Petition for Writ of Certiorari — Farrar v. Hobby
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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
DALE FARRAR and PAT SMITH,
as Co-Administrators of the Estate of
Joseph D. Farrar, Deceased,
Petitioners,
versus
WILLIAM P. HOBBY, JR.,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
MICHAEL A. MANEss*
1900 North Loop West
Suite 500
Houston, Texas 77018
(713) 680-9922
KEN E. MACKEY
1100 Capitol Center
919 Congress Avenue
Austin, Texas 78701
(512) 476-2781
December 1991
GERALD M. BIRNBERG
6671 S.W. Freeway
Suite 303
Houston, Texas 77074.
(713) 981-9595
WAGGONER CARR
701 Brazos
Suite 480
Austin, Texas 78701
(512) 478-5308
*Counsel of Record
Quality Prep & Printing, 3909 Dover, Houston, Texas 77087 (713) 643-1636
QUESTION PRESENTED
Does 42 U.S.C. § 1988 authorize the award of
reasonable attorney's fees to civil rights plaintiffs who
recover nominal damages?
TABLE OF CONTENTS
Page
en ]
FE rs cessccescecessosevsccssccesscessssiienansineaa 2
STATUTORY PROVISIONS ...............cccceeeeeeeeeeeeues 2
STATEMENT OF THE CASE ...............0ccceeeeeeeeeeees 2
REASONS FOR GRANTING CERTIORARI:
1. As the Fifth Circuit concedes, its
decision is in conflict with the Second,
Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuits, all of which have held that a
plaintiff's recovery of nominal damages for a
federal civil rights violation supports the award
of reasonable attorney's fees under 42 U.S.C.
BD BBG 2sccscscesc0sensnsennsncueeioleninienniniaaainsaaaaan 5
2. The Fifth Circuit's decision is in
conflict with City of Riverside v. Rivera, 477
U.S. 561 (1986), which was not addressed or
even cited in the court's opinion. .....................006 9
3. The Fifth Circuit's denial of any
attorney's fees whatever to plaintiffs who
prevail in civil rights cases by recovering
nominal damages disregards plain statutory
language, undermines. clearly expressed
congressional policy, and presents an important
question of federal law that has not been, but
should be, settled by this Court. ......................0.5 13
CUTE AFIEIES cccccccccececcsoncccosconsesdesesenneeseneeennin 17
APPENDICES:
Order Substituting Co-Administrators
as Plaintiffs (August 2, 1983) .....................00008. A-l
Farrar v. Cain, 756 F.2d 1148 (5 Cir. 1985) ......... A-2
Order on Attorney's Fees (January 30, 1987)....... A-12
Memorandum on Attorney's Fees
EEE A-13
Order Denying Reconsideration of
Attorney's Fees (August 31, 1990)................... A-29
Estate of Farrar v. Cain,
EE, IED ccnccccccsccevcccesscesces A-30
Judgment of the Court of Appeals
a A-46
Statutory Provisions:
Civil Rights Act of 1871,
cnn dic ccccscncsccoeseces A-47
Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C. § 1988............. A-47
TABLE OF AUTHORITIES
Page
Cases:
Basiardanes v. City of Galveston, 682 F.2d 1203
OP ii a i ie et 10
Blanchard v. Bergeron, 489 U.S. 87 (1989).............. 7
Burt v. Abel, 585 F.2d 613 (4 Cir. 1978)................. 6
Carey v. Piphus, 435 U.S. 247 (1978) .......... ... passim
City of Riverside v. Rivera,
a ii iecreuien, concnmninnets passim
Coleman v. Turner, 838 F.2d 1004
BRINE SE ET 5
Estate of Farrar v. Cain, 941 F.2d 1311
I I ihn ineat cate chia ciate nila 2,4
Farrar v. Cain, 756 F.2d 1148
oi: 2 _aee penecenssodneesessoinesssenscosooees 1,3
Garner v. Wal-Mart Stores, Inc. , 807 F.2d
IE CREE SE Serre 5
Garrison v. Box, No. S-88-254-CA (E.D. Tex.,
i a ee 14
Gladden v. Roach, No. S-84-220-CA (E. D. Tex.,
ge RSE ERE HCO PER eee 14
Hensley v. Eckerhart, 461 U.S. 424 (1983) ........... 6,7
Hewitt v. Helms, 482 U.S. 755 (1987) ............... 4,11
Lewis v. Woods, 848 F.2d 649 (5 Cir. 1988)............. 4
Memphis Community School District v. Stachura,
gg |) EEE EES aD ea 13
Moran v. Pima County, 145 Ariz. 183,
700 P.2d 881, 882-83 (1985),
cert. denied 474 U.S. 989 (1985)......... 0... ccc ccc cee eeee 6
-iv-
Page
Nadeau v. Helgemoe, 581 F.2d 275 (1 Cir. 1978) ....11
Nephew v. City of Aurora, 830 F.2d 1547
(10 Cir. 1987) (en banc),
cert. denied 485 U.S. 976 (1988).................cccceeees 5
Newman v. Piggie Park Enterprises, Inc.,
ee I ccnndciciibesdnendsennseccncscsccsussenses 7
Rhodes v. Stewart, 488 U.S. 1 (1988)........... 4, 10, 11
Ruggiero v. Krzeminski, 928 F.2d 558 (2 Cir. 1991) ...5
Scofield v. City of Hillsborough, 862 F.2d 759
SE: CET cenedoinmienectatudibtnieunindidecdinevivenecceses 5
Smith v. DeBartoli, 769 F.2d 451 (7 Cir. 1985),
cert. denied 475 U.S. 1067 (1986) ..................000055 5
Spencer v. General Electric Co. , 894 F.2d 651
PE GE ciindideanesensbaciscatediinninnidissnessccscencses 6
Tedesco v. City of Stamford, 24 Conn. App.
re ee ED ndciinicnnensintenenesescosestenes 6
Texas State Teachers Ass'n v. Garland Ind.
School Dist., 489 U.S. 782 (1989) ......... 4,10, 11, 12
United States Football League v. National Football
League, 887 F.2d 408 (2 Cir. 1989),
cert. denied 493 U.S. 1071 (1990) ...................... 14
Webster v. City of Houston, 689 F.2d 1220 (5 Cir.
1982), vacated and remanded on other grounds,
735 F.2d 838 (5 Cir. 1984), aff'd in part and
rev'd in part, 739 F.2d 993 (5 Cir. 1984)................ 3
Statutes:
ls Ot TT ciiiceneincntzenseveneimiecemmcseusenntie 2
ie Ee EE cedccatenssnsesioensinemineenenenenniel 15
Sy es Oe EP ennttncscienscdtesseseinnicnnsinnioniniets 2,8
RAITT ieitncnitnicennsscesnennnccenenieneiial passim
Legislative Materials:
H. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) ....6
S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976),
reprinted in 1976 U. S. Code Cong. &
Admin. News 5908.................ccccceceeeeeeees 7, 14, 16
S. 2802, 98th Cong., 2d Sess. (1984) ..................... x
S. 1580, 99th Cong., Ist Sess. (1985) .................0.4. 8
Supreme Court Rules:
SEES AT ae a re 9
EE 13, 16
Federal Rules of Civil Procedure:
REFS cae ee a eR 2
Other Authorities:
Stevens, Some Thoughts on Judicial Restraint, 66
A ELE ee 8
-Vi-
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
DALE FARRAR and PAT SMITH,
as Co-Administrators of the Estate of
Joseph D. Farrar, Deceased,
Petitioners,
versus
WILLIAM P. HOBBY, JR.,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The Fifth Circuit's first opinion directed the award
of nominal damages to petitioners. Farrar v. Cain, 756
F.2d 1148 (5 Cir. 1985) (Pet. App. 2). On remand,
the district court awarded attorney's fees to petitioners
in an unreported memorandum and order (Pet. App.
12, 13, 29).
The Fifth Circuit's second opinion reversed, on the
theory that plaintiffs recovering nominal damages for
federal civil rights violations are not "prevailing
parties,” and therefore are not entitled to attorney's fees
under 42 U.S.C. § 1988, because they have gained
only “a de minimis or technical victory.” Estate of
Farrar v. Cain, 941 F.2d 1311, 1315 (5 Cir. 1991)
(Pet. App. 30).
JURISDICTION
The opinion and judgment of the court of appeals
were entered on September 17, 1991 (Pet. App. 30,
46). This petition for certiorari was filed within 90
days thereafter and is timely. The Supreme Court has
jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
This case arises under the Civil Rights Act of 1871,
42 U.S.C. § 1983, and the Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C. § 1988 (Pet. App. 47).
STATEMENT OF THE CASE
Joseph Farrar and his son Dale sued Respondent
William P. Hobby and other public officials under 42
U.S.C. § 1983.! They alleged, among other claims,
that the defendants violated their right to due process of
law by illegally closing a school they operated in
Liberty County, Texas. The jury returned a verdict
finding that Hobby violated Joseph Farrar's federal
civil rights under color of state law, but awarded no
damages for that violation. The district court entered a
' Joseph Farrar died before trial. Petitioners, as co-
administrators of his estate, were ordered substituted as plaintiffs
under F.R.Civ.P. 25(a) (Pet. App. 1).
take-nothing judgment on the jury's verdict.
Relying on Carey v. Piphus, 435 U.S. 247 (1978),
the Fifth Circuit reversed:
Even when a violation of a civil right
causes no actual injury to the plaintiff, the
plaintiff is entitled to recover nominal damages.
We have awarded nominal damages, not to
exceed one dollar, when an infringement of a
fundamental right was shown and we have also
held that, once a jury has found a violation of a
plaintiff's civil rights, it "could not ignore that
finding in calculating damages. Violation of
[the plaintiff's] constitutional rights was, at a
minimum, worth nominal damages."* Because
the jury explicitly found that defendant Hobby
had violated Farrar's civil rights, the jury
should have awarded Farrar nominal damages,
not to exceed one dollar, and it was error for
the trial court not to do so when the Farrars so
moved in their motion for a new trial.
Farrar v. Cain, 756 F.2d 1148, 1152 (5 Cir. 1985)
(citations omitted) (Pet. App. 10).
On remand, petitioners filed an application for
attorney's fees under 42 U.S.C. § 1988. Following a
lengthy hearing, the district court awarded to them
against Hobby $280,000.00 in attorney's fees,
$27,932.00 in costs and expenses, and prejudgment
interest (Pet. App. 12).
2 Webster v. City of Houston, 689 F.2d 1220, 1230 (5 Cir.
1982), vacated and remanded on other grounds, 735 F.2d 838 (5
Cir. 1984), aff'd in part and rev'd in part, 739 F.2d 993 (5 Cir.
1984).
Hobby appealed. A different panel of the Fifth
Circuit, one judge dissenting, reversed the fee award,
holding that petitioners were not "prevailing parties"
within the meaning of 42 U.S.C. § 1988. The Fifth
Circuit acknowledged that "“[o]ur holding today
conflicts with opinions of the Second, Seventh, Eighth,
Ninth, Tenth, and Eleventh Circuits." 941 F.2d ai 1316
(Pet. App. 41). It conceded the principle, established
by Carey v. Piphus, 435 U.S. 247 (1978), that "[a]
violation of constitutional rights is never de minimis,"
because it is never "so small or trifling that the law
takes no account of it." 941 F.2d at 1315, quoting
Lewis v. Woods, 848 F.2d 649, 651 (5 Cir. 1988) (Pet.
