Opinion
Cause No. P96-1357-C-H/G
January 29, 2001
ENTRY ON PLAINTIFFS' PETITION FOR ATTORNEYS' FEE
Plaintiffs Brownsburg Area Patrons Affecting Change ("BAPAC") and John Patten challenged in this action the constitutionality of Indiana's law regulating political action committees. Plaintiffs aimed their challenge specifically at the definition of a political action committee in Ind. Code § 3-5-2-37(a), which determines whether a group is subject to a variety of forms of regulation. Plaintiffs argued that the definition is facially unconstitutional. They sought a declaration that the definition is unconstitutional and an injunction against its enforcement, which would have nullified Indiana campaign finance laws as applied to many groups that would otherwise be deemed political action committees.
Plaintiffs have argued the statute is unconstitutional on the theory that it treats as political action committees, and thus regulates, groups that engage only in "issue advocacy," as well as groups that engage in "express advocacy." See generally Buckley v. Valeo, 424 U.S. 1, 44 n. 52 (1976) (establishing distinction for purposes of applying First Amendment to campaign finance laws). Plaintiffs sought relief against the members of the Indiana State Election Commission, the prosecuting attorney of Hendricks County, and the Hendricks County Election Board.
Through more than four years of litigation, this court, the Seventh Circuit, and the Supreme Court of Indiana have denied all of plaintiffs' requests for injunctive and declaratory relief. Plaintiffs have now filed a petition under 42 U.S.C. § 1988 for attorneys' fees and expenses of more than $83,000 on the theory that they were the "prevailing parties." As explained below, plaintiffs' petition must be denied.
Procedural Background
Plaintiff BAPAC and founder John Patten filed this action in September 1996, seeking in part to stop the Hendricks County Election Board from investigating any further their political activities pursuant to the Indiana statutes regulating political action committees. At all relevant times, Indiana law has defined a "political action committee," with exceptions not relevant here, as an organization that "proposes to influence" state or local elections and that accepts contributions or makes expenditures of more than $100 "to influence" state or local elections. Ind. Code § 3-5-2-37(a). Groups that fall within the definition must comply with reporting and other regulatory requirements that plaintiffs oppose. Plaintiffs contended that they had engaged and intended to engage only in issue advocacy, so that Indiana could not regulate the group without violating the First Amendment.
This section of the statute has been amended several times, but the key verb "influence" and the $100 threshold have not changed.
When plaintiffs filed their lawsuit, the Hendricks County Election Board had taken preliminary steps to investigate plaintiffs' activities to determine whether BAPAC was a political action committee covered by Ind. Code § 3-5-2-37(a). At that time, however, the board had made no final determination as to whether to take more formal action. Plaintiffs sought a preliminary injunction against enforcement of the Indiana statute on the theory that it was facially unconstitutional. This court concluded that the Indiana statute should be construed consistently with the Supreme Court's parallel treatment of a similar federal statute as not applying to issue advocacy, as that concept has developed pursuant to Buckley v. Valeo, 424 U.S. at 44 n. 52 (upholding federal statute using "influence" as key verb). Because the state statute did not apply to plaintiffs' activities, the court denied the requested injunction. Brownsburg Area Patrons Affecting Change v. Baldwin, 943 F. Supp. 975, 990 (S.D. Ind. 1996).
Plaintiffs appealed this court's denial of a preliminary injunction. They argued that this court misinterpreted the statute and that, properly interpreted, the statute is unconstitutional and would apply to plaintiffs' issue advocacy. The Seventh Circuit observed: "BAPAC is in the peculiar position of challenging the constitutionality of the Indiana election statute in this court when it essentially prevailed in the district court on statutory interpretation grounds." Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 505 (7th Cir. 1998). The Seventh Circuit elected to certify the statutory question to the Supreme Court of Indiana to obtain a definitive determination of state law. Id. at 509-10.
