McSally, Martha v. Rumsfeld, Donald H.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 8, 2005

No. 04-5303

Martha McSally, Lt. Col.,
Appellant

v.

Donald H. Rumsfeld, Secretary of Defense,
Appellee

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit
Judges.

ORDER

Upon consideration of the motion for summary affirmance,
the opposition thereto, and the reply, it is
ORDERED that the motion be granted and the District
Court’s judgment filed July 23, 2004, denying appellant’s
request for an award of attorneys’ fees and costs, be affirmed.
The merits of the parties’ positions are so clear as to warrant
summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819
F.2d 294, 297 (D.C. Cir. 1987) (per curiam).
The issue in this case is whether appellant is entitled to an
award of attorneys’ fees under the Civil Rights Attorney’s Fees
Awards Act, 42 U.S.C. § 1988, which authorizes a fee award to
the “prevailing party.” We hold that she is not.
 2

In Buckhannon Board & Care Home, Inc. v. West Virginia
Dep’t of Health & Human Resources, 532 U.S. 598 (2001),
which involved the fee-shifting provisions of the Fair Housing
Amendments Act and the Americans with Disabilities Act, the
Supreme Court noted that the term “prevailing party” is a “legal
term of art” used in numerous federal statutes, including § 1988,
and the Court has “interpreted these fee-shifting provisions
consistently.” 532 U.S. at 603 & n.4. Joining several other
circuits that have considered the question, we hold that
Buckhannon applies to the definition of “prevailing party” under
the Civil Rights Attorney’s Fees Awards Act. See, e.g.,
Richardson v. Miller, 279 F.3d 1, 4-5 (1st Cir. 2002); N.Y. State
Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi &
Limousine Comm’n, 272 F.3d 154, 158 (2d Cir. 2001) (per
curiam).
On the record here, it is clear that appellant is not a
“prevailing party” as that term has been construed under the law
of this circuit. See Thomas v. Nat’l Sci. Found., 330 F.3d 486,
492-94 (D.C. Cir. 2003). In particular, the term “prevailing
party” does not authorize an award of attorneys’ fees when the
plaintiff achieves the desired result through legislative – not
judicial – action. See Buckhannon, 532 U.S. at 601, 604-06.
The Clerk is directed to publish this order pursuant to D.C.
Circuit Rule 36. The Clerk is further directed to withhold
issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en
banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk