review. It is 40 pages long which is
probably too long for non -lawyers to enjoy reading. You might review the
Summary of the Case and Request For Oral Argument (page 2); Statement of the
Case (pages 8-10); Statement of the Facts (pages 11-13) and Summary of the
Argument (pages 14-16) rather than the primary Argument section (pages 17-39).
I do hope the Circuit Court Judges will read it all.
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Case No. 11-2482
ROGERS GROUP, INC.
Plaintiff -Appellee
vs.
CITY OF FAYETTEVILLE, ARKANSAS
Defendant -Appellant
BRIEF OF APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
The Honorable Jimm L. Hendren, United States District Judge
CITY OF FAYETTEVILLE, ARKANSAS
Defendant -Appellant
Christopher B.T. Williams
Jason B. Kelley
CITY OF FAYETTEVILLE, ARKANSAS
113 W. Mountain St., Suite 302
Fayetteville, Arkansas 72701
Phone: (479) 575-8313
Fax: (479) 575-8315
Joel Isaac Farthing
BASSETT LAW FIRM LLP
221 N. College Avenue I P.O. Box 3618
Fayetteville, Arkansas 72702-3618
Phone: (479) 521-9996
Fax: (479) 521-9600
Annellatp Case: 11-2482 Pana: 1 Elate C}R/2PI21I11 Fntry In: 382357:
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT
Fayetteville citizens residing near Rogers Group's rock quarry who were
being adversely affected by the quarry petitioned the City Council for help. The
City Council had earlier helped stop a racetrack's adverse effects on Fayettevi Ile
_ citizens by regulating it as a nuisance. When the racetrack owner challenged the
constitutionality of that nuisance -abating ordinance because the racetrack was
slightly outside the city limits, the State Circuit Court upheld the legality and
constitutionality of the ordinance.
Based upon this judicial holding, the City Council began to draft an
ordinance to regulate nuisance activities of rock quarries close to the city limits.
After months of public hearings and modifications of the ordinance to
accommodate requests by Rogers Group, the City Council passed the ordinance.
Rogers Group sued the City asserting diversity jurisdiction for its federal
declaratory judgment action and sought a preliminary injunction. The District
Court granted a preliminary injunction based solely upon Rogers Group's federal
declaratory judgment claim, which was affirmed by the Eighth Circuit. The City
voluntarily amended its ordinance to remove its extraterritorial application. The
District Court then dismissed all of Rogers Group's claims as moot, and awarded
attorney's fees to Rogers Group. The City requests oral argument.
2
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TABLE OF CONTENTS
Sections �� < _ �,ra
r ,`4�1'Y r*: _4.y_ H� S
AI]xp..
:.1 µgy`.
Summary of the Case and Request for Oral Argument
2
Table of Contents
3
Table of Authorities
4
Jurisdictional Statement
6
Statement of the Issues
7
Statement of the Case --
8
Statement of the Facts
11
Summary of the Argument
14
Argument and Standard of Review
17
The District Court erred and abused its discretion in awarding
attorney's fees to Rogers Group, Inc. in that mere allegations in a
complaint of civil rights violations are insufficient to support an
award of attorney fees pursuant to 42 U.S.0 § 1988.
17
Conclusion
39
Certificates
41
Addendum
Add. 1 —
Add. 39
3
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TABLE OF AUTHORITIES
Cases . ,, 4
Pages}
Advantage Media, L.L.C. v. City of Hopkins, Minn., 511 F.3d 833
(8th Cir. 2008)
27, 28
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct.
753, 122 L. Ed. 2d 34 (1993)
7,
15, 18,
19
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health
& Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855
(2001)
7,
22,
15, 21,
27-32,
39
Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990 (8'h Cir.
2003)
17
Coates v. Powell, 639 F.3d 471 (8th Cir. 2011)
16
Cormack v. Settle-Beshears, 474 F.3d 528 (8th Cir. 2007)
16, 37
Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L. Ed. 2d 494
(1992)
23, 39
Fuller v. Fiber Glass Systems, LP, 618 F.3d 858 (8th Cir. 2010)
17
John T. ex rel. Paul T. v. Delaware County Intermediate Unit, 318
F.3d 545 (3d Cir. 2003)
26
Kimbrough v. Arkansas Activities Association, 574, F.2d 423 (8th Cir.
1978)
20-24
Lowry v. Watson Chapel School District, 540 F.3d 752 (8`h Cir.
2008)
25
Nat'l Private Truck Council, Inc. v. Oklahoma Tax Comm `n, 515
U.S. 582, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995)
15,
19, 38
N. Cheyenne Tribe v. Jackson, 433 F.3d 1083 (8th Cir. 2006)
27
Omni Behavior Health v. Miller, 285 F.3d 646 (8th Cir. 2002)
15, 35
Perdue v. Kenny A. ex rel. Winn, U.S. , 130 S. Ct. 1662, 176
14,
18, 39
4
Annellate CSR: 11-2482 Pne: 4 Data Filed: 11FI2g12Ci11 Fntry ID: 3823573
L. Ed. 2d 494 (2010)
r; 1'a e
Robles v. Prince George's County, Md, 302 F.3d 262 (4`h Cir. 2002)
25
Select Milk Producers, Inc. v. Johanns, 400 F3d 939 (D.C. Cir. 2005)
28 U.S.C. §§ 2201-02
25-26
Singleton v. Cecil, 176 F.3d 419 (8th Cir. 1999)
7,
16, 33-
34
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002)
6
26
Sole v. Wyner, 551 U.S. 74, 127S.Ct. 2188, 167 L.Ed. 2d 1069
(2007)
7,
14, 32
Williamson County Reg'1 Planning Comm'n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126
(1985)
17,
38
Willis Smith and Co., Inc. v. Arkansas, 548 F.3d 638 (8th Cir. 2008)
38
Statutes =s �
r; 1'a e
28 U.S.C. § 1332
6,
18
28 U.S.C. §§ 2201-02
6,18
28 U.S.C. § 1331
6
42 U.S.C. § 1983
6, 8,
9,
15-
17,
19,
20
35,
38,
39
28 U.S.C. § 1367
6
28 U.S.C. § 1291 and 1294(1)
6
42 U.S.C. § 1988
6-7,
14-20,
22, 25, 28,
31-32, 38
Fed. R. App. P. 4(a)(1)(A)
6
5
Annellatp C;asp 11-2482 Panp5 DatA Fiipdd: 08I2g/2011 Fntry In- 1823573
JURISDICTIONAL STATEMENT
Rogers Group, Inc.'s complaint asserted jurisdiction pursuant to 28 U.S.C. §
1332 Diversity for its declaratory judgment claim based upon 28 U.S.C. §§ 2201-
02 Declaratory Judgments. Rogers Group, Inc.'s complaint also asserted
jurisdiction of 28 U.S.C. § 1331 Federal question for its 42 U.S.C. § 1983 claims.