App. 40).
Nonetheless, without citing or even mentioning
City of Riverside v. Rivera, 477 U.S. 561 (1986), the
panel majority interpreted Texas State Teachers Ass'n
v. Garland Ind. School Dist., 489 U.S. 782 (1989),
Hewitt v. Helms, 482 U.S. 755 (1987), and Rhodes v.
Stewart, 488 U.S. 1 (1988) collectively to mean that a
civil rights plaintiff recovering nominal damages has
attained only a de minimis or technical victory, and
therefore is not a “prevailing party" under § 1988. 941
F.2d at 1316 (Pet. App. 41). The court reasoned that a
plaintiff "prevails" within the meaning of § 1988 only
when the final decision changes “the legal relationship
between the parties in a way that alters the defendant's
behavior toward the plaintiff and that secures some of
the relief sought by the plaintiff in bringing the suit."
941 F.2d at 1317 (Pet. App. 45). The panel concluded
that "the recovery of one dollar is no victory under §
1988" and that "the plaintiff's victory, as measured by
the success actually obtained, was merely a de minimis
or technical success." 941 F.2d at 1315-16 (footnote
omitted; emphasis added) (Pet. App. 40-41).
Petitioners did not seek panel rehearing or suggest
rehearing en banc. Because its decision created an
intercircuit conflict, the Fifth Circuit "circulated the
opinion to the entire court as required by the court's
policy. No member of the court has requested en banc
consideration." 941 F.2d at 1316 n. 22 (Pet. App. 41).
REASONS FOR GRANTING CERTIORARI
1. As the Fifth Circuit concedes, its decision is
in conflict with the Second, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuits, all of which have held
that a piaintiff's recovery of nominal damages for a
federal civil rights violation supports the award of
reasonable attorney's fees under 42 U.S.C. § 1988.
The Fifth Circuit's opinion pointedly acknowledges
that the Second,? Seventh,4 Eighth,> Ninth,® Tenth,’
and Eleventh® Circuits all have concluded that a
plaintiff recovering nominal damages is a "prevailing
party" entitled to claim reasonable attorney's fees under
§ 1988. The Fourth Circuit and an intermediate state
3 Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2 Cir. 1991).
4 Smith v. DeBartoli, 769 F.2d 451 (7 Cir. 1985), cert.
denied 475 U.S. 1067 (1986).
5 Coleman v. Turner, 838 F.2d 1004, 1005 (8 Cir. 1988).
® Scofield v. City of Hillsborough, 862 F.2d 759, 766 (9
Cir. 1988).
? Nephew v. City of Aurora, 830 F.2d 1547 (10 Cir. 1987)
(en banc), cert. denied 485 U.S. 976 (1988).
8 Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539
(11 Cir. 1987).
appellate court also have reached that result.9
Such virtual unanimity is understandable. Civil
rights plaintiffs "prevail" under § 1988 when they
"succeed on any significant issue in the litigation which
achieves some of the benefit . . . sought in bringing
suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(emphasis added). A judgment awarding even nominal
damages reflects "the importance to organized society
that [constitutional] rights be scrupulously observed."
Carey v. Piphus, 435 U.S. 247, 266 (1978). The
actual injury and the amount awarded may be trivial or
insignificant. The principle at stake is not.
Congress was acutely aware when it enacted the
Civil Rights Attorney's Fees Awards Act of 1976 that,
in many civil rights cases, the relief at issue is worth
less, in monetary terms, than the cost of litigating the
claim. H. Rep. No. 94-1558, 94th Cong., 2d Sess.
(1976) at 9. It has authorized the allowance of
sufficient compensation to encourage the litigation of
meritorious claims, as a matter of national policy, even
if the money damages realistically to be won would not
otherwise be sufficient to attract competent counsel or
to justify a lawsuit at all:
In many cases arising under our civil rights
laws, the citizen who must sue to enforce the
law has little or no money with which to hire a
lawyer. If private citizens are to be able to
9 Burt v. Abel, 585 F.2d 613, 617-18 (4 Cir. 1978);
Tedesco v. City of Stamford, 24 Conn.App. 377, 588 A.2d 656,
659 (1991); but see Spencer v. General Electric Co., 894 F.2d
651, 662 (4 Cir. 1990) (dictum); Moran v. Pima County, 145
Ariz. 183, 700 P.2d 881, °82-83 (1985), cert. denied 474 U.S.
989 (1985) (Justice White dissenting).
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. (1976) at 2,
reprinted in 1976 U. S. Code Cong. & Admin. News
5908 at 5910.
This Court consistently has recognized and
implemented this congressional policy. "“[A] Civil
rights plaintiff seeks to vindicate important civil and
constitutional rights that cannot be valued solely in
monetary terms." City of Riverside v. Rivera, 477 U.S.
561, 574 (1986), quoted in Blanchard v. Bergeron, 489
U.S. 87, 96 (1989). "Congress has determined that
the public as a whole has an interest in the vindication
of the rights conferred by the statutes enumerated in §
1988, over and above the value of a civil rights remedy
to a particular plaintiff." Hensley v. Eckerhart, 461
U.S. 424, 444 n. 4 (1983). A plaintiff in federal civil
rights litigation acts “as a ‘private attorney general,’
vindicating a policy that Congress considered of the
highest priority," Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400, 402 (1968), and “often secures
important societal benefits that are not reflected in
nominal or relatively small damage awards." City of
Riverside v. Rivera, 477 U.S. 561, 574 (1986). Until’
now, no federal appeals court has ever seriously
questioned these principles.
Because the Fifth Circuit's opinion was circulated
to all of that court's active judges prior to its
publication, and because no judge of that court
requested en banc hearing or rehearing, the decision
represents the considered, final judgment of the Fifth
Circuit on an issue of undoubted national importance.
There is no realistic likelihood that further litigation of
the question in the lower federal courts "may help to
illuminate [the] issue before it is finally resolved and
thus may play a constructive role in the lawmaking
process."!0 Answering the question presented involves
nothing more than interpreting clear and unambiguous
statutory language.
Nor are there any subsidiary reasons why the grant
of certiorari here might be improvident or unwarranted.
The question presented was squarely and definitively
decided, after being capably briefed and argued in the
Fifth Circuit by experienced counsel. There are no
unresolved jurisdictional or procedural issues. There is
no alternative ground for decision. There is no
reasonable likelihood that Congress will amend the
statute in the absence of a controlling decision from this
Court.!! The passage of time will not moot or alter the
character of the question presented in any way.
Finally, the conflict is not of mere technical or
abstract philosophical significance. Federal trial courts
within the Fifth Circuit historically have decided a
substantial proportion of all Title VII, § 1983, and
other federal civil rights litigation filed each year in the
10 Stevens, Some Thoughts on Judicial Restraint, 66
JUDICATURE 177, 183 (1982).
'! Congressional efforts to amend § 1988 to prohibit
attorney's fees awards that are disproportionate to the damages
recovered have failed twice. See proposed Legal Fees Equity
Act, S. 2802, 98th Cong., 2d Sess. (1984), and S. 1580, 99th
Cong., Ist Sess. (1985).
courts of the United States.!2 The decision in this case
dramatically affects those cases. Even though the
federal trial court here viewed an award of attorney's
fees as both reasonable and appropriate, the Fifth
Circuit's decision effectively overrode that exercise of
the district court's traditional discretion.
This case presents a significant circuit conflict.
Supreme Court Rule 10.1(a). The Court should grant
certiorari to resolve it.
2. The Fifth Circuit's decision is in conflict with
City of Riverside v. Rivera, 477 U.S. 561 (1986),
which was not addressed or even cited in the court's
Opinion.
The district court based its award of attorney's fees
on City of Riverside v. Rivera, 477 U.S. 561 (1986).
The Fifth Circuit's opinion does not discuss or cite the
case. There the Supreme Court "[rejected] the
proposition that fee awards under § 1988 should
necessarily be proportionate to the amount of damages
a civil rights plaintiff actually recovers," 477 U.S. at
574-76:
Because damages awards do not reflect
fully the public benefit advanced by civil rights
litigation, Congress did not intend for fees in
civil rights cases, unlike most private law
cases, to depend on obtaining substantial
'2 The Office of the Circuit Executive of the United States
Court of Appeals for the Fifth Circuit has advised counsel that
since 1985 the Fifth Circuit has averaged 432 civil rights appeals
per year. According to the Administrative Office of the United
States Courts, during the fiscal year ending June 30, 1991, the
Fifth Circuit decided 480 of 3,844 civil rights appeals (other than
prisoner petitions) filed in all United States courts of appeals.
10
monetary relief . . . Congress recognized that
reasonable attorney's fees under § 1988 are not
conditioned upon and need not be proportionate
to an award of money damages.
The Court in Rivera decisively repudiated the idea
that entitlement to reasonable attorney's fees under §
1988 is necessarily contingent upon the amount of
damages awarded, or that attorney's fees’ can be denied
altogether simply because the compensable
constitutional injury may seem slight. "A rule of
proportionality would make it difficult, if not
impossible, for individuals with meritorious civil rights
claims but relatively small potential damages to obtain
redress from the courts. This is totally inconsistent
with Congress’ purpose in enacting § 1988." 477 U.S.
at 578.
Indeed, in Rivera this Court cited with approval the
Fifth Circuit's earlier holding in Basiardanes v. City of
Galveston, 682 F.2d 1203, 1220 (5 Cir. 1982), that "an
attorney's fee award [under § 1988] may be supported
by an award of nominal damages since the successful
claim serves to vindicate constitutional rights." 477
U.S. at 576 n. 8. Basiardanes in turn cites in support
of that holding footnote 11 in Carey v. Piphus, in
which this Court noted that "the potential liability of §
1983 defendants for attorney's fees . . . provides
additional — and by no means inconsequential —
assurance that agents of the State will not deliberately
ignore due process rights." 435 U.S. at 257 (citation
omitted).
The Fifth Circuit misconstrued Texas State
Teachers Ass'n v. Garland Ind. School Dist., 489 U.S.
782 (1989), Rhodes v. Stewart, 488 U.S. 1 (1988), and
Hewitt v. Helms, 482 U.S. 755 (1987). The panel
majority thought those decisions collectively mean that
a plaintiff recovering only nominal damages is not a
“prevailing party” under § 1988, at least when damages
are the exclusive relief sought. The majority believed
that such an award neither “change[s] the legal
relationship” between the parties, nor “secures some of
the relief sought by the plaintiff in bringing the suit,"
941 F.2d at 1317 (Pet. App. 45), but instead constitutes
“merely a de minimis or technical success." 941 F.2d at
1316 (Pet. App. 41).
Hewitt v. Helms, 482 U.S. 755 (1987) and Rhodes
v. Stewart, 488 U.S. | (1988) do not support the Fifth
Circuit. In Hewitt the plaintiff obtained only “a
favorable judicial statement of the law in the course of
_ litigation that [resulted] in judgment against the
plaintiff,” who otherwise “obtained no relief." 482
U.S. at 760, 763 (emphasis added). In Rhodes “[t}he
case was moot before judgment issued, and the
judgment therefore afforded the plaintiffs no relief
whatsoever." 488 U.S. at 4. This case is not moot.
Petitioners “secured some of the relief sought." In
light of City of Piverside v. Rivera and Carey v.
