Amicus Curiae Brief — Riverside v. Rivera

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(9) DEC 19 1025

No. 85-224 a Cae

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

CITY OF RIVERSIDE, ET AL., PETITIONERS

Vv.

SANTOS RIVERA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

WILLIAM KANTER

MICHAEL JAY SINGER

LEE S. LIBERMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

EST AVAILABLE COPY.

QUESTION PRESENTED

The United States will address the following ques-

tion:

Whether, in a case that results solely in an award

of money damages, a “reasonable attorney’s fee’ un-

der the Civil Rights Attorney’s Fee Awards Act of

1976, 42 U.S.C. 1988, should be reasonably related to

the amount of damages received by the plaintiff.

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TABLE OF CONTENTS

Ree Wr Gi EIMNOUEE GOMOD ...............cccccccnceccocccceneeseeeoeee

Neen nen eeenee Pree

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Introduction and summary of argument ....... AO a ae

Argument:

A reasonable attorneys’ fee in an action limited

solely to monetary relief should take into account

the prevailing contingent fee rate for personal in-

ES a,

By relying exclusively on the “lodestar” ap-

proach to compute an award of attorneys’ fees

in this case, the lower courts reached the

anomalous result that respondents’ counsel

would be more highly compensated than re-

a cecwmvsnsocccecs

. The prevailing contingent fee rate for personal

injury suits may often provide the best means

of computing a reasonable fee for claims result-

ing solely in monetary damages ........ oe) 2 Se .

ESET a Se a

Cases:

TABLE OF AUTHORITIES

Alyeska Pipeline Service Co. v. Wilderness Society,

EES LOE

Bivens v. Six Unknown Named Agents, 403 U.S.

i taadistttnenstecterersenenesescececeeessseres

Blum v. Stenson, No. 81-1374 (Mar. 21, 1984)...

Bonner v. Coughlin, 657 F.2d 931 _..... DS

Brown V. Ballas, 331 F. Supp. 1033 —.........0000000.......

A E

Carey V. Piphus, 485 U.S. 247 ................00..... ae

(III)

Page

Cases—Continued : Page

City of Los Angeles v. Lyons, 461 U.S. 95 _............. 10, 12

City of Oklahoma City v. Tuttle, No. 83-1919 (June

Oi, TRIED. cs sscrasiictenciascieechcatdemiusenensicdiaiebediaeadattendtnadenionadanatie 12

Copeland v. Marshall, 641 F.2d 880 _... 9, 21, 26

Cunningham v. City of McKeesport, 753 F.2d 262,

petition for cert. pending, No. 84-1793 . ............. 14

Davis Vv. County of Los Angeles, 8 Fair Empl. Prac.

ee acbibiaaaiats 25

Di Filippo v. Morizio, 759 F.2d 231 ......... Ett ee ss) 14

Grendel's Den, Inc. Vv. Larkin, 749 F.2d 945 _........... 13

Hanrahan v. Hampton, 446 U.S. 754 .................. paals 23

Hensley v. Eckerhart, 461 U.S. 424 ........................ passim

Imbler v. Pachtman, 424 U.S. 409 ................-.......-... 21

Jaquette Vv. Black Hawk County, 710 F.2d 455_._..... 13, 14

Johnson V. Georgia Highway Express, Inc., 488

GMMR eR Misa TE Sis ele ea ee ......9, 24, 25

Laffey v. Northwest Airlines, Inc., 746 F.2d 4,

cert. denied, No. 84-1655 (June 17, 1985)... 19

Lyle v. Teresi, 327 F. Supp. 683 ..............................-. 15

Lynch v. City of Milwaukee, 747 F.2d 423 _.......... 9, 13-14

PR OFS eee eeeeee 16

Marek v. Chesney, No. 83-1437 (June 27, 1985) ....8, 22, 24

Maryland vy. Macon, No. 84-778 (June 17, 1985)... 22

Monell v. New York City Dep’t of Social Services,

Se Tn I ceca eee ene cstmnaisacacesmeaciatied 11

Nephew Vv. City of Aurora, 766 F.2d 1464 ............... 13, 14

O’Shea Vv. Littleton, 414 U.S. 488 .......000..000000o.. 12

Pennsylvania V. Delaware Valley Citizens’ Council

for Clear Air, cert. granted, No. 85-5 (Oct. 7,

| RR oe OS oy Ae OT 2 I ena as 21

Perez v. University of Puerto Rico, 600 F.2d 1........ 14

Ramos V. Lamm, 713 F.2d 546 _........... cl aad meee Rt IR 14

Risso ¥. Geode, 438 US. BEB ...........-...-2--.----..22..-.-2.--. 12

Ruckelshaus v. Sierra Club, 463 U.S. 680.0000... 23

Scott v. Bradley, 455 F. Supp. 672 ............................ 14

Smith v. Robinson, No. 82-2120 (July 5, 1984)...9, 10, 24

Stanford Daily v. Zurcher, 64 F.R.D. 680 0... 25

Swann Vv. Charlotte-Mecklenburg Bd. of Educ., 66

GE cae ecereatets Settee 2 Sin ae aoe 25

Wilson v. Garcia, No. 83-2146 (Apr. 17, 1985)... . 21

Wojtkowski v. Cade, 725 F.2d 127 .............0.....000...... 14

Ee OFS SES

Constitution, statutes and rule: Page

U.S. Const.

Sf AIEEE LAE Ee OT BN oe, Ca ee 3

ERENT Ree” NSN eee ee ae 3, 22

ERSTE ATES SIR nae coo RAEN RTE 3

Civil Rights Attorney’s Fees Awards Act of 1976,

GD Tete TI enccsincnsenee nhddhenavadiahadosaeitnidtiiastumenmmndid passim

Equal Access to Justice Act, 28 U.S.C. 2412(b)_. 2

Gh LIS ME ee eee A, 14

42 U.S.C. 1981 ...... PLN RRR SOOO ANAR OTS er NEMO 3

4 i) PEE) NOOR ON ers 3, 4, 12, 20, 21

42 U.S.C. 1985(3) ............ Sseadanmanapihenianittammnadsemaacuieton : 3

ict. os sciaesemnmsimememeaceomabios 3

ESA rack aR EDO ee 14

A eae 2

a cinslanileaeuseuaians 24

Miscellaneous:

Awarding of Attorney’s Fees: Hearings Before

the Subcomm. on Courts, Civil Liberties and the

Administration of Justice of the House Comm.

on the Judiciary, 94th Cong., ist Sess. (1975)... 15

122 Cong. Rec. (1976) :

ee) eat 16

SESS aaa 16

< “(See 15, 16

RR ae ee gba 16

“SCS an OF i aa 16, 23

SET EER EET IES on 16

<A C ANE re i Sao 16

0 See ae 16

2 F. Harper & F. James, The Law of Torts (1956) .. 22

H.R. Rep. 94-1558, 94th Cong., 2d Sess. (1976) _.9, 15, 16,

23, 24, 25

S. 2278, 94th Cong., 2d Sess. (1976)... 14

S. Rep. 94-1011, 94th Cong., 2d Sess. (1976) 9, 16, 19, 22,

23, 25

The Effect of Legal Fees on the Adequacy of Rep-

resentation: Hearings Before the Subcomm. on

Representation of Citizen Interests of the Sen-

ate Comm. on the Judiciary, 93d Cong., 1st Sess.