Rogers Group's complaint never asserted that it was relying upon 28 U.S.C. §
1367 Supplemental jurisdiction.
28 U.S.C. §§ 1291 and 1294(1) vest this Court with jurisdiction over this
appeal from a final post -dismissal order dated June 17, 2011, by the United States
District Court for the Western District of Arkansas, Fayetteville Division,
Honorable Judge Jimm L. Hendren, presiding, granting attorney's fees and costs to
Rogers Group pursuant to 42 U.S.C. § 1988. Appellant timely filed its Notice of
Appeal on July 7, 2011, as required by Federal Rule of Appellate Procedure
4(a)(1)(A).
6
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STATEMENT OF THE ISSUES
The District Court erred and abused its discretion in awarding attorney's fees to
Rogers Group, Inc. in that mere allegations in a complaint of civil rights violations
are insufficient to support an award of attorney fees pursuant to 42 US. C § 1988.
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health &
Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001)
Sole v. Wyner, 551 U.S. 74, 127 S. Ct. 2188, 167 L. Ed. 2d 1069 (2007)
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct. 753,
122 L. Ed. 2d 34 (1993)
Singleton v. Cecil, 176 F.3d 419 (8th Cir. 1999)
7
Annellate i:ase: 11-2482 Pang: 7 hate Filed: 0Ri2g/2011 Fntry 1n: 3823573
STATEMENT OF THE CASE
Citizens living near rock quarries operating within a mile of the city limits
petitioned the Fayetteville City Council for help in reducing the nuisance activities
of those quarries. Based upon a previous Arkansas Circuit Court decision finding
a Fayetteville ordinance to regulate the nuisance activities of a business whose
racetrack was outside the city limits to be legal and constitutional (Add. 31-33,
37-39, App. 537, 541-42, 534-36), the City Council held months of public
hearings, modified its ordinance to accommodate Rogers Group's suggestions, and
enacted a rock quarry ordinance to abate quarry nuisance activities within or near
the city limits. Add. 7-8, App. 877-78.
Prior to the Rock Quarry Ordinance going into effect, Rogers Group, Inc.
sued the City for a federal declaratory judgment based upon diversity, seeking a
preliminary and permanent injunction. Add. 1, App. 871. Rogers Group also sued
pursuant to 42 U.S.C. § 1983 for damages and attorneys fees claiming Due Process
violation. Add. 2, App. 872. Even though the ordinance had never taken effect,
Rogers Group also sued for inverse condemnation and (without exhausting its state
remedies) also sued for a Fifth Amendment Taking. Add. 1-2, App. 871-72.
The District Court quickly granted a Preliminary Injunction based solely
upon Rogers Group's federal declaratory judgment claim that the City of
Fayetteville misinterpreted and exceeded state law when enacting the ordinance.
8
AnneIlatp Case: 11-2482 Papp: 8 Date Filed: 08/29/2011 Fntry ID: 3823573
Add. 2, 4, 7, 27, App. 872, 874, 877, 669. The Court expressly found "it likely that
RGI will prevail on the merits of its claim, based on lack of jurisdiction on the part
of the City to legislate as to quarry activity outside its city limits...." Add. 29,
App. 418.
The Eighth Circuit Court of Appeals affirmed the granting of the
Preliminary Injunction, agreeing with the District Court that the federal declaratory
judgment claim would likely succeed on the merits based upon the City's
misinterpretation of state law when enacting the ordinance. Add. 3, App. 873.
The City of Fayetteville voluntarily amended its rock quarry ordinance to
remove its extraterritorial reach in order to preserve this ordinance's viability
throughout the City and to prevent additional legal expense. Add. 3-4, App. 873-
74. The District Court then determined that all of Rogers Group, Enc.'s claims
were moot, did not rule on the pending cross-motions for summary judgment, and
dismissed the complaint. Add. 6, App. 876.
Rogers Group moved for attorney's fees and costs claiming it was the
"prevailing party" and was entitled to fees because it had won the Preliminary
Injunction on its federal declaratory judgment claim (before the Court because of
diversity) and had alleged in its complaint a claim pursuant to 42 U.S.C. § 1983.
Add. 6-7, App. 876-77. Although the City opposed such motion, the District Court
9
AnniIlatP C:sP: 11-2482 Pane q Dnte Filprl° 08/29/2011 Entry ID: 3823573
granted attorney's fees of over $75,000.00 to Rogers Group. Add. 7-9, App. 877-
79. The City has appealed this judgment.
10
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STATEMENT OF THE FACTS
In 2002, the City of Fayetteville enacted the Motor Vehicle Racing Facility
Ordinance in an attempt to abate the nuisance activities of such a facility even
though its actual racetrack was outside the city limits.. Add. 37-39, App. 534-36.
The legality and constitutionality of this ordinance was challenged by the
racetrack's owner in the Fourth Judicial District of the Arkansas Circuit Court. In
2003, Circuit Judge Storey held that Fayetteville could legally and constitutionally
regulate the nuisance activities of the racetrack even outside its city limits. Add.
31-33, App. 537, 541-42.
In early 2009, citizens living near Rogers Group's rock quarry petitioned the
City Council for help to abate nuisance activities of rock quarries operating near
the city limits. Add. 29, App. 418. The City of Fayetteville believed it had such
statutory power based not only upon its analysis of state law, but also upon the
Circuit Judge's ruling in 2003. Add. 31, App. 537.