Piphus, an award of nominal damages cannot plausibly
be characterized as "no relief whatsoever."
In Texas State Teachers Ass'n v. Garland Ind.
School Dist., 489 U.S. 782 (1989), the Court held that
"a civil rights plaintiff is a prevailing party within the
meaning of § 1988" and “has crossed the threshold to a
fee award of some kind" if “the plaintiff has succeeded
on ‘any significant issue in litigation which achieve[d]
some of the benefit the parties sought in bringing suit'."
489 U.S. at 791-92, quoting Nadeau v. Helgemoe, 581
12
F.2d 275, 278-79 (1 Cir. 1978). The Court interpreted
this standard to require, “at a minimum... a
resolution of the dispute which changes the legal
relationship" between the parties. |The opinion
suggested in dictum that fees might be denied "[w]here
the plaintiff's success on a legal claim can be
characterized as purely technical or de minimis." Id.
The Court cited as an example of “technical or de
minimis" success the trial court's ruling in Garland that
a school district policy was unconstitutionally vague,
even though there was no evidence it had ever been
applied to the plaintiffs. In this case, by contrast, the
jury's verdict explicitly found that "Defendant Hobby
committed an act or acts under color of state law that
deprived Plaintiff Joseph Davis Farrar of a civil right
guaranteed by the Constitution and laws of the United
States...”
Such a verdict, and the resulting judgment,
constitute a “material alteration of the legal relationship
of the parties in a manner which Congress sought to
promote in [§ 1988]. Where such a change has
occurred, the degree of the plaintiff's overall success
goes to the reasonableness of the award under Hensley,
not to the availability of a fee award vel non." Texas
State Teachers Ass'n v. Garland Ind. School Dist., 489
U.S. at 792-93 (emphasis added).
Characterizing as “purely technical or de minimis"
a civil rights plaintiff's success in obtaining nominal
damages for an acknowledged violation of the
constitutional right to due process of law is
irreconcilable with Rivera's central premise that
recovery of attorney's fees in federal civil rights cases
is not dependent upon “obtaining substantial monetary
13
relief." It is likewise inconsistent with this Court's
insistence in Carey v. Piphus that such an award is not
some arcane ceremonial formality but an indispensable
recognition of "the importance to organized society that
[federal] rights be scrupulously observed." 435 U.S. at
266. In this country, at least, there are no de minimis
constitutional deprivations.!3
* {The conflict between the Fifth Circuit's holding and
this Court's decisions in Carey and Rivera warrants the
grant of certiorari. Supreme Court Rule 10.1(c).
3. The Fifth Circuit's denial of any attorney's
fees whatever to plaintiffs who prevail in civil rights
cases by recovering nominal damages disregards
plain statutory language, undermines clearly
expressed congressional policy, and presents an
important question of federal law that has not been,
but should be, settled by this Court.
The Fifth Circuit never reached or even intimated
its position on the question of whether the attorney's
fees awarded by the district court were “reasonable,” in
the sense demanded by § 1988. It did not decide
whether the award should have been modified or
reduced. Instead, it imposed an absolute bar to the
recovery of any attorney's fees, in any amount, by any
plaintiff awarded only nominal damages, in any federal
civil rights case in any United States district court
within the Fifth Circuit. The practical consequences of
such an unprecedented holding are significant.
‘3 “The constitutional right transgressed in Carey — the
right to due process of law — is central to our system of ordered
liberty.” Memphis Community School Dist. v. Stachura, 477
U.S. 299, 308 (1986).
14
1. The decision, if unreversed, will bind each of
the federal trial courts in Texas, Louisiana, and
Mississippi, and conceivably may be regarded as
persuasive authority by state trial and appellate courts
considering federal civil rights cases in those and other
states as well. At least two United States district courts
within the Fifth Circuit, relying on this case, already
have refused to award attorney's fees to civil rights
plaintiffs recovering nominal damages. '4
2. The central holding below that recovery of
nominal damages does not support a claim for
attorney's fees casts substantial doubt on the status of
attorney's fees awards under a myriad of other federal
statutes. Cf. United States Football League v. National
Football League, 887 F.2d 408 (2 Cir. 1989), cert.
denied 493 U.S. 1071 (1990) (award of nominal
damages of $1 under Clayton Act, trebled to $3, held
to support award of attorney's fees of $5,529,247.25
and taxable costs of $62,220.92).'5 The statutory
phrase “prevailing party" or its equivalent necessarily
must have a consistent, easily determinable meaning.
Congress cannot plausibly have intended the same
Statutory term to mean different things in different
cases.
'4 Gladden v. Roach, No. §-84-220-CA (E. D. Tex.,
November 7, 1991); Garrison v. Box, No. $-88-254-CA (E.D.
Tex., October 11, 1991).
'S The legislative history of the Civil Rights Attorney's Fees
Awards Act of 1976 makes abundantly clear that “the amount of
fees awarded [is to] be governed by the same standards which
prevail in other types of equally complex Federal litigation, such
as anti-trust cases." S. Rep. No. 94-1011, 94th Cong., 2d Sess.
(1976) at 6, reprinted in 1976 U. S. Code Cong. & Admin. News
5908 at 5913.
15
3. The Fifth Circuit's interpretation of the term
"ptevailing party" replaces a simple, straightforward,
easily understandable statutory standard with an
evanescent, fact-specific inquiry into the degree of
success a party attains, measured only by the amount of
money awarded and the court's perception of what
motivated the litigation. If a § 1983 plaintiff wants a
million dollars for a deprivation of federal rights, but
recovers only $500.00, would the Fifth Circuit
conclude that the plaintiff “prevailed” under § 1988?
How about $50.00? How about $5.00? What if the
plaintiff, as a matter of constitutional principle, wants
no more than nominal damages?
The open-ended, essentially standardless inquiry
mandated by the Fifth Circuit's decision threatens
almost endless satellite litigation over an easy question
that ought to be easily answerable. Congress cannot
have intended such a simple issue to require another
lawsuit to resolve it.
4. If a plaintiff awarded only nominal damages is
not a "prevailing party” for purposes of recovering
attorney's fees as “costs” under § 1988, such a plaintiff
cannot have "prevailed" for purposes of taxing the costs
of litigation under 28 U.S.C. § 1920 or any other
federal statute. Clerical and witness fees, docket fees,
deposition costs, and other expenses would be taxable
as a matter of course against the plaintiff. From the
Fifth Circuit's perspective, the defendant “prevailed.”
The plaintiffs “lost.”
5. The Fifth Circuit's holding will have a
devastating effect on federal litigation involving serious
constitutional violations that do not inflict injuries
compensable through significant monetary damages.
16
Substantial deprivations of federal rights will go
unremedied simply because the injury to the victim is
intangible. Congress did not intend that result.
No Supreme Court decision supports even by
inference the Fifth Circuit's strange, stilted, unwieldy
result, at var‘ance with common sense and any literal
reading of the plain, simple language of the statute.
Denying all attorney's fees when only nominal damages
are recovered in civil rights cases undermines a long-
Standing national commitment and substitutes the quasi-
legislative and policy-making judgment of federal
judges for that of Congress.
Civil rights plaintiffs recovering nominal damages,
based upon a specific jury finding that federally
protected civil rights have been violated, are
"prevailing parties." Congress in § 1988 intended for
them to be treated that way. It did not intend for an
award of attorney's fees to be denied altogether
"because the rights involved may be non-pecuniary in
nature."'© The Fifth Circuit's decision, relegating
winners to the status of losers, presents an issue of
importance to the administration of the federal civil
rights laws. It has not been, but should be, settled by
this Court. Supreme Court Rule 10.1(c).
© S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976) at 6,
reprinted in 1976 U. S. Code Cong. & Admin. News 5908 at
5913.
17
CONCLUSION
The petition for certiorari should be granted.
MICHAEL A. MANESS*
1900 N. Loop West
Suite 500
Houston, Texas 77018
(713) 680-9922
KEN E. MACKEY
1100 Capitol Center
919 Congress Avenue
Austin, Texas 78701
(512) 476-2781
December 199]
Respectfully submitted,
GERALD M. BIRNBERG
6671 S.W. Freeway
Suite 303
Houston, Texas 77018
(713) 981-9595
WAGGONER CARR
701 Brazos
Suite 480
Austin, Texas 78701
(512) 478-5308
*Counsel of Record
A-|
(Filed August 2, 1983)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH DAVIS FARRAR §&
and §
DALE LAWSON FARRAR §
CA NO. 75-H-987
VS.
CLARENCE D. CAIN,
RUTH URMY,
WILLIAM P. HOBBY, JR.,
RAYMOND W. VOWELL.,
LONNIE A. GRUVER,
and ARTHUR J. ‘
HARTELL, III
ORDER SUBSTITUTING CO-ADMINISTRATORS
AS PLAINTIFFS
LH LK. LH LL SH LD- SF- FP? GP?
This matter having come on before this Court for
hearing on August 2, 1983 pursuant to the Motion of
Pat Smith and Dale Farrar, Co-Administrators of the
Estate of Dr. Joseph D. Farrar to substitute them as
Plaintiffs in the above entitled cause; and it appearing
to the Court after examination of the Motion, Briefs,
and pleadings filed in this cause, that the application
should be granted; therefore
IT IS ORDERED that the Motion be granted and
that Pat Smith and Dale Farrar as Co-Administrators of
the Estate of Dr. Joseph D. Farrar, Deceased, be
substituted as Plaintiffs herein in the place and stead of
Dr. Joseph D. Farrar, the Plaintiff of record.
DATED: August 2, 1983
Robert B. O'Conor, Jr.
Judge Presiding
A-2
(Filed April 8, 1985)
Joseph Davis FARRAR and Dale Law-
son Farrar, Plaintiffs-Appellants,
Vv.
Clarence D. CAIN, et al.,
Defendants-Appellees.
No. 84-2099
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
April 8, 1985.
In section 1983 action, the United States District
Court for the Southern District of Texas entered
summary judgment for defendants, and _ plaintiffs
appealed. The Court of Appeals, 642 F.2d 86, vacated
and remanded. On remand, the United States District
Court for the Southern District of Texas, at Houston,
Robert O'Conor, Jr., J., entered judgment for the
defendants and plaintiffs appealed. The Court of
Appeals, Alvin B. Rubin, Circuit Judge, held that: (1)
plaintiffs had opportunity to object timely to proposed
instructions and special interrogatories regarding, inter
alia, award of compensatory and punitive damages,
issue of foreseeability, and burden of proof, but
apparently did not do so, thus largely precluding review
of issues raised on appeal; (2) although punitive
damages may be awarded in section 1983 action even in
absence of actual injury, failure to object to jury charge
and special interrogatories precluded review; (3) absent
finding that conspirators deprived plaintiffs of their
civil rights, jury's finding that conspiracy existed did
not support award of damages, nominal or
A-3
compensatory, against the conspirators; and (4) since
one defendant was found to have violated plaintiff's
civil rights, jury should have awarded nominal
damages, not to exceed $1.
Affirmed in part, reversed in part, and remanded.
Appeal from the United States District Court for
the Southern District of Texas.
Before RUBIN, RANDALL, and TATE, Circuit
Judges. ,
ALVIN B. RUBIN, Circuit Judge:*
In this suit against Texas state officials under 42
U.S.C. § 1983 for violation of the plaintiffs’ civil
rights, the trial court entered judgment for the
defendants based on a jury verdict that found at least
one of the defendants liable but awarded no damages.
The plaintiffs appeal contending that the trial court
erroneously instructed the jury on nominal and actual
damages and erroneously failed to inform the jury that
it might award punitive damages in the absence of
actual damages. They also contend that we should
remand for a new trial on damages. Because the
plaintiffs failed to object to the jury charge on
compensatory and punitive damages as given and we
find no fundamental error in it, and because the trial
court did not abuse its discretion in denying a new trial
on that ground, we affirm the denial of those damages.
Because the jury found that at least one defendant had
violated the plaintiffs’ civil rights, we reverse the trial
All parties have either waived or failed to request oral
argument. The case was, therefore, decided on the briefs.
Local Rule 34.3 and Fifth Circuit Internal Operating Procedure
— Screening.
A-4
court's denial of nominal damages as to that defendant
and remand for the court's entry of nominal damages,
not to exceed $1.00.
Joseph D. Farrar and Dale L. Farrar, his son,
owned and operated Artesia Hall, a school in Liberty
County, Texas, for the care of delinquent,
handicapped, or disturbed teenage boys and girls. The
defendants, all Texas state officials, obtained a grand
jury indictment against Joseph Farrar for the homicide
of an Artesia Hall student and a state court temporary
injunction against the operation of Artesia Hall. The
homicide charge was later dismissed. In their § 1983
civil rights complaint, the Farrars alleged that the
defendants violated their civil rights by, among other
things, taking illegal steps to close the school, thereby
depriving them of the right to practice their livelihood
and profession. Answering special interrogatories, the
jury found that one of the plaintiffs had violated the
Farrar's civil rights, but it awarded no damages.
Challenging the jury instructions, the Farrars
contend that the trial court erred in not instructing the
jury on nominal damages and in not awarding nominal
damages as a matter of law because, in civil rights
cases, nominal damages are routinely presumed or
inferred. They also argue that the court erred by
including in the jury instructions foreseeability as a
defining characteristic of proximate cause without
observing that, although foreseeability may be a proper
test for determining damages for unintentional tort
violations of civil rights, it is not a proper prerequisite
to obtaining recompense for intentional violations.
Additionally, they claim that the trial court failed to
instruct the jury that, once the plaintiffs prove a
A-5
constitutional violation, the burden shifts to the
defendants "to show by a preponderance of evidence
that there was no 'but-for causation in fact' relation
between the constitutional violation and_plaintiffs'
damages."! Finally, the Farrars assert that the court
committed reversible error in the special interrogatories
by predicaiing any award of punitive damages on the
jury's having awarded actual damages and by not
granting their motion for a new trial.
Fed.R.Civ.P. 51 provides:
At the close of the evidence or at such
earlier time during the trial as the court reasonably
directs, any party may file written requests that the
court instruct the jury on the law as set forth in the
requests .... No party may assign as error the
giving or the failure to give an instruction unless he
objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which he
objects and the grounds of his objection.
Opportunity shall be given to make the objection
out of the hearing of the jury.
The purpose of this rule is to allow the trial court to
correct any error before the jury begins its
deliberation.2 In Delancey v. Motichek Towing
' The Farrars cite Mt. Healthy City Bd. of Educ. v. Doyle,
429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977),
in support of this position. Given their failure to object to the
jury charge, we do not address the propriety of applying Mt.
Healthy in the manner the Farrars suggest. See infra text
accompanying notes 2-10.
2 See 9 C. Wright & A. Miller, Federal Practice and
Procedure § 2553, at 634 (1971).
A-6
Service, Inc. ,3 this court stated:
This Court has consistently held that the
specifications of errors dealing with the giving of
or failure to give instructions will not be
considered unless the party objects in the manner
provided by the rule .... The objection must be
sufficiently specific to bring into focus the
precise nature of the alleged error.... A general
objection presents nothing for review.4
The Farrars were given an opportunity to object
timely to the proposed instructions and the special
interrogatories. The record, however, is devoid of any
indication that they objected to either with respect to
any of the issues on appeal.» Moreover, the Farrars
filed a proposed jury charge that failed to limit
foreseeability to unintentional torts or to request a M1.
Healthy charge.
Failure to object to the jury charge in the trial court
precludes review on appeal unless the error is so
fundamental as to result in a miscarriage of justice.’
3427 F.2d 897 (Sth Cir. 1970).
4 Id. at 900 (citations omitted); see also United States v.
Marbury, 732 F.2d 390, 403 (Sth Cir. 1984).
5 Although the Farrars have not provided us with a trial
transcript, the appellees have provided us with an excerpt of the
transcript which shows that the Farrars' counsel lodged no
objection on these grounds. The record contains the same
excerpt.
6 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471,
483 (1977); see supra note | and accompanying text.
7 See Whiting v. Jackson State Univ., 616 F.2d 116, 126
(Sth Cir.1980); cf Wallace v. Ener, 521 F.2d 215, 218-219
A-7
With regard to compensatory damages, our review of
the record does not indicate that such a fundamental
error was committed. The Farrars bear the burden of
insuring that all their objections are made part of the
record.8 The Farrars, however, stated that they "have
appealed to this court without a transcript and rely upon
the record and questions of law presented in their
brief." Even if an objection was lodged, it does not
appear in the appellate record.? Reviewing the record
on appeal, we find neither fundamental error nor
miscarriage of justice. !°
The Farrars also contend that the trial court erred
in predicating the finding of punitive damages upon a
finding of actual damages. They argue that, “since the
jury found that Appellees violated Appellants’ civil
rights, the Appellants should be allowed to have a jury
consider what amount, if any, would be appropriate
punitive damages to deter Appellees from future
unlawful conduct or punish them for their wrongful act
in violating Appellant's civil rights."
Here, too, the Farrars' failure to object to the trial
judge's charge to the jury and to the special
interrogatories submitted to the jury precludes our
review in the absence of plain error or manifest
miscarriage of justice.'! Although punitive damages
(Sth Cir. 1975).
8 Whiting v. Jackson State Univ., 616 F.2d 116, 127 (Sth
Cir. 1980) (citing Fed.R.App.P. 10(b) & (c)).
9 See supra note 5.
10 Whiting v. Jackson State Univ., 616 F.2d 116, 126 (Sth
Cir. 1980).
'! See Whiting v. Jackson State Univ., 616 F.2d 116, 126-
A-8
may be awarded in a § 1983 action even in the absence
of actual injury,!2 failure to object precludes review if,
as here, there is no plain error or manifest miscarriage
of justice.!3 The record shows that the interrogatory
predicating an award of punitive damages on a finding
of actual damages was brought to the attention of the
court and that the Farrars' counsel agreed to the charge
and advised the court that he had no objection.
The trial court did not err by failing to award
nominal damages as to all of the defendants except
Hobby. Interrogatory No. 3 asked the jury whether
any of the defendants “engaged in a conspiracy against
one or more of the plaintiffs as defined in the charge."
The jury answered "yes" as to all of the defendants
except defendant Hobby. Interrogatory No. 4 asked
whether “such conspiracy was a proximate cause of any
damages to the plaintiff." The jury answered this
question by checking "no" and, therefore, awarded no
damages in response to Interrogatory No. 5.
The jury did not find, therefore, that any of these
defendants deprived the plaintiffs of their civil rights.
As we have recently stated:
Under § 1983 conspiracy can furnish the conceptual
spring for imputing liability from one to another....
A conspiracy may also be used to furnish the
27 (Sth Cir. 1980).
12 See Ryland v. Shapiro, 708 F.2d 967, 976 (Sth
Cir. 1983).
13. See Whiting v. Jackson State Univ., 616 F.2d 116, 126
(Sth Cir.1980); Abraham v. Pekarski, 728 F.2d 167, 172 (3d
Cir.), cert. denied, U.S. _, 104 S.Ct. 3513, 82 L.Ed.2d 822
(1984).
A-9
requisite state action .... Yet, it remains necessary
to prove an actual deprivation of a constitutional
right; a conspiracy to deprive is insufficient....
Here [the plaintiff] has failed to show any such
deprivation. Without a deprivation of a
constitutional right or privilege, [the defendant] has
no liability under § 1983.!4
We are unable to read the jury charge to say, as the
Farrars contend, that the jury's answers lead to the
conclusion that it found the conspirators to have
violated the Farrars' civil rights. Absent a finding that
the conspirators deprived the Farrars of their civil
rights, the jury's finding that a conspiracy existed will
not support an award of any damages against the
conspirators, compensatory or nominal. !>
The findings as to Hobby were different.
Interrogatory No. 7 instructed the jury that, if it had
found that defendant Hobby had not conspired with the
other defendants to violate the plaintiffs’ civil rights, it
should decide whether "Defendant Hobby committed an
act ... under color of state law that deprived Plaintiff
Joseph Davis Farrar of a civil right." The jury
answered that Hobby had violated Farrar's civil rights,
but also found, in response to Interrogatory No. 8, that
his acts were not "a proximate cause of any damages"
to Farrar. In response to Interrogatory No. 9,
therefore, the jury awarded Farrar no damages for
Hobby's acts.
14 ~=6Villanueva v. Mclnnis, 723 F.2d 414, 418 (Sth
Cir. 1984).
'S See id.; see also Carey v. Piphus, 435 U.S. 247, 266-
67, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252, 266 (1978).
A-10
Even when a violation of a civil mght causes no
actual injury to the plaintiff, the plaintiff is entitled to
recover nominal damages.'© We have awarded
nominal damages, not to exceed one dollar, when an
infringement of a fundamental right was shown!’ and
we have also held that, once a jury has found a
violation of a plaintiff's civil rights, it "could not ignore
that finding in calculating damages. Violation of [the
plaintiff's} constitutional rights was, at a minimum,
worth nominal damages."!8 Because the jury explicitly
found that defendant Hobby had violated Farrar's civil
rights, the jury should have awarded Farrar nominal
damages, not to exceed one dollar, and it was error for
the trial court not to do so when the Farrars so moved
in their motion for a new trial.
The Farrars also complain that the court erred in
denying a motion for new trial because of its failure to
instruct the jury properly on the issues of damages and
causation. In this circuit, appellate review of the trial
court's denial of a new trial is severely limited, and we
will interfere only when the triai court has abused its
discretion or failed properly to exercise it.!9 In
considering a motion for a new trial, the trial judge is
'© Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042,
1054, 55 L.Ed.2d 252, 266 (1978).
17 See, e.g., Familias Unidas v. Briscoe, 619 F.2d 391,
402 (Sth Cir.1980) (violation of first amendment rights).
18 Webster v. City of Houston, 689 F.2d 1220, 1230 (Sth
Cir.1982), vacated and remanded on other grounds, 735 F.2d
838 (Sth Cir.), aff'd in part and rev'd in part, 739 F.2d 993 (Sth
Cir. 1984) (en banc rehearing granted).
'9 See United States v. An Article of Drug Consisting of
4,680 Pails, 725 F.2d 976, 990 (Sth Cir. 1984).
A-1]
free to weigh the evidence,?° and we will not find that
the district court abused its discretion “unless there
[was] an ‘absolute absence’ of evidence to support the
jury's verdict."2! Because the Farrars have chosen not
to submit a transcript of the trial to us, we cannot
determine whether there is an “absolute absence" of
evidence to support the verdict of the jury and,
therefore, cannot say that the trial court committed any
abuse of discretion.