The Supreme Court of Indiana accepted the question and provided its answer: "the definition of `political action committee' in Ind. Code § 3-5-2-37 should be narrowly construed to encompass `only those organizations which make contributions or expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for office or the victory or defeat of a public question.'" Brownsburg Area Patrons Affecting Change v. Baldwin, 714 N.E.2d 135, 142 (Ind. 1999). In essence, the state court agreed with this court that the statutory definition of a political action committee incorporated the distinction between express advocacy and issue advocacy adopted by the Supreme Court of the United States in Buckley v. Valeo, supra, 424 U.S. at 44. After receiving that answer from the state court, the Seventh Circuit issued an unpublished order affirming this court's denial of BAPAC's motion for a preliminary injunction. Brownsburg Area Patrons Affecting Change v. Baldwin, No. 96-3981 (7th Cir. Sept. 17, 1999).
After the Seventh Circuit's final decision on the preliminary injunction issue, plaintiffs moved for summary judgment in their favor on the merits. Defendants moved to dismiss the action. This court denied plaintiffs' motion and granted defendants' motions. In light of the state court's decision, there was no basis for the specific relief plaintiffs had sought in their complaint. The Indiana statute is not unconstitutional on its face. It applies to groups that satisfy its definition, as construed by the Supreme Court of Indiana, based on "express advocacy," as distinct from "issue advocacy." This court therefore concluded that only declaratory relief could still be at issue at that time. The court exercised its discretion under the Declaratory Judgment Act to dismiss the case because plaintiffs did not show any real need for such relief. Brownsburg Area Patrons Affecting Change v. Baldwin, 2000 WL 1206638 (S.D. Ind. July 31, 2000). Plaintiffs have not appealed that final judgment.
Discussion
Plaintiffs seek a fee award under 42 U.S.C. § 1988(b), which provides in relevant part that, in an action or proceeding to enforce 42 U.S.C. § 1983, "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." The Supreme Court stated the basic test for prevailing party status in Farrar v. Hobby:
[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. . . . In short, a plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.506 U.S. 103, 111-12 (1992) (citations omitted); accord, Krocka v. City of Chicago, 203 F.3d 507, 516-18 (7th Cir. 2000) (applying Farrar standard, affirming denial of fee award for plaintiff whose employer voluntarily provided some of relief sought, though plaintiff had lost at trial on his claims); National Black Police Ass'n v. District of Columbia Bd. of Elections Ethics, 168 F.3d 525, 528 (D.C. Cir. 1999) (affirming fee award for plaintiffs who obtained injunction against local restrictions on campaign contributions, although injunction was later vacated after local government repealed restrictions).
Plaintiffs in this case have not received any of the injunctive or declaratory relief they sought, nor have defendants entered into a settlement or consent decree benefiting plaintiffs. However, to further the purpose of § 1988, the Seventh Circuit and other circuits have also long recognized the so-called "catalyst theory" for awarding fees under § 1988 when a defendant voluntarily provides relief to the plaintiff without waiting to see which way the courts will rule. See Zinn v. Shalala, 35 F.3d 273, 274-76 (7th Cir. 1994) (holding that catalyst theory survives Supreme Court's decision in Farrar v. Hobby). To take advantage of the catalyst theory, a plaintiff must show two things: "First, `the plaintiff['s] lawsuit must be causally linked to the achievement of the relief obtained,' and second, `the defendant must not have acted wholly gratuitously, i.e., the plaintiff['s] claim[ ], if pressed, cannot have been frivolous, unreasonable, or groundless." Stewart v. McGinnis, 5 F.3d 1031, 1039 (7th Cir. 1993), quoting Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 566 (7th Cir. 1983), citing in turn Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir. 1981).
Application of the catalyst theory can present a delicate balance. On one hand, the catalyst theory serves the purposes of § 1988 by encouraging attorneys to take on cases to vindicate federal constitutional rights. Those purposes could be defeated if a government could avoid fee liability by changing its policy or practice in response to a lawsuit before it actually loses in court, perhaps even at the last moment before a court decision. See Cady v. Chicago, 43 F.3d 326, 331 (7th Cir. 1994) (explaining that routinely permitting public officials who may have violated a plaintiff's constitutional rights to avoid payment of fees simply by unilaterally mooting the case might defeat § 1988's purpose). On the other hand, though, governments often change their policies or practices for reasons unrelated to litigation. Courts are cautious about imposing fee awards under circumstances that would discourage or penalize governments from taking actions they would have taken in any event, regardless of pending litigation.
