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Doe v. Tandeske

United States District Court, D. Alaska
Apr 6, 2005
No. A94-0206-CV (HRH) (D. Alaska Apr. 6, 2005)

Opinion

No. A94-0206-CV (HRH).

April 6, 2005


ORDER


Motion for Attorney Fees

Plaintiffs John Doe I, Jane Doe, and John Doe II move for an award of attorney fees in the amount of $14,375 for Darryl Thompson and $10,150 for Verne Rupright. Defendants, the Commissioner of the Department of Public Safety and the Attorney General for the State of Alaska, oppose the motion. Oral argument was not requested and is not deemed necessary.

Clerk's Docket No. 163.

Clerk's Docket No. 164.

Factual and Procedural Background

This case has a history which spans over ten years. An abbreviated case history follows. On May 12, 1994, the State of Alaska enacted the Alaska Sex Offender Registration Act ("ASORA"), which requires sex offenders and child kidnappers to register thirty days prior to release from a correctional facility, or by the next working day following conviction if not incarcerated at the time of conviction. AS 12.63.010(a). ASORA imposes a continuing obligation to register annually for a minimum of fifteen years if convicted of one non-aggravated sex offense, and for life if convicted of two or more non-aggravated sex offenses or one aggravated sex offense. AS 12.63.020(a).

Under ASORA, the following information is made available to the public: "the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with requirements of AS 12.63 or cannot be located." AS 18.65.087(b). Since 1997, the State of Alaska has published most of the above information on the Internet.

On May 13, 1994, plaintiffs John Doe I, John Doe II, and Jane Doe, the wife of one of the men, brought an action under 42 U.S.C. § 1983, challenging the constitutionality of ASORA. Both John Doe I and John Doe II pleaded no contest to sexual abuse of a minor in 1985, were released from prison in 1990, and completed rehabilitative programs for sex offenders. Although convicted before the passage of ASORA, plaintiffs are covered by the act. Plaintiffs' complaint sought to declare ASORA void as to them under the Ex Post Facto Clause of Article I of the United States Constitution and the Due Process Clause of the Fourteenth Amendment. In addition to seeking declaratory relief and a permanent injunction, plaintiffs' complaint sought the "[i]ssuance of a preliminary injunction, restraining enforcement of the Act as to the plaintiffs pending the final determination of all claims presented in this complaint."

Clerk's Docket No. 1.

Amended Complaint at 28, Clerk's Docket No. 10.

Early in the case, plaintiffs filed a motion for a preliminary injunction and a motion to proceed under pseudonyms. By order dated July 27, 1994, the court granted in part plaintiffs' motion for a preliminary injunction, requiring plaintiffs to register with the state but enjoining defendants from disseminating to the public the information concerning John Doe I and John Doe II received pursuant to registration. The court denied plaintiffs' motion for leave to file under pseudonyms and ordered plaintiffs to file an amended complaint using their true names. When plaintiffs refused to comply, the court dismissed the action and plaintiffs appealed. The Ninth Circuit reversed the dismissal for failure to use plaintiffs' true names and remanded for reinstatement of the complaint and further proceedings.

Clerk's Docket No. 3.

Clerk's Docket No. 2.

Clerk's Docket No. 33.

Minute Order (Aug. 6, 1996), Clerk's Docket No. 62.

Notice of Appeal (Aug. 9, 1996), Clerk's Docket No. 65.

Clerk's Docket No. 73.

The parties subsequently cross-moved for summary judgment. The court granted summary judgment for defendants by order dated August 12, 1999, and entered judgment dismissing plaintiffs' complaint with prejudice. Plaintiffs appealed and moved for an injunction on appeal replicating the one in place during the pendency of the case in district court. Defendants opposed the motion. On September 10, 1999, the court granted plaintiff's motion and reinstated the court's preliminary injunction pending disposition of plaintiffs' appeal.

Clerk's Docket No. 133.

Clerk's Docket No. 134.

Clerk's Docket No. 136.

Clerk's Docket No. 139.

Clerk's Docket No. 141.

