*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0442p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MATTHEW DUBAY,

Plaintiff-Appellant,

v.

LAUREN WELLS, an individual, SAGINAW COUNTY

PROSECUTING ATTORNEY’S OFFICE, by and through

Michael D. Thomas, Prosecutor,

Defendants-Appellees,

MICHAEL A. COX, Attorney General for the State of

Michigan,

Intervenor-Defendant-Appellee.

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No. 06-2107

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 06-11016—David M. Lawson, District Judge.

Argued: September 10, 2007

Decided and Filed: November 6, 2007 

Before: CLAY and GIBBONS, Circuit Judges; HOOD, District Judge.*

_________________

COUNSEL

ARGUED: Thomas J. Plachta, PLACHTA LAW OFFICES, Mt. Pleasant, Michigan, for Appellant.

Christina M. Grossi, GILBERT, SMITH & BORRELLO, Saginaw, Michigan, Joel D. McGormley,

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

ON BRIEF: Thomas J. Plachta, PLACHTA LAW OFFICES, Mt. Pleasant, Michigan, for

Appellant. Christina M. Grossi, L. William Smith, GILBERT, SMITH & BORRELLO, Saginaw,

Michigan, Joel D. McGormley, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,

Lansing, Michigan, for Appellees. 

1
No. 06-2107 Dubay v. Wells, et al. Page 2

_________________

OPINION _________________

CLAY, Circuit Judge. Plaintiff Matthew Dubay (“Dubay”) appeals from the district court’s

dismissal of his case pursuant to Federal Rule of Civil Procedure 12(b)(6), and its award of attorney

fees to Defendants Lauren Wells (“Wells”), Saginaw County Prosecuting Attorney’s Office (the

“County”), and Intervenor-Defendant Michael A. Cox, Attorney General of the State of Michigan

(“Attorney General”). After Wells told Dubay she was infertile and using birth control, she became

pregnant with Dubay’s child, had the baby, and sued for child support. A Michigan court awarded

child support and Dubay brought this action challenging the constitutionality of the Michigan

Paternity Act, Mich. Comp. Laws § 722.711 et seq. (2002), and related statutes under the Equal

Protection Clause of the Fourteenth Amendment.

For the reasons that follow, we AFFIRM the judgment of the district court. 

I. BACKGROUND

This case is before us on an appeal from a dismissal for failure to state a claim upon which

relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In reviewing

such a dismissal, we “must accept all well-pleaded factual allegations of the complaint as true and

construe the complaint in the light most favorable to the plaintiff.” Inge v. Rock Financial Corp., 281 F.3d 613, 619 (6th Cir. 2002) (citing Turker v. Ohio Dept. of Rehab. & Corr., 157 F.3d 453, 456

(6th Cir. 1998)). In the instant case, the facts alleged in Dubay’s amended complaint are not in

dispute.

In the fall of 2004, Dubay and Wells became involved in a romantic relationship. At that

time, Dubay informed Wells that he had no interest in becoming a father. In response, Wells told

Dubay that she was infertile and that, as an extra layer of protection, she was using contraception.

Dubay, in reliance on these assurances, participated in a consensual sexual relationship with Wells.

The parties’ relationship later deteriorated. Shortly thereafter, and much to Dubay’s surprise,

Wells informed Dubay that she was pregnant, allegedly with Dubay’s child. Wells chose to carry

the child to term and the child, EGW, was born on an unspecified date in 2005. During the

pregnancy and birth of the child, Dubay was consistently clear about his desire not to be a father.

A few weeks after EGW’s birth, the County brought a paternity complaint against Dubay in

the Saginaw County Circuit Court under the Michigan Paternity Act. Wells and the County sought

a judgment of filiation, child support, reimbursement for delivery of the child, and other statutory

and equitable relief. Dubay requested a stay so that the constitutional issues presented by the

litigation could be resolved, but the trial court denied that request. Dubay thereafter brought this

action against Wells and the County in federal district court, seeking relief under 42 U.S.C. § 1983.

