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Hines v. The City of Albany

United States Court of Appeals, Second Circuit

July 6, 2017

CONSTANCE HINES, MARSHAY HINES, Plaintiffs-Appellants,
v.
THE CITY OF ALBANY, BRIAN QUINN, Albany Police Officer, JAMES W. TUFFEY, Albany Chief of Police, JEFF ROBERTS, ROBERT MULLIGAN, Albany Police Officer, MICHAEL HAGGERTY, Albany Police Officer, ROBERT SHUNCK, Albany Police Officer, JEFFREY HYDE, Albany Police Officer, TIM HAGGERTY, Albany Police Officer, Defendants-Appellees. [*]

          Argued: October 13, 2016

         Constance and Marshay Hines appeal from an order denying their motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 after having previously been granted partial summary judgment on their claim under 42 U.S.C. § 1983. After our affirmance on the merits, the District Court granted the plaintiffs a reduced award of attorneys' fees under Section 1988. The defendants appealed this award, and the plaintiffs cross-appealed. We affirmed the District Court's award of attorneys' fees to the plaintiffs, stating "[e]ach side is to bear its own costs with respect to these appeals." The plaintiffs then moved for an award of the attorneys' fees incurred in litigating the appeal and cross-appeal. Relying principally on our instruction that "[e]ach side is to bear its own costs, " the District Court denied the plaintiffs' motion for attorneys' fees. Because we hold that our reference to "costs" in the context of Federal Rule of Appellate Procedure 39 did not include attorneys' fees, we VACATE the order and REMAND to the District Court for further proceedings consistent with this opinion.

          PHILLIP G. STECK, Cooper Erving & Savage LLP, Albany, New York, for Plaintiffs-Appellants.

          STEPHEN J. REHFUSS, The Rehfuss Law Firm, P.C., Latham, New York, for Defendants-Appellees.

          Before: LIVINGSTON and LOHIER, Circuit Judges, and RAKOFF, District Judge. [**]

          LOHIER, Circuit Judge

         Constance and Marshay Hines appeal from an order of the United States District Court for the Northern District of New York (Suddaby, C.J.) denying their motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988. This is the third time this case has been before us on appeal, starting with our affirmance of the grant of partial summary judgment in the plaintiffs' favor on their Section 1983 claim against the City of Albany, its Chief of Police, and individual officers. Following our affirmance on the merits, the District Court granted the plaintiffs a reduced award of attorneys' fees under 42 U.S.C. § 1988. The defendants appealed the fee award, and the plaintiffs cross-appealed. We affirmed the award in a summary order on appeal, stating "[e]ach side is to bear its own costs with respect to these appeals." Hines v. City of Albany, 613 F.App'x 52, 56 (2d Cir. 2015). The plaintiffs then moved for an award of the attorneys' fees incurred in defending against the defendants' appeal and pursuing their cross-appeal. Relying principally on our instruction that "[e]ach side is to bear its own costs, " the District Court denied the plaintiffs' motion for attorneys' fees. Because we hold that our reference to "costs" in the context of Federal Rule of Appellate Procedure 39 did not include attorneys' fees, we VACATE the order and REMAND to the District Court for further proceedings consistent with this opinion.

         BACKGROUND

         In 2006 officers of the Albany Police Department arrested Constance Hines's son at her home as part of a drug investigation. During the course of the arrest, Constance Hines and her daughter, Marshay Hines, were themselves handcuffed, and the police seized and impounded Constance Hines's SUV. Hines v. City of Albany, No. 1:06-CV-01517 (NPM), 2011 WL 2620381, at *3, *6 (N.D.N.Y. July 1, 2011), aff'd sub nom. Hines v. Albany Police Dep't, 520 F.App'x 5 (2d Cir. 2013). The plaintiffs were released the same day, but the SUV remained impounded for fifteen months. Id. at *10- 11, *15.

         The plaintiffs sued under 42 U.S.C. § 1983, claiming that the police illegally held them for over six hours and that the SUV was illegally seized and retained without affording Constance Hines a hearing to contest the seizure, as required by Krimstock v. Kelly, 306 F.3d 40, 68 (2d Cir. 2002). As relevant here, a District Judge granted partial summary judgment in the plaintiffs' favor on the claims concerning unreasonable seizure and retention of the SUV. Hines, 2011 WL 2620381, at *14-17. On appeal, we affirmed the partial grant of summary judgment. Hines, 520 F.App'x at 6-7. The parties thereafter settled, and the plaintiffs received $10, 000 for having lost the use of the SUV.

         The plaintiffs moved for an award of $213, 395 in attorneys' fees and $1, 548.62 in costs under 42 U.S.C. § 1988. See Hines v. City of Albany, No. 1:06-CV-1517 (GTS/RFT), 2014 WL 12613275, at *2 (N.D.N.Y. June 5, 2014). Concluding that the plaintiffs were the prevailing party, the District Court awarded them attorneys' fees in the reduced amount of $132, 217.75 and costs of $1, 548.62. Id. at *5, 8-9.

         Unhappy with this result, the defendants appealed the award of attorneys' fees, arguing that the plaintiffs were not the "prevailing party" under Section 1988 in light of their "de minimis" relief, and, in the alternative, that the plaintiffs' award should be reduced. The plaintiffs cross-appealed, seeking an increase in the award based on the full rates and hours billed. We affirmed the District Court's award in a summary order, which we concluded by stating "[e]ach side is to bear its own costs with respect to these appeals." Hines, 613 F.App'x at 56.

         As relevant here, the plaintiffs then moved before the District Court for an award of attorneys' fees of $13, 642.50 incurred while defending against the defendants' appeal and pursuing their cross-appeal. The District Court denied the plaintiffs' motion, concluding that our mandate that each party "bear its own costs" with respect to the appeals "foreclosed the possibility of an award of attorney's fees under Section 1988, which are part of the 'costs' under that statute." Hines v. City of Albany, No. 1:06-CV-1517 (GTS/RFT), 2016 WL 7166103, at *2 (N.D.N.Y. Mar. 22, 2016). In other words, because Section 1988 permits attorneys' fees to be included "as part of the costs" that may ...


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