United States Court of Appeals

For the Eighth Circuit

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No. 16-4186

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State of North Dakota; Industrial Commission of North Dakota; Lignite Energy

Council; Basin Electric Power Cooperative; The North American Coal

Corporation; Great Northern Properties Limited Partnership; Missouri Basin

Municipal Power Agency, doing business as Missouri River Energy Services;

Minnkota Power Cooperative, Inc.,

lllllllllllllllllllllPlaintiffs - Appellees,

v.

Nancy Lange, Commissioner and Chair, Minnesota Public Utilities Commission;

John Tuma, Commissioner, Minnesota Public Utilities Commission; Dan M.

Lipschultz, Commissioner and Vice Chair, Minnesota Public Utilities

Commission; Katie Sieben, Commissioner, Minnesota Public Utilities

Commission; Matthew Schuerger, Commissioner, Minnesota Public Utilities

Commission; Jessica Looman, Commissioner, Minnesota Department of

Commerce, each in his or her official capacity, 1

lllllllllllllllllllllDefendants - Appellants.

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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Appellant Looman is automatically substituted for her predecessor under

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Federal Rule of Appellate Procedure 43(c)(2).
Submitted: October 18, 2017

Filed: August 14, 2018

[Published]

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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

*

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PER CURIAM.

This appeal concerns an award of attorney’s fees. In a previous appeal, this

court held that portions of Minnesota’s Next Generation Energy Act were

unconstitutional. North Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016). On

remand, the district court determined that the plaintiffs were entitled to attorney’s 2

fees and awarded them$1,310,088 in fees and costs. North Dakota v. Heydinger, No.

11-cv-3232, 2016 WL 5661926, at *28 (D. Minn. Sept. 29, 2016). The State of

Minnesota, through its officers, appeals the award. 

After the death of one judge on the panel, the remaining two judges have

determined the matter under Eighth Circuit Rule 47E. There is no opinion for the

panel, but the district court’s order is affirmed. Judge Colloton’s views are set forth

in a concurring opinion. Judge Loken concurs in the result.

Judge Murphy died on May 16, 2018, and thus did not participate in the final *

decision on this appeal.

The Honorable Susan Richard Nelson, United States District Judge for the

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District of Minnesota.

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COLLOTON, Circuit Judge, concurring.

In 2007, Minnesota adopted the Next Generation Energy Act, a statute

designed in part to regulate “greenhouse gas emissions and renewable energy

standards.” Ch. 136, 2007 Minn. Laws 1359, 1359. The Act required, in relevant

part, that “no person shall . . . (2) import or commit to import from outside the state

power from a new large energy facility that would contribute to statewide power

sector carbon dioxide emissions; or (3) enter into a new long-term power purchase

agreement that would increase statewide power sector carbon dioxide emissions.” 

Minn. Stat. § 216H.03, subdiv. 3(2)-(3) (2016).

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Several parties—including the State of North Dakota, the Industrial

Commission of North Dakota, and a number of private energy companies and

cooperatives—sued to enjoin Minnesota from enforcing the Act. These plaintiffs

brought a claim under 42 U.S.C. § 1983, asserting that enforcement of the Act would

violate the “dormant” Commerce Clause. They claimed alternatively that the

Minnesota Act was preempted by both the Federal Power Act and the Clean Air Act. 

The district court concluded that the Act violated the dormant Commerce Clause and

enjoined enforcement of the statute. North Dakota v. Heydinger, 15 F. Supp. 3d 891,

919 (D. Minn. 2014).

On appeal, a three-judge panel of this court affirmed the district court’s

injunction, but divided over the rationale. Two judges concluded that the Minnesota

Act was preempted (each relying on a different federal statute), and one judge

concluded that the state statute violated the dormant Commerce Clause. Heydinger,

825 F.3d 912. This court then remanded to the district court to determine whether the

plaintiffs were entitled to attorney’s fees.

The Minnesota legislature removed this language from the Act last year. See

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Act of May 30, 2017, ch. 94, art. 10, § 24, 2017 Minn. Laws 746, 897.

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The district court determined that the North Dakota state plaintiffs were

“persons” eligible for an attorney’s fees award, that the private plaintiffs could

recover attorney’s feesregardless ofthe state plaintiffs’ eligibility, and that there were

no “special circumstances” barring a fee award. Heydinger, 2016 WL 5661926, at

*6-15. The court then awarded $1,310,088 in attorney’s fees and costs. Id. at *28.

