Fourth Circuit Notes Circuit Split Re Jurisdiciton to Award Attorneys' Fees Under Sec. 1988

Per the Fourth Circuit in Wendt v. Leonard, --- F.3d ----, 2005 WL 3358875 (4th Cir. Dec 12, 2005):

As discussed in the district court's order denying Wendt's 60(b)(4) motion, however, there appears to be a split among the circuits regarding whether courts can award attorney fees under 42 U .S.C.A. § 1988 after having dismissed the underlying action for lack of subject matter jurisdiction. See Citizens for a Better Environment v. Steel Co., 230 F.3d 923, 925-28 (7th Cir.2000) (finding that, even if a court lacks power to rule on the substantive claims of the plaintiff, it does not necessarily lack power to award attorney fees, but discussing cases reaching a contrary result); Branson v. Nott, 62 F.3d 287, 293 (9th Cir.1995)("By itself, § 1988 does not provide the district court with jurisdiction to grant an attorney fee award where subject matter jurisdiction to hear the underlying § 1983 claim is lacking."); Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir.1990)("[S]ection 1988 does not by its terms confer subject matter jurisdiction upon federal courts, but rather relies upon the provisions of other federal statutes, such as section 1983 read in conjunction with 28 U.S.C. § 1343 (1988) (civil rights and elective franchise jurisdictional statute), to confer subject matter jurisdiction.").

The parties' arguments concerning which courts are correct in the split of authority, however, ignore the unique nature of the extraordinary relief Wendt seeks in his Rule 60(b)(4) motion--vacating a final, unappealed order. Viewed in this context, we need not resolve which view of the law is correct. Rather, the mere fact that authorities disagree on this issue confirms that the district court had an "arguable basis" for jurisdiction. Mindful that we must not transform a Rule 60(b)(4) motion into a belated appeal that was never taken, we will not disrupt a final, unappealed order under these circumstances.

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