SIE ESE REREAD Wa IDS ected 5 le STs ANS 15

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-224

CITY OF RIVERSIDE, ET AL., PETITIONERS

Uv.

SANTOS RIVERA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents important recurring questions

concerning the determination of the amount of attor-

neys’ fees that may properly be awarded to a prevail-

ing party under the Civil Rights Attorney’s Fee

Awards Act of 1976, 42 U.S.C. 1988. It is arguable

that the United States itself may, in certain circum-

stances, be held liable for attorneys’ fees under 42

U.S.C. 1988, by virtue of the Equal Access to Justice

(1)

Act, 28 U.S.C. 2412(b), which renders the govern-

ment liable for attorneys’ fees “to the same extent

that any other party would be liable under the * * *

terms of any statute which specifically provides for

such an award.” Accordingly, the United States has

a substantial interest in ensuring that fee awards are

not excessive or contrary to Congress’s intent. On

the other hand, because private enforcement of the

civil rights laws provides an important supplement to

federal enforcement, the United States is vitally con-

cerned that “fully compensatory fee[s]” (Hensley v.

Eckerhart, 461 U.S. 424, 435 (1983)) be awarded in

appropriate cases. The government’s interest in strik-

ing the proper balance is not limited to cases aris-

ing under 42 U.S.C. 1988, because the Court’s deci-

sion undoubtedly will affect the computation of attor-

neys’ fees under other fee-shifting statutes as well

(Hensley, 461 U.S. at 433 n.7).

STATUTE INVOLVED

42 U.S.C. 1988 provides in pertinent part:

In any action or proceeding to enforce a provi-

sion ci sections 1981, 1982, 1983, 1985, and 1986

of this title, title IX of Public Law 92-318 [20

U.S.C. 1681 et seg.], or title VI of the Civil

Rights Act of 1964 [42 U.S.C. 2000d et seq.],

the court, in its discretion, may allow the prevail-

ing party, other than the United States, a rea-

sonable attorney’s fee as part of the costs.

STATEMENT

1. On August 1, 1975, City of Riverside police offi-

cers, using tear gas and physical force, broke up a

party at a private residence and made several arrests

(J.A. 177, 187-188). Among those arrested and

etait eaaa eee canines

prosecuted were four of the respondents in this case,

against whom charges were ultimately dismissed for

lack of probable cause (ibid.). Respondents—eight

Mexican-Americans involved in the August 1975 in-

cident—brought this action on June 4, 1976, against

petitioner City of Riverside, its chief of police, and

30 police officers (five of whom are petitioners here),

alleging various constitution! and federal statutory

civil rights violations and several pendent state com-

mon law torts (J.A. 177, 182 n.1).’ By way of relief,

respondents sought a declaratory judgment (Complaint

13), a preliminary and permanent injunction prevent-

ing “discriminatory harassment” and “discriminatory

enforcement of the law” (ibid.), compensatory and

punitive damages (id. at 14), and an award of at-

torneys’ fees and costs (ibid.). However, respondents

did not press their claim for injunctive relief (J.A.

214).

2. On January 10, 1978, the district court, on mo-

tion for summary judgment, dismissed respondents’

claims against 17 of the police officers named as de-

fendants in the complaint (J.A. 7-13). On September

16, 1980, following four years of discovery and two

settlement conferences, the case went to trial before

a jury over a period of nine days (id. at 177, 188).

After seven days of deliberations, the jury returned

verdicts in respondents’ favor on several of the civil

1 Specifically, respondents alleged that the defendants had

violated the First, Fourth, and Fourteenth Amendments, and

42 U.S.C. 1981, 1983, 1985(3), and 1986. Respondents also

set forth various state law claims based on allegations of

conspiracy, emotional distress, assault and battery, property

damage, breaking and entering, malicious prosecution, defa-

mation, false arrest, false imprisonment, lost wages, and

negligence (J.A. 182 n.1).

rights and common law claims against the City and

in favor of five of the individual police officers re-

maining in the suit on all claims (id. at 166-171).

Specifically, the jury found that the City and, three

of the officers had violated 42 U.S.C. 1983 in 11 in-

stances and awarded a total of $13,300 in compensa-

tory and punitive damages for those civil rights vio-

lations (J.A. 166-171).* In addition. the jury found

that the City and five of the officers (including the

three mentioned above) had committed 26 acts of

common law negligence, or false arrest and false

imprisonment, and awarded a total of $20,050 in com-

pensatory (and, in only one instance, punitive) dam-

ages (‘bid.). Thus, the jury verdicts against the City

and five individual police officers amounted to a com-

bined total of $33,350 in damages (ibid.; id. at 177).

3. On December 1, 1980, respondents moved for an

award of attorneys’ fees and costs under 42 U.S.C.

1988 (J.A. 14-64). Respondents objected on numer-

ous grounds (id. at 65-123), various supplemental

pleadings were filed (id. at 124-165), and the matter

came on for hearing in the district court on January

19, 1981 (id. at 166, 173). On April 7, 1981, the

court entered its decision on the attorneys’ fees mat-

ter (id. at 173-175). Respondents had sought com-

pensation for their attorneys at a rate of $125 per

hour for 1,946.75 hours, and for their law clerks at

a rate of $25 per hours for 84.50 hours, for a total

of $245,456.25—all of which the district court found

to be reasonable (id. at 174-175).* Accordingly, the

* Respondents’ Section 1983 claims were the only federal

claims submitted to the jury. Br. in Opp. 2 n.1.

* Respondents had also sought reimbursement for various

out-of-pocket costs (J.A. 62-64) and a multiplier of the regu-

lar attorneys’ fees by a factor of two, in order to “encourage

district court entered an award of $245,456.25 for

respondents on their attorneys’ fees claim (id. at

175).

Petitioners appealed only the attorneys’ fees award,

and the court of appeals upheld the award in its en-

tirety (J.A. 176-183; 679 F.2d 795). Petitioners then

sought review in this Court, which, on May 31, 1983,

granted certiorari, vacated the judgment below, and

remanded the case for further consideration in light

of Hensley v. Kckerhart, 461 U.S. 424 (1983) (J.A.