The City of Fayetteville began the process of drafting and enacting an
ordinance to provide for licensing and regulation of quarries in early 2009 and
presented a draft outlining an ordinance on September 1, 2009, at the City Council
meeting. App. 64-82. Some of the Rogers Group's quarry is located within a half
mile of the north corporate limits of Fayetteville. App. 342. Under the ordinary
democratic process employed by the City of Fayetteville, opinions and suggestions
11
Annellate Case: 11-24R2 Pane_ 11 nate Filed: n8/2.912011 Fntry ID: 3823573
of citizens and interested parties, including Rogers Group, Inc., regarding the
proposed regulations were heard in regular public meetings from September 1 —
October 20, 2009. App. 64-272. In drafting the provisions of the Ordinance, the
City considered specific recommendations from appellee Rogers Group. Add. 30,
App. 419. The City gave due consideration of the necessities and hours of Rogers
Group's operations, and specifically considered Rogers Group's blasting schedule
for the previous 6 months, which indicated an average of 2 1/3 blast events per
month. App. 450.
In its final version, Ordinance 5280 provided for licensing and regulation of
quairies, including limitations of two blasting events per month, and ending dump
truck tailgate banging during early morning and after 4:30 p.m. App. 22-27. The
Ordinance limited quarry operations to 60 hours a week, which had been exactly as
requested by Rogers Group. App. 22-27, 334-35. Quarry operators were required
to obtain annual, no -fee licenses that could be suspended or revoked for violation
of the ordinance. App. 22-27. Operation without a license or any other violation
of this ordinance would have to be prosecuted in the Fayetteville District Court and
could result only in a small fine. App. 22-27. Rogers Group admitted that the
restrictions enacted by the ordinance would allow for their then -current profitable
operations, but believed that such restrictions would inhibit growth of the business.
App. 349-50.
12
Annellate Case: 11-2482 Pane: 12 Date Filed: 0R/2g/2011 Fntry I17: 3R23573
The Ordinance allowed blasting between the hours of 10:00 a.m. and 3:00
p.m. on the first and third Wednesday of each month (App. 22-27) so that
neighbors could better plan their activities (such as horse riding) for safety and so
both quarries would blast on the same days. The Ordinance provided for variances
on holidays or days when blasting may not be feasible, as requested by Rogers
Group. App. 22-27, 336. The twice -monthly blasting day limit was similar to
Rogers Group's previous blasting operations when not regulated by the ordinance.
App. 351. The Ordinance was enacted October 20, 2009. Add. 1, App. 871. The
Ordinance was enjoined by preliminary injunction of the District Court before
enforcement began. Add. 2, App. 872.
Prior to a decision on the merits, the Fayetteville City Council amended the
Rock Quarry Ordinance to remove its extra -territorial application. Add. 25, App.
664. The District Court held this had mooted all of Rogers Group, Inc.'s claims
and dismissed the complaint. Add. 27-28, App. 669-70.
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•
SUMMARY. OF THE ARGUMENT
The District Court erred and abused its discretion in awarding attorney's fees to
Rogers Group, Inc. in that mere allegations in a complaint of civil rights violations
are insufficient to support an award of attorney fees pursuant to 42 .U.S.0 § 1988.
Rogers Group, Inc. obtained only a preliminary injunction based upon its
declaratory judgment claim (based upon diversity jurisdiction) involving only the
interpretation of a state statute. This preliminary injunction was "dissolved or
otherwise undone" when the District Court dismissed this claim as moot and thus
could not satisfy the United States Supreme Court's test to make Rogers Group,
Inc. a prevailing party. Sole v. Wyner, 551 U.S. 74, 83 (2007).
The District Court erred by awarding attorneys fees pursuant to 42 U.S.C. §
1988 for a claim not to protect federal or constitutional rights, but only on an issue
of state statutory interpretation. "Congress enacted 42 U.S.C. § 1988 in order to
ensure that federal rights are adequately enforced." Perdue v. Kenny A. ex rel..
Winn, U.S. 130 S. Ct. 1662, 1671, 176 L. Ed. 2d 494 (2010) (citation
omitted, emphasis added).
The District Court erred when awarding attorney fees "under § 1988 even
though the Court never reached the constitutional claims because the allegations in
the complaint raised a substantial constitutional claim...." Add. 16, App. 886.
The United State Supreme Court had expressly rejected the "catalyst" theory that
allegations in the complaint could be sufficient to justify attorney's fees under §
14
Annellate Case: 11-2482 Parse: 14 Date Filed: 08/2.912.011 Entry ID: 1823573
1988. Buckhannon Bd. & Care Home, Inc. v. W Virginia Dept. of Health &
Human Res., 532 U.S. 598, 605, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
Although the declaratory judgment action was filed pursuant to diversity
jurisdiction, even if this state statutory interpretation claim had been pendent and if
a permanent injunction on the merits had been issued, unless Rogers Group, Inc.
had been entitled to relief under its § 1983 claims, it could not be entitled to relief
under § 1988. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285, 113
S. Ct. 753, 122 L. Ed. 2d 34 (1993). [W]hen no relief can be awarded pursuant to
§ 1983, no attorney's fees can be awarded under § 1988. Nat'l Private Truck
Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 592, 115 S. Ct. 2351, 2357,
132 L. Ed. 2d 509 (1995).
Rogers Group, Inc. could not have recovered under its Due Process claim
because the Court recognized "that the City Council did not act in haste, instead
considering the Ordinance over the course of several meetings, and that the
representatives of RG1 were able to have considerate input in the development of
the Ordinance. This is to be commended in the enactment of laws and
regulations...." Add. 29-30, App. 418-19. This Court has recognized that a due
process claim requires "egregious conduct" and "conduct intended to injure in
some way unjustifiable by any governmental interest...." Omni Behavior Health v.
Miller, 285 F.3d 646, 651-652 (8th Cir. 2002). The City of Fayetteville relied upon
15
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the State Circuit Judge's previous ruling sustaining its extra -territorial nuisance
abatement powers as legal and constitutional. Add. 31-33, 37-39, App. 537, 541-
42, 534-36.
The Arkansas Attorney General also agreed that the City had such power.
Add. 34-36, App. 464-66. Since "due process claims should be limited to `truly
irrational' governmental actions" (Singleton v. Cecil, 176 F.3d 419, 433 (8`h Cir.
1999)), Rogers Group's Due Process claim could not succeed.
Rogers Group, Inc.'s Fifth Amendment Takings claim must also fail as
Rogers Group failed to exhaust its adequate state remedies. Cormack v. Settle-
Beshears, 474 F.3d 528 (8`h Cir. 2007).
Since Rogers Group could not recover under its § 1983 claims, it cannot be
awarded attorney's fees under § 1988.