On appeal, the Ninth Circuit held that ASORA violates the Ex Post Facto Clause, reversing the district court. Doe I v. Otte, 259 F.3d 979, 995 (9th Cir. 2001). On grant of certiorari, the United States Supreme Court reversed the decision of the Ninth Circuit, holding that ASORA is nonpunitive and its retroactive application does not violate the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84, 105-106 (2003). The Supreme Court remanded the case for further proceedings. On remand, the Ninth Circuit considered plaintiffs' due process claims and held that, under existing case law, ASORA does not deprive plaintiffs of procedural due process, nor violate plaintiffs' rights to substantive due process. Doe v. Tandeske, 361 F.3d 594, 596-597 (9th Cir. 2004).

On January 12, 2005, this court entered final judgment in favor of the defendants and against the plaintiffs as to all federal claims. In doing so, the court vacated its earlier judgment and dissolved the preliminary injunction directed at defendants. The court also indicated that it would entertain motions for an award of attorney fees and costs if filed within thirty days of judgment.

Clerk's Docket No. 162.

On February 10, 2005, plaintiffs filed the underlying motion for attorney fees. Defendants, who did not file a motion for attorney fees, oppose plaintiffs' motion.

Clerk's Docket No. 163.

Discussion

Plaintiffs move for an award of attorney fees pursuant to Rule 54.3, District of Alaska Local Rules, and 42 U.S.C. § 1988. Section 1988 states in pertinent part, "[i]n any action or proceeding to enforce a provision of [Section 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. . . ." 42 U.S.C. § 1988(b).

"A plaintiff must be a `prevailing party' to recover an attorney's fee under § 1988." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "If the plaintiff has succeeded on `any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit,' the plaintiff has crossed the threshold to a fee award of some kind." Texas State Teachers Ass'n v. Garland Indep. School District, 489 U.S. 782, 791-792 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). "Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." Hewitt v. Helms, 482 U.S. 755, 760 (1987). "Thus, at a minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers, 489 U.S. at 792. Moreover, the change in the legal relationship of the parties must be "judicially sanctioned." Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health, 532 U.S. 598, 605 (2001) ("A defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.")

Plaintiffs argue that they "prevailed on Count I of their complaint by procuring a preliminary injunction and therefore achieved some of, and in fact considerable relief through bringing this suit." Plaintiffs allege that the preliminary injunction prevented public disclosure of the registration information regarding plaintiffs for over ten years, and that during those years, they were able to establish employment histories, credit histories, and purchase homes.

Plaintiffs' Memorandum of Points and Authorities at 4-5, Clerk's Docket No. 163.

In support, plaintiffs cite Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980). In Williams, two individuals challenged police investigative practices known as "Operation Zebra." Police were using the investigative practices, which were aimed at black males, to solve a series of murders. After an evidentiary hearing, the district court entered findings of fact and conclusions of law and issued a preliminary injunction against the investigative practices. Police officials appealed the preliminary injunction. While the appeal was pending, the persons identified as the "Zebra" killers were convicted and the investigation ceased. The Ninth Circuit concluded that by obtaining the preliminary injunction, appellees prevailed on the merits of at least some of their claims. Id. at 847. The Ninth Circuit specifically stated:

The preliminary injunction prevented appellants from continued enforcement of their original guidelines, which is precisely the relief appellees sought. . . . Our previous dismissal of the appeal as moot and vacation of the district court judgment does not affect the fact that for the pertinent time period appellees obtained the desired relief, upon findings by the district court that the original guidelines were unconstitutional.
Id. at 847-848 (citations omitted).

Defendants argue that "[o]btaining a favorable preliminary injunction but then losing on the merits does not qualify a party as prevailing." In support, defendants cite Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002), where the Ninth Circuit recognized "that there will be occasions when the plaintiff scores an early victory by securing a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against him — a case of winning a battle but losing the war."

Opposition to Motion for Attorney Fees at 2, Clerk's Docket No. 164.

In Watson, a former county deputy sheriff brought an action against the county, alleging that county officials violated his civil rights by detaining him and compelling him to write a report concerning his alleged use of excessive force. Watson obtained a preliminary injunction preventing the use of the report at an administrative hearing on the appeal of his termination. The Ninth Circuit concluded that by "winning a preliminary injunction that prevented the use of his report at the administrative hearing, Watson obtained significant, court-ordered relief that accomplished one of the main purposes of his lawsuit . . . even though he failed to prevail on his other claims." Watson, 300 F.3d at 1096.