184; 461 U.S. 952).

On remand, the district court, on July 26, 1984,

issued a new opinion readopting the original attor-

neys’ fees award in its entirety (J.A. 185-192). Cit-

ing this Court’s decision in Hensley, however, the dis-

trict court this time stated that the number of hours

claimed by respondents’ counsel and the amount of

the fee award were reasonable in view of the level of

success achieved by the litigation (id. at 192). Peti-

tioners again appealed, and the court of appeals again

upheld the award of attorneys’ fees, stating without

elaboration that “the district court correctly recon-

sidered the case in light of Hensley” and “the fee

award is reasonable” (id. at 194). On August 28,

1985, Justice Rehnquist, acting as Circuit Justice, is-

sued an order granting petitioners’ application for a

stay of the court of appeals’ mandate (No. A-122).

INTRODUCTION AND SUMMARY OF ARGUMENT

The computation of a “reasonable” attorneys’ fee

under 42 U.S.C. 1988 must serve two difficult and

sometimes conflicting masters in each of the myriad

other attorneys to represent low income plaintiffs in im-

portant civil rights cases on a contingent fee basis” (id. at

43). The district court rejected these requests (id. at 175,

182 n.3).

eases for which a fee award can be made. On the

one hand, the fee award must be adequate to ensure

that plaintiffs with meritorious civil rights claims will

be able to attract competent counsel; on the other

hand, the award must not be so generous as to un-

justly enrich a plaintiff’s attorney at the defendant’s

expense. In computing a fee award, therefore, the

amount recovered by the plaintiff in damages is an

important consideration for the courts to assess, but

it is not the only one. In cases involving injunctive

relief, or an award of damages that has the same ef-

fect as an injunction, or an award of nominal dam-

ages, strict use of the amount of damages recovered

by a plaintiff to cap an attorneys’ fee award might

not sufficiently compensate a lawyer and therefore

might not be adequate to ensure that plaintiffs can

obtain adequate representation. However, in other

cases, such as this one, which can fairly be charac-

terized as a suit brought essentially for the monetary

benefit of the individual plaintiffs involved, an award

of attorneys’ fees that exceeds or approximates the

damages recovery would overcompensate plaintiffs’ at-

tornevs and thereby disserve Congress’s other equally-

important goal. We submit that in the latter cate-

gory of cases a fee that exceeds or approximates the

damages obtained by the plaintiff is presumptively

unreasonable and that the lower courts plainly erred

in upholding the award in this case.

1. In Hensley v. Eckerhart, 461 U.S. 424 (1983),

and Blum v. Stenson, No. 81-1374 (Mar. 21, 1984),

this Court ruled that the product of the number of

hours reasonably expended on a case and a reasonable

hourly rate is a presumptively reasonable attorneys’

fee under Section 1988. The Court recognized, how-

ever, that this figure would have to be adjusted in

some cases, and this case is one such exception. Be-

cause few reasonable plaintiffs would be willing to

pay their counsel more than they hope to recover in

damages, the lodestar does not provide a reliable guide

to the calculation of a reasonable attorneys’ fee where

it exceeds or approximates the plaintiff’s damages

recovery. In those circumstances, the lodestar pro-

duces a presumptively unreasonable fee that should

be adjusted downward. A downward adjustment is

also necessary to ensure that civil rights plaintiffs,

not their attorneys, will be the primary beneficiaries

of Section 1988.

2. The lower courts erred by failing to consider

whether the prevailing contingent fee rate would pro-

vide the appropriate method of calculating the fee

award. Given the nature of the constitutional and

common law tort claims that respondents presented,

an attorney who handles personal injury claims may

well provide the type of “similar services” (Blum v.

Stenson, No. 81-1374 (Mar. 21, 1984), slip op. 8

n.11) in the private bar that can be used as a com-

parison, and the prevailing contingent fee rate may

well represent the appropriate measure of compensa-

tion. A contingent fee approach would not prevent

plaintiffs with meritorious claims from obtaining

counsel where, as here, the potential damages recovery

is sufficiently large to provide adequate compensation.

This approach also ensures that attorneys handling

fee claims would not be more handsomely compensated

than other lawyers in the private sector, a result that

Congress did not intend.

3. Nothing in the opinions below suggests that

there is any reason for treating this case in a differ-

ent fashion. More than half of the original defen-

dants were dismissed from this suit on summary judg-

ment or were found not liable by the jury: the plain-

tiffs received only an award of damages; no injunc-

tion was entered; and neither the City nor the police

department was forced to modify a longstanding pol-

icy or custom. In sum, nothing in the opinions below

suggests that this suit constitutes anything more sig-

nificant than what it appears to be on the surface:

a constitutional and state law tort suit seeking dam-

ages as a result of a single incident.

ARGUMENT

A REASONABLE ATTORNEYS’ FEE IN AN ACTION

LIMITED SOLELY TO MONETARY RELIEF SHOULD

TAKE INTO ACCOUNT THE PREVAILING CON-

TINGENT FEE RATE FOR PERSONAL INJURY

CLAIMS

A. By Relying Exclusively On The “Lodestar” Approach

To Compute An Award Of Attorneys’ Fees In This

Case, The Lower Courts Reached The Anomalous Re-

sult That Respondents’ Counsel Would Be More Highly

Compensated Than Respondents Themselves

1. The Civil Rights Attorney’s Fee Awards Act of

1976, 42 U.S.C. 1988, authorizes the courts to award

a prevailing plaintiff “a reasonable attorney’s fee” in

suits brought under certain federal civil rights laws.

In that Act, Congress modified the traditional “Amer-

ican Rule,” under which each party to civil litigation

must generally bear its own legal fees (see Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S.

240 (1975) ), to ensure that “‘civil rights plaintiffs ob-

tain ‘effective access to the judicial process.’”” Marek

v. Chesny, No. 83-1437 (June 27, 1985), slip op. 8

(citations omitted). To provide the courts with

guidance for computing a “reasonable” attorneys’ fee

that is faithful to that principle, but avoids unjustly

enriching plaintiffs’ attorneys at a defendant’s ex-

pense, Congress identified the touchstone for calculat-

ing a “reasonable” fee in the following terms: “fees

[should be] adequate to attract competent counsel, but

[should] not produce windfalls to attorneys.” S. Rep.

94-1011, 94th Cong., 2d Sess. 6 (1976) [hereinafter

cited as Senate Report]; see also H.R. Rep. 94-1558,

94th Cong., 2d Sess. 9 (1976) [hereinafter cited as

House Report] (fee awards should be sufficient “to

attract competent counsel in cases involving civil and

constitutional rights, while avoiding windfalls to at-

torneys”’ ).