M
AnnPllatP CAsP.: 11-2.482 Pare- 15 Date FiIcd: (lR/?Q/2f}11 Entry ID- :1R2R57R
ARGUMENT AND STANDARD OF REVIEW
The District Court erred and abused its discretion in awarding attorney's fees to
Rogers Group, Inc. in that mere allegations in a complaint of civil rights violations
are insufficient to support an award of attorney fees pursuant to 42 U.S. C § 1988.
We review de novo the legal issues related to the award of
attorney's fees and costs and review for abuse of discretion
the actual award of attorney's fees and costs.
Fuller v. Fiber Glass Sys., LP, 618 F.3d 858, 868 (8th Cir.
2010) (citation omitted).
We review de novo whether a litigant is a prevailing party.
A "prevailing party" is one that obtains a judicially
sanctioned, material alteration of the legal relationship of the
parties.
Coates v. Powell, 639 F.3d 471, 474 (8th Cir. 2011)
(citations omitted).
The Eighth Circuit in Coates denied Ms. Coates attorney's fees and referred
to its earlier decision in Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990
(8th Cir. 2003), in which the District Court had approved a settlement agreement as
"fair, reasonable and adequate" and retained enforcement jurisdiction over the
settlement agreement as insufficient to award attorney fees in her § 1983 case. In
the case at bar, Rogers Group, Inc. won only a preliminary injunction based not on
42 U.S.C. § 1983, but on a stand-alone (diversity) federal declaratory judgment
count. This preliminary injunction and all the remainder of Rogers Group's claims
were dismissed as moot in the Court's Order of March 31, 2011. Add. 28, App.
17
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670. Unfortunately, the District Court later erred by awarding over $75,000.00 in
attorney's fees supported only by a dissolved preliminary injunction issued
pursuant to a federal declaratory judgment claim and based solely upon
interpretation of a state statute with no federal right or constitutional implications.
Rogers Group, Inc. sued the City of Fayetteville asserting "diversity
jurisdiction pursuant to 28 U.S.C. § 1332...." (Complaint ¶ 3; App. 1) and never
asserted pendent state jurisdiction which would have been unavailable and
improper for Count I because it pled for federal, not state, declaratory judgment
relief in its declaratory judgment claim. "Rogers requests declaratory and
injunctive relief pursuant to 28 U.S.C. §§ 2201-2202." Complaint ¶ 31; App. 11.
Therefore, this was not a state claim even though it concerned interpretation only
of state law. Since the federal declaratory judgment claim could not be a pendent
state claim, it cannot form the basis for an award of attorney's fees pursuant to 42
U.S.C. § 1985. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285
(1993).
The general rule in our legal system is that each party must
pay its own attorney's fees and expenses, but Congress
enacted 42 U.S.C. § 1988 in order to ensure that federal
rights are adequately enforced.
Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1671, 176
L. Ed. 2d 494 (2010) (emphasis added, citation omitted).
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Federal rights were never considered or adjudicated in this case. Although
the City filed a motion for summary judgment against both Count 11 (Due Process)
and Count IV, (Fifth Amendment Takings), the District Court refused to rule on
the City's motion and decide these meritless counts on which the city deserved
summary judgment. Add. 28, App. 670. Thus, Congress' very purpose of enacting
42 U.S.C. § 1988, "to ensure federal rights", has been subverted to allow
attorney's fees for a declaratory judgment decision that a city misinterpreted state
law yielding a partially invalid ordinance with no federal constitutional
implications.
Even when a permanent injunction was awarded based upon a pendent state
law claim, the United States Supreme Court has denied an award of attorney fees
when no relief was awarded pursuant to 42 U.S.C. § 1983. Nat'l Private Truck
Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 115 S.Ct. 2351, 132 L. Ed
2d 509 (1995). The Supreme Court put it succinctly: "when no relief can be
awarded pursuant to § 1983, no relief can be awarded under § 1988." Id. at 592.
Later, the United States Supreme Court held that although pendent state
claims including an injunction had been granted, "(b)ecause respondents were not
entitled to relief under § 1985(3), they were also not entitled to attorney's fees and
costs under 42 U.S.C. § 1988." Bray v. Alexandria Women's Health Clinic, 506
U.S. 263, 285, 113 S.Ct. 753, 133 L. Ed 2d 34 (1993). Thus, even if Count I had
AnnpIlatP Case: 11-2482 Pare: 19 Data FiI d {W29l2C111 Fntry ID: 3R23573
been a pendent state claim, Rogers Group would not be entitled to attorney's fees if
it was not entitled to relief pursuant to § 1983.
Rogers Group, Inc_ was not a "prevailing party" even on its federal
declaratory judgment cause of action. However, even if Rogers has obtained full
relief on the merits with a permanent injunction, it would not be entitled to
attorney's fees because its Due Process and Fifth Amendment claims were never
properly considered nor disposed of by the District Court. Kimbrough v. Arkansas
Activities Association, 574, F.2d 423 (8Eh Cir. 1978) is the only cited authority by
the Court to justify its award of attorney's fees for a non -fee claim. This most
critical issue in the District Court's 24 -page Judgment was handled in one
sentence:
17. The Court finds that RGI is entitled to a fee award
under § 1988 even though the Court never reached the
constitutional claims because the allegations ' in the
compliant raised a substantial constitutional claim sufficient
to confer jurisdiction, which is sufficient to support an
award of fees under § 1988. See Kimbrough v. Arkansas
Activities Assoc....
Order, Add. 16 App. 886 (emphasis added).
Rogers Group, Inc.'s Due Process and Takings claims did not confer
jurisdiction for Rogers Group, Inc.'s federal declaratory judgment action
expressly brought pursuant to diversity, not supplemental, jurisdiction. Rogers
Group, Inc.'s federal declaratory action stood on its own with no need or
20
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r
justification that the District Court "make a threshold determination that a
substantial federal claim, arising from the same nucleus of operative fact, is raised
by the allegation of the complaint." Kimbrough, supra at 427. Therefore, it was
improper and fatal error for the District Court to bootstrap civil rights attorney's
fees onto a federal declaratory judgment action based upon diversity jurisdiction
and decided solely as a matter of state statutory interpretation.
The weak test requiring a District Court to only "make the threshold
determination that a substantial federal claim, arising from the same nucleus of
operative fact, is raised by the allegations of the complaint," is probably no longer
valid after the much stricter attorney's fees standard announced by the United
States Supreme Court in Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept.
of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
While rejecting the "catalyst theory" to support an award of attorney's fees which
had been adopted by the Eighth Circuit and virtually all other Circuit Courts (and
appears to have been mistakenly now applied against the City), the Supreme Court
said: "Our `respect for ordinary language requires that a plaintiff receive at least
some relief on the merits of his claim before he can be said to prevail." Id. at
603 (citation omitted, emphasis added).