The fee issue here must be addressed separately for the state defendants and the county defendants, for the issue is considerably simpler for the state defendants than for the county defendants.
I. State Defendants
Plaintiffs obtained no judicial relief against the state defendants. Nor did the state defendants voluntarily alter any conduct with respect to anyone, let alone with respect to these plaintiffs. The state statute that plaintiffs argued is facially unconstitutional has survived that challenge. There is simply no basis for a fee award against the state defendants on even the most generous interpretation of § 1988. Plaintiffs rely on cases upholding fee awards where federal plaintiffs ultimately obtained under state law the relief they sought through the procedural path of a certification of state law questions to state courts or Pullman abstention. See Exeter-West Greenwich Regional School Dist. v. Pontarelli, 788 F.2d 47 (1st Cir. 1986) (certification to state court); Bartholomew v. Watson, 665 F.2d 910, 911-12 (9th Cir. 1982) (Pullman abstention). In both of those cases, however, the defendants against whom fees were awarded had taken action that was effectively nullified through the combination of federal litigation and related state court action.
In Pontarelli, for example, the chief state education official had actually ordered a local school district to pay tuition for a student attending a parochial school. 788 F.2d at 49. On certification, the state supreme court held that the order was contrary to state law. The First Circuit held that the resulting relief for plaintiffs was sufficient to support a fee award under § 1988. In Bartholomew, prison inmates challenged prison regulations that were actually in effect. The history of the case was more complex than this one, but unlike the plaintiffs in this case, the inmates in Bartholomew ultimately obtained some federal relief against state officials, so that procedures governing disciplinary actions in prison were actually modified. 665 F.2d at 912-13.
Bartholomew offers even less support for plaintiffs in this case, moreover, because the inmates in that case had actually lost in the related state court action. It therefore became necessary for the federal court to decide their constitutional claims. They prevailed in federal court on some of those claims, so a fee award was obviously warranted. 665 F.2d at 911-13. (noting that state conceded some award was appropriate, but disputed whether attorneys' time spent in state court litigation should be included in fee award).
In this case, by contrast, the only conduct attributable to the State of Indiana is the legislature's enactment in 1976 of a law modeled, in the constitutionally relevant respects, on the federal law that the Supreme Court of the United States had upheld in relevant part just weeks earlier as constitutional in Buckley v. Valeo. See Brownsburg Area Patrons, 714 N.E.2d at 140-41; Brownsburg Area Patrons, 943 F. Supp. at 987-89. Plaintiffs have not pointed to any action by any of the state defendants interpreting the state law — even tentatively — in the manner that would violate the First Amendment.
Plaintiffs have obtained no relief against the state defendants and have not altered their conduct at all. Thus, plaintiffs have not prevailed against the state defendants, and this lawsuit has not acted as a catalyst for any action by the state defendants.
Plaintiffs also rely on Herbst v. Ryan, 90 F.3d 1300, 1302-03 (7th Cir. 1996), for the proposition that state officials may be held liable for attorneys' fees based on the conduct of local officials who act to enforce a state statute. Plaintiffs read Herbst too broadly. That case presented a very different set of circumstances, which help illuminate the issue here. In Herbst the plaintiffs challenged as unconstitutional some unspecified amendments to Illinois statutes regulating abortions. The parties settled the case through a consent decree that enjoined enforcement of some statutory provisions. Id. at 1301-02. That success through the consent decree plainly entitled the plaintiffs to a fee award from at least some defendants. The district court awarded fees and allocated the entire amount to the State of Illinois, and none to the defendant class of prosecuting attorneys in the state.
The Seventh Circuit affirmed the decision holding the state defendants responsible for the entire fee award. The court's opinion identified as factors affecting the allocation of fees the broad remedial purposes of § 1988, the relative responsibility of each defendant, and other institutional concerns, such as preserving federalism, as well as the district court's determination of "the most fair and sensible solution that is possible." 90 F.3d at 1305. The decisive factor in Herbst was the fact that both the defense of the statutes and the relief granted by the consent decree occurred at the state level. Id. at 1305-06. Thus, it was the state's actions (enacting legislation) that caused the harm and from which plaintiffs obtained relief.