In Hensley v. Eckerhart, 461 U.S. 424 (1983), and

Blum v. Stenson, No. 81-1374 (Mar. 21, 1984), this

Court adopted a basic formula for computing an at-

torneys’ fee award. The initial step is to calculate

what has been termed the “lodestar” figure * by multi-

plying the number of hours reasonably expended on

the litigation by a reasonable hourly rate. Hensley,

461 U.S. at 433.° That figure “is presumed to be the

reasonable fee contemplated by § 1988.” Blum, slip

op. 10. The lodestar may then be adjusted in either

direction based chiefly upon the court’s assessment of

the degree of success the plaintiff obtained. Smith v.

Robinson, No. 82-2120 (July 5, 1984), slip op. 13-22;

Blum, slip op. 10-14; Hensley, 461 U.S. at 437. Be-

cause “[d]ue regard must be paid, not only to the

fact that a plaintiff ‘prevailed,’ but also the relation-

* See, e.g., Lynch v. City of Milwaukee, 747 F.2d 423, 426

n.1 (7th Cir. 1984) ; Copeland v. Marshall, 641 F.2d 880, 890-

891 (D.C. Cir. 1980) (en banc).

5 The Senate and House Reports refer to the factors identi-

fied in Johnson Vv. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974), as matters to be considered in computing

a fee award (see Senate Report 6; House Report 8), but most

of these considerations will be subsumed within the calcula-

tion of the lodestar. Hensley, 461 U.S. at 433-434 & n.9.

ship between the claims on which effort was expended

and the ultimate relief obtained” (Smith, slip op. 13),

‘where the plaintiff achieved only limited success, the

district court should award only that amount of fees

that is reasonable in relation to the results obtained”

(Hensley, 461 U.S. at 440). On the other hand, “an

enhanced award may be justified ‘in some cases of ex-

ceptional success’”’ (Blum, slip op. 10), because the

basic standard of reasonable rates multiplied by rea-

sonably expended hours may result in a fee that is

“ “unreasonably low’ ” (ibid. (citation omitted) ).

A variety of factors are material to the second step

of the analysis required by Hensley, but not every

factor is relevant in every case. The dollar amount of

a plaintiff's damages award may provide a good

benchmark in a case resulting solely in an award of

damages, but will obviously provide no assistance

where the only relief awarded was a declaratory judg-

ment or an injunction. By the same token, the entry

of an injunction may be independently significant

even in cases where damages are awarded, given the

stringent criteria that a plaintiff must satisfy to ob-

tain injunctive relief (see, .e.g., City of Los Angeles

v. Lyons, 461 U.S. 95 (1983)). (Of course, the ab-

sence of an injunction is significant as well, because

it demonstrates that the violations found by the court

or the jury are unlikely to recur.)* And even where

damages are the sole relief the plaintiff obtains, there

may be other circumstances, not reflected in the dam-

ages award, demonstrating that the case involved far

®* However, whether an injunction has been entered should

not be the sole criterion for measuring the reasonableness of

the lodestar, even where injunctive relief can be obtained, since

that would needlessly encourage the parties to seek such

relief, thereby adding unnecessarily to the litigation.

more than the resolution of individual grievances

against isolated instances of unlawful behavior by

state or local officials. For example, a nominal dam-

ages award may bring a halt to an unconstitutional

policy or custom that was previously endorsed by the

defendant and thereby vindicate the rights of the pub-

lic at large as well as the specific plaintiff (see Monell

v. New York City Dep’t of Social Services, 436 U.S.

658, 691-692, 694 (1978) ); in such a case, an award

of attorneys’ fees greater than nomina] damages

might be necessary to ensure that the plaintiff could

obtain counsel. In short, the inquiry should take into

account whether the relief awarded to the plaintiff

vindicated simply his own injuries or rectified a

broader or persistent pattern or practice of miscon-

duct that would perforce benefit the public as well.

2. This case does not involve a challenge to the con-

ditions of confinement in a state prison, segregated

conditions of a school system, or a pattern and prac-

tice of police misconduct; nor does this suit involve a

claim for relief for which only nominal damages could

be awarded. Rather, respondents sought an award of

substantial compensatory and punitive damages and

injunctive relief based on a variety of constitutional

and common law tort theories. However, respondents

did not pursue their claim for injunctive relief, and

the only relief that respondents received was a dam-

ages award, the bulk of which was based on their

state law torts, not their constitutional claims. No

injunction was entered against any of the defen-

dants,’ and nothing in the lower courts’ opinions sug-

7 Although the district court stated at a hearing that it

would have granted an injunction against some of the de-

fendants had respondents asked for one (J.A. 219), the court

made no findings of the type necessary to support injunctive

gests that the judgment caused the City or its police

force to restructure its operations in any manner that

would benefit the public in general. In sum, it is fair

to say—without in any sense denigrating the impor-

tance of the litigation—that this case involved a tort

suit brought essentially for the monetary benefit of

the individual plaintiffs whose rights were violated.

Nevertheless, the lower courts concluded that an at-

torneys’ fee award of $245,456.25 was “reasonable”

even though 17 of 32 defendants were dismissed prior

to trial, nine of the remaining individual defendants

were found not liable at trial, respondents obtained

no relief beyond an award of damages, the total

award of damages was only $33,350, and only $13,300

of that award (40% of the total) was attributable

to respondents’ civil rights claims. The fee award

was therefore more than seven times greater than the

total award of damages and more than 18 times

greater than that portion of the damages award at-

tributable to the civil rights claims for which Con-

gress authorized the courts to award attorneys’ fees.

That result cannot be squared with any conceivable

notion of a “reasonable” .attorneys’ fee. Assuming

arguendo that the district court’s findings were suffi-

cient under Hensley for the purpose of deciding

whether all of the hours claimed by respondents’ coun-

sel in this case were “reasonable” (an assumption

relief. See City of Los Angeles v. Lyons, supra; O’Shea Vv.

Littleton, 414 U.S. 488 (1974) ; Rizzo v. Goode, 423 U.S. 362

(1976). Moreover, although the City was found liable under

42 U.S.C. 1983, the district court—which entered its judgment

prior to this Court’s decision in City of Oklahoma City v.

Tuttle, No. 83-1919 (June 3, 1985)—did not find that respon-

dents had proven that a City “custom” or “policy” was un-

lawful.

that we are unwilling to accept, but that we will not

contest here), that court’s reliance upon a general

hourly rate for the legal services provided by for-

profit counsel produced the extraordinary result that

respondents’ counsel received a fee award seven times

greater than respondents’ total damages award.* It

goes without saying that few reasonable plairtiffs

would be willing to pay their attorneys more than

they hope to recover in damages in a case of this type

and that any approach to the computation of a fee

award that fails to consider this factor does not ade-

quately represent the actual workings of the private

market for legal services. See Jaquette v. Black

Hawk County, 710 F.2d 455, 460 (8th Cir. 1983)

(“common sense dictates that in a property damage

suit few clients would find it reasonable to expend

$100,000 to achieve a recovery of money damages not

to exceed $1,500’’).°

§ The court of appeals also is not blameless in this regard.