Even more germane to the District Court's and Kimbrough's reliance on
mere allegations in the complaint to support an award of attorney's fees pursuant
a
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to § 1988 is the United States Supreme Court's explanation of what would not
justify such award of attorney's fees.
We think, however, the `catalyst theory' falls on the other
side of the line from these examples. It allows an award
where there is no judicially sanctioned change in the legal
relationship of the parties. Even under a limited form of the
`catalyst theory,' a plaintiff could recover attorney's fees if it
established that the `complaint had sufficient merit to
withstand a motion to dismiss for lack of jurisdiction or
failure to state a claim on which relief may be granted.' This
is not the type of legal merit that our prior decisions,
based upon plain language and congressional intent, have
found necessary.
Id. at 605 (citation omitted, emphasis added).
Pleadings alone have thus been expressly rejected by the United States
Supreme Court as giving any authority to award attorney's fees pursuant to 42
U.S.C. § 1988. The District Court's reliance upon the 33 -year -old Kimbrough case
that "even though the Court never reached the constitutional claim ... the
allegations in the complaint... [are] sufficient to support an award of fees under §
1988," (Add. 16, App. 886) is untenable and contrary to the express reasoning and
holding of the United States Supreme Court in Buckhannon.
Even if Kimbrough was still good law, the Federal District Court failed to
follow its requirements.
To the extent a plaintiff joins a claim under one of the
statutes enumerated in (the Act) with a claim that does not
allow attorney fees, that plaintiff, if it prevails on the non -fee
claim, is entitled to a determination on the other claim for the
22
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• purpose of awarding counsel fees. In some instances,
• however, the claim with fees may involve a constitutional
question which the courts are reluctant to resolve if the
nonconstitutional claim is dispositive.
Kimbrough, supra at 426. (emphasis added).
It is clear that enjoining enforcement of the ordinance or amending it to
remove its extra -territorial application is not dispositive of Rogers Group, Inc.'s
Count II Due Process claim which focused directly upon the City Council's
enactment of the ordinance with alleged arbitrary terms and the "City's lack of
rational basis for the Ordinance...." (Complaint ¶ 50; App. 14). If Rogers Group,
Inc. suffered any Due Process violation, it suffered such injury upon enactment of
the ordinance even if it may have suffered only nominal damages. "[T]he denial
of procedural due process should be actionable for nominal damages without proof
of actual injury." Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L. Ed.
2d 494 (1992). A preliminary injunction entered more than a month after an
ordinance's enactment against enforcement of the ordinance or its much later
amendment might terminate additional damages, but they would not undo the Due
Process violation of a city council enacting an ordinance that violates a plaintiff's
Due Process rights.
The District Court noted in its March 31, 2011 Order dismissing Rogers
Group's Complaint that Rogers Group's Count II seeking "damages RGI had
allegedly suffered as a result of a claim for the alleged violation of RGI's due
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process rights due to the enactment of the Ordinance — based upon RGI's claim
that the City lacked a rational basis for the enactment of Ordinance #5280."
Add. 25, App. 664; emphasis added.
The Court also stated that Rogers Group's Count IV for an unconstitutional
taking was "again due to the enactment of Ordinance #5280." Add. 25, App.
664, emphasis added. Obviously, the District Court realized and held that Rogers
Group's federal civil rights claims were both based upon the enactment of the
ordinance and not upon its administration or continued application to plaintiff
Rogers Group.
It is clear that the City's amendment of the ordinance more than a year after
enactment was not dispositive to Rogers Group's asserted Due Process claim
which was ripe upon the City Council's initial enactment. Rogers Group, Inc.'s
Due Process allegations did not allege violations in the administration of the
ordinance, but in its enactment. Neither the initial preliminary injunction nor later
amendment could nullify whatever Due Process violations might have occurred in
its enactment.
Therefore, even if Kimbrough is still good law, the District Court failed to
properly apply it to our facts because the federal declaratory judgment action was
not a non-federal pendent claim, but a non -fee federal claim based upon diversity
and wholly independent of the Due Process or Takings claims. Additionally,
24
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neither the resolution of the declaratory judgment claim (which was dismissed and
not decided on the merits) nor the City's amendment of its Ordinance could be
dispositive to the federal civil rights claims also dismissed by the District Court.
Even if Rogers Group, Inc. had been fully successful on its declaratory
judgment claim and even if this claim had not been a federal declaratory judgment
claim based upon diversity, Rogers Group would still not be entitled to attorney's
fees under § 1988 if it did not prevail on its federal civil rights claims.
[Pjlaintiffs who do not prevail on their federal claims but
achieve success on supplemental state law claims are not
prevailing parties under § 1988, and are therefore not entitled
to an award under that statute.
Robles v. Prince George's County, Md, 302 F.3d 262, 272
(4`h Cir. 2002).
The District Court erred and abused its discretion when awarding attorney's
fees and costs without even considering the constitutional claims of Rogers Group,
Inc., which are the only claims that can support an award of attorney's fees and
costs. See Lowry v. Watson Chapel School District, 540 F.3d 752, 765 (8`h Cir.
2008).
Federal Circuit Courts are split in their analysis of whether a preliminary
injunction based upon federal civil rights claim is ever enough to authorize the
granting of attorney's fees and costs. The District Court adopted the "prevailing"
party test of the two judge majority in Select Milk Producers, Inc. v. Johanns, 400
25
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F3d 939 (D.C. Cir. 2005). The dissenting D.C. Circuit Court Judge in Johanns
pointed out this "test" was almost "a per se rule for no preliminary injunction can
be granted without a showing of likelihood of success on the merits." Id. at 962.
The District Court even made that almost per se test even easier by
removing the majority's requirement that the relief be "concrete and irreversible."
Id. Of course, the most important difference for our case is that the D.C. case, as
virtually all the Circuit Court cases asserting that preliminary injunctions can
support an award of attorney fees is considering a preliminary injunction based
upon a civil rights or other fee -based federal statute, not as in our case a non -fee
declaratory judgment concerning the interpretation of state law with no
constitutional issues.