In his amended complaint, filed on March 29, 2006, Dubay alleged that the application of

the Michigan Paternity Act to his case violated the Equal Protection Clause of the Fourteenth

Amendment, as well as Article 1, Section 2 of the Michigan Constitution, which loosely parallels

the Equal Protection Clause. Dubay also requested costs and attorney fees under 42 U.S.C. § 1988.

The County’s answer asked the district court to dismiss Dubay’s complaint and requested attorney

fees pursuant to § 1988.

On April 19, 2006, the Attorney General moved to intervene. The Attorney General also

filed a motion to dismiss Dubay’s complaint. On April 27, 2006, the district court granted the

Attorney General’s motion to intervene. 
No. 06-2107 Dubay v. Wells, et al. Page 3

1

Dubay cites no law and makes no argument that focuses on Article 1, Section 2 of the Michigan Constitution.

Accordingly, Dubay has waived his claim that the Paternity Act violates the Michigan Constitution. See Indeck Energy

Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir. 2000) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.” (internal quotation and citation

omitted)).

On June 20, 2006, the parties presented the district court with a stipulation to dismiss Wells

from the case. The district judge, however, rejected the stipulation, concluding that Wells was a

necessary party to the action under Federal Rule of Civil Procedure 19. 

The parties argued the motion to dismiss before the district court on June 28, 2006. On

July 17, 2006, the court issued an opinion and order dismissing Dubay’s complaint with prejudice

pursuant to Federal Rule of Civil Procedure 12(b)(6). Dubay v. Wells, 442 F. Supp. 2d 404, 416

(E.D. Mich. 2006). The district judge also concluded that the Attorney General was entitled to

attorney fees. Id. at 416. 

Following the entry of this order, Wells and the County moved for attorney fees on July 20,

2006. The Attorney General also formally moved for attorney fees on July 27, 2006. On August

15, 2006, Dubay filed a timely notice of appeal. On September 13, 2006, the district court granted

the County’s motion for attorney fees in full and Wells’ and the Attorney General’s motions in part.

On appeal, Dubay challenges (1) the district court’s dismissal of his § 1983 claim under Rule

12(b)(6), and (2) the district court’s award of § 1988 attorney fees to Defendants. In addition to

disputing these arguments as groundless, Defendants have also filed a motion requesting us to award

them costs and attorney fees for this appeal pursuant to Federal Rule of Appellate Procedure 38. 

II. DISCUSSION

A. THE MICHIGAN PATERNITY ACT DOES NOT VIOLATE DUBAY’S

RIGHT TO EQUAL PROTECTION

1. Standard of Review 

We review de novo the district court’s grant of a defendant’s motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).

 The motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no

set of facts which would entitle him to relief.” Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004)

(internal quotation and citation omitted). In analyzing the complaint, all the factual allegations must

be viewed in the light most favorable to the plaintiff and the plaintiff must receive the benefit of all

reasonable inferences from the facts in the complaint. Evans-Marshall v. Bd. of Educ. of Tipp City

Exempted Village Sch. Dist., 428 F.3d 223, 228 (6th Cir. 2005). We do not apply a heightened

pleading standard for claims arising under 42 U.S.C. § 1983. Id. 

2. Analysis

Dubay seeks relief under 42 U.S.C. § 1983, which provides a remedy against “[e]very

person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the Constitution.” In support of his § 1983 claim, Dubay

alleges that the Michigan Paternity Act violates the Equal Protection Clause of the Fourteenth

Amendment,1

 which guarantees that “[n]o state shall . . . deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
No. 06-2107 Dubay v. Wells, et al. Page 4

2

Dubay has repeatedly asserted, both in his brief and at oral argument, that his § 1983 claim is not a substantive

due process challenge but rather is based upon a violation of the Equal Protection Clause. Despite these assertions, his

“equal protection” arguments rely heavily upon Supreme Court cases addressing substantive due process claims. To the

extent that Dubay seeks to establish a substantive due process right to disclaim fatherhood and thereby avoid paying child

support, we find this argument to be foreclosed by our decision in N.E. v. Hedges, 391 F.3d 832, 836 (6th Cir. 2004)

(holding that Kentucky statutes which require biological fathers to pay child support for biological children do not violate

the substantive due process guarantees of the Fourteenth Amendment). 