That court engaged in a perfunctory review of the district

court’s rather conclusory analysis in the teeth of some quite

substantial arguments that the district court altogether abne-

gated its responsibilities not only under Hensley but also

under this Court’s remand order. (For instance, it is im-

plausible that all the 45.5 hours of “stand-by” time spent by

one of respondents’ counsel awaiting the jury’s verdict was

“reasonable,” especially since respondent’s other counsel, who

was on the faculty at a Los Angeles area law school (J.A. 119),

seems to have been at hand.). Other courts of appeals have

not hesitated to reduce excessive fees. See, e.g., Grendel's

Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984). The court

of appeals should have done the same here.

® Most of the courts of appeals have ruled that the size of

the underlying money judgment is a relevant consideration in

computing a fee award. See Nephew v. City of Aurora, 766

F.2d 1464, 1466-1467 (10th Cir. 1985); Lynch v. City of

The same point can be made in a different way.

If Congress had adopted a statute forbidding lawyers

from charging more than a “reasonable” fee for their

services in civil rights cases (cf. 28 U.S.C. 2678; 42

U.S.C. 406(b)(1)), certainly few persons (and very

few plaintiffs) would maintain that a fee seven times

greater than a plaintiff’s tort recovery was “reason-

able.” But there should be no difference between that

situation and this one, because 42 U.S.C. 1988 only

shifts the burden of paying attorneys’ fees from a

successful plaintiff to an unsuccessful defendant and

does not modify the definition of a ‘“‘reasonable” fee

based simply on the identity of the party who must

pay it. A disproportionate fee is no less unreasonable

simply because the losing party must foot the bill.

Indeed, the disproportionate award of attorneys’

fees in this case is directly contrary to Congress’s be-

lief that plaintiffs’ attorneys would not be the pri-

mary beneficiaries of Section 1988. In the words of

Senator Tunney, the initial sponsor of the bill (S.

2278, 94th Cong., 2d Sess. (1976)) that ultimately

became 42 U.S.C. 1988, “[i]f any relief is accorded

by the passage of this bill, it will be granted to those

Milwaukee, 747 F.2d at 428 n.5; Wojtkowski v. Cade, 725 F.2d

127, 131 (1st Cir. 1984) ; Jaquette v. Black Hawk County, 710

F.2d at 459-461; Bonner v. Coughlin, 657 F.2d 931, 934-935

(7th Cir. 1981) ; Perez v. University of Puerto Rico, 600 F.2d

1, 2 (1st Cir. 1979) ; Burt v. Abel, 585 F.2d 613, 618 (4th Cir.

1978) ; see also Scott v. Bradley, 455 F. Supp. 672, 675 (E.D.

Va. 1978). But see Di Filippo v. Morizio, 759 F.2d 231 (2d

Cir. 1985) ; Cunningham v. City of McKeesport, 753 F.2d 262

(3d Cir. 1985), petition for cert. pending, No. 84-1793. In

Nephew, the Tenth Circuit distinguished (as dictum) and dis-

approved language in an earlier decision—Ramos v. Lamm,

713 F.2d 546, 557 (10th Cir. 1983)—that had taken a con-

trary view. See 766 F.2d at 1465-1466.

individuals who have been unlawfully deprived of

their constitutional rights.” 122 Cong. Rec. 32185

(1976). Representative Drinan, a principal sponsor

©The congressional hearings laying the groundwork for

the civil rights attorneys’ fee bill must have left Congress

with the impression that the fee measure to be drafted would

not create a favored wlass of civil rights litigators. As one

witness explained (Awarding of Attorney’s Fees: Hearings

Before the Subcomm. on Courts, Civil Liberties and the Ad-

ministration of Justice of the House Conim. on the Judiciary,

94th Cong., lst Sess. 227 (1975) [hereinafter cited as House

Hearings] (testimony of Philip J. Mause) ):

I do not think I have seen anyone writing in this area who

contemplates the situation in which Covington & Burling

simply sends its bill to the losing party in a case in which

its client won. I think the judge would have to retain

some discretion to determine the degree to which the

fees were reasonable.

See also The Effect of Legal Fees on the Adequacy of Repre-

sentation: Hearings Before the Subcomm. on Representation

of Citizen Interests of the Senate Comm. on the Judiciary,

93d Cong., lst Sess. 949-1024 (1973) [hereinafter cited as

Senate Hearings] (Mary Frances Derfner, Lawyer’s Com-

mittee for Civil Rights Under law) (digest of decisions in

civil rights cases in which the courts, prior to Alyeska,

awarded, discussed, or denied attorneys’ fees). This digest of

cases reveals that, as of 1973, the typical attorneys’ fee award

in civil rights cases was in the range of $350 to $5,006. Only

four out of the 30 fee examples provided were higher than

that amount. Significantly, in two of the cases cited, the

courts refused to award the fee amounts requested by counsel

because awards of that magnitude would have been dispro-

portionate to the damages obtained as a result of the litigation

(id. at 953, 967-968). See Brown v. Ballas, 331 F. Supp. 1033,

1037 (N.D. Tex. 1971) ; Lyle v. Teresi, 327 F. Supp. 683, 686

(D. Minn. 1971). Although these hearings preceded the

Court’s decision in Alyeska, they are cited in the Senate Re-

port as a basis for adopting the bill that became 42 U.S.C.

1988. See Senate Report 2.

of the bill in the House (Maine v. Thiboutot, 448

U.S. 1, 9-10 (1980)), made the same point, stating

that the “bill is not intended * * * to allow lawyers

* * * to recover unjustly from a defendant.” 122

Cong. Rec, 35124 (1976). In fact, a prominent con-

cern that surfaced during the floor debate over the

bill was that it would prove to be something of a

“Civil Rights Attorneys Relief Act” that would “guar-

antee large fees to attorneys.” Jd. at 31850 (Sen.

Allen) ; see, e.g., id. at 32394 (Sen. Helms); see also

id. at 35117 (Rep. Hyde). However, Senator Ken-

nedy, a chief sponsor and the Senate floor manager of

the bill, sought to lay such concerns to rest by ex-

plaining that “[w]e are not talking about the kind

of attorneys’ fees that were included in the antitrust

bill. You do not get rich from protecting civil rights

of citizens * * *. And the determination of fees is

left, in any event, to the discretion of the courts”

(id. at 31851)." It is therefore plain that Congress

intended that the goal of avoiding “windfalls for at-

torneys” (Senate Report 6; House Report 9) would

play as prominent a role in the calculation of a fee

award as the goal of encouraging plaintiffs to bring

meritorious civil rights suits.

