                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3647
                        ___________________________

   St. Louis Effort for AIDS; Planned Parenthood of the St. Louis Region and
                               Southwest Missouri

                      lllllllllllllllllllll Plaintiffs - Appellants

    Consumers Council of Missouri; Dr. William Fogarty; Dr. Wayne Letizia;
        Missouri Jobs With Justice; Jeanette Mott Oxford; Chris Worth

                             lllllllllllllllllllll Plaintiffs

                                           v.

Director Chlora Lindley-Myers, in her official capacity as Director of the Missouri
  Department of Insurance, Financial Institutions, and Professional Registration

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                          Submitted: September 21, 2017
                            Filed: December 18, 2017
                                 ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

BENTON, Circuit Judge.
      St. Louis Effort for AIDS and Planned Parenthood of the St. Louis Region and
Southwest Missouri sued to enjoin the Health Insurance Marketplace Innovation Act
of 2013 (HIMIA), §§ 376.2000-376.2014 RSMo Supp. 2013. The district court
granted summary judgment to Effort for AIDS but denied attorney’s fees under 42
U.S.C. § 1988(b). Effort for AIDS appeals this denial. Having jurisdiction under 28
U.S.C. § 1291, this court reverses and remands.

                                            I.

      Effort for AIDS challenged many provisions of the HIMIA on preemption, due
process, and First Amendment grounds. The district court granted a preliminary
injunction based on the preemption claims. St. Louis Effort for AIDS v. Huff, 996
F. Supp. 2d 798, 810 (W.D. Mo. 2014). On appeal, this court affirmed in part. See
782 F.3d 1016, 1028 (8th Cir. 2015). On remand, the district court granted summary
judgment to Effort for AIDS, finding preemption of three provisions. See 170 F.
Supp. 3d 1219, 1226 (W.D. Mo. 2016). On these three provisions, Effort for AIDS
claimed (1) preemption and (2) violation of the First Amendment. In all the
decisions, the courts did not address the First Amendment claim (except for this
court’s comment on a provision not invalidated). See 782 F.3d at 1027-28.

       Effort for AIDS sought attorney’s fees under 42 U.S.C. § 1988(b): “In any
action or proceeding to enforce a provision of section[] . . . 1983 . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee . . . .”

      Effort for AIDS’s First Amendment claim could be fee-generating, that is,
success on it could be the basis for attorney’s fees under § 1988(b). But preemption
claims—the sole prevailing legal theory—are not fee-generating, because § 1983
does not provide a remedy for Supremacy Clause violations. See Armstrong v.
Exceptional Child Center, Inc., 135 S. Ct. 1378, 1383 (2015) (“[T]he Supremacy

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Clause is not the source of any federal rights . . . .” (internal quotation marks
omitted)).

       According to the district court, fees could be awarded if: (1) the First
Amendment claims are substantial, and (2) the First Amendment and preemption
claims arise from a common nucleus of operative fact. The district court found the
first condition—not disputed on appeal—but not the second. According to the
district court, although the claims challenged the same HIMIA provisions, the legal
theories involved different considerations and did not arise from a common nucleus
of operative fact.

       This court reviews de novo the legal issue whether § 1988(b) authorizes a grant
of attorney’s fees. See Phelps-Roper v. Koster, 815 F.3d 393, 398 (8th Cir. 2016).

                                          II.

      The “basic point of reference when considering the award of attorney’s fees is
the bedrock principle known as the American Rule: Each litigant pays his own
attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Baker
Botts LLP v. ASARCO LLC, 135 S. Ct. 2158, 2164 (2015), quoting Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 252–53 (2010). A litigant seeking
fees under statute must show “explicit statutory authority.” Baker Botts, 135 S. Ct.
at 2164, quoting Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of
Health & Human Res., 532 U.S. 598, 602 (2001).

      “For private actions brought under 42 U.S.C. § 1983 and other specified
measures designed to secure civil rights,” Congress established § 1988(b) as “an
exception to the ‘American Rule’ . . . .” Sole v. Wyner, 551 U.S. 74, 77 (2007).
Section 1988(b)’s authority for fees in § 1983 cases is not “extinguished” if the court
decides the case on alternative, non-fee-generating grounds. Smith v. Robinson, 468

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U.S. 992, 1006 (1984), citing Maher v. Gagne, 448 U.S. 122, 132 (1980) (“Congress
was acting within its enforcement power in allowing the award of fees in a case in
which the plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to
a substantial constitutional claim . . . .”).