The Farrars also ask us to sever the damages issues
and grant a new trial simply to determine the amount of
damages because the interrogatories and the instructions
submitted to the jury were erroneous as a matter of
law. Although this court may, in a proper case, sever
the damages issues,2? we find no reason to do so in this
case. As we have previously noted, the Farrars failed
to object to the jury instructions or the special
interrogatories on damages. Because we can neither
review nor find error as to damages, other than
nominal damages, it would be improper for us to sever
and to remand the damages issues for a new trial.
For these reasons, the judgment is AFFIRMED IN
PART, REVERSED IN PART, and REMANDED for
proceedings consistent with this opinion.
22
See Hadra v. Herman Blum Consulting Eng'rs, 632
F.2d 1242, 1245-46 (Sth Cir.1980), cert. denied, 451 U.S.
912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981); see also Eximco,
Inc. v. Trane Co., 748 F.2d 287, 290 (Sth Cir. 1984).
A-12
(Filed January 30, 1987)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
The Estate of
JOSEPH D. FARRAR
and
DALE LAWSON FARRAR,
Plaintiffs,
CIVIL ACTION
No. H-75-987
versus
CLARENCE D. CAIN,
RUTH URMY,
WILLIAM P. HOBBY, JR.,
RAYMOND W. VOWELL,
LONNIE A. GRUVER, and
ARTHUR J. HARTELL, III,
CO? (0? (0? (OP (CO? LP? LQ? LP? LP? LP LF2 LF? LF2 SP? LF2 LF? LF? LF?
Defendants.
ORDER ON ATTORNEY'S FEES
Pat Smith, Dale Farrar, and Dale Lawson Farrar
are awarded attorney's fees of $280,000.00, expenses
of $27,932.00, and $9,730.00 of prejudgment interest
on the expenses (at 9% after September 1983) as
additional costs of court against William P. Hobby, Jr.,
plus interest at 5.75% per annum from January 23,
1987; Pat Smith, Dale Farrar, and Dale Lawson Farrar
recover nothing of Clarence D. Cain, and Arthur J.
Hartell, Jr.
Signed on January 30, 1987, at Houston, Texas.
Lynn N. Hughes
United States District Judge
A-13
(Filed August 31, 1990)
—-—
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
The Estate of
JOSEPH D:
FARRAR and
DALE LAWSON FARRAR,
Plaintiffs,
versus CIVIL ACTION
No. H-75-987
CLARENCE D. CAIN,
RUTH URMY,
WILLIAM P. HOBBY, JR.,
RAYMOND W. VOWELL,
LONNIE A. GRUVER, and
ARTHUR J. HARTELL, III,
Defendants.
MEMORANDUM ON ATTORNEYS' FEES
Dale Farrar has applied for allowance of attorneys'
fees and expenses incurred in the prosecution of a civil
rights suit against Clarence D. Cain, Ruth Urmy,
William P. Hobby, Jr., Raymond W. Vowell, Lonnie
A. Gruver, and Arthur J. Hartell, Ill. A six-week jury
trial resulted in a finding that only Hobby had deprived
the Farrars of their civil rights. Nominal damages
were awarded after an appeal.
OQ? QP QQ LQ? LP? LP? LP? LP? LF2 LF2 LF LF? LF2> SF? LF2> LF2 LF? LF
The court, after an evidentiary hearing, granted
Farrar's petition for $280,000 of attorneys’ fees. On
the defendant's motion, a rehearing was held.
A-14
Lieutenant Governor Hobby, through the Attorney
General, presented seven hours of evidence and
hundreds of pages of briefing but has not rebutted the
Farrars' original showing that they prevailed at trial
and on appeal or that the award of $280,000 was
unreasonable. The motion to reconsider will be denied.
These findings are supplemental to those in the record.
Facts.
The Farrars sued a Liberty County attorney, a
Texas district judge, two public welfare department
officials, and Lieutenant Governor Hobby for civil
rights violations, claiming that their actions resulted in
the destruction of Dr. Farrar and his son's reputations
and the permanent closure of their school, Artesia Hall.
The defendants collectively closed Artesia Hall, a home
for juvenile delinquents, in an ex parte proceeding. On
June 22, 1973, after a highly-publicized inspection of
the school, Hobby demanded the closing of Artesia
Hall. Although Dale Farrar was located in a jail cell
adjoining the Liberty County court house and could
have been summoned, the Hall was closed in a 20-
minute ex parte hearing at which Hobby was present.
The jury found that the defendants were not entitled
to qualified immunity because they had acted outside
the scope of their official responsibilities. The Farrars
showed that indictments against them were obtained by
holding over a grand jury on which a member of the
Liberty County Department of Public Welfare
deliberated and by supplying fabricated evidence to the
grand jury. Also, they argued that Artesia Hall was
closed on the pretense that the plaintiffs had not
obtained a license from the Department of Public
Welfare. The defendants who closed the school had,
A-15
however, conspired to make compliance with the
licensing requirements impossible for Artesia Hall.
Apparently, the defendants were embroiled to such a
degree in pursuit of a politically popular campaign
against child abuse that they deprived the target of their
campaign of important procedural due process rights,
which, until the outcome of this suit, resulted in the
professional ruin of the Farrars.
Although Dale Farrar was awarded only nominal
monetary damages, he represents that the suit satisfied
his main objective of clearing his and his father's
reputation by showing that the defendants had abused
their public positions when they arrested Joseph Farrar
for murder and attempted to prosecute both him and his
father without cause.
Background.
The Farrars' suit was filed in 1975, but soon it was
dismissed by the district court. The court of appeals
vacated and remanded the case. Attorneys' fees for
both parties escalated to exorbitant levels in part
because the case was twice appealed, took 10 years to
resolve, and required a six-week trial, which was
complicated by the death of Joseph Farrar, a plaintiff,
and the plaintiffs’ chief witness. Doctor Farrar died
just before trial in April 1983, necessitating the
gathering of additional evidence.
It-is perhaps because of Farrar's untimely death
that large actual monetary damages were not proved
and a take nothing judgment was entered. The jury
instructions made it difficult to discern exactly what the
jury found, but at least all of the defendants, with the
exception of Hobby, were found to have conspired
A-16
against the Farrars. The plaintiffs appealed the
judgment, and the court of appeals reversed the trial
court's entry of a take nothing judgment against Hobby
and remanded the case for the entry of nominal
damages. Farrar v. Cain, 756 F.2d 1148 (Sth Cir.
1985). The district court ordered that each party bear
its own costs even though the jury found that Hobby
had violated the Farrars' civil rights; this ruling was
also reversed. An interim application for attorneys’
fees had been filed by the Farrars in October 1984 and
was amended in 1985 and 1987.
Preclusion.
Hobby argues that this proceeding is precluded by
the trial court's original ruling at the trial. Although
Hobby never appealed the verdict that he had violated
the Farrars' civil rights, he maintains that he did
nothing wrong, and, had he known he would have been
liable for attorneys' fees, he would have appealed.
Hobby also argues that since the plaintiffs appealed the
court's order and appeared “down cast" when the
verdict was delivered, they perceived themselves as the
losing party.
Hobby's argument that this litigation is precluded
by the trial judge's order on November 10, 1983, that
each party bear its own costs fails. After the
November 1983 order the plaintiffs filed an application
for reimbursement. The court, in a February 1985
opinion, stated that because "the element of success is
partially complete" a decision on attorneys’ fees was
“premature” then, but it could be reurged after the
outcome of the appeal. By reversing the district court's
holding on damages, the court of appeals vacated any
apparent ruling on attorneys’ fees.
A-17
The entry of nominal damages supports a finding
that the plaintiffs prevailed at trial.
42 U.S. C. § 1988.
The statute provides that in federal civil rights
actions "the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee as part
of the costs." In enacting § 1988 Congress decided that
the public as a whole has an interest in the vindication
of the rights conferred by the civil rights statutes.
Rather then placing the sole task of enforcing these
rights on a government agency, it was decided that they
would be more vigorously enforced if plaintiffs were
compensated for their costs in successful suits.
It is undisputed that one does not have to achieve a
complete and unblemished victory after a trial on the
merits to be a prevailing party. This would discourage
plaintiffs from bringing related claims that they might
lose on and thus not receive fees for winning on a
major issues. Problems arise, however, in determining
who the prevailing party is when the plaintiff does not
achieve all the relief requested in his suit. The
legislative history of § 1988 does not provide a definite
answer on the proper standard for setting a fee award
where the plaintiff has not succeeded on all claims
asserted. The Supreme Court has placed a great deal of
discretion in the hands of the trial court. "A district
court is expressly empowered to exercise discretion in
determining whether an award is to be made and if so
its reasonableness." Blum v. Stenson, 465 U.S. 886,
902, 104 S. Ct. 1541, 1550 n. 19 (1984).
Last term- the United States Supreme Court,
unanimously put to rest the central issue test previously
A-18
endorsed by the fifth and the eleventh circuits and
stated what the district court must look for when
seeking the prevailing party. Texas State Teachers
Assoc. v. Garland Independent School Dist., _ U.S. _,
109 S. Ct. 1486 (1989).
If the plaintiff has succeeded on “any
significant issue in the litigation which
achieve[d] some of the benefit the parties
sought in bringing suit" the plaintiff has
crossed the threshold to a fee award of some
kind. . . . at a minimum, to be considered a
prevailing party within the meaning of § 1988
the plaintiff must be able to point to a
resolution of the dispute which changes the
legal relationship between itself and the
defendant. . . . Where such a change has
occurred, the degree of the plaintiff's overall
success goes to the reasonableness of the award
under Hensley, not the availability of a fee
award vel non.
Garland, U.S. at __, 109 S. Ct. at 1493 (quoting
Nadeau v. Helgemoe, 581 F. 2d 275, 278-79 (Ist Cir.
1978)): see Shipes v. Trinity Industries, Inc., 883 F.2d
339, 343 (Sth Cir. 1989); Rendon v. AT&T
Technologies, 883 F.2d 388, 399 (Sth Cir. 1989).
Applying this new standard to this case, Farrar is
entitled to a fee award. A constitutional violation by a
public official is no less repugnant to our system simply
because the injury is not redressable by money
damages. This case is not, as Hobby asserts, a “de
minimis technical victory." The importance of Farrar's
vindication punctuates the triumph of our American
spirit and a "violation of constitutional rights is never
A-19
de minimis, a phrase meaning so small or trifling that
the law takes no account of it.” Lewis v. Woods, 848
F.2d 649, 651 (Sth Cir. 1988).
Nominal Damages.
The award of nominal damages meets the test
announced in Garland.
Because the right to procedural due process is
"absolute" in the sense that it does not depend
upon the merits of a claimant's substantive
assertions, and because of the importance to
organized society that procedural due process
be observed, . . . we believe that the denial of
due process should be actionable for nominal
damages without proof of actual injury. . . . By
making the deprivations of such _ rights
actionable for nominal damages without proof
of actual injury, the law recognizes the
importance to organized society that those
rights be scrupulously observed.
Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042,
1054 (1978).
Even under the arguably less generous central issue
test the fifth circuit has held "an attorneys’ fees award
may be supported by an award of nominal damages
since the successful claim serves to vindicate
constitutional rights." Basiardanes v. City of Galveston,
682 F.2d 1203 (Sth Cir. 1982); McNamara v. Moody,
606 F.2d 621 (Sth Cir.1979); cert. denied, 447 U.S.
929, 100 S. Ct. 3028 (1980); Familias Unidas v.
