Fees Denied in Pendent 1983/Preemption Case

R.J. Reynolds Tobacco Company filed suit against the AG of Washington challenging a Washington law that banned all promotional distribution of free cigarette samples in the state. The complaint alleged that the state law was preempted by the Federal Cigarette Labeling and Advertising Act. A second claim alleged that the Washington law violated the tobacco company’s rights to commercial speech protected by the First Amendment of the United States Constitution. The tobacco company moved for summary judgment solely on the basis of the preemption claim and won. Subsequently, the tobacco company sought attorneys’ fees under 42 U.S.C. § 1988 on the basis of its First Amendment claim. The district court denied the fee petition. R.J. Reynolds Tobacco Co. v. McKenna, 2006 WL 3289624 (W.D. Wash. Nov. 13, 2006).

R.J. Reynolds Tobacco Company filed suit against the AG of Washington challenging a Washington law that banned all promotional distribution of free cigarette samples in the state.  The complaint alleged that the state law was preempted by the Federal Cigarette Labeling and Advertising Act.  A second claim alleged that the Washington law violated the tobacco company’s rights to commercial speech protected by the First Amendment of the United States Constitution.  The tobacco company moved for summary judgment solely on the basis of the preemption claim and won.  Subsequently, the tobacco company sought attorneys’ fees under 42 U.S.C. § 1988 on the basis of its First Amendment claim.  The district court denied the fee petition.  R.J. Reynolds Tobacco Co. v. McKenna, 2006 WL 3289624 (W.D. Wash. Nov. 13, 2006). 

 

The court noted that 42 U.S.C. § 1988 authorizes fees for an action seeking to enforce 42 U.S.C. § 1983.  To prevail on a claim under § 1983, a plaintiff “must assert the violation of a federal right, not merely a violation of federal law.”  The court explained that a preemption claim under the Supremacy Clause “simply asserts that a federal statute has taken away local authority to regulate a certain activity.”  The court noted that a “preemption claim is not a colorable § 1983 action that would allow for recovery of attorneys’ fees under § 1988.”

 

The tobacco company argued that it was entitled to fees on the basis of the pendent First Amendment claim plead in their complaint.  The tobacco company relied upon cases holding that a plaintiff could obtain fees on a non-fee claim if the claims arise out of a common nucleus of operative facts and the plaintiff demonstrates that the constitutional claim is substantial.  Maher v. Gagne, 448 U.S. 122, 127 (1980); Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803, 808 (9th Cir. 2005). 

 

However, the court held that merely asserting a claim in the complaint was insufficient to establish substantiality.  The court distinguished this case from one in which constitutional claims were pressed but the court declined to reach them based on the judicial policy of avoiding unnecessary decision of important constitutional issues.  Instead, the court likened this case to White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848-59 (9th Cir. 1987), in which 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.”