Some Circuits are clear that preliminary injunctions are insufficient to award
attorney's fees.
The Preliminary Injunction is an insufficient basis on which
to award attorney's fees... because it is interim relief not
based on the merits...
John T. ex rel. Paul T. v. Delaware County Intermediate
Unit, 318 F.3d 545, 558 (3d Cir. 2003).
[W]e hold that the preliminary injunction entered by the
district court does not satisfy the prevailing party standard...
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 277 (4th Cir.
2002).
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This Court has largely agreed that the weakness of the preliminary
injunction, which is not an "on the merits" decision, cannot support an award of
attorney's fees even if the preliminary injunction is on a constitutional claim. For
example, N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006)
interpreted Buckhannon to hold that granting a preliminary injunction would be
insufficient to constitute "a judicially sanctioned material alteration of the parties'
legal relationship within the meaning of Buckhannon." ' Its review of the other
Circuits revealed that "virtually every circuit court to consider the question has
concluded that a preliminary injunction granting temporary relief that merely
maintains the status quo does not confer prevailing party status." Id.
The District Court's Order cites dicta in N. Cheyenne and Advantage Media,
L.L.C. v. City of Hopkins, Minn., 511 F.3d 833, 837 (8th Cir. 2008), for the
proposition that "a preliminary injunction can in some instances carry the judicial
imprimatur required by Buckhannon to convey prevailing party status." Add. 12,
App. 882. Since both N. Cheyenne and Advantage Media denied plaintiffs any
attorney's fees, this statement is pure dictum. Once again, it is vital to note that the
preliminary injunctions in both cases were based on civil rights/attorney fees
authorizing federal statutes, not a non -fee declaratory judgment action decided on
state statute interpretation grounds in a case in which the District Court admits it
"never reached the constitutional claims." Add. 16, App. 886.
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The preliminary injunction Advantage Media obtained based upon the First
Amendment "compelled the City to cure the ordinance's constitutional defects...."
Advantage at 836. This Court correctly still held that "[a]lthough Advantage's
lawsuit resulted in alteration of several potentially unconstitutional provisions of
the Hopkins sign ordinance, the Supreme Court has rejected the `catalyst' theory of
fee recovery as a means of attaining prevailing party status." Advantage at 838.
Even though some Circuits may be edging closer to a reborn "catalyst" rule
for preliminary injunctions that precede what plaintiffs claim are favorable results
justifying an attorney's fees award, the United States Supreme Court remains
clearer than ever that a defendant's change in conduct not accompanied with a
judgment on the merits, a court ordered consent decree or similar judicial relief on
a civil rights or other fee authorizing statutory claim will not support an award of
attorney's fees. The Supreme Court would be shocked that a District Court would
try to award § 1988 attorney's fees based upon a dismissed preliminary injunction
concerning non -fee declaratory judgment action to determine whether a city
properly interpreted a state statute when enacting a nuisance abatement ordinance
when the District Court never reached the constitutional claims and based
attorney's fees on mere allegations in the complaint. That seems very far from the
Supreme Court's holding in Buckhannon:
Congress intended to permit the interim award of counsel
fees only when a party has prevailed on the merits of at
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least some of his claims. Our `[r]espect for ordinary language
requires that a plaintiff receive at least some relief on the
merits of his claim before he can be said to prevail.'
Buckhannon, 532 U.S. 598, 603, 121 S. Ct. 1835, 1839-40,
149 L. Ed. 2d 855 (2001) (emphasis added).
In Buckhannon as in the present case, after the plaintiff sued and obtained a
stay (or in our case a preliminary injunction on the declaratory judgment claim),
the legislative body amended the law to remove sections attacked by plaintiff
which the Court found had mooted the stayed or enjoined action. This was termed
"voluntary" by the United States Supreme Court in rejecting the "catalyst" theory
in Buckhannon, but found "not voluntary decisions taken for reasons unrelated to
this lawsuit" by the District Court here. Add. 16, App. 886. This decision by the
District Court has spawned exactly the type of "second major litigation" that the
United State Supreme Court sought to prevent by rejecting the "catalyst" theory in
Buckhannon.
We have also stated that "[a] request for attorney's fees
should not result in a second major litigation, and have
accordingly avoided an interpretation of the fee -shifting
statutes that would have "spawn[ed] a second litigation of
significant dimension." Among other things, a "catalyst
theory" hearing would require analysis of the defendant's
subjective motivations in changing its conduct, an analysis
that "will likely depend on a highly factbound inquiry and
may turn on reasonable inferences from the nature and
timing of the defendant's change in conduct. Although we do
not doubt the ability of district courts to perform the nuanced
"three thresholds" test required by the "catalyst theory" —
whether the claim was colorable rather than groundless;
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whether the lawsuit was a substantial rather than an
insubstantial cause of the defendant's change in conduct;
whether the defendant's change in conduct was motivated by
the plaintiffs threat of victory rather than threat of expense —
it is clearly not a formula for "ready administrability."
Buckhannon, 532 U.S. 598, 609-10, 121 S. Ct. 1835, 1843,
149 L. Ed. 2d 855 (2001) (citations omitted, emphasis
added).
Given the clear meaning of "prevailing party" in the fee -
shifting statutes, we need not determine which way these
various policy arguments cut. In Alyeska, we said that
Congress had not "extended any roving authority to the
Judiciary to allow counsel fees as costs or otherwise
whenever the courts might deem them warranted." To
disregard the clear legislative language and the holdings of
our prior cases on the basis of such policy arguments would
be a similar assumption of a "roving authority." For the
reasons stated above, we hold that the "catalyst theory" is not
a permissible basis for the award of attorney's fees under the
FHAA, 42 U.S.C. § 3613(c)(2), and ADA, 42 U.S.C. §
12205.
Id.,532 U.S. 598, 610, 121 S. Ct. 1835, 1843, 149 L. Ed. 2d
855 (2001) (citations omitted, emphasis added).
The City informed the District Court that it amended its rock quarry
ordinance to remove its extra -territorial application for two very important reasons:
(1) to ensure the vast majority of the land covered by this ordinance (all
land within the city limits) would continue to be protected by its
nuisance abatement regulations; and
(2) to prevent further litigation expenses.