Though Dubay does not specify which sections of the Michigan Paternity Act he challenges,

a review of the statute reveals two primary contenders. First, § 2 establishes the duty of unmarried

parents to support their children. This section states, in relevant part, that “[t]he parents of a child

born out of wedlock are liable for the necessary support and education of the child.” Mich. Comp.

Laws § 722.712(1). Second, § 7 requires the court to “enter an order of filiation declaring paternity

and providing for the support of the child” if the court determines that the defendant is the father of

the child, if the defendant acknowledges paternity, or if the defendant has a default judgment entered

against him on the issue. Mich. Comp. Laws § 722.717(1). The statute directs the court to “specify

the sum to be paid weekly or otherwise” in the order of filiation. Mich. Comp. Laws § 717.717(2).

The amount of support is determined according to a formula established by the state friend of the

court bureau, but can be modified by the court upon a showing that the amount calculated by the

formula would be “unjust or inappropriate.” Mich. Comp. Laws §§ 722.717(2), 552.605. A

defendant who fails to comply with an order to pay child support faces serious consequences,

including wage garnishment, suspension of drivers or professional licenses, or jail. See generally

Michigan Support and Parenting Time Enforcement Act, Mich. Comp. Laws §§ 552.601-552.650

(2002).

Dubay argues that the enforcement of the Michigan Paternity Act against him denies him the

equal protection of the law in two ways.2

 First and foremost, Dubay argues that the Michigan

statutes deny him the equal protection of the law by affording mothers a right to disclaim parenthood

after engaging in consensual sex (i.e., through abortion) while denying that right to fathers. Second,

Dubay contends that Michigan law denies men equal protection by making it easier for a woman to

place a child in adoption or drop the newborn off at a hospital or other social service agency. An

examination of these claims under our equal protection jurisprudence, however, reveals that they

lack merit.

The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that

all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). However, “the

Fourteenth Amendment does not deny to [the] State the power to treat different classes of persons

in different ways.” Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). In reviewing state legislation for

an equal protection violation, “we apply different levels of scrutiny to different types of

classifications.” Clark v. Jeter, 486 U.S. 456, 461 (1988). In general, we start with the presumption

that the statute is valid. City of Cleburne, 473 U.S. at 440. To overcome this presumption, the party

challenging the statute must demonstrate that the statute is not rationally related to a legitimate

government purpose. Clark, 486 U.S. at 461 (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1, 17 (1973)). If the legislation’s official classification is based on gender, however, the

justification must be “exceedingly persuasive.” United States v. Virginia, 518 U.S. 515, 532-33

(1996) (citing Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). For such

classifications, the burden is on the state to demonstrate that the legislation serves “important

governmental objectives and that the discriminatory means employed are substantially related to the

achievement of those objectives.” Id. (internal quotation marks removed); accord Nguyen v. INS, 533 U.S. 53, 60 (2001); Hogan, 458 U.S. at 724; Craig v. Boren, 429 U.S. 190, 197 (1976). Finally,

classifications affecting fundamental rights “are given the most exacting scrutiny.” Clark, 486 U.S.

at 461. Under strict scrutiny, a regulation infringing upon a fundamental right will only be upheld
No. 06-2107 Dubay v. Wells, et al. Page 5

3

Despite Dubay’s protestations to the contrary, our holding in Hedges is consistent with the right to abortion

articulated by the Supreme Court in Roe v. Wade, 410 U.S. 113, 153 (1973). The woman’s right to abortion is not solely,

or even primarily, based upon her right to choose not to be a mother after engaging in consensual sexual intercourse.

