John R. HILDEBRAND, Plaintiff-Appellant,
BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY et al., Defendants-Appellees.
FN* EDITOR'S NOTE : The opinion of the United States Court of Appeals,
Ninth Circuit in Church of Scientology of California v. United States
Department of Army, published in the advance sheets at this citation 607
F.2d 1282, was withdrawn from the bound volume because rehearing is
United States Court of Appeals,
Argued April 13, 1979.
Decided Dec. 3, 1979.
Action was brought by professor against university alleging that his
employment was terminated because of exercise of First Amendment rights. The
United States District Court for the Western District of Michigan, Wendell A.
Miles, J., entered judgment for defendants, and plaintiff appealed. The Court
of Appeals, 607 F.2d 705, reversed and remanded. On professor's request for
attorney fees, the Court of Appeals held that request of professor, who had
indeed prevailed on appeal but who had yet to establish that his rights
were violated, for attorney fees was premature.
 CIVIL RIGHTS
Request for attorney fees by university professor, who had obtained reversal on
appeal solely because of district court's error in not letting civil rights
case against university be tried before a jury, but who had yet to establish
that his rights were violated, was premature; until he established that his
rights were violated, university did not have to pay his attorney fees under
the Civil Rights Attorney's Fees Awards Act of 1976, which permits a
"prevailing party" in a civil rights suit to recover attorney fees as part of
his costs. 42 U.S.C.A. s 1988.
 CIVIL RIGHTS
Plaintiff must be a "prevailing party" on some substantial issue before he can
collect attorney fees under the Civil Rights Attorney's Fees Awards Act of
1976. 42 U.S.C.A. s 1988.
*1283 Kenneth Laing, Jr., MacLean, Seaman, Laing & Guilford, Lansing,
Mich., for plaintiff-appellant.
Lynwood E. Beekman, Foster, Swift, Collins & Coey, Lansing, Mich., for amicus
Leland W. Carr, Jr., Anderson, Carr, Street & Hornbach, Lansing, Mich., for
Before WEICK and KEITH, Circuit Judges, and CECIL, Senior Circuit Judge.
In a previous opinion in this case, we reversed the judgment of the District
Court and remanded for a prompt jury trial on the merits of plaintiff's civil
rights claims. We reversed solely because of the District Court's error in not
letting the case be tried before a jury. Hildebrand v. Board of Trustees,
607 F.2d 705 (6th Cir. 1979). The plaintiff, victorious on appeal, now seeks
to tax attorney's fees involved in the appeal as part of costs. He relies upon
the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. s 1988 which
permits a "prevailing party" in a civil rights suit to recover attorney's fees
as part of his costs.
 We think that this request is premature. The plaintiff has indeed
prevailed on this appeal, but he has yet to establish that his rights were
violated. Until he does, we do not think that the defendants should have to
pay his attorney's fees. Otherwise, innocent defendants could end up paying
for losing plaintiffs' procedural victories.
We are aware that Congress has authorized the award of attorney's fees
Pendente lite or upon a partial vindication of one's civil rights. See Sen.
Rep. No. 94-1011 (1976), Reprinted at 1976 U.S.Code Congressional &
Administrative News pp. 5908, 5912. Here, however, the plaintiff's successful
appeal had nothing to do with the merits of his claim.
 Plaintiff emphasizes that under the Act, attorney's fees are owed "as
part of the costs." He argues that since he is entitled to costs, his
attorneys should also be entitled to attorneys' fees. We think that this is too
restricted a reading of the statutory language. This reading ignores Congress'
intent to allow recovery only where rights are vindicated. A plaintiff must be
a "prevailing" party on some substantial issue before he can collect attorney's
fees. See United States v. Allegheny-Ludlum Ind., 558 F.2d 742 (5th Cir.
1977); Grubbs v. Butz, 179 U.S.App.D.C. 18, 548 F.2d 973 (D.C. Cir. 1976)
(applying analogous attorney's fees provision in the 1964 Civil Rights Act).
Plaintiff's request for attorney's fees at this juncture is denied.