Defendants attempt to distinguish the results in Williams andWatson from the present matter by arguing that in Williams and Watson, the plaintiffs received "some lasting benefit from the litigation," whereas plaintiffs here "obtained only a transitory benefit from the preliminary injunction." Defendants do not cite, nor has the court's research produced, any authority for their proposition that "prevailing-party status contemplates the receipt of some lasting benefit from the litigation."

Id. at 3.

Id.

Rather, what distinguishes the present matter from Williams and Watson is that the plaintiffs in both of the aforementioned cases appeared to have had at least one viable cause of action which ultimately became moot. In Williams, appellees obtained a judicial determination that appellants had acted unconstitutionally in enforcing their original investigative practices. Williams, 625 F.2d at 848. The preliminary injunction against the investigative practices was vacated when the appeal was dismissed as moot after the murders were solved and the investigation ceased. In Watson, almost two years after issuing the preliminary injunction, the district court "found a triable issue relating to Watson's claim for injunctive relief based on an alleged violation of due process." Watson, 300 F.3d at 1094. By that time, however, the administrative hearing had "come and gone" and the parties agreed that the claim for permanent injunctive relief had become moot. Id.

Here, all of plaintiffs' claims were litigated on the merits, and plaintiffs lost on all of their claims. Unlike Williams andWatson, the preliminary injunction in this matter was dissolved not for mootness, but "for lack of entitlement." Watson, 300 F.3d at 1096.

Plaintiffs suggest that they are prevailing parties because they obtained, in part, the relief sought in their complaint, namely the preliminary injunction preventing disclosure of sex offender registration information regarding plaintiffs for over ten years. Based on controlling case law, however, the court finds that an interim preliminary injunction that turns out to have been wrongly granted does not "create the `material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." Buckhannon, 532 U.S. at 604 (quoting Texas State Teachers, 489 U.S. at 792-793); see also Hewitt, 482 U.S. at 760 (holding an interlocutory ruling that reverses a dismissal for failure to state a claim "is not the stuff of which legal victories are made"); Hanrahan v. Hampton, 446 U.S. 754, 756 (1980) (per curiam) (concluding that reversal of a directed verdict for defendant does not make plaintiff a prevailing party). Rather, the Supreme Court "has reviewed the legislative history of § 1988 and found that `Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.'" Buckhannon, 532 U.S. at 603 (quoting Hanrahan, 466 U.S. at 758).

For the reasons stated above, the court finds that plaintiffs are not prevailing parties and are thus not entitled to attorney fees on their claim for a preliminary injunction.

In their request for fees, plaintiffs also included hours expended litigating their use of pseudonyms on the grounds that "the pseudonym issue was both factually and legally intertwined with the request for preliminary injunction" and "plaintiffs ultimately prevailed on the pseudonym issue." While the court acknowledges plaintiffs' success in securing the right to proceed under pseudonyms, this success alone does not constitute the material alteration in the legal relationship of the parties necessary to support fee-shifting, nor render plaintiffs "prevailing parties" within the meaning of Section 1988. Texas State Teachers, 489 U.S. at 792 ("Where the plaintiff's success on a legal claim can be characterized as purely technical or de minimis, a district court would be justified in concluding that even the `generous formulation we adopt today' has not been satisfied.")

Plaintiffs' Memorandum of Points and Authorities at 7, Clerk's Docket No. 163.

Conclusion

Plaintiffs' motion for attorney fees is denied.

Clerk's Docket No. 163.


Summaries of

Doe v. Tandeske

United States District Court, D. Alaska
Apr 6, 2005
No. A94-0206-CV (HRH) (D. Alaska Apr. 6, 2005)
Case details for

Doe v. Tandeske

Case Details

Full title:JOHN DOE I, et al., Plaintiffs, v. BILL TANDESKE, et al., Defendants

Court:United States District Court, D. Alaska

Date published: Apr 6, 2005

Citations

No. A94-0206-CV (HRH) (D. Alaska Apr. 6, 2005)