Rather, the right to abortion, as articulated in Roe, derives from the woman’s right to bodily integrity and her privacy

interest in protecting her own physical and mental health. See id. (focusing on the negative mental and physical health

effects that would follow from denying a woman’s choice to terminate her pregnancy).

Moreover, Dubay’s claim that a man’s right to disclaim fatherhood would be analogous to a woman’s right to

abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child

support obligations, the child is already in existence and the state therefore has an important interest in providing for his

or her support. See Kulko v. Superior Court of California, 436 U.S. 84, 98 (1978); Clark, 486 U.S. at 462 (noting the

state’s interest in “ensuring that genuine claims for child support are satisfied”). When a woman exercises her right to

abortion, the pregnancy does not result in a live birth and there remains no child for the state to have an interest in

supporting. If the state allowed a mother to unilaterally disclaim the legal rights and obligations incident to motherhood

after the child was born, then the law would be extending a right to mothers which it does not afford to fathers.

However, the Michigan Paternity Act is clear that both “parents” of a child must provide support to the child once it is

born. Mich. Comp. Laws § 722.712(1). 

4

 The district court argued that “[a] judgment of filiation under the Paternity Act itself does not make Dubay

a father, it merely confirms a biological fact–that the man has sired the child–upon presentation of proper proof.” Dubay, 442 F. Supp. 2d at 414. This is a flawed reading of the statute. Liability for support does not attach to being a biological

parent, but rather to being the legal parent of the child. Section 772.712 thus does more than simply “confirm a

biological fact”–it establishes that the putative father is the legal father, which gives rise to legal consequences. See

Sinicropi v. Mazurek, 729 N.W.2d 256, 266 (Mich. Ct. App. 2006) (“[T]he Legislature astutely envisioned cases in

which it is discovered that the biological father is not the same individual who executed [a document acknowledging

parenthood] . . . . If an acknowledgment of parentage has been properly executed, subsequent recognition of a person

as the father in an order of filiation by way of a paternity action cannot occur unless the acknowledgment has been

revoked.”).

if it is narrowly tailored to serve a compelling state interest. See, e.g., Reno v. Flores, 507 U.S. 292,

305 (1993). 

Dubay cannot prevail under any of these equal protection theories. First, strict scrutiny does

not apply because the Michigan Paternity Act does not affect any of Dubay’s fundamental rights.

In N.E. v. Hedges, we found that the right to privacy, articulated in the Supreme Court’s substantive

due process jurisprudence, does not encompass a right to decide not to become a parent after

conception and birth. 391 F.3d 832, 835 (6th Cir. 2004). See also Rivera v. Minnich, 483 U.S. 574,

580 (1987) (finding that a “putative father has no legitimate right and certainly no liberty interest

in avoiding financial obligations to his natural child that are validly imposed by state law”). In

doing so, we explicitly rejected the argument, which Dubay raises in his brief, that “fairness”

dictates that men should receive a right to disclaim fatherhood in exchange for a woman’s right to

abortion.3 Hedges, 391 F.3d at 835. Our discussion clarified that it is not a fundamental right of

any parent, male or female, to sever his or her financial responsibilities to the child after the child

is born. See id. Thus, to the extent that Dubay claims that Michigan is not affording him equal

protection of the law by denying men, but not women, “the right to initiate consensual sexual

activity while choosing to not be a parent,” see Pl. Br. at 11, his argument must fail. 

Second, we do not need to apply intermediate scrutiny because the Michigan Paternity Act

does not discriminate on the basis of gender. The statutory provisions that impose the obligation

of support upon Dubay, and similarly situated fathers, are gender neutral. See Mich. Comp. Laws

§ 722.712(1) (“The parents of a child born out of wedlock are liable for the necessary support and

education of the child.” (emphasis added)). Likewise, while the provision allowing for a judgment

of filiation is technically based upon gender as it only provides for an order establishing that a man

is the legal father of the child,4

see Mich. Comp. Laws § 722.717(1), this provision must be read in

light of Michigan’s entire statutory scheme which also requires the identification of a mother at the

child’s birth, see Mich. Comp. Laws § 333.2822, and establishes a judicial remedy to ensure that

this mother is providing adequate support to the child. Mich. Comp. Laws §722.721(1). By
No. 06-2107 Dubay v. Wells, et al. Page 6