3. The explanation for the startling award to re-

spondents’ counsel is that the lower courts miscon-

strued the guidelines for computing a reasonable at-

11 See also id. at 33314 (Sen. Kennedy) (the act is not “a

relief fund for lawyers”; “this bill is not for the purpose of

aiding lawyers”) ; id. at 32185 (Sen. Tunney) (the bill was

not intended to “‘grant[] relief to attorneys’; no “single case

of a lawyer getting rich on civil rights cases”) ; id. at 35127

(Rep. Jordan) (“[t]his is not a bill that we could term a

food-stamp bill for lawyers’; “[i]t is not going to work that

way’).

torneys’ fee established by this Court in Hensley and

Blum. Although both decisions emphasized that the

lodestar should produce a presumptively reasonable

attorneys’ fee, the Court nevertheless recognized that

this would not always be the case and that the lode-

star might have to be adjusted to ensure that a par-

ticular fee award was proper. See Hensley, 461 U.S.

at 434-440; Blum, slip op. 9-10. In computing the fee

award in this case, the district court erred by failing

to complete this step in the process. Where, as here,

a judgment consists solely of compe..satory and puni-

tive damages, we submit that any lodestar figure that

approximates or exceeds the amount of those damages

is presumptively unreasonable and must be closely

scrutinized by the courts.

In this case, the district court found that the re-

quested rate of $125 per hour for every hour spent

by respondents’ counsel was reasonable (J.A. 190),

even though the resulting fee was wildly dispropor-

tionate to the damages that respondents obtained. In

awarding respondents’ counsel $245,456.25 for re-

ceiving a $33,350 judgment, the district court ignored

or overlooked the salient fact that no attorney would

ever bill his client in that manner. Moreover, and

more important, the court’s mindless adherence to the

lodestar approach gave no consideration to the fact

that the generally prevailing contingent fee schedule

in the relevant legal community might well provide a

more appropriate standard for determining a “rea-

sonable” fee award for respondents’ counsel in these

circumstances. The failure to undertake this inquiry,

in our view, was inconsistent with the Court’s ruling

in Blum that a court must examine the fee schedule

established in the relevant leral community for “sim-

ilar services” (Blum, slip op. 8 n.11).

B. The Prevailing Contingent Fee Rate For Personal In-

jury Suits May Often Provide The Best Means Of

Computing A Reasonable Fee For Claims Resulting

Solely In Monetary Damages

1. In Blum vy. Stenson, supra, the Court addressed

the issue of how the appropriate dollar amount of

attorneys’ fee awards under 42 U.S.C. 1988 should be

calculated. The precise question before the Court was

whether use of the prevailing market rates charged

by for-profit attorneys to compute a fee award would

lead to exorbitant fees and provide -windfalls for

attorneys employed by nonprofit legal aid organi-

zations. Because such organizations incur lower oper-

ating expenses and, by definition, do not charge their

clients a fee that includes an element of profit for

the attorneys handling their litigation, it was argued

that a cost-based approach was the only means of

ensuring that legal aid attorneys would be adequately

compensated for their efforts but would not receive a

windfall at a defendant’s expense. See Blum, slip op.

5 & n.6. However, after examining the legislative his-

tory of the Act, the Court ruled that Congress in-

tended the courts to refer to the prevailing market

rate in the relevant legal community regardless of

whether a prevailing plaintiff was represented by

private counsel or by a nonprofit legal services or-

ganization. Slip op. 5-8.

In so ruling, the Court recognized that determining

an appropriate market rate for legal services was

inherently difficult, given the diversity in the services

offered by lawyers, their different experience, skills,

and reputation, and the fact that an ex post calcula-

tion of a reasonable fee was an inexact means of

resolving a matter that a lawyer normally negotiates

with his client before representation is undertaken.

Blum, slip op. 8 n.11. However, the Court found that

the inquiry was not altogether unmanageable because

“the rates charged in private representations may

afford relevant comparisons” (ibid.). The Court also

endorsed a standard requiring a prevailing party to

demonstrate that the sought-after rates “are in line

with those prevailing in the community for similar

services by lawyers of reasonably comparable skill,

experience and reputation,” which the Court, “for

convenience,” termed “the prevailing market rate.”

Ibid. That standard, the Court assumed, was con-

sistent with Congress’s intent that attorneys’ fee

award would allow plaintiffs with meritorious claims

to retain competent counsel, but would not unfairly

enrich plaintiffs’ attorneys at an unsuccessful defen-

dant’s expense. See id. at 6, quoting Senate Report 6.

Application of that standard in any given case can

be a complex undertaking where counsel lacks an

historic billing rate. That complexity, Blwm noted,

stems largely from the lack of a generally prevailing

narket rate for legal services and the differences

among attorneys in factors such as skill and experi-

ence. However, the difficulty in computing the appro-

priate “market rate’ may be tempered in some in-

stances where there is a separate “market” in the

private bar that can serve as a rough approximation

to the type of case at hand. In some instances, em-

ployment discrimination cases for example, the for-

profit bar may also litigate such cases and may have

generally prevailing rates that can be used as the

basis for calculating a reasonable attorneys’ fee under

the Act. In other cases, such as a school desegrega-

tion lawsuit, there may be no precise parallel in the

market.

2 See Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 16-17

(D.C. Cir. 1984), cert. denied, No. 84-1655 (June 17, 1985).

Given the diversity of claims that may be brought

under the statutes for which Section 1988 authorizes

a fee award, especially 42 U.S.C. 1983, the determina-

tion of what types of legal services are necessary to

represent a particular plaintiff, and thus what types

of private legal services are “similar,’’ may vary ac-

cording to particular issues presented by the case.

The different types of legal services rendered by law-

yers may therefore lead to varying results in the

calculation of the “prevailing market rate” depending

on the relevant market used. By requiring the courts

to look to the prevailing market rates for “similar

services,” however, Blum recognized that balancing

the goals of ensuring adequate representation for civil

rights plaintiffs, but not providing overcompensation

for their counsel, should take these differences into

account to the extent feasible.

2. a. Properly viewed, this case presents few of

the complications that can potentially arise in the

calculation of the prevailing market rate for com-

parable legal services, because this case allows that

determination, and an appropriate downward adjust-

ment, to be made without undue difficulty.

The material facts are simple and straightforward.

