Amicus Curiae Brief — Riverside v. Rivera

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No. 85-224 JAK 3d 1988

SPANIOL, JR.

CLERK

IN THE “a

Supreme Court of the United States

OCTOBER TERM, 1985

CITY OF RIVERSIDE, et ai.,

” Petitioners,

SANTOS RIVERA, et al.,

Respondents,

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE WASHINGTON COUNCIL OF

LAWYERS, THE CHICAGO COUNCIL OF LAWYERS,

THE STATE BAR OF MICHIGAN, THE ANTITRUST,

TRADE REGULATION AND CONSUMER AFFAIRS

DIVISION OF THE DISTRICT OF COLUMBIA BAR, THE

LOS ANGELES COUNTY BAR ASSOCIATION, THE

MILWAUKEE BAR ASSOCIATION, THE COMMITTEE

ON LEGAL ASSISTANCE OF THE ASSOCIATION OF

THE BAR OF THE CITY OF NEW YORK, THE BAR

ASSOCIATION OF SAN FRANCISCO, AND THE

PLAINTIFF EMPLOYMENT LAWYERS ASSOCIATION

AS AMICI CURIAE SUPPORTING RESPONDENTS

PAUL M. SMITH *

JOSEPH N. ONEK

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Counsel for Amici

* Counsel of Record

A LS EL I EE a I OE I a I I IE IETS

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Amici will address the following question:

Whether, in a damages case brought under the federal

civil rights laws, a prevailing plaintiff’s award of attor-

neys’ fees under 42 U.S.C. § 1988 is limited to some fixed

proportion of the damages received.

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TABLE OF CONTENTS

a ieshibinsamonnenseetes

TEED Noh: STE

Interest of Amici............... ER th TR

I. A Rule of “Proportionality’”’ Between Damages

and Fees Would Conflict with the Fundamental

Purpose for which Congress Authorized Fee

Awards under the Civil Rights Laws ............

A. The Intent of Congress

B. Tee merevant Case Law ...................................

C. Practical Considerations...

lI. The “Results Obtained” in a Lawsuit are Rele-

vant to the Amount of Fees Awarded, but They

Must Be Assessed in Relative, Not Absolute

Tenn ss cccssenccecceacerensee:

IIf. A Rule of Proportionality is Not Needed to

sc ccccouenoseavecececs

Conclusion. ................

(iii)

Page

TABLE OF AUTHORITIES

Cases Page

Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240 (1975) ..............--.--------eseeeeeeeees 8

Basiardanes v. City of Galveston, 632 F.2d 1203

(Bite Cir. 1962) ................00.-nsccccerccenncsonaceeecsssenconsns 15

Blum v. Stenson, 104 S. Ct. 1541 (1984)..............-... 16, 23

Bonner v. Coughlin, 657 F.2d 931 (7th Cir. 1981)

CaO CUTE) aacsccicicisecececrnssencsenennvinseensessoncenonnsnns Bite 15

Burt v. Abel, 585 F.2d 615 (4th Cir. 1978)........ 15

Burton v. Patel, 595 F.2d 1182 (2d Cir. 1982).... 13

Carey v. Piphus, 435 U.S. 247 a By meses! 5, 11, 15, 19

Christiansburg Garment Co. v. EEOC, 434 USS.

GE CII dccicctncetinsesictdsssinstnidiiltiteensinintinncmpiasmmannne 6, 25

Coop v. City of South Bend, 635 F.2d 652 (7th

ii: TINIE... ocicscunssniedcoewvsedeeennncsaenseimneaemadaaatie 16

Cooper v. Singer, 719 F.2d 1496 (10th Cir. 1983) .. 13

Davis v. County of Los Angeles, 8 E.P.D. 9444

ORT, Cae, SID inc ctscccstnttecectrctecrtensrcemsereniones 14

DeFilippo v. Morizio, 759 F.2d 231 (2d Cir. 1985) .. 16, 19,

Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977),

cert. denied, 438 U.S. 916 (1978) ......................... 20

Doe v. District of Columbia, 697 F.2d 1115 (D.C.

INT, TIEN |... :.i:5:s43:sora paccbvconmedsadsnocumaaenicuiaenineaeaannen 11

Familias Unidas v. Briscoe, 619 F.2d 391 (5th

CG scanicsniscikannsnsceniscssarbasscantapiguicieemeceibencs 11

Furtado v. Bishop, 635 F.2d 915 (1st Cir. 1980).. 16

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

Jaquette v. Black Hawk County, 710 F.2d 455

ee eR, Sc ae rain ccarenchd instenneadbeadnlcmatiets 16

Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974)............. Sie 21

Jones v. MacMillan Bloedel Containers, Inc., 685

if § 8: Fe A neers 16

Kerr v. Quinn, 692 F.2d 875 (2d Cir. 1982) ...... . 13,19

Laffey v. Northwest Airlines, 746 F.2d 4 (D.C.

Cir. 1984), cert. denied, 105 S. Ct. 3488 (1985) .. 19

Marek v. Chesny, 105 S. Ct. 3012 (1985) 00000. 6, 24

McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983). 10, 15

TABLE OF AUTHORITIES—Continued

Page

Meiaphis Community Schools v. Stachura, No. &5-

410 (cert. granted October 21, 1985) 1l

National Ass'n of Concerned Veterans v. Secre-

tary of Defense, 675 F.2d 1319 (D.C. Cir.

SUE ix/cthadetaainAinslapnesiondbdiansdsipliddacnsipidldanisadncceummioteiet ania te 19

Nephew v. City of Aurora, 766 F.2d 1464 (10th

| aes stearate BWC OD, Rel itera ial OR le 15

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

ne ns I eet Ee i es 15

Price v. Franklin Investment Co., 574 F.2d 594

as nc I a ae os 20

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983)... 16

Rizzo v. Goode, 423 U.S. 362 (1976) a NS) BD 11

Sanchez v. Schwartz, 688 F.2d 503 (7th Cir.

SUITE Hic nbapibieictonea Giada tae ee Ok SA LEAT Cae 8,13

Sargeant v. Sharp, 579 F.2d 645 (1st Cir. 1978). 13

Scott v. Bradley, 455 F. Supp. 672 (E.D. Va.

RE EEE SEL SPORE NESE RE cheat ER 16

Walston v. School Board, 566 F.2d 1201 (Ath Cir

TE srs isoonia vinteattacaeehoncdiactane seat e e 16

West v. Capitol Federal Savings & Loan Ass’n,

GSS F.2a S77 (10th Cir. 1977) .............................. 20

Constitutional and Statutory Provisions

ee ew ee LE 3

ne I 2 8 OP LS 3

Some Goaeee, Gees. TREY ...........................-.. 3

fis of Ss scashanldlieskpendaiaddeiiiacudmaaencaiccs 20

DE NN Te 20

42 U.3. § 2061................ ieuaeihoens bacceaeigs ea eee 3

42 U.S.C. § 1983 _.... nies OREN ae aM AS CRIS SAS 2 8,11

43 U.S. = 1966(8)............................. rah Rites META 3

Ie ee ee ee 3

42 U.S.C. § 1988... ha et RN token passim

The Civil Rights Act of 1964 Re eT EN Se TEM dea Se Le =

Rules

Fed. R. Civ. P. 68

TABLE OF AUTHORITIES—Continued

Legislative Materials Page

S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976) ....8, 9, 10,

12, 14, 21

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess.

