Ninth Circuit Sides With Consonant Third, Fifth, Seventh, and Eleventh Circuit Opinions on the Issue.
The Ninth Circuit in Family PAC v. Ferguson, Case No. 12-35640 (9th Cir. Mar. 19, 2014) (published) dealt with the first impression issue for the Court of whether costs under F.Rule App. Proc. 39 did or did not include attorney’s fees recoverable under federal civil rights and other similar statutes. Siding with consonant decisions from the Third, Fifth, Seventh, and Eleventh Circuit Courts of Appeal, the Ninth Circuit agreed that the “costs” rule did not preclude an award of fees to a prevailing plaintiff, despite the appeals court earlier decision announcing each side would bear its own costs of appeal.