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‘Costs’ Don’t Include|Attorneys’ Fees, 9th Says

(CN) - Appellate attorneys' fees may be available to a political action committee after a partial First Amendment victory because the costs do not include such funds, the 9th Circuit ruled.

Family PAC challenged the provision of a Washington state election law requiring political committees to report the name and address of each person contributing more than $25 to the committee.

The law also required the PAC to report the occupation and employer of each person contributing more than $100, and barred the committee from accepting individual contributions exceeding $5,000 within 21 days of a general election.

A federal judge found, and 9th Circuit affirmed, that the $25 and $100 disclosure requirements were constitutional, but that the 21-day contribution limit violated the First Amendment.

Since each side was partly successful, the 9th Circuit's 2011 opinion stated that "each party shall bear its own costs of appeal."

Family PAC then insisted that it could still seek attorneys' fees in the amount of $148,000 on its successful claim, and U.S. District Judge Ronald Leighton granted the award.

A three-judge panel again affirmed Wednesday, finding 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."

Costs include administrative expenses, such as docket fees, the costs of producing transcripts, copying costs, and expert and interpreter compensation, the court said.

"This is in keeping with the general policy embodied by Rule 39 linking the taxation of costs with the results of the appeal," Judge Raymond Fisher wrote for a three-judge panel. "In the case of the same mixed result, however, the partially prevailing plaintiff may well be entitled to an award of attorney's fees under § 1988, because 'plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."

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