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May 18, 1999


The opinion of the court was delivered by: Kahn, District Judge.


Presently pending is a motion by Plaintiff Association of International Automobile Manufacturers, Inc. ("AIAM") for attorneys fees pursuant to Fed.R.Civ.P. 54(d)(2)(A) and 42 U.S.C. § 1988. Plaintiff asserts that it is the prevailing party in an action brought under 42 U.S.C. § 1983 and is thus presumptively entitled to such fees. Defendants assert that Plaintiff's claims were not properly brought under § 1983 and that, in the alternative, special circumstances would make an award of such fees unjust. This Court finds that fees are warranted under § 1988, and therefore grants Plaintiff's motion.

I. Background

Both this Court and the Court of Appeals for the Second Circuit have issued published decisions discussing the background of this case. Familiarity with those decisions is assumed. See American Auto Mfrs. Ass'n v. Cahill ("AAMA I"), 973 F. Supp. 288 (N.D.N.Y. 1997), rev'd, American Auto. Mfrs. Ass'n v. Cahill ("AAMA II"), 152 F.3d 196 (2d Cir. 1998). The background relevant to this motion will therefore be reviewed briefly.

Plaintiffs AIAM and the now-defunct American Automobile Manufacturers Association ("AAMA") brought this action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 7604 seeking, inter alia, to enjoin enforcement of New York's zero emission vehicle ("ZEV") sales mandate. This mandate, codified at 6 N.Y.C.R.R. § 218-4.1, required that, starting in 1998, a certain percentage of the new automobiles offered and sold in New York each year be ZEVs.

Plaintiffs alleged six claims. Plaintiffs' first claim alleged that the mandate was preempted by § 209(a) of the Clean Air Act ("CAA"), 42 U.S.C. § 7543(a).*fn2 The second claim alleged that the mandate was illegal because it was not identical to the California emission standards as required by § 177 of the CAA, 42 U.S.C. § 7507.*fn3 Because of the importance of these claims to the determination of the instant motion, discussion of the substance of the provisions is necessary.

Section 209(a) expressly prohibits states from "adopt[ing] or attempt[ing] to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part." CAA § 209, 42 U.S.C. § 7543; see also American Auto Mfrs. v. Comm'r Environ. Protect., 998 F. Supp. 10, 12-13 (D.Mass. 1997). However, § 209(b) provides that California is allowed to adopt and enforce its own standards so long as they meet certain conditions. CAA § 209(b), 42 U.S.C. § 7543(b)(1). Further, in 1977, Congress added § 177 to the CAA, which allows States to also adopt standards which are "identical to the California [vehicle emission] standards." CAA § 177, 42 U.S.C. § 7507. Thus, states are provided with a choice between the federal standards and the California standards, but may not choose a third set of standards. CAA § 177, 42 U.S.C. § 7507 (states may not create a "third vehicle"); see also Comm'r Environ. Protect., 998 F. Supp. at 13.

Plaintiffs' first and second claims are therefore closely related: they assert that the ZEV sales mandate is subject to § 209(a) preemption of "standards relating to the control of emissions" and is not saved by the § 177 exception for standards identical to those of California.

In addition to the first two claims, Plaintiffs alleged (3) the mandate was preempted by § 249 of the CAA, 42 U.S.C. § 7589;*fn4 (4) the mandate was subject to "implied preemption" under the CAA; (5) the mandate violated the Due Process Clause of the Fourteenth Amendment; and (6) the mandate violated the Commerce Clause. Subsequently, Plaintiffs brought a motion for partial summary judgment, and Defendants brought a motion to dismiss or in the alternative for summary judgment on all counts. By Memorandum-Decision and Order filed August 5, 1997, this Court denied Plaintiffs' motion and granted Defendants' motion on all counts. See AAMA I, 973 F. Supp. 288 (N.D.N.Y. 1997). Specifically, this Court held that (1) the claim of preemption under § 249 of the CAA, 42 U.S.C. § 7589 and the claim based on the Commerce Clause were barred by the doctrine of res judicata; (2) the due process claim was premature and Plaintiffs thus lacked standing; and (3) the ZEV sales mandate was not subject either to preemption under 209(a) or to implied preemption. Id.

On August 11, 1998, the Court of Appeals reversed the judgment of this Court, finding that the ZEV sales mandate was preempted by section 209(a) of the CAA and was not saved by the § 177 exception. See AAMA II, 152 F.3d at 200-01. Finding the issue dispositive of the action, the Second Circuit did not address the other issues presented on appeal. On November 14, 1998, this Court entered a Final Order ("Order") reflecting the Second Circuit's decision. In the Order, this Court declared that the ZEV sales mandate was preempted due to § 209(a) and § 177 of the CAA and the Supremacy Clause of the United States Constitution, and enjoined the Defendants from enforcing the applicable regulations. In addition, this Court granted judgment to the Defendants on preemption under § 249 of the CAA and dismissed the remaining claims, including the Due Process and Commerce Clause claims, without prejudice. Plaintiff AIAM then timely filed the pending motion.*fn5 AAMA has not moved for fees.