In this case, by contrast, all courts that have considered the issue have found no constitutional defect in the state statute that plaintiffs challenge. In this case, there is no basis comparable to that in Herbst that would justify a fee award against the state defendants. Nor would the remedial purposes of § 1988 justify an award of fees against a governmental entity that has done nothing to violate plaintiffs' rights under federal law. Plaintiffs are not entitled to a fee award against the state defendants in this case.
II. The County Defendants
The issue with respect to the county defendants is closer. This court found that the preliminary investigative steps taken by the county defendants were sufficient to establish a case or controversy within the meaning of Article III of the Constitution. 943 F. Supp. at 983-84. The Seventh Circuit appears to have agreed on that point. See 137 F.3d at 507 (BAPAC's position that it had ceased issue advocacy activities was sufficient to demonstrate irreparable injury for purposes of preliminary injunction analysis). If there had been no case or controversy, the action should have been dismissed as moot and outside the subject matter jurisdiction of the federal courts.
The chronology of events is important for understanding the fee issue for the county defendants. BAPAC distributed information by telephone and by pamphlet concerning issues and candidates in the May 1996 primary election in Hendricks County. BAPAC did not register as a political action committee. After the 1996 primary, defendant Patricia Baldwin, the prosecuting attorney for Hendricks County, received a complaint about BAPAC's activities. She properly referred that complaint to the Hendricks County Election Board.
Prosecuting Attorney Baldwin, who has been treated as a state defendant, took no other action apparent on this record. She has been represented by the Attorney General of Indiana, as is customary when Indiana prosecuting attorneys are sued in actions of this type.
The board chairman, William E. Daily, investigated the circumstances to determine whether election laws had been violated. On June 6, 1996, Daily wrote a letter to plaintiff John Patten asking him to "indicate why you believe that the laws which I have cited do not apply to BAPAC." An attorney for BAPAC responded. The attorney did not address Daily's question directly and instead asked Daily for copies of any materials that had raised the board's concerns. Daily sent copies to BAPAC's lawyer. BAPAC's lawyers then wrote to Daily on August 6, 1996, asserting that BAPAC was not a political action committee because its "major purpose is not to expressly advocate the election or defeat of any candidate."
The letter did not claim that BAPAC had engaged solely in issue advocacy. See Cplt. Ex. G. Chairman Daily responded with a letter on August 28, 1996. He reported that the election board had met to discuss BAPAC and had not reached "a final decision." He continued:
A political action committee is a nonpartisan organization that makes expenditures in excess of $100.00 during a calendar year to influence the election of a state or local candidate (IC 3-5-2-37). The contents of the audio tape appear to be an attempt to influence the election of a candidate. If BAPAC spent in excess of $100.00 to influence the outcome of a particular contested race, BAPAC should file the reports which are required by the Indiana election laws. An organization may be a political action committee even if the major purpose of the organization is not to advocate the election or defeat of a candidate.
Id. at 981-82. BAPAC did not respond directly to the chairman's letter. Instead, plaintiffs filed this action on September 20, 1996. At that time, the county election board had not made any final decision about BAPAC's status and had not initiated any enforcement action against BAPAC.
At the hearing on plaintiffs' motion for preliminary injunction, Chairman Daily testified that he did not believe BAPAC qualified as a political action committee, and that the county election board had not made any final decision on the matter. Tr. at 10, 13 (Oct. 11, 1996). After that time, the record indicates, the county election board took no further action on the BAPAC matter.
The record thus shows that the county election board, as a practical matter, dropped its preliminary investigation of plaintiffs at about the time of the preliminary injunction hearing. The issue is whether the board's action in dropping the preliminary investigation is enough to establish a basis for a fee award under § 1988. Where government officials are actually violating a person's constitutional rights and then change course immediately in response to a lawsuit asserting substantial claims, a fee award under § 1988 may be appropriate under the catalyst theory described above. See also, e.g., Lovell v. City of Kankakee, 783 F.2d 95, 96-97 (7th Cir. 1986) (reversing denial of fees where local officials responded to federal lawsuit by immediately stopping enforcement of unconstitutional ban on political yard signs in residential areas).