As noted above, respondents sought and obtained a

damages award for their constitutional and pendent

state law torts, but they obtained no broader form of

relief. In these circumstances, the appropriate mar-

ket rate for the “similar services” provided by for-

profit attorneys (Blum, slip op. 8 n.11) would be the

contingent fee rate that is used in the relevant legal

community for personal injury suits. Given the

13 We use the term “contingent fee” rate in its commonly-

understood sense that typically describes the arrangement in

nature of the claims respondents presented, the “per-

sonal injury bar” provides the relevant submarket

for this case because it provides services “similar”

to those involved here. The generally applicable con-

tingent fee rate used by attorneys who represent sim-

ilar plaintiffs in comparable types of litigation should

then accurately reflect the appropriate market rate

for the legal services provided to respondents.“ In-

deed, had respondents pursued only their state law

tort claims, a lawyer is likely to have used precisely

this rate to charge respondents for representing them.

The fact that respondents presented constitutional

claims in addition to their state law tort claims does

not call for a radically different conclusion. It is

well settled that Section 1983 “creates a species of

tort liability” (Jmbler v. Pachtman, 424 U.S. 409,

417 (1976)), and that “[Section] 1983 claims are

best characterized as personal injury actions” (Wil-

son v. Garcia, No. 83-2146 (Apr. 17, 1985)). More-

over, the purpose of an award under Section 1983 is

“to compensate persons for injuries that are caused

by the deprivation of [their] constitutional rights”

(Carey v. Piphus, 485 U.S. 247, 254 (1978) ), which

“plaintiffs’ tort representation.” Copeland, 641 F.2d at 893.

The term ‘‘contingency” has also been used to refer to adjust-

ments to the lodestar to compensate for the possibility at the

outset of litigation that the plaintiff will be unsuccessful.

Whether such multipliers are permissible is the issue before

the Court in Pennsylvania v. Delaware Valley Citizens’ Coun-

cil for Clean Air, cert. granted, No. 85-5 (Oct. 7, 1985).

14 The contingent fee award would be computed on the basis

of both the compensatory and punitive damages obtained by

respondents. By including the punitive damages award as part

of the basis, the contingent fee rate should more than ade-

quately compensate respondents’ counsel.

is precisely the purpose served by a common law dam-

ages award (id. at 254-255 (“‘[t]he cardinal prin-

cipal of damages in Anglo-American law is that of

compensation for the injury caused to [the] plaintiff

by defendant’s breach of duty”), quoting 2 F. Harper

& F. James, The Law of Torts § 25.1, at 1299 (1956)

(emphasis in original) ). As the Court explained in

Carey, “[r]ights, constitutional and otherwise, do

not exist in a vacuum. Their purpose is to protect

persons from injuries to particular interests, and

their contours are shaped by the interests they pro-

tect.” 435 U.S. at 254. Accordingly, since the “pur-

pose” served by the Fourth Amendment—to protect

against the arbitrary invasion of one’s liberty and

property (see, ¢.g., Maryland v. Macon, No. 84-778

(June 17, 1985), slip op. 5)—‘“protect[s] persons

from injuries” to essentially the same type of “inter-

ests” as do the various state law torts that respon-

dents’ also alleged in their complaint, there is every

reason to treat respondents’ constitutional tort claims

in the same manner as their analogous state law

claims. See Bivens v. Six Unknown Named Agents,

403 U.S. 388, 408-409 (1971) (Harlan, J., concur-

ring in the judgment) .*

b. This approach is consistent with the purposes

underlying 42 U.S.C. 1988. Congress adopted the

act to “encourage[] plaintiffs to bring meritorious

civil rights suits.” Marek v. Chesny, slip op. 9. The

prospect of recovering $11,000 for representing plain-

tiffs in a damages suit (assuming a contingency rate

15 In this case, it is no answer that a contingent fee ap-

proach should not be considered because “the rights involved

may be non-pecuniary in nature” (Senate Report 6; see Br.

in Opp. 22), since the rights involved in this case can be

represented in pecuniary terms, as the verdicts show.

of 33%) is likely to attract a substantial number of

attorneys. At the same time, it is not inconsistent

with Congress’s intent to allow the private bar in a

case such as this one to make the estimate whether

plaintiffs’ claims are “meritorious,” because that

is precisely the function that lawyers serve in the

marketplace.

Moreover, there is no indication that Congress in-

tended that civil rights plaintiffs should have a com-

pletely risk-free opportunity to litigate their claims.

On the contrary, Section 1988 retained the historic

requirement that a plaintiff establish that he is a

prevailing party to recover any fee award at all.

See Senate Report 1, 5; House Report 6-8; Hensley,

461 U.S. at 433; Hanrahan v. Hampton, 446 U.S. 754

(1980); see generally Ruckelshaus vy. Sierra Club,

463 U.S. 680, 684-685 (1983). In addition, a plain-

tiff who makes this showing has merely crossed “the

statutory threshold” (Hensley, 461 U.S. at 433) and

must also demonstrate that his fee request is “reason-

able.” The two-step process adopted by the Court in

Hensley for computing a presumptively reasonable

fee emphasizes the extent to which the plaintiff has

** Accord 122 Cong. Rec. 33314 (1976) (Sen. Kennedy)

(lawyer’s “fee is contingent not only upon his success, but

also upon the discretion of the judge before whom he ap-

pears”) ; House Hearings 8 (Rep. Sieberling) (the bill “‘cer-

tainly is not calculated to promote the interests of lawyers

who make the wrong judgment or who make an ineffective

presentation or who are on the wrong side of a lawsuit”) ;

id. at 166-167 (testimony of Peter A. Schuck, Consumers

Union) (the bill “does not subsidize public interest groups.

It does not give them generalized support for activities, some

of which Congress may support and some of which Congress

may not. But, as I say, it targets it [attorney’s fees] to a

particular objective, upon which Congress has spoken’’).

been successful. See Smith v. Robinson, slip op. 13-

22; Blum, slip op. 10-14; Hensley, 461 U.S. at 434-

440." This is so, Hensley explained, even where “the

plaintiff’s [unsuccessful] claims were interrelated,

nonfrivolous, and raised in good faith,” because “Con-

gress has not authorized an award of fees whenever

it was reasonable for a plaintiff to bring a lawsuit or

whenever conscientious counsel tried the case with

devotion and skill” (id. at 436). The “most critical

factor” in determining a reasonable fee is always

“the degree of success obtained.” Jbid; cf. Marek v.

Chesny, slip op. 8 (requiring civil rights plaintiffs

“to ‘think very hard’ about whether continued litiga-

tion is worthwhile” by applying Fed. R. Civ. P. 68 is

not inconsistent with Section 1988, given the Act’s

emphasis on the degree of success obtained).

