Is a plaintiff entitled to counsel fees even if the court declines to enter judgment on that claim?

MultiRegion, United States of America

The following excerpt is from White Mountain Apache Tribe v. Williams, 810 F.2d 844 (9th Cir. 1987):

[when] a plaintiff joins a claim under one of the statutes enumerated in [section 1988, for which attorney's fees are available,] with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive. In such cases, if the claim for which fees may be awarded meets the "substantiality" test [enunciated in] Hagans v. Lavine [, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974),] attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact."

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