EE ae eee er ee a oe TT 9, 10, 13, 21

| fe BB £3) 9

Other Materials

Newman Suing the Lawbreakers: Proposals to

Strenghten the § 1983 Damage Remedy for Law

Enforcers’ Misconduct, 87 Yale LJ. 447

II ons sisianiiscsicsinissiacindinntnatoerissidiiasinnnsiomsniianinadeiantienets 10, 19

Project, Suing the Police in Federal Court, 88

TE a EE | ase echn ses curencddaceeeecenesneennesenseron 18, 19

Roehl, “Modern Billing Techniques—1968 Sur-

vey,” Proceedings of the Third National Con-

ference on Law Office Economics and Manage-

ment 171 (ABA 1969).................. ee AD ERO SER OR 17

Schwemm, Compensatory Damages in Federal

Fair Housing Cases, 16 Harv. C.R.-C.L. L. Rev.

SE RCRA <). nee eer ee OE 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-224

CITY OF RIVERSIDE, et al.,

Petitioners,

SANTOS RIVERA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE WASHINGTON COUNCIL OF

LAWYERS, THE CHICAGO COUNCIL OF LAWYERS,

THE STATE BAR OF MICHIGAN, THE ANTITRUST,

TRADE REGULATION AND CONSUMER AFFAIRS

DIVISION OF THE DISTRICT OF COLUMBIA BAR, THE

LOS ANGELES COUNTY BAR ASSOCIATION, THE

MILWAUKEE BAR ASSOCIATION, THE COMMITTEE

ON LEGAL ASSISTANCE OF THE ASSOCIATION OF

THE BAR OF THE CITY OF NEW YORK, THE BAR

ASSOCIATION OF SAN FRANCISCO, AND THE

PLAINTIFF EMPLOYMENT LAWYERS ASSOCIATION

AS AMICI CURIAE SUPPORTING RESPONDENTS

INTEREST OF AMICI

Amici are a collectionsof.mandatory and voluntary bar

associations—or sections or committees thereof—repre-

senting thousands of attorneys throughout the nation.’

The membership of these groups is comprised of attorneys

from every sector of the legal profession: solo practices,

large and small law firms, local, state and federal govern-

mental agencies, as well as civil rights and other public

interest organizations. These members include many who

have represented plaintiffs in cases brought under the

civil rights laws and other fee-shifting statutes,* as well

as many who have represented defendants, both private

and governmental, in such cases.

In the view of amici, the key issue presented in this

case is the one discussed by Justice Rehnquist in his opin-

ion granting a stay of the decision below: whether, in

civil rights cases, court-awarded attorneys’ fees for pre-

vailing plaintiffs must be limited so as to remain “propor-

tional” to the damages won by these plaintiffs. 106 S.Ct.

5 (1985). Amici wish to bring to the Court’s attention

both the collective views of these bar groups on the mean-

ing of fee-shifting statutes and the collective experience

of attorneys litigating civil rights and other cases brought

under such statutes. a

Amici take the position that a rule of proportionality

was never intended by Congress when it authorized fee-

shifting. In addition, based on the practical realities of

legal practice, we believe that such a rule would operate

to discourage severely the litigation of meritorious civil

rights claims. As it is, the litigation of civil rights claims

is often an expensive and speculative means of producing

income for plaintiffs’ counsel. Too often, the difficulty of

1 The views expressed herein represent only those of Division 2—

Antitrust, Trade Regulation and Consumer Affairs—of the District

of Columbia Bar and not those of the District of Columbia Bar or

of its Board of Governors.

2 For example, the Plaintiff Employment Lawyers Association is

composed primarily of solo practitioners and members of small firms

who specialize in representing individual employees in employment-

related cases.

securing an award of fees discourages members of the

private bar from undertaking such cases. Limiting fee

awards to an amount strictly proportional to the recovery

will discourage the private bar even further from enter-

ing into this field of legal practice.*

STATEMENT

This case involves an award of attorneys’ fees against

the City of Riverside, California and five of its police offi-

cers, all of whom were held liable for violating the civil

rights of the eight respondents. The underlying lawsuit

was filed after the police officers violently disrupted a

party in a private home, using tear gas and unnecessary

physical force. J.A. 188. The officers engaged in this

conduct despite the fact that they had no warrant, and

the party was creating no disturbance. Jd. They arrested

many of those in attendance, including four of the re-

spondents, but all criminal charges were ultimately

dropped or dismissed. 7d.

In 1980 a federal district court jury awarded respond-

ents a total of $33,350 in damages on various claims,‘

with liability distributed among the six petitioners. After

the verdict, respondents filed a motion for attorneys’ fees

under the Civil Rights Attorney’s Fees Awards Act, 42

U.S.C. $1988. In 1981, the district ccurt awarded them

$245,456.25 in fees and costs. J.A. 175. This fee award

was affirmed by the United States Court of Appeals for

the Ninth Circuit in 1982, J.A. 176, but in 1983 this

Court granted a petition for a writ of certiorari, vacated

The parties to this case have consented to the filing of this

brief, and their letters of consent have been lodged with the Clerk.

* The original complaint alleged violations of the First, Fourth,

and Fourteenth Amendments, as well as 42 U.S.C. §§ 1981, 1985(3),

and 1986. It also made a variety of related state law claims, includ-

ing false arrest and imprisonment, malicious prosecution and negli-

gence. The jury ultimately found against petitioners only on the

neyligence, false arrest, false imprisonment, and constitutional

claims.

the judgment below, and reman/led the case for reconsid-

eration in light of the decision in Hensley v. Eckerhart,

461 U.S. 424 (1983), J.A. 184.

On remand, the district court reinstated the original

fee award, seeing no basis for a reduction in (1) the fact

that some other defendants were dismissed, (2) the fact

that respondents did not prevail on every legal theory

raised, or (3) the absolute amount of the damages. J.A.

187-92. On June 27, 1985, the Ninth Circuit again af-

firmed. J.A. 193. It agreed with the district court that

respondents’ claims all involved a common core of facts

and related legal theories, so that, under Hensley, there

was no basis for a fee reduction reflecting the fact that

they won only on some of their claims. J.A. 195. It also

specifically rejected the suggestion that a fee award of

$245,456.25 was per se unreasonable because it greatly

exceeded the damage award. J.A. 196.