Briscoe, 619 F.2d 391 (Sth Cir. 1980). In Familias
Unidas, the fifth circuit reversed the district court and
used the central issue test to award attorneys' fees. The
A-20
facts closely mirror the facts in the instant case and
even the higher hurdle of the central issue test allowed
an award of attorneys' fees in a case where actual
damages are sought but only nominal damages are
awarded. The plaintiffs in Familias Unidas challenged
§ 4.28 of the Texas Education Code. The fifth circuit
twice reversed the district court's dismissal and
rendered the challenged statute unconstitutional
awarding the plaintiffs nominal damages.
Though Familias and Torrez have each been
less than completely successful — Familias
having been refused injunctive relief by the
prior panel, 544 F.2d at 186-188, and Torrez
having been refused actual damages here —
both prevailed with respect to the central issue
of the case, the constitutionality of section
4.28. Iranian Students Association v. Edwards,
604 F.2d 352, 353 (Sth Cir. 1979) (proper
focus is whether plaintiff is successful on
central issue). The granting of declaratory
relief and nominal damages, based on our
having found section 4.28 to be
unconstitutional, adequately justifies an award
of attorney's fees to plaintiffs as prevailing
parties under the statute.
Id. at 405-06. Even though the plaintiffs were awarded
only nominal damages the fifth circuit remanded the
case for an award of attorneys’ fees for the entire case.
"[w]e remand to the district court solely for receipt and
evaluation of plaintiff's affidavits and determination of
an award of reasonable fees and costs for the entirety of
this litigation, including those incurred on_ this
remand." /d. at 407.
A-2]
Other circuits, previous to Garland, have also
found an award of nominal damages can support an
award of attorneys’ fees. Bilbrey v. Brown, 738 F.2d
1462, 1472 (9th Cir. 1984); Scofield v. City of
Hillsborough, 862 F.2d 759, 766 (9th Cir. 1988);
Coleman v. Turner, 838 F.2d 1004 (8th Cir. 1988)
(reversing district courts denial of attorney's fees where
nominal damages awarded); Smith v. Debartoli, 769
F.2d 451 (7th Cir. 1985), cert. denied, 475 U.S. 1067,
106 S. Ct. 1380 (1986) (holding it was in the discretion
of the district court to allow attorney's fees in case
where nominal damage is awarded, but fees were not
awarded because the plaintiff was not an attorney).
The fourth circuit has found that no award of damages,
nominal or otherwise, is a prerequisite to an award of
attorney's fees.
[A] finding of liability on a § 1983 claim need
not be supported by a monetary damage award
for the prevailing party to reap the legal
benefits of having won on the merits. A
plaintiff in a § 1983 action may recover
attorneys’ fees under 42 U.S.C. 1988 and costs
under rule 54 of the Federal Rules of Civil
Procedure as long as he or she is designated the
prevailing party. A monetary damage award or
equitable relief is not required before a plaintiff
or a defendant in a § 1983 suit may be treated
as the prevailing party for the purpose of
awarding costs and attorney's fees. . . . An
award of $1.00 in damages in this case is not
necessary in order for Ganey to be labeled the
prevailing party.
Ganey v. Edwards, 759 F.2d 337, 339-40 (4th Cir.
A-22
1985). (Plaintiff won the verdict after a five-day trial
but was awarded no damages and lost an appeal for
nominal damages and equitable relief).
The most generous formulation comes from the
third circuit and the case of N.A.A.C.P. v. Wilmington
Medical Center, Inc., 689 F.2d 1161 (3rd Cir. 1982),
cert. denied, 460 U.S. 1052, 103 S. Ct. 1499 (1983).
The court in Wilmington allowed the award of
attorneys’ fees in a case where the plaintiff lost the
case, but a court ordered HEW investigation during the
course of the litigation effectuated some of the plaintiffs
goals. To come to this conclusion, allowing extra-
lawsuit victory to ameliorate litigation defeat, the court
enunciated the following standard: "It is settled law in
this circuit that as long as a plaintiff achieves some of
the benefits sought in initiating a lawsuit, even though
the plaintiff does not ultimately succeed in securing a
favorable judgment, the plaintiff can be considered the
prevailing party for purposes of a fee award." /d. at
1166 (emphasis supplied); See Bagby v. Beal, 606 F.2d
411 (3rd Cir. 1979). A thorough discussion of this
question can be found in /nstitutionalized Juveniles v.
Secretary of Public Welfare, 758 F.2d 897 (3rd Cir.
1985), which reaffirmed the lenient rule: "a plaintiff
may be a prevailing party even though judgment was
actually awarded in favor of the defendant." /d. at
912.
Means and Ends.
Requesting monetary damages in a civil rights suit
is a means to an end; that the substantial darnages that
are requested are not ultimately awarded does not mean
that important constitutional rights have not been
vindicated. “It is not necessarily significant that a
A-23
prevailing plaintiff did not receive all the relief
requested." Hensley v. Eckerhart, 461 U.S. 424, 103
S. Ct. 1933, 1941 n.11 (1983). Undoubtedly, failure
to obtain monetary damages was a disappointment to
Farrar, and that may explain his attorney's look of
disappointment when the verdict was rendered, but this
was not the sole objective or the underlying reason for
the suit. The facial expression of counsel has never
been held to be a criterion of who prevailed. Hobby
cannot belittle the important victory secured by Dale
Farrar of clearing his family name.
Hobby's characterization of himself as the victor
because the jury did not find him financially liable is
misplaced. Civil rights claims are among the hardest
lawsuits to bring; most are dismissed by the courts
before trial, as was this case initially. Obtaining the
stance of "prevailing party" is measured differently in
civil rights suits than in personal injury or other types
of cases and is not synonymous with a money
judgment. Including in their case a demand for huge
money damages should not overshadow equally
important results secured for both the plaintiffs and the
public since it is successful litigants like the Farrars
who discourage state officials from overstepping the
bounds of responsibility entrusted to them. Awarding
attorneys’ fees when a plaintiff has shown the
deprivation of liberty and property without due process,
as the Farrars have done, encourages state actors to
examine the legality of their actions. Unless § 1988 is
construed in the manner described in City /of] Riverside
v. Rivera, 477 U.S. 561, 106 S. Ct. 2686 (1986),
officials will not be constrained to act in consonance
with the Constitution when the monetary award is
likely to be small.
A-24
Although abrupt policy changes are not likely to
follow as a result of this order, the cumulative effect of
meritorious civil rights litigation eventually deters
impermissible conduct by governmental officers and the
expenditure of thousands of taxpayer dollars stubbornly
to defend that misconduct. An award of reasonable
attorneys' fees encourages competent attorneys to
accept cases of plaintiffs who have been seriously
wronged and makes the judgment fully compensatory.
Litigation over attorneys’ fees alone in the Farrars'
suit has spanned two years, consumed hours of oral
argument, generated over 400 pages of briefs,
prompted Hobby to hire a former federal judge for
counsel, and caused the state to buy a 400-page
transcript of the trial, all in an effort to show that the
plaintiffs’ significant relief did not rise to the level of
“prevailing on the central issue." In short, the local
case law has resulted in what Hensley directs should not
happen: the request for attorney's fees turns into a
second major litigation.
Reasonable Fees.
After determining whether the plaintiff was the
prevailing party, the fee requested must be reasonable.
The litigation at issue has spanned ten years. The lead
trial attorney for the plaintiff spent almost 1,000 hours
preparing this case for trial, and by 1987, over 2,000
hours. Hobby has submitted some records of their
legal expenses defending the suit. Their total reported
expenses for just five years, from January 1983 to
August 1985, came to $151,954. "The government
cannot litigate tenaciously and then be heard to
complain about the time necessarily spent by the
plaintiff in response." City of Riverside, 477 U.S. 561,
A-25
580, 106 S. Ct. 2686, 2697, n. 11 (1986) (quoting,
Copeland v. Marshall, 641 F.2d 880, 904 (D.C. Cir.
1980)(en banc)). A reduced fee award is appropriate if
the relief, however significant, is limited in comparison
to the scope of the other litigation as a whole, or more
accurately, the fee in that event is limited to the charges
attributable to that issue. The Farrars' suit was not as
much a case about money — although this issue was
inextricably entwined with the substantive claims — as
it was about the legality of the actions of six state
officials. Hobby argues that even if the Farrars
prevailed, their fee should be reduced because the jury
found only one defendant had violated their rights and
no damages were secured. The Supreme Court has
rejected "a mathematical approach comparing the total
number of issues in the case with those actually
prevailed upon." Hensley, 461 U.S. at 435, 103 S. Ct.
at 1940, n. 11. Dividing the successful issue by the
original number of defendants or claims reflects no
reality of compensation or litigation.
In passing the Act, the legislative history inv cates
that Congress approved the twelve factors enumerated
in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714 (Sth Cir. 1974) as guidelines for determining
the amount of fees to be awarded. These factors are:
(1) the time and labor required, (2) novelty and
difficulty of the questions, (3) level of skill requisite to
perform the legal service properly, (4) preclusion of
other employment by the attorney's acceptance of the
case, (5) customary fee, (6) type of fee arrangement,
either fixed or contingent, (7) time limitations imposed
by the client or the circumstances, (8) amount involved
and the results obtained, (9) experience, reputation, and
ability of the attorneys, (10) undesirability of the case,
A-26
(11) nature and length of the professional relationship
with the client, and (12) amount of awards in similar
cases.
The time spent is undisputed. (1)
Application.
On the second of the Georgia Highway Express
factors, the novelty and difficulty of the case, it is clear
that it was a difficult case in a changing area of the law
that has always been difficult. (2)
The skill required was serious, and that it precluded
other work is clear. (3, 4).
The customary fee is consistent with the
application, so that is a neutral factor. (5)
Whether it is fixed or contingent shifted from time
to time, but that is considered a positive factor in the
application simply because of the necessity that they
advanced considerable cost, recovery of which was
always contingent and riskily so. (6)
The time constraints were normal. (7) Time
constraints in litigation are always harrowing, but there
were none in this case that made it extraordinarily
difficult, so that is a neutral factor.
The amount involved and results obtained factor
was divide into two. The amount involved, the $17
million, has been disregarded except as lawyer
hyperbole. How much was involved is unknown and
will be treated as a negative factor because the amount
involved turned out not to be critical. (8a)
The second half, results obtained, the results
obtained are significant, but possibly less clearly than
A-27
the Farrars wanted. That will be treated as a neutral
factor. The finding of vindication is significant and
especially to people who must continue to live and do
business in a mostly rural Texas county. (8b)
The standing of counsel is a positive factor. There
is no dispute. Waggoner Carr has been Speaker of the
Texas House of Representatives, Attorney General of
Texas, and is a distinguished trial lawyer. (9)
The disposition of the case is a positive factor. The
nature of the case is a negative factor. The attorney
and client had a casual relation at the beginning. (11)
Similar awards is a neutral factor. (12)
Despite the fact that there are six positive, two
negative, and four neutral factors the award will not be
increased.
Carr's hourly rates are entirely reasonable. The
plaintiffs will be awarded $280,000 attorney's fees and
$27,932 costs.