      “The legislative history makes it clear that Congress intended fees to be
awarded where a pendent constitutional claim is involved, even if the statutory claim
on which the plaintiff prevailed is one for which fees cannot be awarded under the
Act.” Maher, 448 U.S. at 132 n.15. The Court in Maher quoted a footnote in a
House committee report:

             To the extent a plaintiff joins a claim under one of the
             statutes enumerated in H.R. 15460 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. Morales
             v. Haines, 486 F.2d 880 (7th Cir. 1973). 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.
             Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1342, 39 L.Ed.2d
             577 (1974). In such cases, if the claim for which fees may
             be awarded meets the ‘substantiality’ test, see Hagans v.
             Lavine, supra; United Mine Workers v. Gibbs, 383 U.S.
             715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), 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.’ United Mine Workers
             v. Gibbs, supra, at 725, 86 S.Ct., at 1138.

Id., quoting H.R.Rep. No. 94–1558, p. 4, n.7 (1976).




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      This court has distilled a two-part test: (1) the potential fee-generating claim
must be substantial, and (2) it and the successful claim must arise from a common
nucleus of operative fact. Rogers Group, Inc. v. City of Fayetteville, Arkansas, 683
F.3d 903, 911-13 (8th Cir. 2012), citing Kimbrough v. Arkansas Activities Ass’n,
574 F.2d 423, 426 (8th Cir. 1978).

      At issue is the second condition. Effort for AIDS argues that the claims arise
from a common nucleus of operative fact—Missouri’s passage of the HIMIA. The
State counters that under Smith, this is not enough, because the claims are not
reasonably related.

                                         III.

        This court’s decision in Rogers Group controls. The plaintiff there challenged
a city ordinance on state law and due process grounds. Rogers Grp., 683 F.3d at 905.
This court held that the common nucleus requirement was met:

      Rogers Group’s claim that the City lacked authority under Arkansas law
      to regulate the Quarry—Count I—arises from the same “common
      nucleus of operative fact” as its federal constitutional claims. That is,
      all the claims concern the City’s passage of an ordinance regulating rock
      quarries, including Rogers Group’s Quarry.

Id. at 913.

       The same is true here. Effort for AIDS’s claims all arise from Missouri’s
passage of the HIMIA regulating Effort for AIDS. The common nucleus requirement
is met.

       True, Smith requires that “a claim for which fees are awarded be reasonably
related to the plaintiff’s ultimate success.” Smith, 468 U.S. at 1007. In Smith, the

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Court concluded that “where, as here, petitioners have presented distinctly different
claims for different relief, based on different facts and legal theories, and have
prevailed only on a nonfee claim, they are not entitled to a fee award simply because
the other claim was a constitutional claim that could be asserted through § 1983.” Id.
at 1015.

       Smith’s reasonable relationship requirement is met where unaddressed and
successful claims seek the same relief and arise from a common nucleus of operative
fact. See Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1528 (11th Cir. 1988)
(“[C]laims are ‘reasonably related’ if they are aimed at achieving the same result
based on the same facts or legal theories.”); Seaway Drive-in, Inc. v. Township of
Clay, 791 F.2d 447, 455 (6th Cir. 1986) (claims are reasonably related if they
constitute “a single request for relief based on alternative legal theories” and “arose
out of a common nucleus of operative fact”). Cf. Wisconsin Hosp. Ass’n v. Reivitz,
820 F.2d 863, 869 (7th Cir. 1987) (fees are available under Smith if “the plaintiff has
a substantial constitutional ground, but prevails on an alternative nonconstitutional
ground . . . provided the grounds are closely related factually” (internal citations
omitted)); Rose v. State of Nebraska, 748 F.2d 1258, 1263-64 (8th Cir. 1984)
(distinguishing Smith because “Rose’s due-process claim was squarely based on the
same set of facts as to which he prevailed”). But cf. Giovanni Carandola, Ltd. v. City
of Greensboro, 258 Fed. Appx. 512, 517-18 (4th Cir. 2007) (unpublished) (claims not
reasonably related where the “legal issues were not tightly intertwined,” as
demonstrated by the plaintiff’s motion for summary judgment solely on the non-fee-
generating claim).

      In this case, as in Rogers Group, the plaintiffs sought the same relief under
alternative legal theories. The legal theories arise from a common nucleus of
operative fact. The claims are thus reasonably related under Smith.

                                    *******

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      The judgment is reversed, and the case remanded for proceedings consistent
with this opinion.
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