On August 28, 1985, the decision below was stayed by

Justice Rehnquist, who expressed the view that the case

presented the important question whether civil rights fee

awards must be “proportional” to damage awards. 106

S. Ct. 5 (1985). This Court granted certiorari in the

case on October 21, 1985. Amici in this brief address only

the proportionality issue identified by Justice Rehnquist.

SUMMARY OF ARGUMENT

Any rule that limits fee awards in civil rights cases to

a “proportion” of the damages won would be inconsistent

with the very reasons that led Congress to authorize fee-

shifting in such cases. As the legislative history makes

clear, the fundamental goal was to enable plaintiffs to en-

force the civil rights laws even where the amount of

monetary relief at stake would not otherwise make it

feasible or desirable for them to do so. This goal re-

quires fee-shifting even in damages cases because the

amount of damages awarded to prevailing plaintiffs does

not reflect the full societal benefits of civil rights enforce-

ment—benefits that exist independent of the extent of the

concrete injury that a particular plaintiff may have suf-

fered. See Carey v. Piphus, 435 U.S. 247 (1978).

A rule of proportionality would be inconsistent with the

congressional goal, because it would once again rule out

any civil rights case in which the particular damages at

stake are outweighed by the costs of litigation. This basic

principle has been recognized in numerous decisions ap-

proving fee awards that far exceed the nominal or rela-

tively small damage awards won for plaintiffs. It is a

principle that merely takes full account of the practical

realities facing those who are engaged in the private

practice of law. If lawyers are to view civil rights cases

as comparable to other kinds of work they could perform,

they must be assured compensation, when they win, for

the full number of hours reasonably expended. In the ab-

sence of such assurance, whole categories of civil rights

cases simply will not be brought.

To be sure, courts may properly consider the “results

obtained” when they calculate civil rights fee awards.

Hensley v. Eckerhart, 461 U.S. 424 (1983). But this con-

sideration must be done in relative, not absolute terms.

The relevant question is whether the plaintiff’s verdict

represents a substantial, or only limited, victory with re-

spect to the basic issues raised in the complaint. The

court makes this assessment for the purpose of assuring

that it is not awarding fees for time spent on a portion

of the plaintiff’s case that did not ultimately prove pro-

ductive. There is no indication in Hensley or anywhere

else that the factor of the “results obtained” should be-

come an absolute ceiling on fees awarded to plaintiffs

who have achieved everything that they set out to do.

Finally, in the absence of a proportionality rule, there

is little danger that plaintiffs will be able to abuse the

system and deliberately extract inflated fees in cases

where their claim is strong but their injury is relatively

small. First, courts are charged with eliminating any

compensation for lawyer time that is unnecessary or re-

dundant. In addition, if plaintiffs prove unwilling to set-

tle for the full relief they are reasonably entitled to, de-

fendants themselves can cut off further fee liability by

making an “offer of judgment” under Fed. R. Civ. P. 68.

See Marek v. Chesny, 105 S. Ct. 3012 (1985). At the

same time, where the merits of a case are questionable,

plaintiffs themselves will have ample incentive to settle,

rather than risk losing everything at a trial. And if they

persist in pursuing frivolous claims, they may be ordered

to pay the defendant’s fees. See Christiansburg Garment

Co. v. EEOC, 434 U.S. 412 (1978).

ARGUMENT

I. A Rule of “Proportionality” Between Damages and

Fees Would Conflict with the Fundamental Purpose

for which Congress Authorized Fee Awards under the

Civil Rights Laws.

In deciding whether civil rights fee awards should be

limited to a proportion of damage recoveries, this Court

is not required to weigh competing values. It need not,

for example, decide whether the importance of civil rights

enforcement outweighs the goals of lessening the caseload

of the federal courts or easing th: litigation burdens of

public defendants. In this case, the balancing of compet-

ing considerations has already been done, by Congress.

The determinations made by Congress when it enacted

section 1988 and other fee-shifting provisions in the civil

rights field are flatly inconsistent with any rule that

would limit fee awards to some “proportion” of the dam-

ages won by civil rights plaintiffs.

A rule of proportionality, as we understand it, would

put an absolute ceiling on fee awards for prevailing plain-

tiffs in damages cases under the civil rights laws, limit-

ing such fees to a percentage of the damages awarded.

Such a rule would presumably be based on the premise

that, in the absence of a fee-shifting provision, plaintiffs’

attorneys would not bill their own clients an amount in

excess of the relief obtained. See 106 S. Ct. at 8 (Rehn-

quist, J., in Chambers, staying the judgment in this case).

This premise, however, is itself factually incorrect. Since

it is usually difficult, at the outset of litigation, to predict

the ultimate recovery, it is not at all unusual for lawyers

wno bill by the hour to charge an amount that far ex-

ceeds any relief won for the client.

In any event, such an analogy to the practices of law-

yers in the absence of fee-shifting is meaningful only to

the extent that it was contemplated b;, Congress when it

passed section 1988. The proportionality rule proposed

here has been rejected repeatedly, not only by this Court

but by virtually every court that has ever examined the

question,” for one very simple reason: it is flatly incon-

sistent with the intent of Congress. When Congress de-

cided to authorize fee-shifting in the civil rights context,

its central concern was the fact that, in many civil rights

cases, there is a divergence between (1) the amount of

fees that a plaintiff can and will! pay, and (2) the amount

that a lawyer would demand in payment before agreeing

to undertake the work involved. Its response was to im-

pose the burden of attorneys’ fees on a third party——the

losing defendant—and to tie the amount of fee awards

to the only factor that will make litigation a practical

possibility in every meritorious case—i.e., the hours of

work required to win the case, regardless of the amount

of concrete relief at stake. This congressional decision

cannot be squared with any rule of proportionality that

would, by linking fees with damages, make it once again

infeasible for persons with valid civil rights claims but

relatively small potential damages to turn to the courts

for redress.

® See pp. 14-17 infra.

A. The Intent of Congress

When Congress enacted section 1988, it authorized pre-

vailing plaintiffs to seek a fee award in a broad range of

cases brought to vindicate constitutional and civil rights.°

In so doing, its main concern was to assure the financial

feasibility of private civil rights enforcement. As the

Senate Report on the bill put it, if “private citizens are

to be able to assert their civil rights, and if those who

violate the Nation’s fundamental laws are not to proceed

with impunity, then citizens must have the opportunity to

recover what it costs them to vindicate these rights in

court.” S. Rep. No. 94-1011, 94th Cong., 2d Sess. 2

(1976) [hereinafter cited as “Senate Report’’].’

® Prior to 1976, fee-shifting was statutorily authorized under

certain provisions of the 1964 Civil Rights Act, including Title VII.

In section 1988, Congress remedied the “anomalous gaps in our civil

rights laws,” S. Rep. No. 94-1011, 94th Cong., 2d Sess. 1 (1976),

that were highlighted after this Court’s decision in Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240 (1975), which

barred the imposition of fee-shifting in the absence of statutory

authorization. It did so by authorizing fee awards in cases brought

under 42 U.S.C. § 1983 and several other key civil rights statutes.

