United States Court of Appeals

For the Eighth Circuit

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No. 16-3647

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St. Louis Effort for AIDS; Planned Parenthood of the St. Louis Region and

Southwest Missouri

lllllllllllllllllllll Plaintiffs - Appellants

Consumers Council of Missouri; Dr. William Fogarty; Dr. Wayne Letizia;

Missouri Jobs With Justice; Jeanette Mott Oxford; Chris Worth

lllllllllllllllllllll Plaintiffs

v.

Director Chlora Lindley-Myers, in her official capacity as Director of the Missouri

Department of Insurance, Financial Institutions, and Professional Registration

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: September 21, 2017

 Filed: December 18, 2017

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Before COLLOTON, BENTON, and KELLY, Circuit Judges.

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BENTON, Circuit Judge.
St. Louis Effort for AIDS and Planned Parenthood of the St. Louis Region and

Southwest Missouri sued to enjoin the Health Insurance Marketplace Innovation Act

of 2013 (HIMIA), §§ 376.2000-376.2014 RSMo Supp. 2013. The district court

granted summary judgment to Effort for AIDS but denied attorney’s fees under 42

U.S.C. § 1988(b). Effort for AIDS appeals this denial. Having jurisdiction under 28

U.S.C. § 1291, this court reverses and remands.

I.

Effort for AIDS challenged many provisions of the HIMIA on preemption, due

process, and First Amendment grounds. The district court granted a preliminary

injunction based on the preemption claims. St. Louis Effort for AIDS v. Huff, 996

F. Supp. 2d 798, 810 (W.D. Mo. 2014). On appeal, this court affirmed in part. See

782 F.3d 1016, 1028 (8th Cir. 2015). On remand, the district court granted summary

judgment to Effort for AIDS, finding preemption of three provisions. See 170 F.

Supp. 3d 1219, 1226 (W.D. Mo. 2016). On these three provisions, Effort for AIDS

claimed (1) preemption and (2) violation of the First Amendment. In all the

decisions, the courts did not address the First Amendment claim (except for this

court’s comment on a provision not invalidated). See 782 F.3d at 1027-28.

Effort for AIDS sought attorney’s fees under 42 U.S.C. § 1988(b): “In 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 . . . .”

Effort for AIDS’s First Amendment claim could be fee-generating, that is,

success on it could be the basis for attorney’s fees under § 1988(b). But preemption

claims—the sole prevailing legal theory—are not fee-generating, because § 1983

does not provide a remedy for Supremacy Clause violations. See Armstrong v.

Exceptional Child Center, Inc., 135 S. Ct. 1378, 1383 (2015) (“[T]he Supremacy

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Clause is not the source of any federal rights . . . .” (internal quotation marks

omitted)).

According to the district court, fees could be awarded if: (1) the First

Amendment claims are substantial, and (2) the First Amendment and preemption

claims arise from a common nucleus of operative fact. The district court found the

first condition—not disputed on appeal—but not the second. According to the

district court, although the claims challenged the same HIMIA provisions, the legal

theories involved different considerations and did not arise from a common nucleus

of operative fact.

This court reviews de novo the legal issue whether § 1988(b) authorizes a grant

of attorney’s fees. See Phelps-Roper v. Koster, 815 F.3d 393, 398 (8th Cir. 2016).

II.

The “basic point of reference when considering the award of attorney’s fees is

the bedrock principle known as the American Rule: Each litigant pays his own

attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Baker

Botts LLP v. ASARCO LLC, 135 S. Ct. 2158, 2164 (2015), quoting Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 252–53 (2010). A litigant seeking

fees under statute must show “explicit statutory authority.” Baker Botts, 135 S. Ct.

at 2164, quoting Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of

Health & Human Res., 532 U.S. 598, 602 (2001).

“For private actions brought under 42 U.S.C. § 1983 and other specified

measures designed to secure civil rights,” Congress established § 1988(b) as “an

exception to the ‘American Rule’ . . . .” Sole v. Wyner, 551 U.S. 74, 77 (2007). 

Section 1988(b)’s authority for fees in § 1983 cases is not “extinguished” if the court

decides the case on alternative, non-fee-generating grounds. Smith v. Robinson, 468

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U.S. 992, 1006 (1984), citing Maher v. Gagne, 448 U.S. 122, 132 (1980) (“Congress

was acting within its enforcement power in allowing the award of fees in a case in

which the plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to

a substantial constitutional claim . . . .”).

