Second Circuit Court Of Appeals Decides Issue In Civil Rights Context.
In Hines v. City of Albany, 862 F.3d 215 (2d Cir. 2017), the Second Circuit decided that appellate attorney’s fees for a successful civil rights plaintiff were not recoverable under Federal Rule of Appellate Procedure 39 as costs, even where an underlying fee-shifting statute defines “costs” as inclusive of attorney’s fees. However, there was hope: this does not prevent the plaintiff from seeking the fees under a conventional fee motion. Rather, they could not be recouped as appellate “costs.”
BLOG OBSERVATION—The Ninth Circuit agrees that attorney’s fees cannot be recovered as costs under FRAP 39. (See Family PAC v. Ferguson, 745 F.3d 1261, 1269 (9th Cir. 2014).)