5

As our analysis indicates, while we do not apply intermediate scrutiny to the Michigan Paternity Act because

it does not discriminate on the basis of gender, we believe that the law would withstand such review. 

requiring the identification of a mother and a father for the child and by demanding that both these

parents provide support to the child, the Michigan statutes do not discriminate against either sex in

imposing parenting obligations and, thus, do not need to be reviewed under intermediate scrutiny.

Finally, the Michigan Paternity Act withstands rational basis review because it is rationally

related to a legitimate government purpose. Clark, 486 U.S. at 461. “The underlying purpose of

the Paternity Act is to ensure that the minor children born outside a marriage are provided with

support and education.” Crego v. Coleman, 615 N.W.2d 218, 228 (Mich. 2000). This is

undoubtedly a legitimate, and an important, governmental interest. Kulko v. Superior Court of

California, 436 U.S. 84, 98 (1978) (recognizing that a state’s interest in “protecting the welfare of

its minor residents” is “unquestionably important”). Moreover, the means that the statute uses to

achieve this end–requiring support from the legal parents, and determining legal fatherhood based

on the biological fatherhood–is substantially, let alone rationally, related to this legitimate, and

probably important, government purpose.5

 Accordingly, we find that Dubay has raised no viable

equal protection challenge to the Michigan Paternity Act. 

However, undeterred by this lack of legal authority, and failing to cite the specific statutes

that he challenges, Dubay further argues that “[u]nder Michigan’s safe haven and abandonment

laws, a mother can also unilaterally drop off a newborn at the hospital, police department, or clinic

without any legal or financial recourse whatsoever, something not afforded men. It is also easier

for a woman to place a child for adoption, and again avoid being forced into unwanted parenthood.”

Pl. Br. at 26. As with his challenge to the Paternity Act, this argument lacks legal foundation. 

By failing to cite a single challenged statute, Dubay has essentially waived the argument.

See Indeck Energy Servs., Inc., 250 F.3d at 979. In any event, the laws that Dubay appears to be

challenging are gender neutral and are rationally related to a legitimate government interest. See,

e.g., Safe Delivery of Newborns Act, Mich. Comp. Laws §§ 712.1-712.20 (2002). Dubay has

produced no evidence that any of these acts were motivated by a discriminatory intent or for a

discriminatory purpose. See Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th Cir. 2005).

Accordingly, we again find that Dubay cannot demonstrate that the challenged Michigan laws

violate the Equal Protection Clause. 

Because Dubay has no legal basis for his claim that the Michigan Paternity Act and other

unspecified statutes violate the Equal Protection Clause, he cannot show that the County’s

application of these laws to his case has deprived him of his constitutional rights as required for this

§ 1983 action. Therefore, we hold that the district court properly dismissed Dubay’s case for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

B. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

GRANTING ATTORNEY FEES TO DEFENDANTS UNDER 42 U.S.C.

§ 1988(b)

1. Standard of Review

We review the district court’s award of attorney fees to a prevailing party under 42 U.S.C.

§ 1988 for abuse of discretion. Revis v. Meldrum, 489 F.3d 273, 280 (6th Cir. 2007) (citing Berger

v. City of Mayfield Heights, 265 F.3d 399, 402 (6th Cir. 2001)). An abuse of discretion occurs when

we are left with a “definite and firm conviction that the trial court committed a clear error of

judgment.” Id. (citing Berger, 265 F.3d at 402).
No. 06-2107 Dubay v. Wells, et al. Page 7

6

Given the binding precedent of Hedges, which upheld a grant of attorney fees under § 1988 when considering

a similar issue as a matter of first impression, 391 F.3d at 836, we consider that Dubay would be hard pressed to argue

that the district court abused its discretion in this case.

