Sunday, April 10, 2005

Two ways not to get attorneys' fees under section 1988

In State of Tennessee v. City of Chattanooga, the Sixth Circuit held that there was no section 1983 remedy, and thus no statutory attorney fees under section 1988, for the City's violation of the federal Telecommunications Act of 1996, citing the U.S. Supreme Court's recent decision in City of Rancho Palos Verdes v. Abrams, another tower-siting case.

Somewhat similarly, in Virginia Office for Protection and Advocacy v. Reinhard, the Fourth Circuit in an opinion Chief Judge Wilkins, joined by Judges Niemeyer and District Judge Wilson, concluded that on the claim under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 against the defendant in his official capacity there was no proper section 1983 claim because the plaintiff Office was not a person under section 1983 and therefore there could be no attorneys' fee award under section 1988. (In the Sixth Circuit's case, the actual use plaintiff was a private outfit, and so the issue of the state as a section 1983 plaintiff evidently did not come into play.)

On the face of it, I would have thought that not only was there no proper plaintiff, there also was no proper section 1983 defendant, since in the Will case, among others, that neither States nor state officials acting in their official capacities are "persons" within meaning of 1983. Perhaps I am missing something, since that aspect was apparently not discussed.

What these cases have in common are plaintiffs bringing claims to enforce federal rights who tried but failed to also make out section 1983 claims, without which they had no statutory right to attorney fees.

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