7 See also Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (“The

purpose of § 1988 is to ensure ‘effective access to the judicial process’

for persons with civil rights grievances.”’) ; Kerr v. Quinn, 692 F.2d

875, 877 (2d Cir. 1982) (“The function of an award of attorney’s

fees is to encourage the bringing of meritorious civil rights claims

which might otherwise be abandoned because of tue financial im-

peratives surrounding the hiring of competent counsel.’’)

It has been suggested that Congress had two other objectives as

well: “penalizing obstructive litigation by civil rights defend-

ants, and generally deterring civil rights violations.” Sanchez v.

Schwartz, 688 F.2d 503, 505 (7th Cir. 1982). Clearly, to the extent

that these additional legislative purposes should be weighed in the

balance, they only strengthen the argument against an arbitrary

limitation on fee awards unrelated to the amount of work reasonably

required to win a case. Such a limitation would encourage obstruc-

tive litigation by defendants whenever they know that a plaintiff’s

attorney has already worked more hours than he is likely to be paid

for. See p. 25 infra. And it would certainly lessen the general deter-

rence of civil rights violations.

The need for some mechanism to help finance civil

rights litigation stemmed from two inescapable realities.

First, the “vast majority of the victims of civil rights

violations” are not sufficiently wealthy to pay their own

legal counsel. H. Rep. No. 94-1558, 94th Cong., 2d Sess.

1 (1976) [hereinafter cited as “House Report”]. Second,

in many cases, the relief at issue is worth less than the

cost of litigating the claim. Jd. at 9.° As a result, in

such cases, few plaintiffs would be willing to finance the

case out of their own pockets. Moreover, it would not be

feasible for them to rely on the traditional financing

mechanism for most kinds of tort cases—the contingent

fee.

To be sure, Congress had at least two other choices.

First, of course, it could have funded a new cadre of gov-

ernmental enforcement personnel to bring enforcement

actions in those cases where private plaintiffs would not

do so. But it made a conscious decision not to impose the

costs of enforcement on the taxpayers. See Senate Re-

port at 4 (“These fee shifting provisions have been suc-

cessful in enabling vigorous enforcement of modern civil

rights legislation, while at the same time limiting the

growth of the enforcement bureaucracy.”) It sought in-

stead to rely on the victims of constitutional and civil

rights violations to act as “private attorneys general,” id.

at 3, performing the public function of civil rights en-

forceinent at no cost to the government.

Having opted for primary reliance on private enforce-

ment, Congress still had a second alternative to fee-shift-

ing: it could simply have left the costs of this enforce-

ment on the shoulders of potential plaintiffs, and accepted

the level of enforcement activity that would have re-

8 See also 122 Cong. Rec. 31832 (1976) (remarks of Sen.

Hathaway) (“In the typical case arising under these civil rights

laws, the citizen who must enforce the provisions through the courts

has little or no money with which to hire a lawyer, and there is often

no damage claim from which an attorney could draw his fee.’’)

sulted from that decision. But as we have suggested,

without some form of subsidy to prevailing plaintiffs, few

cases would be brought in circumstances where the likely -

monetary return is low. The private bar simply could not

be relied upon to file a sufficient number of such cases on

a pro bono basis. Congress therefore went out of its way

to emphasize the appropriateness of fee awards to pre-

vailing plaintiffs where the rights at stake are “non-

pecuniary in nature.” Senate Report at 6.

One important category of cases where there is no sub-

stantial monetary recovery is, of course, those where the

relief sought is purely injunctive. See House Report at 9.

But Congress also made it clear that fee-shifting should

be available in damages cases as well. The House Report

on section 1988 expressly provided that “the mere recov-

ery of damages should not preclude the awarding of

counsel fees.” Jd. at 8. Congress made this choice, de-

spite the fact that damages alone would finance some

civil rights enforcement, because it concluded that it

would be inappropriate to limit such enforcement to cases

where the damages are substantial enough to outweigh

litigation costs. In so doing, it recognized two key facts:

(1) that damages cases can play a significant role in the

deterrence of civil rights violations, and (2) that the so-

cially desirable level of deterrence is not provided if dam-

ages alone are the sole means of financing the litigation.

The utility of damages cases as a means to deter il-

legality is fairly clear.* But the insufficiency of damages

® See, e.g., McCann v. Coughlin, 698 F.2d 112, 129 (2d Cir. 1983)

(“The deterrent effect of successful § 1983 actions is wholly inde-

pendent of the relief which the plaintiff seeks or is ultimately

awarded ....”); Newman, Suing the Lawbreakers: Proposals to

Strengthen the Section 1983 Damage Remedy for Law Enforcers’

Misconduct, 87 Yale L.J. 447, 451 (1978) (in the “battle to restrain

official misconduct,” the “private suit for civil damages” is “our

most promising weapon”).

To be sure, the Solicitor General does appear to suggest that

damages cases produce only private, rather than public benefits.

as a means to finance civil rights litigation is a somewhat

more complex matter. The basic problem with reliance on

damages alone to encourage the actions of “private at-

torneys general” is that the amounts awarded to piain-

tiffs in civil rights cases do not reflect the societal] im-

portance of the rights at issue. They are calculated solely

on the basis of the concrete injuries suffered by the indi-

vidual plaintiff as a result of the deprivation of statutory

or constitutional rights. For example, in Carey v. Piphus,

435 U.S. 247 (1978), this Court held that a person denied

procedural due process may win damages under 42 U.S.C.

$ 1983 only to the extent that he can show an actual “in-

jury” to his person or property requiring compensation.’°

It rejected the notion that damages may reflect the “in-

trinsic” value of this constitutional right. Jd. at 254-

57." Put differently, when a plaintiff sues to redress a

denial of his civil rights, his damages are calculated no

differently than they would be in a case of injury caused

by simple negligence.

Brief for Amicus the United States at 11-12. This suggestion

ignores the deterrent value of damages cases. In the area of individ-

ual police misconduct, of course, damages are the key deterrent,

since injunctive relief generally is not available. See Rizzo v. Goode,

423 U.S. 362 (1976).

10The Court went on to note that, in certain circumstances, it

may be appropriate to “presume” actual injury, at least where that

is the rule in analogous common-law tort cases. Jd. at 257-64. Such

a presumption, where appropriate, of course does not alter the basic

principle that damages merely compensate the plaintiff for his

concrete injuries.

11 See also Doe v. District of Columbia, 697 F.2d 1115, 1122-25

(D.C. Cir. 1983) (following Carey v. Piphus in an Eighth Amend-

ment case); Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th

Cir. 1980) (following Carey v. Piphus in a case involving First

Amendment associational rights).