II. Discussion

Section 1988(b) of Title 42 provides in relevant part:

  In any action or proceeding to enforce a provision of
  [section] 1983 . . . of this title, . . . the court,
  in its discretion, may allow the prevailing party,
  other than the United States, a reasonable attorney's
  fee as part of the costs. . . .

Id., § 1988(b). Defendants do not deny that Plaintiff is a prevailing party in connection with its preemption claims, but argue that the claims are not properly brought under § 1983. In the alternative, Defendants argue that a fee award would be manifestly unjust and that this Court should therefore exercise its limited discretion to deny Plaintiff's request.

A. Action Brought To Enforce § 1983

This Court first considers whether Plaintiffs' action is one brought to "enforce" § 1983 as required for an award pursuant to 42 U.S.C. § 1988. Section 1983 provides a cause of action to a party who is deprived of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States by one who is acting under color of state law. 42 U.S.C. § 1983. Plaintiff offers two arguments in support of its assertion that it has prevailed in an action to remedy a deprivation of rights under the "Constitution and laws" of the United States. First, it argues that its constitutional (i.e. due process and commerce clause) claims were clearly valid § 1983 claims, and that the presence of these claims supports an award of fees even though the claims were not the basis of the Plaintiff's ultimate success. Second, Plaintiff argues that its preemption claims, on which it actually prevailed, are themselves valid § 1983 claims and thus directly support an award of attorney's fees pursuant to § 1988.

1. Fees Based on Constitutional Claims

Plaintiff argues that its constitutional claims support an award of fees because the claims on which Plaintiff prevailed arose out of the same nucleus of operative facts. When a plaintiff prevails upon a non- § 1983 claim which is accompanied by an undecided § 1983 claim, a fee award pursuant to § 1988 is appropriate where (1) the § 1983 claim is sufficiently "substantial" to support the invocation of federal jurisdiction; (2) it arises from the same nucleus of operative facts as the claim on which the plaintiff prevailed; and (3) it is "reasonably related to the plaintiff's ultimate success." See Smith v. Robinson, 468 U.S. 992, 1002, 1007, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984); Maher v. Gagne, 448 U.S. 122, 133 n. 15, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980); Scurlock v. City of Lynn Haven, Fla., 858 F.2d 1521, 1527 (11th Cir. 1988); Seaway Drive-In, Inc. v. Township of Clay, 791 F.2d 447, 454 (6th Cir. 1986); McDonald v. Doe, 748 F.2d 1055, 1056 (5th Cir. 1984). However, it is also "settled" that where a § 1983 claim is decided and the plaintiff does not prevail as to liability, the § 1983 claim may not support an award of attorney's fees. See Raley v. Fraser, 747 F.2d 287, 292 (5th Cir. 1984) (finding an award proper only where "the court either reached and upheld, or did not reach, substantial constitutional claims" and holding that "[b]ecause the [trial] court in the instant case did reach the constitutional issue and found against the plaintiff on that claim, we cannot now say that award of such fees would have been proper."). The question before this Court is whether the constitutional claims which were dismissed by this Court and not addressed by the Second Circuit should be considered "decided" for purposes § of 1988.

The case law does not provide a clear answer to this question. It establishes that where § 1983 claims are adjudicated by a trier-of-fact in the defendant's favor, the claims may not support an award of attorney's fees. See, e.g., Russo v. State of New York, 672 F.2d 1014, 1022 (2d Cir. 1982) (finding that nothing justifies or requires an award of fees to a party "who lost on the constitutional claim after a plenary trial"); McDonald v. Doe, 748 F.2d 1055, 1056 (5th Cir. 1984) (citing cases). It is also clear that a claim is "decided" where the claim was dismissed by the district judge as a matter of law and this dismissal was subsequently affirmed on appeal. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913-14 (2d Cir. 1997) (denying fees where federal claim was properly dismissed on summary judgment and plaintiff prevailed on analogous state law claim); W.G. v. Senatore, 18 F.3d 60, 63-64 (2d Cir. 1994) (affirming dismissal of fee claim for lack of subject matter jurisdiction and affirming denial of § fees); Mateyko v. Felix, 924 F.2d 824, 826, 828-29 (9th Cir. 1990) (finding § 1988 fees were not available where district judge properly granted direct verdict on constitutional claim).

These cases do not clearly resolve whether a claim which is dismissed by the district judge and not reviewed on appeal is considered to be "decided." However, although the question is a close one, holding such claims to be "decided" appears most consistent with existing precedent and policy.

In declining to award fees where the only fee-claim was dismissed by the district judge, the Second Circuit found "no reason to reward those plaintiffs who supplement their valid claims under the [New York Human Rights Law or "NYHRL"] with meritless claims under the [Age Discrimination Employment Act] by allowing them to circumvent the state-law rule that attorney's fees are not available under the NYHRL." Lightfoot, 110 F.3d at 914. Although in Lightfoot, the Second Circuit confirmed that the claim was properly dismissed, the policy is also applicable in cases where the claim has not been reviewed. Until the district judge's determination is reviewed and reversed, it remains the law of the case that the fee-claim is dismissed, and to assume otherwise based on plaintiff's success in another claim is to turn a blind eye to the actual status of the case.

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