2. Analysis

The district court awarded attorney fee to Wells, the County, and the Attorney General under

42 U.S.C. § 1988(b). Section 1988(b) states, in relevant part, that “[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.” 

Dubay does not challenge the district court’s substantive decision to grant Defendants

attorney fees under § 1988(b).6 Instead, Dubay contends that we should reverse because the district

court awarded attorney fees without providing him with due process of law. Specifically, Dubay

argues that the district court awarded “sanctions without any advance notice or opportunity to be

heard.” Pl. Br. at 29. 

This argument lacks merit. Dubay does not cite a single case concerning the award of

attorneys fees under §1988. Instead, the precedent upon which Dubay relies concerns sanctions

under Rule 11, see Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96-98 (2d Cir. 1997); Simmerman v.

Corino, 27 F.3d 58, 62 (3d Cir. 1994), or the district court’s inherent ability to sanction parties.

Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991). Unlike the issues presented in the aforementioned

cases, an award of attorney fees under § 1988(b) is not an award of sanctions. We have not

previously specified what, if anything, due process requires in the context of a § 1988(b) award. 

Even assuming, however, that due process requires notice and an opportunity to be heard

before awarding attorney fees under § 1988(b), Dubay’s challenge to the district court would fail

on its facts. The Attorney General moved for attorney fees in his motion to dismiss and the district

court addressed this issue in oral argument. The County and Wells moved separately for attorney

fees on July 20, 2006 and the Attorney General again formally moved for attorney fees on July 27,

2006. Dubay was provided with an opportunity to respond to all these motions and did, in fact, file

a response. Consequently, Dubay received notice and the opportunity to be heard before the district

court awarded attorney fees pursuant to § 1988(b). 

On these facts, we cannot say that Dubay was denied due process and, thus, we are not left

with the definite and firm conviction that the district court committed a clear error of judgment.

Accordingly, we find that the district court properly exercised its discretion in awarding attorney

fees to Defendants pursuant to § 1988(b).

C. AWARDING DEFENDANTS COSTS AND ATTORNEY FEES FOR THIS

APPEAL, PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE

38, IS NOT APPROPRIATE IN THIS CASE

1. Standard for Awarding of Costs and Attorney Fees under Rule 38

The awarding of costs and attorney fees under Federal Rule of Appellate Procedure 38 is a

matter entrusted to our discretion. Rule 38 provides that “[i]f a court of appeals determines that an

appeal is frivolous, it may, after a separately filed motion . . . and reasonable opportunity to respond,

award just damages and single or double costs to the appellee.” Fed. R. App. P. 38 (emphasis

added). We have explained that “the awarding of sanctions under Rule 38 is predicated upon a

finding that (1) the appeal is frivolous, and (2) sanctions are appropriate.” Allinder v. Inter-City

Products Corp., 152 F.3d 544, 552 (6th Cir. 1998). “Although the term ‘frivolous’ is not subject

to a ready made definition, generally ‘[a]n appeal is frivolous when the result is obvious or when
No. 06-2107 Dubay v. Wells, et al. Page 8

the appellant’s argument is wholly without merit.’” Pieper v. Am. Arbitration Assoc., 336 F.3d 458,

465 (6th Cir. 2003) (quoting Allinder, 152 F.3d at 552 (citations omitted)). We have further

indicated that “[a]n appeal is frivolous where an appellant ‘essentially had no reasonable expectation

of altering the district court’s judgment based on law or fact.’” Moross Ltd. Partnership v.

Fleckenstein Capital, Inc., 466 F.3d 508, 520 (6th Cir. 2006) (quoting Wilton Corp. v. Ashland

Castings Corp., 188 F.3d 670, 677 (6th Cir. 1999)). “Sanctions are appropriate where ‘the appeal

was prosecuted with no reasonable expectation of altering the district court’s judgment and for

purposes of delay or harassment or out of sheer obstinancy.’” Allinder, 152 F.3d at 552 (quoting

Reid v. United States, 715 F.2d 1148, 1155 (7th Cir. 1983)). However, “a finding of bad faith is not

required before sanctions under Rule 38 may be imposed by this [C]ourt.” Wilton Corp., 188 F.3d

at 677.

