Southwest Marine, Inc., a Corporation v. Campbell Industries, a Corporation, Triple "A" MacHine Shop, Inc., a Corporation

ORDER

Triple “A” Machine Shop’s suggestion for en banc consideration is rejected. A vote was taken, but a majority of the active judges were not in favor of en banc consideration.

OPINION

The petition for rehearing is denied. Triple “A” Machine Shop’s reliance on Kentucky v. Graham, 473 U.S. 159 , 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985), is misplaced. Kentucky v. Graham held only that a government entity cannot be held liable in an action against a government official in his personal capacity. The decision in no way alters or affects the basic rule that a prevailing party may be awarded attorneys’ fees pursuant to Section 1988. Most important of all, the Court expressly disavowed any intent to change the current law with respect to the criteria for, or definition of, a “prevailing party”. As the Court explicitly said: “We express no view as to the nature or degree of success necessary to make a plaintiff a prevailing party. See Maher v. Gagne, 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980).” 105 S.Ct. at 3105 n. 9.

Thus the law of the case, Southwest Marine v. Campbell Industries, 732 F.2d 744 (9th Cir.1985), remains applicable. Moreover, in our view, that law was…