Relying on the prevailing contingent fee rate, where

the lodestar produces a fee disproportionate to the

results obtained, also ensures that attorneys who rep-

resent civil rights plaintiffs will not be more hand-

somely compensated than attorneys who represent

other types of civil litigants, which Congress did not

intend. The standards Congress identified as a guide

for computing a reasonable fee make that point. For

instance, Congress referred the courts to the 12 fac-

tors discussed in Johnson v. Georgia Highway Ex-

press, Inc., 488 F.2d 714 (5th Cir. 1974), that were

17 As Justice Rehnquist noted in granting a stay of the

mandate in this case (No. A-122, slip op. 5), it is significant

that the House Report, in citing the Johnson factors for

guidance in determining a “reasonable” fee, chose to high-

light a key consideration under this eighth factor—“ ‘the

amount received in damages, if any.’” No. A-122, slip op. 5

(quoting House Report 8 (emphasis in opinion)). Hensley

also repeatedly underscored the importance o: the extent of

a plaintiff’s success in determining a reaso able attorney’s

fee. See 461 U.S. at 434-440.

derived from the provisions of the American Bar As-

sociation’s Code of Professional Responsibility gov-

erning the determination of a permissible fee for re-

tained counsel. See House Report 8; Senate Report

6; Hensley, 461 U.S. at 429-430 & n.3."° Congress

also cited three district court decisions said to “cor-

rectly appl[y]” the Johnson standards in fixing a

fee award (Senate Report 6), and each case cal-

culated a few award by reference to the prevail-

ing market rate for legal services. See Stanford

Daily v. Zurcher, 64 F.R.D. 680, 682 (N.D. Cal.

1974) ; Davis v. County of Los Angeles, 8 Fair Empl.

Prac. Cas. 244 (C.D. Cal. 1974) ; Swann v. Charlotte-

Mecklenburg Bd. of Educ., 66 F.R.D. 483, 486

(W.D.N.C. 1975).

This Court’s decision in Hensley also emphasized

that the “billing judgment” traditionally exercised by

counsel in private practice cannot be dispensed with

under Section 1988 merely because the opposing party

must foot the bill. See 461 U.S. at 434, 437; id. at

441 (Burger, C.J., concurring) (in private practice,

the client who is presented with a bill by his own at-

torney ordinarily has reason for “confidence that his

lawyer has exercised the appropriate ‘billing judg-

18 Those factors are as follows (488 F.2d at 717-719; see

also Hensley, 461 U.S. at 430 n.3):

(1) the time and labor required; (2) the novelty and

difficulty of the questions; (3) the skill requisite to

perform the legal service properly; (4) the preclusion of

employment by the attorney due to acceptance of the

case; (5) the customary fee; (6) whether the fee is fixed

or contingent; (7) time limitations imposed by the client

or the circumstances; (8) the amount involved and the

results obtained; (9) the experience, reputation, and

ability of the attorneys (10) the “undesirability” of the

case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar

cases.

ment’”’). On the contrary, any time that is “exces-

sive, redundant, or otherwise unnecessary” or that,

in general, fails to reflect “ ‘billing judgment,’ ”” must

be excluded since “‘[h]Jours that are not properly

billed to one’s client also are not properly billed to

one’s adversary pursuant to statutory authority.’ ”

461 U.S. at 434, quoting Copeland v. Marshall, 641

F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis

in original). In sum, the standards and billing prac-

tices that for-profit attorneys in the market would use

should be considered in calculating a reasonable fee

award under the Act.

Under the district court’s approach, by contrast,

the concerns expressed by some legislators in opposi-

tion to passage of Section 1988 would have been well-

founded. Despite the repeated assurances of the bill’s

chief sponsors that Section 1988 was designed to bene-

fit persons with meritorious civil rights claims and

not to enrich their counsel, the Act would overcom-

pensate attorneys who handle fee cases and, in some

instances, allow attorneys to collect fees that bear

little or no relation to the actual worth of the services

performed for their clients. No “billing judgment”

would have to be exercised by such attorneys, because

they would be compensated for all of their time spent

on a case in which their clients achieved some meas-

ure of success, even if the time they devoted to the

case was wholly out of proportion to the results ob-

tained on their client’s behalf. Congress plainly did

not intend that Section 1988 would operate in this

fashion, and this Court has already made clear that

the Act should not be permitted to serve as a ve-

hicle for the award of excessive fees. Hensley, 461

U.S. at 440.

ec. It is also important to note that any damages

recovery stemming solely from state law tort claims

NER st

should not be included in this determination. Con-

gress authorized the courts to award attorneys’ fees

only in “any action or proceeding to enforce a provi-

sion of” specified federal laws. Section 1988 does not

provide that fees may be awarded on the basis of

pendent state law claims, and its legislative history

does not suggest that Congress sought to require de-

fendants to underwrite the litigation of their adver-

saries’ state law tort claims by awarding attorneys’

fees for the time, expenses, or risks associated with

such claims. Therefore, including a plaintiff’s dam-

ages recovery for state law torts would artificially

inflate a fee award in a manner Congress did not

intend.

3. To summarize, although the lodestar should pre-

sumptively constitute a reasonable fee, there will be

cases in which this is not true, and some adjustment

must be made. Specifically, where the lodestar ex-

ceeds or approximates the damages recovered by a

plaintiff in a case resulting solely in that form of re-

lief, the lodestar produces an unreasonable fee and

should be reduced. In modifying such an award in

light of the results obtained, a court should consider

the prevailing contingent fee rate in the relevant legal

community, which, in a case seeking relief for con-

stitutional and common law torts, should provide an

appropriate guidepost for computing the market value

of the services provided by plaintiffs’ counsel.

Nothing in the opinions below discloses any circum-

stance that would justify a deviation from that ap-

proach here. At the outset of this litigation, respon-

dents sought broad declaratory and injunctive relief,

as well as damages, against the City, its chief of

police and 30 police officers for civil rights violations

and common law torts. After four years of litiga-

tion, respondents achieved only a damages judgment

against the City and five of its police officers in the

amount of $33,350—the bulk of which ($20,050) was

awarded to redress their state common law claims,

not their civil rights claims ($13,300). Nothing in

the opinions below indicates that respondents’ victory

constitutes anything more significant than it appears

to be on the surface, i.e., a monetary judgment

against the City and five low-level officers for injuries

sustained in a single incident. As Justice Rehnquist

noted (No. A-122, slip op. 2), “no restraining orders

or injunctions were ever issued against any of the

defendants, and the City of Riverside was not com-

pelled to, and did not, change any of its practices or

polices as a result of the suit.’”’ Accordingly, in fixing

a reasonable attorneys’ fee in light of respondents’

damages recovery, there is no reason not to apply the

contingent fee rate in this case.

CONCLUSION

The judgment of the court of appeals should be re-

versed and the case remanded for further proceedings.

Respectfully submitted.