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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

R.J. REYNOLDS TOBACCO COMPANY, a

North Carolina Corporation,

Plaintiff,

v.

ROB MCKENNA, in his capacity as Attorney

General of Washington; and MERRITT D.

LONG, VERA ING, and ROGER HOEN, in

their capacities as Members of the Washington

State Liquor Control Board,,

Defendants.

Case No. C06-5223 FDB

ORDER DENYING PLAINTIFF’S

MOTION FOR ATTORNEYS’ FEES

This matter comes before the Court on motion of Plaintiff R.J. Reynolds Tobacco Company

for an award of attorneys’ fees pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54(d)(2). The

Court, having reviewed all materials submitted by the parties and relied upon for authority and being

fully informed hereby denies Plaintiff’s motion. For the reasons stated below, the Court finds

Plaintiff is not entitled to a fee award on the basis of an unadjudicated constitutional claim alleged in

the complaint.

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An Amended Complaint was filed on May 30, 2006 naming members of the Washington

State Liquor Control Board as additional defendants.

ORDER - 2

INTRODUCTION AND BACKGROUND

Plaintiff R.J. Reynolds Tobacco Company (RJR) filed its Complaint1

 in this Court on April

21, 2006, asserting that Washington Session Law Ch. 14 (2006) banning cigarette sampling is invalid

and unenforceable as contrary to the First Amendment protection of commercial speech and/or

preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA). Count I of the

Complaint setting forth the First Amendment claim simply states that (1) the First Amendment to the

United States Constitution protects commercial speech, (2) sampling is a form of commercial speech,

and (3) Chapter 14 of the 2006 Laws of Washington bans cigarette sampling in violation of the First

Amendment.

On June 22, 2006, exactly two months after commencing the action, RJR filed a motion for

summary judgment confined to the sole question as to whether Washington’s ban on sampling was

preempted by the FCLAA. This Court granted the motion, finding Washington Session Law Ch. 14

(2006) is preempted by the Federal Cigarette Labeling and Advertising Act. The Court enjoined

enforcement of Chapter 14 to the extent the law prohibits the sampling of cigarettes.

RJR now seeks an award of $232,060.50 as attorneys’ fees in connection with its successful

challenge to Washington Session Law Chapter 14 (2006).

SECTION 1988 ATTORNEYS’ FEES

The Civil Rights Attorney's Fee Award Act of 1976 provides, in relevant part: “In any action

or proceeding to enforce a provision of [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.” 42

U.S.C. § 1988(b). 42 U.S.C. § 1983, in turn, protects against the “deprivation of any rights,

privileges, or immunities secured by the Constitution and laws.” 

 In order to seek redress through § 1983, a plaintiff must assert the violation of a federal

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26 ORDER - 3

right, not merely a violation of federal law. Gonzaga University v. Doe, 536 U.S. 273, 285-86

(2002). A claim under the Supremacy Clause that a federal law preempts a state regulation is

distinct from a claim for enforcement of federal law under 42 U.S.C. § 1983. A claim under the

Supremacy Clause simply asserts that a federal statute has taken away local authority to regulate a

certain activity. Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2nd Cir.

2006). Accordingly, a preemption claim is not a colorable § 1983 action that would allow for

recovery of attorneys’ fees under § 1988. White Mountain Apache Tribe v. Williams, 810 F.2d 844,

848-50 (9th Cir. 1987); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987).

RJR argues that even though their preemption claim does not give rise to a fee award under §

1988, they are entitled to fees on the basis of the pendent First Amendment claim plead in the federal

complaint. A plaintiff who prevails on a claim not cognizable under § 1983 may recover fees under §

1988 on the basis of an unadjudicated pendent constitutional claim that is substantial and arises out

of the same operative facts. Maher v. Gagne, 448 U.S. 122, 127 (1980). In order to collect fees in a

case where the court declines to enter judgment for the plaintiff on a claim supporting attorneys' fees,

plaintiff must prevail on a non-fee claim that arises out of a common nucleus of operative facts and

must demonstrate that the constitutional claim is substantial. Gerling Global Reinsurance Corp. of

Am. v. Garamendi, 400 F.3d 803, 808 (9th Cir. 2005).

Like the appellants in White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848-50 (9th

Cir. 1987), RJR’s claim for a fee award fails to provide any meaningful basis for evaluating the

substantiality of the First Amendment commercial speech claim. In White Mountain, the only

information in the record of the appellant's constitutional claims were the “bare allegations”

contained in their complaint. Id. at 852. It thus appeared to the court that any civil rights claim was

at best “an afterthought” to their non-section 1983 claim. Id. at 855. “This is not a case where a §

1983 plaintiff seeks attorney's fees on the strength of constitutional claims which were pressed but

not adjudicated because of ‘the longstanding judicial policy of avoiding unnecessary decision of

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important constitutional issues.’ Maher v. Gagne, 448 U.S. at 133, 100 S.Ct. at 2576. Rather, this

is a case where the constitutional claims were never pressed beyond the original federal complaint

until they were dusted off for use in seeking a fee award under § 1988.” White Mountain, at 854. 

Fees will not be awarded in such circumstances. Id. See also, Howard v. City of Burlingame, 937

F.2d 1376, 1380-81 (9th Cir. 1991).

The Plaintiff in this case has likewise failed to provide a sufficient factual basis for a favorable

assessment of the substantiality of the First Amendment claim. The constitutional claim simply

appears as a three-line assertion in the original complaint that sampling is a form of commercial

speech that the State may not prohibit. Sixty days subsequent to filing this complaint, RJR filed its

motion for summary judgment. That dispositive motion does not even mention the First Amendment

claim, but confines itself to the claim of preemption. There is nothing in the record that establishes

substantiality. On the basis of the record, the First Amendment claim fails to meet the substantiality

test. 

CONCLUSION

For the forgoing reasons, Plaintiff is not entitled to a fee award on the basis of the

unadjudicated constitutional claim.

ACCORDINGLY;

IT IS ORDERED:

Plaintiff’s Motion for Attorney’s Fees [Dkt #39] is DENIED.

DATED this 13th day of November, 2006.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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