Minnesota appeals the district court’s determination that the plaintiffs are

entitled to attorney’s fees and, alternatively, the amount of the fee award. This court

reviews the legal issues de novo and the amount of the award for abuse of discretion. 

Snider v. City of Cape Girardeau, 752 F.3d 1149, 1159 (8th Cir. 2014).

“In the United States, parties are ordinarily required to bear their own

attorney’s fees—the prevailing party is not entitled to collect from the loser.” 

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532

U.S. 598, 602 (2001). Under this “American Rule,” federal courtsfollow “‘a general

practice of not awarding fees to a prevailing party absent explicit statutory

authority.’” Id. (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819

(1994)).

One source of statutory authority to award attorney’s fees is 42 U.S.C. § 1988. 

That statute provides: “In any action or proceeding to enforce a provision of

[§ 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.” § 1988(b). In this

case, one claim of the plaintiffs—the dormant Commerce Clause challenge—arose

under § 1983, Dennis v. Higgins, 498 U.S. 439, 451 (1991), but the two preemption

claims based on the Supremacy Clause did not. See Golden State Transit Corp. v.

City of Los Angeles, 493 U.S. 103, 107-08 (1989). Success on a preemption claim,

when brought by itself, thus cannot serve as the basis for a fee award under § 1988.

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Because a majority of the three-judge panel affirmed the district court’s

injunction based on non-fee-generating preemption claims, Minnesota contends that

the plaintiffs are ineligible for a fee award under § 1988. Generally speaking, to

qualify as a prevailing party under § 1988, a civil rights plaintiff proceeding under

§ 1983 “must obtain at least some relief on the merits of his claim.” Farrar v. Hobby,

506 U.S. 103, 111 (1992). But there is an exception to the general rule when a court

applies the doctrine of constitutional avoidance and holds for the plaintiff on a nonfee-generating claim. See Maher v. Gagne, 448 U.S. 122, 132 & n.15 (1980). Under

that exception, plaintiffs may still recover fees if (1) plaintiffs’ fee-generating claim

was substantial, (2) the fee-generating and non-fee-generating claims arose from a

common nucleus of operative fact, and (3) the court avoided resolution of the feegenerating claim under the doctrine of constitutional avoidance. Id.; Rogers Grp.,

Inc. v. City of Fayetteville, 683 F.3d 903, 911-12 (8th Cir. 2012).

The plaintiffs here satisfy the three requirements. First, the plaintiffs’ dormant

Commerce Clause claim was not insubstantial. In this context, the Supreme Court

has defined “substantial” by reference to the test for assumption of subject-matter

jurisdiction over a constitutional claim. Maher, 448 U.S. at 132 n.15. Under that

analysis, “[a] claimisinsubstantial only if ‘its unsoundness so clearly resultsfromthe

previous decisions of [the Supreme Court] as to foreclose the subject and leave no

room for the inference that the questions sought to be raised can be the subject of

controversy.’” Hagans v. Lavine, 415 U.S. 528, 538 (1974) (quoting Ex parte

Poresky, 290 U.S. 30, 32 (1933)). In other words, “constitutional insubstantiality”

for this purpose means “obviously frivolous.” Id. at 537. The plaintiffs’ feegenerating dormant CommerceClause claimprevailed with the district court and with

one judge of this court; the claim was “substantial” under the governing definition.

Second, the dormant Commerce Clause claim and preemption claims arose

from a common nucleus of operative fact. The claims all challenged the validity of

the same portion of the Minnesota Act, and the plaintiffs would “ordinarily be

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expected to try them all in one judicial proceeding.” United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725 (1966).

Third, it isfair to say that the doctrine of constitutional avoidance led this court

to avoid resolving the Commerce Clause claim. One judge found the constitutional

claim meritorious, Heydinger, 825 F.3d at 922 (opinion of Loken, J.), and a second

judge invoked the doctrine of constitutional avoidance in concluding that the

plaintiffs should prevail on a preemption theory instead. See id. at 927 (Colloton, J.,

concurring in the judgment). Under those circumstances, Minnesota does not dispute

that the fee-generating constitutional claimwas “reasonably related” to the plaintiffs’

ultimate success. See Smith v. Robinson, 468 U.S. 992, 1007 (1984); St. Louis Effort

for AIDS v. Lindley-Myers, 877 F.3d 1069, 1073 (8th Cir. 2017). Under the exception

recognized in Maher, therefore, the plaintiffs may recover attorney’s fees under

§ 1988 even though they ultimately prevailed on a non-fee-generating preemption

claim.

