1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARC KARDELL,

Plaintiff, Case No. 6:13-cv-736-MC

 v. ORDER

LANE COUNTY, LIANE RICHARDSON,

and ALEX GARDNER,

Defendants.

_____________________________

MCSHANE, Judge:

After my order granting defendants’ motions for summary judgment, defendants Liane 

Richardson and Lane County moved for an award of attorney’s fees. Plaintiff Marc Kardell

claimed defendants retaliated against him after he spoke out on various department practices and 

policies. Ultimately, I concluded Kardell failed to demonstrate he spoke as a private citizen on 

matters of public concern.

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2 – OPINION AND ORDER

Unlike prevailing plaintiffs in civil rights cases, prevailing defendants in civil rights 

actions are not automatically awarded attorney’s fees. In fact, prevailing defendants in civil 

rights cases are only entitled to attorney’s fees in “exceptional circumstances,” and only when a 

plaintiff’s claims are “frivolous, unreasonable or groundless.” Harris v. Maricopa Co. Superior 

Court, 631 F.3d 963, 971 (9th Cir. 2011) (internal citations omitted). Good public policy reasons 

justify the different burdens for fees. Most significantly, awarding attorney’s as a matter of 

course to prevailing defendants in civil rights actions would greatly increase the risk to plaintiffs

bringing such cases, thereby frustrating Congress’s efforts promoting the “vigorous 

enforcement” of such statutes. Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).

Although I concluded Kardell failed to establish a genuine issue of material fact that he 

spoke as a private citizen on matters of public concern, his claims were neither frivolous nor 

groundless. Whether speech concerns a matter of public concern is “purely a question of law,” 

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009), and the law in this area is one of emerging 

jurisprudence, a fact most recently highlighted last year by the Supreme Court, Lane v. Franks, 

134 S. Ct. 2369, 2376-83. As I stated at oral argument, this case presented fairly close questions. 

Complicating matters in this case is the fact that Liane Richardson was ultimately terminated for 

cause by the Lane County Board of Commissioners. Richardson’s termination, and other events 

involving both the Board and Kardell’s own department, were certainly newsworthy (as 

evidenced by numerous newspaper articles Kardell submitted in opposition to summary 

judgment). 

Kardell ultimately identified specific speech in support of his claims. Kardell did not rely 

merely on newspaper articles or the public interest surrounding Richardson’s management of 

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3 – OPINION AND ORDER

Lane County during the time in question. Kardell’s arguments that his speech did not relate to 

mere interoffice personnel disputes, and did not occur as part of his normal job duties were not 

frivolous. That defendants prevailed at summary judgment does not automatically render

Kardell’s arguments frivolous. Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir. 

1994).

Defendants’ motion for fees (ECF No. 85) is DENIED. Plaintiff’s motion for fees 

incurred in drafting the surreply is DENIED.

IT IS SO ORDERED.

DATED this 13th day of January, 2015.

 /s/ Michael J. McShane 

Michael McShane

United States District Judge

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