Reversal Draws A Dissent On the Fee Award Issue.
Under our category “Cases: Civil Rights,” we have discussed federal civil rights decisions brought under 42 U.S.C. sec. 1983. Generally, section 1988 is a pro-plaintiff fee shifting provision, although fees can be awarded to the defense where the claim is shown to be frivolous in nature. Nevertheless, as the next case illustrates, the Ninth Circuit appears loathe to uphold fee awards against civil rights plaintiffs, unless the result is crystal clear as far as the merits are concerned.
Gibson v. Office of the Attorney General, Case No. 07-56124 (9th Cir. Jan. 27, 2009) involved an Office of the California Attorney General (OAG) attorney who represented an OAG paralegal in a legal malpractice action without obtaining OAG’s permission. Both the attorney and paralegal filed a section 1983 civil rights action based on a violation of their First Amendment rights. The district judge dismissed the action and awarded $21,803.52 in attorney’s fees against plaintiffs on the basis that the lawsuit was frivolous in nature.
By a 2-1 margin, the Ninth Circuit Court of Appeals reversed.
Although finding that the filing of a legal malpractice action was not an issue of public concern and that the written permission requirement was a legitimate governmental interest, the majority concluded the district court erred in determining the lawsuit was frivolous. There was no exact Ninth Circuit precedent that signaled plaintiffs could not bring their case, such that the frivolity determination was erroneous. (One had to go the D.C. Circuit to find the case that was exactly on point.)
Circuit Judge Clifton disagreed with the fee reversal. “A legal proposition can be frivolous even though this court has not previously rejected it …. We might not have gone down this trail before, but it was not a hard trail to blaze.” (Slip Opn., at p. 926.) He would have found the fee award did not constitute an abuse of discretion on the part of the district judge.
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