We note that a case presently on review in this Court raises issues

concerning the applicability of Carey to certain substantive constitu-

tional rights. Memphis Community Schools v. Stachura, No. 85-410

(cert. granted October 21, 1985).

In the normal tort context, such an emphasis on the

actual extent of injuries incurred is considered a desir-

able mechanism for producing the appropriate level of

private “enforcement”: injurious conduct is deterred only

where, and to the extent that, it causes actual harm to

some other person. In the civil rights context, however,

Congress plainly concluded that this level of private en-

forcement is not enough. It did so both because it viewed

any violation of the Constitution or civil rights laws as

a “wrong” in itself,’* and because it saw that providing

judicial redress in any such case produces benefits to

society that are not reflected in damage awards. When

schools, workplaces and housing are desegregated, people

are given the opportunity to learn, work and live in more

diverse and open environments. When people are able to

speak more freely, the will of the people is more effectively

represented. And when police are deterred from racially

motivated harassment of citizens, the immediate physical

injuries prevented may be small, but in the long run the

result may be fewer urban riots and greater citizen co-

operation in law enforcement. These kinds of social bene-

fits are produced whenever civil rights are enforced, re-

gardless of the essentially fortuitous factor of the amount

of concrete injury that a given plaintiff can prove.

In sum, the central purpose of Congress’s decision to

authorize fee awards in damages cases was to provide

sufficient compensation to allow litigation of meritorious

claims even where the amount of damages to be won

might not otherwise be sufficient to justify a lawsuit. In

so doing, it is hardly likely that Congress simultaneously

foresaw a rule for calculation of fees—proportionality—

that would merely replicate the problem. After all, under

the proportionality rule, it still would be financially un-

desirable and infeasible for plaintiffs and their lawyers

12 Congress emphasized that the acts at issue here, unlike a

garden-variety instance of negligence, involved violations of the

“Nation’s fundamental laws.” Senate Report at 2.

to bring suits in those cases where damages are out-

weighed by litigation costs.** Such plaintiffs and lawyers

would know, in advance, that their prospective fee award

simply could not cover the costs involved, and would

therefore opt to do nothing.

Certainly there is no indication in the legislative his-

tory that Congress anticipated a rule under which fees

would be reduced proportionally to reflect the amount of

damages awarded. On the contrary, the only comment in

the House and Senate reports that discusses the relation

between fees and damages suggests, and then apparently

rejects, the converse rule—i.e., that fees should be with-

held when damages get too high, because the need for an

incentive no longer exists. House Report at 8-9."

More fundamentally, when Congress set about describ-

ing the standards that would apply to fee awards, it re-

13 It is thus baffling that the Solicitor General would suggest that

fee awards in damages cases should be limited to the amount that

an attorney would receive under a traditional! contingent-fee ar-

rangement. Brief for Amicus the United States at 21. Such a rule

would render fee-shifting statutes nugatory in damages cases,

because it would only allow the prosecution of the very same cases

that would be brought absent any special rule. Certainly it is

untenable to suggest, as does the Solicitor General, id. at 22-23,

that a contingent fee of $11,000 in this case, which involved several

years of discovery and nine days of trial, would have represented

a fair fee, sufficient to attract competent counsel.

14The report suggests that civil rights plaintiffs who recover

substantial damages should not be treated less favorably than anti-

trust plaintiffs who may recover attorneys fees even after receiving

treble damages. Nevertheless, some courts still seem to be applying

a rule that is the inverse of the proportionality rule—the “bright

prospects” rule under which fees may be denied “where the merits

of a claim are obviously strong and would be so recognized by local

counsel and where the probable damage award is high and would be

so recognized by counsel.” Kerr v. Quinn, 692 F.2d 875, 877 (2d

Cir. 1982). See also Buxton v. Patel, 595 F.2d 1182 (9th Cir. 1979).

But see Cooper v. Singer, 719 F.2d 1496, 1501-02 (10th Cir. 1983) ;

Sanchez v. Schwartz, 688 F.2d 503, 505 (7th Cir. 1982); Sargeant

v. Sharp, 579 F.2d 645 (1st Cir. 1978).

jected any analogy to the amount that a plaintiff would

willingly pay, and drew a quite different comparison. It

authorized fee awards comparable to what an attorney

would generally demand in payment before undertaking a

given amount of work. As the Senate Report accompany-

ing section 1988 put it, “counsel for prevailing parties

should be paid, as is traditional with attorneys compen-

sated by a fee-paying client, ‘for all time reasonably ex-

pended on a matter.’”’ Senate Report at 6 (quoting Davis

v. County of Los Angeles, 8 E.P.D. § 9444 (C.D. Cal.

1974)). See also Hensley v. Eckerhart, 461 U.S. at 433.

Put differently, Congress’s “basic goal” was that “at-

torneys should view civil rights cases as essentially equiv-

alent to other types of work they could do, even though

the monetary recoveries in such cases (and hence the

funds out of which their clients would pay legal fees)

would seldom be equivalent to recoveries in most private-

law litigation.” Jd. at 1946 (Brennan, J., concurring in

part and dissenting in part). And it pursued this goal

by authorizing prevailing plaintiffs’ counsel to be paid

for all hours of work that are reasonably required to pre-

vail in a particular case."

B. The Relevant Case Law

In view of the clarity of this legislative record, it is not

surprising that the relevant judicial precedents are equally

one-sided. This Court, and virtually all of the courts of

appeals, have rejected the notion that the amount of dam-

ages won by a civil rights plaintiff should impose some

kind of proportional ceiling on fee awards, independent

of the amount of work reasonably required to win the

case.

This standard does not, as suggested by the Solicitor General,

create “windfalls” for attorneys. Brief for Amicus the United

States at 16, 26. While fee awards sometimes exceed corresponding

damage awards, they always reflect hours of actual work by

attorneys. It is only the traditional contingent fee arrangement that

ever produces a real “windfall.” See note 19 infra.

First, there is a long series of cases involving the avail-

ability of fees in cases where the damages awarded are

purely nominal. For example, as we have noted, in Carey

v. Piphus, supra, this Court held that there may not be

actual damages awarded for the “intrinsic” value of pro-

cedural due process rights, but it nevertheless held that

persons denied due process may bring suit, regardless of

any concrete injuries, and receive nominal damages. It

based this ruling on the “importance to organized society

that those rights be scrupulously observed.” 435 U.S. at

266-67. In the course of this decision, the Court went out

of its way to point out the critical role that section 1988

would play in allowing such a lawsuit to proceed despite

the absence of substantial concrete injuries to the plain-

tiff. The Court stated: “We also note that the potential

liability of § 1983 defendants for attorney’s fees, see

[$ 1988], provides additional—and by no means incon-

sequential—assurance that agents of the State will not

deliberately ignore due process rights.” Jd. at 257 n.11.