At the original fee hearing, the Farrars called the
trial judge (who has returned to private practice since
the trial) as their expert witness. Based on his
experiences both as a trial lawyer and federal judge,
Mr. Robert O'Conor is well qualified to testify about
the process of calculating an appropriate fee in a civil
rights case; however, none of this testimony was
employed by the court to impeach the record of the
preappeal proceedings. The result has not been
affected by the appearance of two distinguished former
members of this court, neither Robert O'Conor as a
witness for the plaintiffs nor Finis Cowan as local
counsel for the defendant. Prior public service is not a
disqualification.
A-28
When large attorney's fees are awarded following
a small award for actual damages, detractors of civil
rights litigation predictably scream “windfall.” There
is no windfall. Every cent of the attorney's fee was
earned by intelligent, difficult work by the lawyers.
That they should be paid is no more a windfall than the
assistant attorney general's salary was a windfall to
him. He lost the case and still had his fee paid by the
public.
The government grows more complicated, more
powerful, more pervasive. The constitutional decision
made after the Civil War to leave the vindication of all
of our rights up to individual litigants is more important
now than it was then, and that the plaintiffs can trace
no revolution in public administration by reason of this
case does not diminish the contribution that is made by
people who force public officials to comply with the
law. It is not just the family name of the Farrars and
the protection of the Farrars from an excessive
government that has been accomplished here. The
protection extends to all Americans.
It is unfortunate that this system of civil justice has
taken fifteen years to resolve this matter. There will be
prejudgment interest on the fee and cost award based
on the federal postjudgment rate since the oral rendition
of this award.
This motion to reconsider will be denied.
Signed on August 22, 1990, at Houston, Texas.
Lynn N. Hughes
United States District Judge
A-29
(Filed August 31. 1990)
SC ==-— ee
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
—S:"[lc.Oeeeee
The Estate of
JOSEPH D. FARRAR
and DALE LAWSON
FARRAR,
Plaintiffs,
versus CIVIL ACTION
No. H-75-987
CLARENCE D. CAIN,
RUTH URMY,
WILLIAM P. HOBBY, JR.,
RAYMOND W. VOWELL,
LONNIE A. GRUVER, and
ARTHUR J. HARTELL, III,
Defendants.
ORDER DENYING RECONSIDERATION OF
ATTORNEYS’ FEES
The defendants' motion for reconsideration of the
award of attorneys’ fees is denied.
Signed on August 22, 1990, at Houston, Texes.
Lynn N. Hughes
United States District Judge
PP LP LP LP LP? LP? LP? LP? LP? MP2 LP? LF? LP? LP LP. LP LP?
A-30
(Filed September 17, 1991)
ESTATE OF Joseph D. FARRAR
and Dale Lawson Farrar,
Plaintiffs-Appellees,
v.
Clarence D. CAIN, et al., Defendants,
and
William P. Hobby, Jr., Defendant-
Appellant.
No. 90-2830.
United States Court of Appeals,
Fifth Circuit.
Sept. 17, 1991.
In § 1983 action, the United States District Court
for the Southern District of Texas entered summary
judgment for defendants, and plaintiffs appealed. The
Court of Appeals, 642 F.2d 86, vacated and remanded.
On remand, the District Court, Robert O'Conor, Jr.,
J., entered judgment for defendants and plaintiffs
appealed. The Court of Appeals, 756 F.2d 1148,
affirmed in part, reversed in part, and remanded.
Plaintiffs subsequently filed application for attorney's
fees. The District Court,Lynn N. Hughes, J., entered
order awarding plaintiffs attorney's fees, and
defendants appealed. The Court of Appeals, Patrick E.
Higginbotham, Circuit Judge, held that plaintiffs were
not “prevailing parties" under statute allowing for
award of attorney's fees to prevailing parties.
Reversed.
A-31
Reavley, Circuit Judge, dissented with opinion.
Appeal from the United States District Court for
the Southern District of Texas.
Before REAVLEY, HIGGINBOTHAM sand
DUHE, Circuit Judges.
PATRICK E. HIGGINBOTHAM,, Circuit Judge:
Joseph and Dale Farrar brought a § 1983 suit
against then-Lieutenant Governor William Hobby,
among others, alleging that Hobby had participated in a
conspiracy to deprive the Farrars of their civil rights.
At trial the Farrars sought only money--$17 million in
damages. The jury found Hobby innocent of any
conspiracy, but nonetheless found that he had violated
the Farrars' civil rights. Yet the jury found no
damages. On remand, the trial court awarded the
Farrars $1 in nominal damages and, finding the Farrars
to be the "prevailing parties" under § 1988, awarded
them over $300,000 in attorney's fees and expenses.
We are not persuaded that the Farrars were the
prevailing parties under § 1988. We reverse the fee
award.
Joseph and Dale Farrar at one time operated
Artesia Hall, a facility for troubled teens, in Liberty
County, Texas. After the death of an Artesia Hall
student in 1973, a Liberty County grand jury returned a
murder indictment against Joseph Farrar. The
indictment charged Farrar with willfully failing to
administer proper medical treatment to the student and
failing to timely provide for her hospitalization.
Shortly thereafter, the state of Texas, acting through its
A-32
Attorney General, obtained a temporary injunction
closing Artesia Hall.
William Hobby, then Lieutenant Governor, played
some role in the events leading to the closing of Artesia
Hall. Upon learning of the indictment through the
media, and discussing the situation with State
Representative John Whitmire, Hobby issued a press
release criticizing the Texas Department of Public
Welfare and its licensing procedures. He also
contacted Raymond Vowell, the director of the TDPW,
and urged him to investigate Artesia Hall. Several days
later, Hobby met with Governor Dolph Briscoe and
accompanied Briscoe on an inspection of Artesia Hall.
Finally, he attended the temporary injunction hearing
with Briscoe, but did not personally testify, and spoke
to reporters after the hearing.
The murder indictment was eventually dismissed.
Joseph Farrar later filed this suit against Hobby, Judge
Cain, County Attorney Hartel, and the director and two
employees of the Texas Department of Public Welfare,
seeking injunctive relief and monetary damages under
42 U.S.C. §§ 1983 and 1985. Later amendments to the
complaint added Farrar's son, Dale, as a plaintiff,
dropped the claim for injunctive relief, and increased
the requested damages to $17 million. The Farrars
alleged that the defendants violated their civil rights by,
among other things, malicious prosecution aimed at
closing the school, thereby depriving them of the right
to practice their livelihood and profession. They also
alleged a conspiracy to violate their civil rights.
The district court granted the defendants' motion
for summary judgment on February 23, 1981, but a
panel of this court vacated the order. Joseph Farrar
A-33
died on February 20, 1983, and the court granted a
motion to substitute the co-administrators of his estate,
Pat Smith and Dale Farrar, as plaintiffs. On August
15, 1983, the case was tried to a jury on ten special
interrogatories. The jury found that none of the
defendants were immune from liability, that all of the
defendants except Hobby, engaged in a conspiracy
against the plaintiffs, that the conspiracy was not the
proximate cause of any injury, that Hobby "committed
an act or acts under color of state law that deprived
Plaintiff Joseph Farrar of a civil right," and that
Hobby's acts were not the proximate cause of any
injury. The district court entered judgment in
gree with the jury's findings on November 10,
On appeal, in an opinion dated April 8, 1985, this
court affirmed in part and reversed in part. We
affirmed the district court's failure to award nominal
damages against the defendants engaged in the
conspiracy because, to establish liability under § 1983,
"it remains necessary to prove an actual deprivation of
a constitutional right; a conspiracy to deprive is
insufficient."' However, because the jury found that
Hobby committed a civil-rights violation, we remanded
for the entry of nominal damages against him.2
: Ae 4 v. Cain, 756 F.2d 1148, 1151 (Sth Cir. 1985)
quoting Villanueva v. Mclnnis, 723 F.2d 414
Cir. 1984)). heap
2 Id. at 1152 (citing Carey v. Piphus, 435 U.S. 247, 266-67
98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978); and Webster v.
City of Houston, 689 F.2d 1220, 1230 (Sth Cir.1982), vacated
and remanded on other grounds, 735 F.2d 838 (Sth Cir.), aff'd
in part and rev'd in part, 739 F.2d 993 (Sth Cir.1984) (en banc
rehearing granted)).
A-34
The Farrars subsequently filed an application for
attorney's fees under 42 U.S.C. §§ 1988, seeking to
recover $248,362.50 in fees and $27,976.74 in
expenses. After a hearing, the district court entered an
order awarding “Pat Smith, Dale Farrar, and Dale
Lawson Farrar" $280,000.00 in fees, $27,932.00 in
expenses, and prejudgment interest, against Hobby
only. The court denied reconsideration of the fee
award, and Hobby now appeals to this court. We hold
that the Farrars are not “prevailing parties" under §
1988 and therefore reverse.
Il
Section 1988 provides, in relevant part, as follows:
In any action or proceeding to enforce a provision
of sections 1981, 1982, 1983, 1985, and 1986 of
this title, title IX of Public Law 92-318, or title VI
of the Civil Rights Act of 1964, the court, in its
discretion, may allow the prevailing party, other
than the United States, a reasonable attorney's fee
as part of the costs.?
In several recent cases, the Supreme Court has
articulated standards for determining whether a party
has prevailed for purposes of recovering attorney's fees
under § 1988.4 In Garland, rejecting the "central
342 U.S.C.A. § 1988 (West 1981) (emphasis added).
4 Texas State Teachers v. Garland Indep. School Dist., 489
U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Rhodes v.
Stewart, 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988);
Hewitt v. Helms, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987);
Hensley v. Eckerhart, 41 U.S. 424, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983).
A-35
issue" test, which this circuit had ied,>
stated that “[ijf the plaintiff has euumete ‘on
significant issue in litigation which achieve[d] some of
the benefit the parties sought in bringing suit' the
plaintiff has crossed the threshold to a fee award of
some kind." The Court went on to say that,
at a minimum, to be considered a prevailin
within the meaning of § 1988 the olaintiff Aon
able to point to a resolution of the dispute which
changes the legal relationship between itself and the
defendant. Beyond this absolute limitation, a
technical victory may be so insignificant, and may
ete near the ag addressed in Hewitt and
es, as to be insufficient t ili
ro dh O support prevailing
The Court also noted that it had first laid this "floor"
prevailing-party requirement in Hewitt.
Hewitt was an inmate's § 1983 suit against pris
officials. Following a prison riot in comet tory
officials "charged" inmate Aaron Helms for allegedly
striking an officer. Relying solely on the hearsay
testimony of the charging officer, a prison committee
found Helms guilty. Helms sued claiming denial of due
process. The prison officials contested the
5 Texas State Teachers Assoc. v. Garl
.v. and Indep. §
Dist., 837 F.2d 190 (Sth Cir.1988), rev'd, 489 Us ten te
S.Ct. 1486, 103 L.Ed.2d 866 (1989).
® Garland, 109 $.Ct. at 1493 (quoting Nadeau v. Helgemoe,
581 F.2d 275, 278-79 (ist Cir.1978)). In Hensley v. Eckerhart,
103 S.Ct. at 1939 (1983), the Court applied the same standard.
’ Id. (citations omitted).
A-36
constitutional claim and invoked qualified immunity.
The district court granted summary judgment for the
defendants but did not decide the immunity issue.
However, the Third Circuit, finding that Helms was
denied due process, reversed and instructed the trial
court to enter summary judgment for Helms unless the
officials could establish an immunity defense. On
remand the district court granted summary judgment
for the defendants on the basis of qualified immunity.
