E.D. Ark. Notes Split Re Authority to Award Attorney's Fees under Sec. 1988 After Dismissal of 1983 Claim for Lack of SMJ

Per U.S. ex rel Montgomery v. St. Edward Mercy Medical Center, Slip Copy, 2008 WL 110858 (E.D. Ark. Jan. 08, 2008):

The Eighth Circuit, applying § 1988 in a lawsuit brought pursuant to 42 U.S.C. § 1983, concluded that the district court lacked the authority to award attorney's fees under § 1988 after it had dismissed the plaintiff's § 1983 claim for lack of subject matter jurisdiction. Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir.1990). The Keene Court specifically held that a lack of subject matter jurisdiction also deprived the court of the power to make an award of attorneys fees. It further held that the defendant could not be considered a “prevailing party” when the dismissal was based on a lack of subject matter jurisdiction. Id. In this regard, the court specifically held that “[w]here a complaint has been dismissed for lack of subject matter jurisdiction, the defendant has not ‘prevailed’ over the plaintiff on any issue central to the merits of the litigation.” Id. (omitting citation and some internal quotations).

The Circuits appear to be split on this issue. The Second, Ninth and Eighth Circuits prohibit a fee award following a dismissal based on subject matter jurisdiction, while the Seventh and Tenth Circuits do not.FN3 The Court recognizes that the Eighth Circuit has not considered the issue in the specific context of a fee award to a prevailing defendant in a qui tam action pursuant to 31 U.S.C. § 3130(d)(4). Additionally, while this Court might be inclined to agree with the Tenth Circuit's conclusion that “[t]here is no Article III roadblock” preventing a fee award in the context of § 3130(d)(4),” it is obligated to follow the precedent of the Eighth Circuit. U.S. ex rel. Grynburg v. Praxair, Inc., 389 F.3d 1038, 1057 (10th Cir.2004).

FN3. See, e.g. 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.”); W.G. v. Senatore, 18 F.3d 60 (2d Cir.1994)(holding that court lacked authority to consider merits of fee application under IDEA fee shifting provision where it lacked subject matter jurisdiction over the substantive claim); 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 opposite conclusion); U.S. ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1055-56 (10th Cir.2004)(adopting Seventh Circuit approach in Citizens for a Better Environment, supra, as “the most thoughtful approach”).


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