This is a lawsuit filed on the basis of a reasonable perception that county officials might take unconstitutional action in the near future. However, the county officials never took that action, and it was far from certain that they would have done so. In deciding that the plaintiffs had filed a ripe case or controversy in September 1996, this court applied the relatively low threshold standard that applies to claims that government actions are chilling protected First Amendment activity. See 943 F. Supp. at 983-84.
Moreover, at the time of the injunction hearing, there had been something of a disconnect between plaintiffs' views and Chairman Daily's views. Plaintiffs argued to Daily that BAPAC was not a political action committee because its "major purpose" was not express advocacy, plainly implying that BAPAC believed it could engage in express advocacy without complying with the Indiana law, so long as that was not the group's major purpose. Daily always thought the issue could be resolved, at least with respect to the May 1996 primary activity, on the ground that BAPAC never reached the spending threshold even if its activities would otherwise have satisfied the definition in the statute. See Tr. at 8-10 (Oct. 11, 1996).
At the injunction hearing, he testified that BAPAC was not required to register as a political action committee. He based his view on the financial information that BAPAC provided in the discovery responses in this action. Id.
Neither this court nor any other court in this case has accepted plaintiffs' "major purpose" theory, which they offered to Daily before the lawsuit was filed. See 943 F. Supp. at 990-92 (expressing doubts about plaintiffs' "major purpose" theory but not reaching a decision on the issue). Daily's focus on the amount of spending might well have been sufficient to resolve the May 1996 issue, but it left open the issue for BAPAC's future issue advocacy on a larger scale.
Thus, the state court decided an issue of state law different from plaintiffs' major purpose theory and different from Chairman Daily's focus on the amount of spending. Under those circumstances, this court is not persuaded as a matter of fact that the county election board has changed course because of this litigation or the state court's decision rejecting plaintiffs' interpretation of Ind. Code § 3-5-2-37(a). The catalyst theory does not apply to the unusual circumstances of this case.
Even if the plaintiffs were entitled to any fees at all from the county defendants, they would be entitled only to a reasonable fee. A reasonable amount would be linked to their "success." The Supreme Court explained in Farrar v. Hobby that determining a reasonable fee must take into account the difference between what the plaintiff sought and what she obtained, as well as the significance of legal issues on which the plaintiff prevailed and the degree to which the lawsuit "accomplished some public goal other than occupying the time and energy of counsel, court, and client." 506 U.S. at 121-22. Plaintiffs achieved no success in nullifying Ind. Code § 3-5-2-37(a). What they obtained was exactly what they did not seek — a definitive judicial determination that the statute does not apply to "issue advocacy." Even if plaintiffs were deemed to have "prevailed" to that limited extent, they did not achieve any success on any theory that supported federal jurisdiction in the case. The courts found that the statute simply did not apply at all to the BAPAC's intended activities. Under those circumstances, there is a sound reason not to treat plaintiffs as prevailing parties for purposes of costs and fees. See Perlman v. Zell, 185 F.3d 850, 859 (7th Cir. 1999) (adopting broad principle "that if the outcome shows that the case did not belong in federal court, then costs may be denied or shifted" even where plaintiff formally prevails on other claims).
The court acknowledges that the Seventh Circuit commented that plaintiffs "essentially prevailed in the district court on statutory interpretation grounds," see 137 F.3d at 505, and later described the original result as a "victory" for plaintiffs. This court does not interpret those statements as intended to resolve at those stages of the case the relevant issues for purposes of a future fee application, especially in light of the relief sought in the complaint.
Plaintiffs' only arguable success in this case came when the county defendants stated back in October 1996 their view that BAPAC was not a political action committee. At that point, plaintiffs' attorneys had spent a small fraction of the time they ultimately spent on this case. From that point forward, plaintiffs achieved nothing. If any fee were to be awarded, it would be limited to time and expenses incurred only through the preliminary injunction hearing in October 1996.
