FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN BROADCASTING 

COMPANIES, INC.; ASSOCIATED

PRESS; CABLE NEWS NETWORK;

CBS BROADCASTING INC.; FOX No. 07-15227 NEWS NETWORK; NBC UNIVERSAL,

INC D.C. No. .,

Plaintiffs-Appellants,  CV-06-01268-

PMP/RJJ

v.

OPINION ROSS MILLER*, in his official

capacity as the Secretary of State

of Nevada,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

October 23, 2008—San Francisco, California

Filed December 12, 2008

Before: J. Clifford Wallace, Sidney R. Thomas, and

Susan P. Graber, Circuit Judges.

Per Curiam Opinion

*Ross Miller is substituted for his predecessor, Dean Heller, as Secretary of the State of Nevada. Fed. R. App. P. 43(c)(2). 

16405
COUNSEL

J. Colby Williams (argued), Campbell & Williams, Las

Vegas, Nevada; for the plaintiffs-appellants. 

Nhu Q. Nguyen (argued), Senior Deputy Attorney General,

Carson City, Nevada; for the defendant-appellee. 

OPINION

PER CURIAM: 

Six media corporations (“Media Corporations”) filed a civil

rights suit against the Nevada Secretary of State pursuant to

42 U.S.C. § 1983, seeking declaratory and injunctive relief

allowing them to conduct exit polling in the November 2006

general election. Specifically, the Media Corporations argued

that section 293.740 of the Nevada Revised Statutes impermissibly restricted their free speech rights in violation of the

First and Fourteenth Amendments, respectively, by making it

unlawful for any person to speak to a voter on the subject of

marking his or her ballot within 100 feet of a polling place’s

entrance. In a thorough opinion consistent with circuit precedent, see Daily Herald Co. v. Munro, 838 F.2d 380, 384 (9th

Cir. 1988), the district court granted the Media Corporations’

motion for a preliminary injunction and enjoined the Nevada

Secretary of State from prohibiting the Media Corporations’

exit polling activities. The district court subsequently granted

the Media Corporations a permanent injunction. 

Thereafter, the Media Corporations sought attorneys’ fees

pursuant to 42 U.S.C. § 1988(b). The district court denied the

AMERICAN BROADCASTING COMPANIES v. MILLER 16407
request for fees. Its findings of fact and conclusions of law

consisted of a single sentence:

Having read and considered the foregoing, the Court

finds that as argued by Defendant Heller in its Opposition (#27), special circumstances exist in this case

similar to those presented in Thorsted v. Munro, 75

F.3d 454 (9th Cir. 1996), which warrant the exercise

of this Court’s discretion to deny Plaintiffs’ Motion.

[1] In most situations, a prevailing party under § 1983

should be awarded attorneys’ fees. “[A] court’s discretion to

deny fees under § 1988 is very narrow and . . . ‘fee awards

should be the rule rather than the exception.’ ” Herrington v.

County of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989) (quoting Ackerley Commc’ns, Inc. v. City of Salem, 752 F.2d 1394,

1396 (9th Cir. 1985)). The Supreme Court has held that “fees

should be awarded as costs unless special circumstances

would render such an award unjust.” Kentucky v. Graham,

473 U.S. 159, 164 (1985) (internal quotations and citations

omitted). When a district court departs from that general rule,

it “must issue findings of fact and conclusions of law identifying the ‘special circumstances’ and explaining why they render an award unjust.” Sethy v. Alameda County Water Dist.,

602 F.2d 894, 897 (9th Cir. 1979) (per curiam); see also Herrington, 883 F.2d at 744. A district court must adequately

explain its decision-making process so an appellate court can

engage in meaningful review. See McGrath v. County of

Nevada, 67 F.3d 248, 254 (9th Cir. 1995). 

[2] Here, the district court’s ruling does not identify the

special circumstances rendering the award unjust. The Secretary of State argues that the district court must have adopted

the arguments advanced by the Secretary in opposition to the

fee request. However, the district court had already rejected

most, if not all, of those arguments in its detailed opinion

granting the preliminary injunction. Further, the district court

erred in its reliance on Thorsted, a decision we already con16408 AMERICAN BROADCASTING COMPANIES v. MILLER
fined as based on factors “largely unique to that case.” Democratic Party v. Reed, 388 F.3d 1281, 1285 (9th Cir. 2004). 

[3] Rather than apply the Thorsted factors, we have

employed a two-pronged test to determine whether special

circumstances exist to justify denying attorneys’ fees, namely

whether: (1) awarding the attorneys’ fees would further the

purposes of § 1988; and (2) the balance of equities favors or

disfavors the denial of fees. Mendez v. County of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2008); Bauer v. Sampson,

261 F.3d 775, 785-86 (9th Cir. 2001); Gilbrook v. City of

Westminster, 177 F.3d 839, 878 (9th Cir. 1999). When

employing this test, we have stressed that attorneys’ fees

should be denied “only in unusual cases, . . . such as when

there is ‘both a strong likelihood of success on the merits and

a strong likelihood of a substantial judgment at the outset of

litigation.’ ” Mendez, 540 F.3d at 1126 (quoting Herrington,

883 F.2d at 745). 

[4] We therefore vacate the judgment of the district court

and its order denying the motion for attorneys’ fees, and

remand to the district court for its analysis pursuant to

Mendez, and for the entry of findings consistent with Sethy.

REVERSED and REMANDED.

AMERICAN BROADCASTING COMPANIES v. MILLER 16409