“The legislative history makes it clear that Congress intended fees to be

awarded where a pendent constitutional claim is involved, even if the statutory claim

on which the plaintiff prevailed is one for which fees cannot be awarded under the

Act.” Maher, 448 U.S. at 132 n.15. The Court in Maher quoted a footnote in a

House committee report:

To the extent a plaintiff joins a claim under one of the

statutes enumerated in H.R. 15460 with a claim that does

not allow attorney fees, that plaintiff, if it prevails on the

non-fee claim, is entitled to a determination on the other

claim for the purpose of awarding counsel fees. Morales

v. Haines, 486 F.2d 880 (7th Cir. 1973). In some

instances, however, the claim with fees may involve a

constitutional question which the courts are reluctant to

resolve if the non-constitutional claim is dispositive. 

Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1342, 39 L.Ed.2d

577 (1974). In such cases, if the claim for which fees may

be awarded meets the ‘substantiality’ test, see Hagans v.

Lavine, supra; United Mine Workers v. Gibbs, 383 U.S.

715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), attorney’s fees

may be allowed even though the court declines to enter

judgment for the plaintiff on that claim, so long as the

plaintiff prevails on the non-fee claim arising out of a

‘common nucleus of operative fact.’ United Mine Workers

v. Gibbs, supra, at 725, 86 S.Ct., at 1138.

Id., quoting H.R.Rep. No. 94–1558, p. 4, n.7 (1976).

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This court has distilled a two-part test: (1) the potential fee-generating claim

must be substantial, and (2) it and the successful claim must arise from a common

nucleus of operative fact. Rogers Group, Inc. v. City of Fayetteville, Arkansas, 683

F.3d 903, 911-13 (8th Cir. 2012), citing Kimbrough v. Arkansas Activities Ass’n,

574 F.2d 423, 426 (8th Cir. 1978).

At issue is the second condition. Effort for AIDS argues that the claims arise

from a common nucleus of operative fact—Missouri’s passage of the HIMIA. The

State counters that under Smith, this is not enough, because the claims are not

reasonably related.

III.

This court’s decision in Rogers Group controls. The plaintiff there challenged

a city ordinance on state law and due process grounds. Rogers Grp., 683 F.3d at 905. 

This court held that the common nucleus requirement was met:

Rogers Group’s claimthat the City lacked authority under Arkansas law

to regulate the Quarry—Count I—arises from the same “common

nucleus of operative fact” as its federal constitutional claims. That is,

all the claims concern the City’s passage of an ordinance regulating rock

quarries, including Rogers Group’s Quarry.

Id. at 913.

The same is true here. Effort for AIDS’s claims all arise from Missouri’s

passage of the HIMIA regulating Effort for AIDS. The common nucleus requirement

is met.

True, Smith requires that “a claim for which fees are awarded be reasonably

related to the plaintiff’s ultimate success.” Smith, 468 U.S. at 1007. In Smith, the

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Court concluded that “where, as here, petitioners have presented distinctly different

claims for different relief, based on different facts and legal theories, and have

prevailed only on a nonfee claim, they are not entitled to a fee award simply because

the other claim was a constitutional claim that could be asserted through § 1983.” Id.

at 1015.

Smith’s reasonable relationship requirement is met where unaddressed and

successful claims seek the same relief and arise from a common nucleus of operative

fact. See Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1528 (11th Cir. 1988)

(“[C]laims are ‘reasonably related’ if they are aimed at achieving the same result

based on the same facts or legal theories.”); Seaway Drive-in, Inc. v. Township of

Clay, 791 F.2d 447, 455 (6th Cir. 1986) (claims are reasonably related if they

constitute “a single request for relief based on alternative legal theories” and “arose

out of a common nucleus of operative fact”). Cf. Wisconsin Hosp. Ass’n v. Reivitz,

820 F.2d 863, 869 (7th Cir. 1987) (fees are available under Smith if “the plaintiff has

a substantial constitutional ground, but prevails on an alternative nonconstitutional

ground . . . provided the grounds are closely related factually” (internal citations

omitted)); Rose v. State of Nebraska, 748 F.2d 1258, 1263-64 (8th Cir. 1984)

(distinguishing Smith because “Rose’s due-process claim was squarely based on the

same set of facts asto which he prevailed”). But cf. Giovanni Carandola, Ltd. v. City

of Greensboro, 258 Fed. Appx. 512, 517-18 (4thCir. 2007) (unpublished) (claims not

reasonably related where the “legal issues were not tightly intertwined,” as

demonstrated by the plaintiff’s motion for summary judgment solely on the non-feegenerating claim).

In this case, as in Rogers Group, the plaintiffs sought the same relief under

alternative legal theories. The legal theories arise from a common nucleus of

operative fact. The claims are thus reasonably related under Smith. 

* * * * * * *

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The judgment is reversed, and the case remanded for proceedings consistent

with this opinion.

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