However, the most reasonable explanation for plaintiffs' continued pursuit of the lawsuit past the denial of preliminary injunction is that the purpose of the lawsuit was to obtain the relief expressly sought in the complaint: a sweeping declaration that Ind. Code § 3-5-2-37(a) is facially unconstitutional and unenforceable against anyone, not just against BAPAC. In that effort, plaintiffs achieved no success at all. If prevailing party status under § 1988 has any link to the practicalities of a lawsuit and to the plaintiff's goal, then plaintiffs did not achieve their goal and did not prevail. Further, the substantial majority of plaintiffs' attorneys' additional efforts served no apparent public purpose beyond occupying clients, counsel, and courts. See Farrar, 506 U.S. at 121-22.
In this respect, this case is strikingly similar to Mazanec v. North Judson-San Pierre School Corp., 798 F.2d 230 (7th Cir. 1986). In Mazanec, parents who home-schooled their children sought injunctive, declaratory, and monetary relief against school officials who had triggered a criminal prosecution under the Indiana laws requiring school attendance. The plaintiffs pursued the federal case as an attempt to make significant new law under the First Amendment. See 798 F.2d at 233-34. The district court and Seventh Circuit ultimately denied all relief on federal constitutional grounds. In the course of reaching its decision, however, the district court held that the plaintiffs had provided their children with an education equivalent to that required by state law. On that basis, which provided plaintiffs protection under state law, plaintiffs petitioned for attorneys' fees under § 1988.
The district court denied the request, and the Seventh Circuit affirmed with reasoning that applies directly to plaintiffs' claims in this case:
What the plaintiffs received was a declaration or a finding that they were in compliance with state law. This is not something the Mazanecs "sought" to achieve in bringing this lawsuit. The Mazanecs' amended complaint prays for injunctive, declaratory, and monetary relief based on alleged violations of their constitutional rights and those of their children. They never prevailed in getting any declaration that their civil rights claims had merit. Section 1988's purpose is to encourage the redress of civil rights violations. Coop v. City of South Bend, 635 F.2d 652, 655 (7th Cir. 1980). It would be an unsupportable extension for us to predicate any form of relief on a finding which was based on state law rather than a civil right guaranteed by federal law. The medium of a section 1983 suit does not convert every pro-plaintiff finding into a victory on "a significant issue." The success of the plaintiffs must be analyzed in the context of what they sought to accomplish and the purposes of the attorney's fees statute. In the absence of a finding of a federal civil rights violation, a declaration of compliance with state law does not trigger the possibility of attorney's fees under section 1988.798 F.2d at 237 (emphasis added). Cf. Lampher v. Zagel, 755 F.2d 99, 102-03 (7th Cir. 1985) (affirming award of fees for work done in state courts pursuant to agreed abstention order where district court later found that plaintiffs' federal constitutional rights had been violated). As in Mazanec, plaintiffs in this case did not seek to achieve in this lawsuit a determination that state law does not regulate their issue advocacy. That result is the opposite of what they sought. They sought instead to strike down the statute on federal constitutional grounds, and they did not succeed in that effort. As in Mazanec, it would be "an unsupportable extension" of § 1988 to base a fee award on a finding (let alone a government official's change of course) based solely on state law without any finding of a federal violation.
The court recognizes the tensions other courts have discussed in addressing fee issues when federal plaintiffs find themselves diverted to state court or prevailing solely on state law grounds. See generally, Pontarelli, supra, 788 F.2d at 51; Bartholomew, supra, 665 F.2d at 912-13. Nevertheless, as the Seventh Circuit reasoned in Mazanec, § 1988 was not designed to provide a means for shifting fees where there has been no violation of federal rights. Accepting plaintiffs' theory in support of fees in this case would open a back door for substantial fee awards in state law cases where state courts interpret state laws in ways that are valid under the federal Constitution. The door would be open whenever a lawyer had made a colorable argument that a state law might have been interpreted in a way that would have rendered it unconstitutional. An alternative course for resolving issues on the merits like those presented in this case would be state court litigation (either an enforcement action against plaintiffs or an action by plaintiffs for injunctive and declaratory relief) to resolve any significant uncertainties about the meaning of state law.
Federal court action (subject to fees under § 1988) would be needed only after the state courts had interpreted state law in a way that presented substantial federal constitutional questions. For the foregoing reasons, plaintiffs' petition for an award of attorneys' fees and costs is hereby denied.
So ordered.