In sum, the Court rejected, at least implicitly, any prin-

ciple of proportionality by indicating that there could be

a substantial fee award—sufficient to make litigation a

practical possibility—even where the damages awarded

amount to one dollar. This decision has been followed by

a great many courts of appeals. See Nephew v. City of

Aurora, 766 F.2d 1464, 1466-67 (10th Cir. 1985); Me-

Cann v. Coughlin, 698 F.2d 112, 128-29 (2d Cir. 1983) ;

Basiardanes v. City of Galveston, 682 F.2d 1203, 1220

(5th Cir. 1982); Bonner v. Coughlin, 657 F.2d 931, 934

(7th Cir. 1981) (per curiam); Perez v. University of

Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979); Burt v. Abel,

585 F.2d 613, 617-18 (4th Cir. 1978)."

16 Some of these decisions do recognize that the nominal nature

of the damage award is a factor to be considered in determining the

size of the fee award. See Bonner v. Coughlin, 657 F.2d at 934;

Perez v. University of Puerto Rico, 600 F.2d at 2. But as we discuss

infra, giving due consideration to the amount of damages won is

quite appropriate, and does not amount to the same thing as enact-

In addition, many courts have recognized the obvious

corollary of the principle that nominal damages can

justify substantial fees. They have held that a small

award of actual damages does not impose an absolute

limit on the fees available to the prevailing plaintiff. See

DeFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985);

Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir. 1983);

Jones v. MacMillan Bloedel Containers, Inc., 685 F.2d

236, 238-39 (8th Cir. 1982); Furtado v. Bishop, 635 F.2d

915 (1st Cir. 1980); Coop v. City of South Bend, 635

F.2d 652 (7th Cir. 1980); Walston v. School Board, 566

F.2d 1201, 1204-0544th Cir..1 977 Certainly, it would

be anomalous to allow a plaintiff who wins nominal re-

«lief to receive-a fully compensatory fee, while penalizing

another plaintiff merely because, in his case, the consti-

tutional violation caused some actual harm and he was

therefore able to win some—albeit not a great deal—of

actual damages. In each case, the problem is the same:

the damages awarded do not take into account the so-

cietal importance of civil rights enforcement, and thus

cannot serve as any absolute guidepost for the fee to be

awarded to the plaintiff’s counsel.

Finally, we note that in Blum v. Stenson, 104 S. Ct.

1541 (1984), this Court expressly rejected the argument

that fee awards should vary depending on the number of

ing a rule of proportionality. All of the cited decisions authorized

substantial attorneys’ fees in cases involving totally insubstantial

damage awards.

17 Indeed, the only decision we have located that endorsed a flat

rule of proportionality is the decision in Scott v. Bradley, 455

F. Supp. 672 (E.D. Va. 1978), cited in Justice Rehnquist’s stay

opinion, 106 S. Ct. at 8. This decision, however, appears to be in-

consistent with the governing rule in the Fourth Circuit. See

Walston, supra; Burt, supra.

Petitioners rely on Jaquette v. Black Hawk County, 710 F.2d

455 (8th Cir. 1983), Br. at 16, but this decision plainly provides

that a “modest damage award” should not “dictate the size of the

attorney fee.” 710 F.2d at 461.

clients who receive the benefits of a given lawsuit. Jd. at

1549 n.16. Clearly, where the lawyer represents a large

class, this fact will affect the overall amount of any mone-

tary benefit won, but it need not affect the amount of

work involved. “Presumably, counsel will spend as much

time and will be as diligent in litigating a case that bene-

fits a sme!l class of people, or, indeed, in protecting the

civil rights of a single individual.” Jd. And, since fee

awards under section 1988 should depend upon the

“amount of attorney time reasonably expended on the

litigation,” id., the amount of the fee award should be

unaffected. In sum, here again, the Court clearly as-

sumed that the relevant factor is not the absolute amount

of relief won, but the amount of work reasonably re-

quired to win the case for the prevailing plaintiff.

C. Practical Considerations

As we have suggested, in authorizing fee awards to

prevailing plaintiffs, Congress anticipated awards based

not on what a plaintiff would willingly pay for the dam-

ages won, but on the amount that a lawyer would ask to

undertake the work involved. Put differently, the key

factor in setting the fee award must be the number of

hours worked, not the relief produced. In making this

choice, Congress was simply taking into account the prac-

tical realities that face those lawyers engaged in the pri-

vate practice of law. In 1976, when section 1988 was

adopted, as today, the key factor in setting the fee of

lawyers in private practice was and is the number of

hours worked. A 1968 study based upon a questionnaire

submitted to lawyers in all 50 states by the American

Bar Association concluded, “Overwhelmingly, the factor

considered the most is the time spent.” Roehl, “Modern

Billing Techniques—1968 Survey,” Proceedings of the

Third National Conference on Law Office Economics and

Management 171, 178 (ABA 1969)."

18 According to the study, 100% of the reporting firms considered

time in their billing, and an average factor of 58% of the fee was

In light of this reality, it was essential for Congress, in

its effort to attract lawyers to civil rights litigation, to

provide for compensation on a comparable basis. While

many members of the private bar do recognize an obli-

gation to do some pro bono “public interest” litigation,

reliance on altruism or a sense of professional obligation

is not enough. If private law firms are to be attracted to

civil rights litigation in a substantial way, they must at

least be promised compensation for all of the hours of

work that they reasonably undertake, in the event that

they prevail.

We recognize, of course, that all lawyers, including

those paid by the hour, do make adjustments in their

bills in certain cases. And, as we discuss in the next

section, there is room for some parallel “billing judg-

ment” in civil rights cases by plaintiffs’ attorneys and

ultimately by courts. But it would be quite another thing

to impose a draconian ceiling that is totally unrelated to

the work performed b, ‘sose attorneys. After all, there

are already a number ot other significant disincentives to

entry into this field of legal practice. In civil rights cases,

unlike most other types of cases, the lawyer faces the

risk that he will lose his fee altogether if he loses.’” More-

determined solely on the basis of the time devoted to the resolution ,

of the matter. By contrast, the same study reported that less than

41% of reporting firms relied upon the benefits obtained for the

client in setting the fee, and then to the extent of only 18% of the

fee factor. Id. at 177.

18 To be sure, in tort litigation, a contingent fee arrangement is

common. But there, the lawyer’s risk of losing his fee is counter-

balanced by the possibility that he may be significantly over-

compensated, if a case settles early for a substantial damae award.

Under a fee-shifting statute, since fees are always calculated based

on the number of hours worked by the attorney, the risk of losing

the fee is not counterbalanced by a chance of over-compensation.

It is also worth noting that “[p|jlaintiffs in police misconduct suits

seem less likely than plaintiffs in general to succeed in recovering

damages.” Project, Suing the Police in Federal Court, 88 Yale LJ.

