Attorney Fees Not Recoverable Costs under FRAP 39

Attorney fees are not recoverable costs under Federal Rule of Appellate Procedure 39, even where an underlying fee-shifting statute defines "costs" as including attorney fees. The ruling from the U.S. Court of Appeals for the Second Circuit continues a trend toward distinguishing costs from attorney fees.

In Hines v. City of Albany, the plaintiffs filed a 42 U.S.C. § 1983 civil rights action, which allows the recovery of fees under 42 U.S.C. § 1988. After the district court granted partial summary judgment in the plaintiffs' favor, they sought $213,395 in attorney fees and $1,548.62 in costs. The district court awarded $132,217.75 in fees and $1,548.62 in costs.

Both parties appealed. Concluding that "[e]ach side is to bear its own costs with respect to these appeals," the Second Circuit affirmed the district court's award. The plaintiffs then moved the district court for an award of attorney fees incurred on the appeals. The district court denied the plaintiffs' motion, interpreting the Second Circuit's reference to costs as including attorney fees, because Section 1988 permits attorney fees to be included as part of the costs awarded to the prevailing party. The plaintiffs appealed.