30
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The City does not believe nor did it inform the District Court that Rogers Group,
Inc.'s Due Process claim would be necessarily mooted by its amendment of the
ordinance. The District Court's analysis of the City's "subjective motivations"
should never have occurred after the Buckhannon decision. Indeed, a concurring
Justice Scalia could not have been clearer that a defendant's intent or motivation in
changing challenged conduct is totally irrelevant for the issue of "prevailing" party
and the award of § 1988 attorney fees.
But when "prevailing party" is used by courts or
legislatures in the context of a lawsuit, it is a term of art. It
has traditionally —and.., invariably —meant the party that
wins the suit or obtains a finding (or an admission) of
liability. Not the party that ultimately gets his way because
his adversary dies before the suit comes to judgment; not the
party that gets his way because circumstances so change that
a victory on the legal point for the other side turns out to be a
practical victory for him; and not the party that gets his
way because the other side ceases (for whatever reason)
its offensive conduct.
Buckhannon, 532 U.S. 598, 615, 121 S. Ct. 1835, 1846, 149
L. Ed. 2d 855 (2001)
Although some Circuits seem reluctant to understand that the results -
oriented "catalyst" theory is no longer good law, a unanimous Supreme Court tried
to remind us all what Buckhannon held when the Court rejected a preliminary
injunction winner's claim of attorney's fees for her "concrete and irreversible"
victory of staging a nude protest while the state's rules were enjoined.
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Buckhannon held that the term "prevailing party" in the fee -
shifting provisions of the Fair Housing Amendments Act of
1988 and the Americans with Disabilities Act of 1990 does
not "includ[e] a party that has failed to secure a judgment
on the merits or a court -ordered consent decree, but has
nonetheless achieved the desired result because the lawsuit
brought about a voluntary change in the defendant's
conduct." The dissent in Buckhannon would have deemed
such a plaintiff "prevailing," not because of any temporary
relief gained (in that case, a consent stay pending litigation),
but because the lawsuit caused the State to amend its laws,
terminating the controversy between the parties, and
permanently giving plaintiff the real -world outcome it
sought.
Sole v. Wyner, 551 U.S. 74, 83 (fn. 3), 127 S. Ct. 2188, 2195,
167 L. Ed. 2d 1069 (2007) (citations omitted; emphasis
added).
The dissenters in Buckhannon thought that Buckhannon's filing of the
lawsuit, which caused an amendment of the law and gave Buckhannon the real -
world outcome it sought, created an entitlement to attorney's fees. They lost. A
District Court may not consider factors rejected by the majority in Buckhannon and
endorsed by the dissenters, which appears to be what happened to the City of
Fayetteville in this case. The final unanimous holding in Sole supports Justice
Scalia's concurrence in Buckhannon and the City's position in this appeal.
Prevailing party status, we hold, does not attend achievement
of a preliminary injunction that is reversed, dissolved, or
otherwise undone by the final decision in the same case.
Id., 551 U.S. 74, 83, 127 S. Ct. 2188, 2195, 167 L. Ed. 2d
1069 (2007).
32
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When the case was dismissed, the preliminary injunction was no more. It
was probably "dissolved," but is certainly was "undone". Thus, Rogers Group,
Inc. cannot achieve prevailing party status (even if this preliminary injunction had
been based upon a civil rights claim). Therefore attorney's fees may not be
awarded.
Although the District Court stated "the allegations in the complaint raised
substantial constitutional claim sufficient to confer jurisdiction," (Add. 16, App.
886) Rogers Group's allegations actually failed to meet the standards required to
recover for a Due Process claim. Although Rogers Group contended that the
enactment of the ordinary was arbitrary, unreasonable, and without rational basis,
those allegations were not only false, but also below the truly egregious,
conscience -shocking standard required for a Due Process violation.
The Court is concerned, and with good reason, about the
breadth of this concept. If substantive due process is
interpreted without a high degree of discretion and restraint,
it will in due course engulf the whole world of the law. For
this reason, both the Supreme Court and this Court have
emphasized the necessity of great judicial restraint. In order
to violate the Due Process Clause, governmental action
must be more than merely "arbitrary" in some general or
logical sense, more than merely "arbitrary and
capricious" in the commonly accepted administrative -law
sense of that phrase. The action must be "arbitrary in the
constitutional sense," (emphasis supplied). "[F]or half a
century now we have spoken of the cognizable level of
executive abuse of power as that which shocks the
conscience.... [T]he substantive component of the Due
Process Clause is violated by executive action only when it
33
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`can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.'
This Court has made the same point several times. In the
zoning context, for example, we have distinguished between
what might be called ordinary administrative -law allegations
that a certain governmental action is arbitrary and capricious,
and decisions that are truly irrational:
[S]ubstantive-due-process claims should be limited to
"truly irrational" governmental actions. An example
would be attempting to apply a zoning ordinance only
to persons whose names begin with a letter in the first
half of the alphabet.
Singleton v. Cecil, 176 F_3d 419, 432-33 (8th Cir. 1999)
(citations omitted, emphasis added).
This Court sets forth a two-part test to determine if a Due Process violation
has occurred. The challenged governmental action must both inflict a "grievous
wrong" and be "utterly lacking in rational basis."
[G]overnmental action which inflicts upon the citizen any
grievous wrong is unconstitutional under the Due Process
Clause of the Fourteenth Amendment if it is utterly lacking
in rational basis or fundamentally unfair for some other
reason.
Id., 176 F.3d 419, 433 (8th Cir. 1999).
This Court has rejected any negligent infliction of harm by a government as
able to sustain a Due Process violation. Only "egregious conduct" could support a -
Due Process claim. The Court held that the two-part test of an intent to injure and
lack of any justifiable government interest was needed for a Due. Process violation.
34
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The Supreme Court has cautioned that the Due Process
Clause "does not entail a body of constitutional law
imposing liability whenever someone cloaked with state
authority causes harm_" Lewis described the spectrum of
conduct that can give rise to different types of liability
and reasoned that constitutional liability requires
egregious conduct on the part of a government official:
We have ... rejected the lowest common denominator
of customary tort liability as any mark of sufficiently
shocking conduct, and have held that the
Constitution does not guarantee due care on the part
of state officials; liability for negligently inflicted
harm is categorically beneath the threshold of
constitutional due process. It is, on the contrary,
behavior at the other end of the culpability spectrum
that would most probably support a substantive due
process claim; conduct intended to injure in some
way unjustifiable by any government interest is
the sort of official action most likely to rise to the
conscience -shocking level.