2. Analysis

We decline to award Defendants costs and attorney fees for the appeal in this case. While

we find Dubay’s challenge to the Michigan Paternity Act to lack support in our equal protection

jurisprudence, we do not consider his appeal of the district court’s decision to be frivolous or worthy

of imposing sanctions. Admittedly, our precedent in Hedges suggests that Dubay’s claim should

be viewed as “wholly without merit.” Pieper, 336 F.3d at 465. However, we note that Dubay

brought his claim under a different legal theory than the claim in Hedges. Indeed, in his brief and

at oral argument, Dubay specifically denied that his claim arose on substantive due process grounds

and instead affirmed that his constitutional challenge was based upon the Equal Protection Clause.

See Pl. Br. at 7. As Dubay raised his claim under a constitutional theory which we had not yet

rejected, we are not convinced that he had “no reasonable expectation of altering the district court’s

judgement.” Moross Ltd. Partnership, 466 F.3d at 520. Moreover, because some provisions in the

Michigan Paternity Act are phrased in gender specific ways, see Mich. Comp. Laws § 772.717(1),

we do not believe that Dubay had no reasonable basis for arguing that the district court improperly

applied rational basis review to his claim. Accordingly, we exercise the discretion afforded us by

Rule 38 to deny Defendants’ motions for costs and attorney fees.

Our decision not to award Defendants costs and attorney fees for this appeal, pursuant to

Rule 38, is not inconsistent with our decision to affirm the district court’s award of attorney fees

under 42 U.S.C. § 1988(b). The purpose of awarding attorney fees under Rule 38 is different than

the purpose for awarding such fees under § 1988(b). The primary reason for granting attorney fees

to a prevailing party in a § 1983 action is to ensure that civil rights plaintiffs will not be financially

deterred from vindicating their rights by the prospect of attorney costs which greatly exceed their

potential recovery. See Hudson v. Michigan, 126 S. Ct. 2159, 2167 (2006); Buckhannon Bd. & Care

Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 598, 635 (2001) (Ginsburg,

J., dissenting) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978)). In contrast,

the sole purpose of awarding attorney fees under Rule 38 is to discourage litigants from wasting this

Court’s time and the opposing party’s resources with frivolous appeals. See In re Pioneer Inv. Serv.

Co., 21 F.3d 428 (6th Cir. 1994) (unpublished table opinion) (citing Transnational Corp. v. Rodio

& Ursillo, Ltd., 920 F.2d 1066, 1072 (1st Cir. 1990)); Fluoro Elec. Corp. v. Branford Assoc., 489

F.2d 320, 326 (2d Cir. 1973). As the reasons justifying the two rules are quite distinct, a decision

to uphold a district court’s discretionary award of attorney fees under one rule is different from a

determination that such fees are appropriate under the other.

Moreover, as noted previously, we review the district court’s decision to award fees under

§ 1988(b) for abuse of discretion. Revis, 489 F.3d at 280. A district court does not abuse its

discretion simply because it exercises its discretion differently than the reviewing court would have

done in a similar situation. Bartholomew v. Town of Collierville, 409 F.3d 684, 686 (6th Cir. 2005).

While we are not convinced that the district judge abused his discretion in awarding attorney fees
No. 06-2107 Dubay v. Wells, et al. Page 9

to Defendants for the proceedings in the district court, we decline to exercise our own discretion to

award attorney fees for this appeal. 

III. CONCLUSION

For the foregoing reasons, the district court’s order dismissing Dubay’s § 1983 claim under

Rule 12(b)(6) and awarding attorney fees to Wells, the County, and the Attorney General as

prevailing parties under 42 U.S.C. § 1988(b) is AFFIRMED.