781, 789 n.37 (1979) (citing statistics).

over, he generally knows that he will receive no fee what-

ever until after a case is over, and even then may face

years of litigation over the fee issue alone.*® And he often

knows that his opponent will be represented by counsel

employed by a governmental entity, and thus will not

face the usual financial pressures to resolve a case quickly.

If these disincentives are augmented by a rule that limits

fee recoveries to some percentage of damages recovered,

the obvious result will be refusal by most lawyers to han-

dle any civil rights case, except those where there is a

likelihood of substantial damages—i.e., the same cases

that would be brought even in the absence of any form of

fee-shifting.

In practice, this would mean the nearly total exclusion

of civil rights enforcement in categories of cases where

damages are seldom large. One such area, for example,

is housing discrimination, where damage awards in cases

involving individual acts of discrimination range from a

few hundred to a few thousand dollars. See Schwemm,

Compensatory Damages in Federal Fair Housing Cases,

16 Harv. C.R.-C.L. L. Rev. 83, 105-20 (1981). See also

DiFilippo v. Morizio, 759 F.2d at 235 (award of $2250 is

consistent with “fair housing damage awards generally’”’).

Another, as Carey v. Piphus suggests, is the area of pro-

cedural due process, where most often the damages will

either be nominal or be limited to the injury caused by a

temporary and erroneous denial of a governmental bene-

fit. Even in the area involved in this case—police mis-

conduct—there are many cases where the actual injury

inflicted is not large. See Kerr v. Quinn, 692 F.2d 875,

878 (2d Cir. 1982); Project, Suing the Police in Federal

Court, 88 Yale L.J. 781, 789 nn.386 & 37 (1979) (citing

low average damage awards); Newman, Suing the Law-

breakers: Proposals to Strengthen the § 1983 Damage

Remedy for Law Enforcers’ Misconduct, 87 Yale L.J. 447,

20 See, e.g., Laffey v. Northwest Airlines, 746 F.2d 4 (D.C. Cir.

1984), cert. denied, 105 S. Ct. 3488 (1985); National Ass’n of

Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.

Cir. 1982).

465 (1978) (“[E]xcept in the rare case in which a suc-

cessful plaintiff recovers a substantial award for serious

injuries inflicted by excessive force, cases of illegal ar-

rests and searches, even when successful, generally result

in very modest awards.”)*! In sum, if the civil rights

fee-shifting provisions are to operate in a way consonant

with the congressional goal of maximizing the enforcement

of meritorious claims, they must be understood to allow

fee awards that are not restricted by any arbitrary for-

mula based upon the total amount of damages won.”

II. The “Results Obtained” in a Lawsuit are Relevant to

the Amount of Fees Awarded, but They Must Be

Assessed in Relative, Not Absolute Terms.

In arguing against any proportional limitation on fee

awards, we do not mean to suggest that the amount of

damages won in a civil rights case never plays a role in

the determination of the amount of fees to be assessed.

21 Judge Newman goes on to note that the injury caused by sev-

eral days of erroneous custody in jail has sometimes been valued as

low as $500, while a few hours in jail has been valued as low as

$100. Jd. (citing cases). See also Dellums v. Powell, 566 F.2d 167,

194-96 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978) ($7500

in damages is “totally out of proportion” to the actual harm suf-

fered when demonstrators were wrongfully arrested and detained).

22 Similar problems would arise if the proportionality rule were

extended beyond the civil rights context to other areas. One

example would be litigation under the Truth in Lending Act. That

Act generally is limited to setting out various disclosure require-

ments for lenders, and applies only to relatively smail consumer

credit transactions. 15 U.S.C. § 1603. As a result, in any civil suit

to enforce it, the amount of actual damages tends to be low. The

act also provides for a statutory penalty, but it is capped at $1,000.

Id. § 1640(a) (2) (a) (i). It follows that fee awards under the stat-

ute, see id. § 1640(a) (3), can and should frequently exceed any

other monetary recovery. See, e.g., Price v. Franklin Investment

Co., 574 F.2d 594, 598 n.5 (D.C. Cir. 1978) (citing cases). See

also West v. Capitol Federal Savings & Loan Ass’n, 558 F.2d 977,

981 (10th Cir. 1977) (class action under the antitrust laws) (‘‘Al-

though the individual amounts here involved are small, . . . the

attorneys are entitled to a fee award based on the legal work, not

the amount of recovery.”’)

On the contrary, this Court made clear in Hensley v.

Eckerhart that the court should consider, among other

factors, the “results obtained” by counsel for their clients.

‘61 U.S. at 430, 434.% The key, however, is to recognize

precisely how this factor properly affects the amount of

the fee award.

Nothing in Hensley suggests that the “results obtained”

by the plaintiff should be weighed in absolute terms—

i.e., as a fixed limitation on the amount of fees that can

be awarded. Instead, the level of success must be as-

sessed relative to what the plaintiff sought in his com-

plaint. In this sense, the factor of the “results obtained”

is simply a restatement of the basic principle that fee

awards are contingent on success on the merits. What

the Court made clear in Hensley is that success on the

merits is not a “yes or no” matter. Instead, a plaintiff

may “prevail” only in part. If he does so, he should re-

cover only a partial award of fees, reflective of the

amount of time he spent on matters that later proved to

be productive.

As the Hensley Court pointed out, there are two ways

in which a plaintiff can achieve only partial success on

the mer'ts. First, of course, where a plaintiff has pleaded

sever?’ unrelated claims and prevailed on only some of

them, .he court should properly exclude the hours ex-

pended working on the unsuccessful claims. 461 U.S. at

434-35.** Second, even if the complaint pleads only one

23 This holding was based on the House and Senate Reports

accompanying section 1988, which expressly endorsed the analysis

set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974). See Senate Report at 6; House Report at 8. The

Fifth Circuit’s test for fee awards in Johnson was made up of

twelve factors, including the factor of the “amount involved and

results obtained.” Jd. at 718. Thus, this citation clearly “indicates

that the level of a plaintiff’s success is relevant to the amount of

fees to be awarded.” Hensley, 461 U.S. at 430.

24 On the other hand, if a plaintiff pleads several different claims

for relief, all of which involve the same basic facts and similar

claim or an interrelated set of claims, it is still possible

for a plaintiff to “prevail” only partially. In essence,

the court is charged with determining whether the plain-

tiff achieved “substantial relief’ rather than “limited suc-

cess” on his central claim. Jd. at 440. In so doing, the

court must examine the legal theories pleaded and the

relief sought, and decide whether the plaintiff achieved

“excellent results.” Jd. at 435. If so, he should not have

his fee award reduced merely because he failed to pre-

vail on every single legal contention raised, id., or merely

because he failed to win every single type of relief sought,

id. at 435 n.11.* Where, on the other hand, the court is

convinced that the plaintiff did not accomplish much of

what he set out to achieve, a partial reduction in fees is

required. See id. at 438 n.14 (a “limited fee award” is

appropriate where “ ‘minor’ relief obtained’’).