Omni Behavioral Health v. Miller, 285 F.3d 646, 651-
52 (8th Cir. 2002) (citations omitted, emphasis added).
Although the District Court interpreted the state statute differently from the
State Court Judge and Arkansas Attorney General, the City Council's decision to
enact the ordinance could not be found egregious or truly irrational, and thus there
was no merit whatsoever in the Rogers Group, Inc.'s § 1983 Due Process claim.
Indeed, the District Judge himself, while disagreeing with the City Council's
and State Judge's interpretation of the state statute (Add_ 31-33, 37-39, App. 537,
541-42, 534-36), acknowledged the commendable legislative process the City
35
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Council went through when carefully crafting the ordinance. The District Judge
noted in his Order granting the Preliminary Judgment:
The City expresses its concern about the public interest by
saying that affected citizens have taken part in a `careful
democratic process' which will be `thwarted' if an injunction
issues. There was evidence that the City Council did not act
in haste, instead considering the Ordinance over the course of
several meetings, and that representatives of RGI were able
to have considerable input in the development of the
Ordinance. This is to be commended in the enactment of
laws and regulations...
District Court's Order granting Preliminary Injunction,
November 30, 2009, Add. 29-30, App. 418-19.
This statement within the District Judge's Order establishes that even if there
was a misinterpretation of the State statute authorizing a city council to abate a
nuisance within a mile of the city limits, such a mistake did not rise to the truly
irrational level needed for a Due Process violation. The Ordinance was obviously
not conscience -shocking, truly irrational, or intended to injure without any
justifiable government interest. The City already had an ordinance regulating an
outside the city limits nuisance (as determined by the City Council) which had
been found constitutional by a State Circuit Court Judge. Add. 31, App. 537. It
would be very reasonable to conclude that the Circuit Judge's interpretation of
State law was correct. The City could reasonably rely on this existing judicial
interpretation.
36
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During the litigation over whether the City had the statutory right to enact
the rock quarry ordinance, a state senator asked the Arkansas Attorney General for
his opinion about a city council's power to enact this ordinance. The Arkansas
Attorney General said yes, city councils have that power. Add. 34, App. 464.
Even though the federal courts do not have to follow or agree with the Arkansas
Attorney General's Opinion, his interpretation also shows that the City Council
enactment was reasonable and seemingly authorized by Arkansas law. Thus, the
City Council's enactment was far from the "truly irrational" conduct necessary for
a Due Process violation.
Rogers Group, Inc.'s other constitutional claim of a Fifth Amendment
Taking is also clearly without any merit and was invalid and meritless when pled
because Rogers Group cannot assert such a claim until after it has exhausted its
state remedy. This was explained to the District Court in the City's brief
supporting its motion for summary judgment against Rogers Group's Takings
claim.
A property owner's Fifth Amendment regulatory takings claim challenging a
city ordinance prohibiting the sale of fireworks was barred because of the property
owner's failure to exhaust his inverse takings claim in state court under Arkansas
law. Cormack v. Settle-Beshears, 474 F. 3d 528 (8`h Cir. 2007). Federal courts
are barred from considering the merits of a Fifth Amendment takings claim
37
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until a private litigant exhausts state remedies. Id. A commercial property
owner's § 1983 takings claims against the State of Arkansas were not ripe for
adjudication in federal court until the owners exhausted their state just
compensation remedies. Willis Smith and Co., Inc. v. Arkansas, 548 F.3d 638 (8t1
Cir. 2008).
Rogers Group chose not to seek state remedies in a state court (which had
already considered and ruled that a municipal nuisance abatement ordinance was
constitutional as applied to a business located outside the Fayetteville city limits).
Therefore, its § 1983 federal takings claim is clearly barred and should be
dismissed. Indeed, clear, consistent, and long standing federal court authority
establishes such claim was totally unfounded and should not have been made.
Williamson County Reg'l Planning Comm 'n v. Hamilton Bank of Johnson City, 473
U.S. 172, 173, 105 S. Ct. 3108, 31 10, 87 L. Ed. 2d 126 (1985).
Rogers Group, Inc. cannot be awarded attorney fees if it cannot succeed on
the merits on the only claims that could authorize § 1988 attorney's fees and costs.
As the United States Supreme Court held in Nat'l Private Truck Council, Inc. v.
Oklahoma Tax Comm n, supra at 592: "when no relief can be awarded pursuant to
§ 1983, no attorney's fees can be awarded under § 1988."
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Annpllatp C:asp: 11-7482 Pane: 38 Hate Filpd: 08/29/2011 Entry ID: 3823573
A
CONCLUSION
Allowing award of attorney's fees and costs in this case would be more than
turning Buckhannon on its head, as the only possible "prevailing" party status
Rogers Group could have obtained was on a non -fee federal declaratory judgment
diversity action interpreting a state statute on non -constitutional grounds. § 1983
attorney's fees awards were enacted "to ensure federal rights are adequately
enforced," Perdue v. Kenny A., supra, and "were never intended to `produce
windfalls to attorneys." Farrar v. Hobby, supra at 103. Granting attorney fees of
over $75,000.00 to Rogers Group, Inc. without giving Fayetteville taxpayers the
right to their day in Court on the § 1983 claims is improper and not allowed by
Buckhannon.
Respectfully Submitted,
City of Fayetteville, Arkansas, Appellant
Is! Christopher B.T. Williams
/sl Jason B. Kelley
Christopher B.T. Williams (Bar No. 76007)
Jason B. Kelley (Bar No. 96159)
CITY OF FAYETTEVILLE, ARKANSAS
113 W. Mountain St., Suite 302
Fayetteville, Arkansas 72701
Phone: (479) 575-8313
Fax: (479) 575-8315
e-mail: kwilliams@ci.fayetteville.ar.us
e-mail: jkj elle. ,ci.fayetteville.ar.us
39
AnnillatP Case: 11-9482 Pate: 39 flatA FilPrl: 08/79/2011 Entry ID: 1823!57:
Is/ Joel Isaac Farthing
Joel Isaac Farthing (Bar No. 07174)
BASSETT LAW FIRM, LLP
221 N. College Avenue I P.O. Box 3618
Fayetteville, Arkansas 72702-3618
Phone: (479) 521-9996
Fax: (479) 521-9600
e-mail: jfarthing� bassettlawfirm.com
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Annellate Case_ 11-2487 Pane: 40 Date Filpd: 1)S/29/2011 Fntry I®_ 3823:57:1