ORDER
The opinion filed March 10, 2005, slip op. 3137 and appearing at 400 F.3d 803 (9th Cir. 2005), is amended as follows:
400 F.3d at 809 (slip op. at 3150, 10th line from the bottom of the page): Following the citation at the end of the sentence, "We conclude that the unaddressed due process and Commerce Clause claims . . . pass the `substantiality' test and therefore support an award of fees to the plaintiffs," add the following footnote and renumber the subsequent footnotes accordingly:
FN 1: The Commissioner and Amici argue that this result is contrary to
National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 592,
115 S.Ct. 2351,
132 L.Ed.2d 509 (1995).
Truck Council held that where an adequate state law remedy exists in a state tax case, federal courts are not permitted to award declaratory or injunctive § 1983 relief.
Id. at 589,
115 S.Ct. 2351. The Court affirmed the Oklahoma Supreme Court's rejection of the plaintiff's § 1983 claims and declined to award § 1988 attorney's fees because § 1983 relief could not be awarded.
Id. at 592,
115 S.Ct. 2351. The
Truck Council holding is entirely consistent with our decision. If a plaintiff does not have a substantial, properly cognizable § 1983 claim, then § 1988 attorney's fees may not be awarded. In addition, if the Supreme Court in this case had expressly affirmed
Gerling II's rejection of plaintiff's due process and Commerce Clause claims, then plaintiffs would not be entitled to § 1988 fees.
With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judges Graber and Paez have voted to deny the petition for rehearing en banc, and Judge Goodwin recommended denial.
The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.
The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.
No subsequent petitions for rehearing or petitions for rehearing en banc may be filed.