Minnesota responds that even if constitutional avoidance would allow for an

award of attorney’s fees, the North Dakota state plaintiffs are not eligible as

“persons” under § 1983 to recover fees. But it is unnecessary to address whether the

state plaintiffs are eligible if the private plaintiffs are entitled to the fee award, so it

is appropriate to consider the private plaintiffs first.

Minnesota argues that even if the private plaintiffs are eligible to receive fees

under § 1988, there are “special circumstances” that make an award inappropriate. 

An eligible party “should ordinarily recover an attorney’s fee unless special

circumstances would render such an award unjust.” Newman v. Piggie Park Enters.,

Inc., 390 U.S. 400, 402 (1968). Minnesota contends that the private plaintiffs should

not recover fees because the State of North Dakota bore the entire cost of litigation,

and it would be unjust to award fees to private plaintiffs who were “free riding”

through the lawsuit. The district court, however, found that “‘Plaintiffs’ (plural)

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retained [the law firm] to represent them, were issued invoices, and paid the

invoices.” Heydinger, 2016 WL 5661926, at *7.

Although the plaintiffs could have made a better record to simplify this issue,

the district court’s finding that the private plaintiffs received representation and paid

some ofthe attorney’s feesis not clearly erroneous. The limited information provided

by the plaintiffs supports a reasonable inference that North Dakota and the private

plaintiffs divided litigation expenses, and that retained counsel represented the

interests of the private plaintiffs as citizens of North Dakota. The private plaintiffs

also played a material role in the litigation, for it was their participation that

established standing and served as the basis for plaintiffs’ successful motion for

summary judgment. Id. at *6 n.7. The asserted “special circumstance” is therefore

not present, and it is unnecessary to address whether a party may recover fees when

the party contributes nothing substantial to the lawsuit and a co-plaintiff bears the

entire cost of litigation. Cf. U.S. Dep’t of Labor v. Rapid Robert’sInc., 130 F.3d 345,

348 (8th Cir. 1997); McLean v. Ark. Bd. of Educ., 723 F.2d 45, 47-49 (8th Cir. 1983).

Minnesota also complains that a fee award is unjust because the lawsuit

challenged an interpretation of the Minnesota Act that the State had “disavowed.” 

But this court concluded that Minnesota’s proposed interpretation of the Act would

not resolve the dispute, either because it was not a plausible limiting interpretation,

Heydinger, 825 F.3d at 920-21 (opinion of Loken, J.), or because even Minnesota’s

“narrower” interpretation failed to avoid preemption. Id. at 927-28 (Colloton, J.,

concurring in the judgment). Minnesota also assertsthat a fee award is inappropriate

in what is essentially a lawsuit between two States. Whatever the merit of that

position, the involvement of the private plaintiffs in this case defeats the premise. 

And because the private plaintiffs are entitled to a fee award, it is unnecessary to

address whether the state plaintiffs are eligible as “persons” under § 1983.

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The amount of the district court’s fee award was not an abuse of discretion. 

“The starting point in determining an attorneys’ fee award under § 1988 is the

lodestar, which is calculated by multiplying the number of hours reasonably expended

by reasonable hourly rates.” Snider, 752 F.3d at 1159. The number of hours

reasonably expended does not include “hours that are excessive, redundant, or

otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

The district court sufficiently scrutinized plaintiffs’ fee request to determine

the appropriate number of hours reasonably expended. The court set forth detailed

analysis that addressed each of Minnesota’s objections, agreeing with some and

disagreeing with others. The district court’s itemized decisions were not

unreasonable. The court also did not abuse its discretion by refusing to order the

plaintiffs to produce their engagement agreement, because the relevant terms and

facts of payment were described adequately in the plaintiffs’ affidavits. See

Heydinger, 2016 WL 5661926, at *17 n.14. Finally, the district court permissibly

awarded fees for hours spent on the unresolved dormant Commerce Clause claim,

because that claimwas not insubstantial and wasreasonably related to the preemption

claim on which the plaintiffs ultimately prevailed.

LOKEN, Circuit Judge, concurs in the result.

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