The main point, for present purposes, is that all of

these assessments involve comparisons between [1) the

original theories and goals set out by the plaintiff and

(2) the outcome of the case. There is no suggestion in

Hensley that the “results obtained” is a factor that im-

poses an absolute limit on fees, unrelated to the degree of

types of legal theories, he should not be penalized when he

prevails on only one such claim. Jd. at 435 (“Litigants in good

faith may raise alternative legal grounds for a desired outcome,

and the court’s rejection of or failure to reach certain grounds is

not a sufficient reason for reducing a fee.’’)

25> It is not altogether clear, after Hensiey, how a court should

handle a situation in which a plaintiff has asked for one sum of

money as damages, and only received a lesser, albeit still substantial,

sum. In our view, this difference alone should not be a justification

for limiting fees, except in two instances: (1) where the lower dam-

age recovery reflects the plaintiff's failure to convince the court about

a discrete type of injury, which required separate legal preparation,

or (2) where it reflects less-than-adequate presentation of the case,

see DeFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985). In

other cases, it seems both unfair and counterproductive to penalize

plaintiffs and their counsel, when they have won substantial vic-

tories, merely because they failed to guess accurately the precise

amount of damages they could win from a court.

the plaintiffs’ success on the goals he set for himself. On

the contrary, the Court went out of its way to reiterate

that when plaintiffs win the results they are seeking, they

should “recover a fully compensatory fee,” defined in

terms of the “hours reasonably expended on the litiga-

tion.” Jd. at 435. In sum, nothing in Hensley or any

other controlling decision undermines the fundamental

fact that a proportionality rule would be inconsistent

with the goals Congress sought to pursue in authorizing

fee awards in civil rights cases.

Ill. A Rule of Proportionality is Not Needed to Prevent

Abuse.

It is also worth noting that the present fee-shifting

system does not create any serious potential for abuse by

plaintiffs or their counsel. There would be real reason for

concern if a fee-shifting rule gave plaintiffs carte blanche

to incur unlimited fees whenever they have a strong case

on the merits and thus are very likely to prevail. In such

circumstances, plaintiffs could vastly augment the financial

exposure of defendants who, by hypothesis, did deprive

them of legal rights but may have caused very little real

injury. In fact, however, there is very little danger that

such abuses will occur, in light of two existing checks in

the system: (1) the power of the court to exclude exces-

sive hours, and (2) the power of the defendants to cut

off further liability for fees and costs by offering to pay

the full value of the injury under Fed. R. Civ. P. 68.

In arguing that the hours worked by plaintiffs’ counsel

should be the primary basis for a fee award, we do not

mean to suggest that the hourly totals submitted provide

the complete answer in every case. As Justice Rehnquist

pointed out in his stay opinion in this case, the Court has

recognized the possibility of downward, and upward, ad-

justments in the “lodestar” hourly figure. 106 S. Ct. at 8

(citing Hensley and Blum v. Stenson, 104 8. Ct. 1541

(1984) ). One example of an appropriate judicial adjust-

ment is the situation just discussed—where the court is

convinced that the plaintiff only partially prevailed. But

even where the victory is complete, the court may still

conclude that counsel are seeking compensation for hours

of work that were “excessive, redundant, or otherwise un-

necessary.” Hensley, 461 U.S. at 434. In such a situa-

t un, this Court has already made clear that courts should

exercise their own “billing judgment” and reduce the fee

to an amount that reflects the hours reasonably expended

in the case. This power to adjust the fee award repre-

sents a useful potential check on any attempt by a plain-

tiff’s lawyer with a small but strong civil rights case to

“pad the bill.”

A related problem would arise if a plaintiff’s lawyer

were to insist upon proving his case—in order to maxi-

mize the fee recovery—despite the defendant’s willing-

ness to settle for a reasonable damage payment early on

in the process. This is a problem that defendants can

deal with themselves. As this Court made clear last Term

in Marek v. Chesny, 105 S. Ct. 3012 (1985), Rule 68 of

the Federal Rules of Civil Procedure provides a potent

means of defusing any distortion in the settlement process

that may result from the desire of a plaintiff’s lawyer

to litigate fuily a small but meritorious case. If (1) the

defendant makes a valid “offer of judgment” under this

rule, (2) it is declined by the plaintiff, and (3) the

plaintiff ultimately recovers. less than the offer, then the

plaintiff cannot recover any fees or costs incurred after

the date of the offer. In sum, by incorporating a settle-

ment offer in a Rule 68 offer of judgment, defendants

can effectively forestall further fee liability.*°

*6 To be sure, some defendants may refuse to make such an offer,

even where their ultimate liability is fairly clear, because they are

unwilling to admit voluntarily to a violation of the Constitution or

the civil rights laws. But this potential psychological factor—the

unwillingness of defendants to settle where financial considerations

Such settlement offers will not always occur, of course,

where the ultimate liability of the defendants is less clear.

But in such a case, it is the self-interest of the plain-

tiff and his attorney that comes to the fore and helps to

promote settlement. A plaintiff with a questionable case

has every reason to seek a reasonable settlement rather

than risk winning nothing at trial. And his attorney has

the same basic set of incentives. Because he wins no fees

if he fails to prevail on the merits, he too is far less

likely in a questionable case to prefer drawn-out litiga-

tion to a reasonable settlement. Finally, if a plaintiff

persists in pursuing a frivolous case, he himself may be

liable for the attorneys’ fees of the defendant. See Chris-

tiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).

In contrast to these various safeguards in the present

system, under a proportionality rule a plaintiff would

have no way to prevent a defendant from extracting an

unfair advantage by refusing to settle a clearly losing

case. As suggested above, defendants’ counsel are very

often paid by public funds and thus could easily drag

matters out in such a case until they knew that the

hours worked by the plaintiff’s attorney had gone well

beyond any likely fee recovery under the proportionality

rule. In so doing, defendants could use the rule as an

effective means of punishing, and deterring, those lawyers

in the community who have exhibited a willingness to

take on meritorious civil rights cases in reliance on the

fee-shifting authorized in section 1988.

For all of these reasons, we submit that the practical

effect of the present system is not to open the door to

significant abuses, but to prevent abuses. With a fee-

shifting rule that does not limit fees to a proportion of

so dictate—does not argue for some arbitrary proportional limita-

tion on plaintiffs’ fee awards. To the contrary, this unwillingness

is one of the potential barriers faced by plaintiffs in civil rights

cases which requires and justifies full fee awards.

damages, many more civil rights cases are brought. But

that is exactly what Congress intended. When these cases

are brought, the court and the defendants have ample

means to combat the risk of “overly zealous” litigation

by plaintiffs. And plaintiffs themselves, in most cases,

have adequate incentive to resolve cases rather than con-

tinuing with unnecessary court battles.

CONCLUSION

For these reasons, the decision below should not be

reversed on the basis of any perceived disproportionality

between the damages won and the fees awarded.