The Supreme Court held that Helms was not a
prevailing party:
Respect for ordinary language requires that a
plaintiff receive at least some relief on the merits of
his claim before he can be said to prevail ....
Helms obtained no relief. Because of the
defendants’ official immunity he received no
damages award. No injunction or declaratory
judgment was entered in his favor.®
The Court then made the following distinction between
“a vindication of rights" and “some relief on the
merits: "
In all civil litigation, the judicial decree is
not the end but the means. At the end of the
rainbow lies not a judgment, but some action (or
cessation of action) by the defendant that the
judgment produces--the payment of damages, or
some specific performance, or the termination of
some conduct. Redress is sought through the
court, but from the defendant.... The real value of
the judicial pronouncement--what makes it a proper
8 Hewitt, 107 S.Ct. at 2675.
A-37
resolution of a "case or controversy” rather than an
advisory opinion--is in the settling of some dispute
which affects the behavior of the defendant towards
the plaintiff .... AS a consequence of the present
lawsuit, Helms obtained nothing from the
defendants. The only "relief" he received was the
moral satisfaction of knowing that a federal court
concluded that his rights had been violated. The
same moral satisfaction presumably results from
any favorable statement of law in an otherwise
unfavorable opinion.?
The Court applied the Hewitt principles in Rhodes
v. Stewart.'° In Rhodes two inmates in an Ohio prison
filed 4 § 1983 complaint, alleging that, by refusing to
permit the inmates to subscribe to a magazine, prison
officials had violated the inmates’ First and Fourteenth
Amendment rights. The district court eventually
decided in favor of the plaintiffs, ruling that the
officials had not applied the proper procedures and
standards. But by the time the district court issued its
decision, one of the inmates had died and the other had
been released. The district court awarded attorney's
fees to the plaintiffs. The court of appeals construed
the district court's decision as a declaratory judgment
and therefore upheld the fee award.
The Supreme Court reversed the fee award on the
ground that, because the plaintiffs had won no relief
from the defendants, Hewitt was controlling:
9 Id. 107 S.Ct. at 2676 (emphasis in original).
© 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988).
A-38
A declaratory judgment ... is no different from
any other judgment. It will constitute relief, for
purposes of § 1988, if, and only if, it affects the
behavior of the defendant towards the plaintiff.
In this case there was no such result. A
modification of prison policies on magazine
subscriptions could not in any way have
benefited either plaintiff, one of whom was dead
and the other released before the District Court
entered its order.... The case was moot before
judgment issued, and the judgment therefore
afforded the plaintiffs no relief whatsoever. In
the absence of relief, a party cannot meet the
threshold requirement of § 1988 that he prevail,
and in consequence is not entitled to an award of
attorney's fees.!!
Thus, after Hewitt, Rhodes, and Garland, to qualify as
a prevailing party, a plaintiff must show that he won at
least some relief from the defendant, that the outcome
of the suit changed the legal relationship between the
parties, and that the plaintiff's success was not a de
minimis or technical victory.
Ill
We are persuaded that the Farrars were not
prevailing parties for the purposes of § 1988, and we
therefore reverse. The Farrars sued for $17 million in
money damages; the jury gave them nothing. No
money damages. No declaratory relief. No injunctive
relief. Nothing. “That is not the stuff of which legal
'! Rhodes, 109 §.Ct. at 203-04.
A-39
victories are made."!2 Of course, as the district court
emphasized, the Farrars did succeed in securing a jury-
finding that Hobby violated their civil rights and a
nominal award of one dollar. However, this finding
did not in any meaningful sense “change the legal
relationship" between the Farrars and Hobby.!3 Nor
was the result a success for the Farrars on a “significant
issue thai achievejd] some of the benefit the [Farrars]
sought in bringing suit."'* When the sole relief sought
is money damages, we fail to see how a party
"prevails" by winning one dollar out of the $17 million
requested. Furthermore, even if the Farrars could be
seen as victors, given their singular objective of money
damages, surely theirs was “a technical victory... so
insignificant, and ... so near the situations addressed in
Hewitt and Rhodes, as to be insufficient to support
prevailing party status." !5
In Hewitt the plaintiff secured a judicial
determination that his constitutional rights had been
violated. But since he was unable to get any form of
relief from the defendants--owing to the defendants’
governmental immunity--the plaintiff was deemed not
to be a prevailing party. The same principle was
applied in Rhodes. There the Court said that, although
the plaintiffs won a declaratory judgment stating that
the defendants had violated constitutional rights, the
plaintiffs were not prevailing parties under § 1988
'2 Hewitt, 107 S.Ct. at 2676.
'3 Garland, 109 §.Ct. at 1493.
14 Jd.
15 Id.
A-40
because they received no benefit from the judgment.
"In the absence of relief a party cannot meet the
threshold requirement of § 1988 that he prevail, and in
consequence is not entitled to an award of attorney's
fees."'6 Likewise, the Farrars failed to meet that §
1988 threshold, because they too failed to win relief.
We do not diminish the significance of a finding of
a constitutional violation. In Carey v. Piphus,'’
stressing “the importance to organized society that
procedural due process be observed," the Supreme
Court held that the denial of due process is actionable
for nominal damages even without proof of actual
injury.'8 Moreover, as the district court noted, we
have held that "[a] violation of constitutional rights is
never de minimis," in the sense that a constitutional
violation is never "so small or trifling that the law takes
no account of it."!9 That holding is no less valid today.
Rather, we hold that when the sole object of a suit is to
recover money damages, the recovery of one dollar is
no victory under § 1988. This was no struggle over
constitutional principles. It was a damage suit and
surely so since plaintiffs sought nothing more. We
16 Rhodes, 109 §.Ct. at 204.
17 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55
L.Ed.2d 252 (1978).
18 Although the Court spoke to the issue indirectly, Carey,
435 U.S. at 257 n. 11, 98 S.Ct. at 1049 n. 11, it did not answer
the question whether a plaintiff who wins only nominal damages
may recover attorney's fees.
19 Lewis v. Woods, 848 F.2d 649, 651 (Sth Cir. 1988)
(citing Carey).
A-41
must--under Garland,2° Hewitt, and Rhodes--inquire
into whether the plaintiff's victory, as measured by the
relief actually obtained, was merely a de minimis or
technical success.2!
Our holding today conflicts with opinions of the
Second, Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuits.22 The most recent of those opinions, and the
one whose reasoning and holding are most obviously
contrary to our own, is Ruggiero v. Krzeminski.23
In Ruggiero, police officers conducted a search of
20 Garland, 109 S.Ct. at 1493 ("Where the plaintiff's
success on a legal claim can be characterized as purely technical
> hy — a a | -_ would be justified in concluding
t even generous formulation’ we today h
satisfied.") (citation omitted). tte aan
. - In a related argument, the district court cites three Fifth
Circuit opinions that supposedly stand for the proposition that the
award of nominal damages will alone support a § 1988
attorney's-fee award. Basiardanes v. City of Galveston, 682 F.2d
1203 (Sth Cir.1982); Familias Unidas v. Briscoe, 619 F.2d 391
(Sth Cir.1980); McNamara v. Moody, 606 F.2d 621 (Sth Cir.
aoe All three —_F however, were decided before and
erefore were not gov by the Supreme Court’ isions ji
a ay om y pr rt's decisions in
22 Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir.199i
Scofield v. City of Hillsborough, 862 F.2d 799, 166 (9th Cie
1988); Coleman v. Turner, 838 F.2d 1004, 1005 (8th Cir. 1988):
Nephew v. City of Aurora, 830 F.2d 1547, 1553 n. 2 (10th Cir.
1987) (en banc); Garner v. Wal-Mart Stores, Inc., 807 F.2d
1536, 1539 (11th Cir. 1987). But see Spencer v. General Electric
Co., 894 F.2d 651 (4th Cir. 1990) (dicta). We do not lightly
ae ~ oy By » aor was circulated to the entire court
ir court's policy. No member of the
requested en banc considerat ~y iain
23 928 F.2d 558 (2d Cir. 1991).
A-42
the Ruggieros' home and seized certain items. The
Ruggieros brought § 1983 suit against the officers,
alleging, among other things, that the search and the
seizure were illegal. The jury found that the Ruggieros
had not consented to the search. It also found,
however, that the Ruggieros suffered no compensatory
damages as a result of the illegal search. The trial
judge directed the award of nominal damages in the
amount of one dollar. The judge also determined that
the Ruggieros were the prevailing parties under § 1988
and, accordingly, awarded them attorney's fees.
On appeal the Second Circuit, citing the Supreme
Court's opinion in Carey as well as this court's opinion
in Farrar I, approved the nominal-damage award. The
court also affirmed the attorney's-fee award and
rejected Officer Krzeminski's argument that the
Ruggieros _were not prevailing parties within the
meaning of § 1988 because of their limited success at
trial. Quoting from Garland, the court held that the
Ruggieros were indeed prevailing parties:
In a case such as the case at bar, where the claims
arise out of a common core of facts and involve
related legal theories, success may be assessed by
examining whether plaintiffs can “point to a
resolution of the dispute which changes the legal
relationship between [them] and the defendant(s] ."
Based on the Supreme Court's “generous
formulation,” we think it clear that the Ruggieros
were “prevailing parties" as required by section
1988. The jury's determination that appellants’
fourth and fourteenth amendment rights were
violated by the search conducted by the Officers
assuredly is significant. Simply because the jury
7
A-43
found that the Ruggieros did not establish their
claims in all respects does nothing to lessen the
Significance, or importance, of the Ruggieros'
success. Although no compensatory damages were
awarded, the jury's determination “changes the
relationship " between the Ruggiéros and the
> aes that a violation of rights had been
Thus the Second Circuit holds that when a jury
— that a constitutional violation has occurred--
even when the plaintiff seeks only compensat
relief25 and the jury finds no damages stananephe
legal relationship between the plaintiff and the
defendant has changed and the plaintiff has prevailed.
Other circuits have reached essentially the same
conclusion as the Second Circuit: that a finding of a
violation and an award of nominal
damages--unaccompanied by other relief--is sufficient
to create prevailing party status.26 Some of those
cases, however, were decided before Rhodes or even
before Hewitt. Eg., Nephew (decided before Rhodes);
Garner (decided before Hewitt ). The cases decided
24 Garland, 109 S.Ct. at 1493 (emphasis added).
25 The opinion does not indicate that the Ruggi
ggieros sought
anything other than monetary damages. In any event, the —
makes clear the Ruggieros won no relief from the defendants.
2® Scofield v. City of Hillsborough, 862 F.2d 759. 7
Cir.1988); Coleman v. Turner, 838 F.2d 1004. Anny ~
Cir.1988); Nephew v. City of Aurora, 830 F.2d 1547, 1553 n. 2
(10th Cir.1987) (en banc); Garner v. Wal-Mart Stores Inc., 807
F.2d 1536, 1539 (11th Cir. 1987). But see Spencer v. General
Electric Co., 894 F.2d 651 (4th Cir. 1990) (dicta).
A-44
after Hewitt and Rhodes do not discuss or even refer to
either case. Instead, the courts rely on pre-Hewitt and
pre-Rhodes circuit-court decisions.2”7_ Even Ruggiero
does not discuss or cite Hewitt or Rhodes; it relies
instead on the Supreme Court's opinions in Garland
and Hensley.
In any event, applying the principles set forth in
Hewitt and applied in Rhodes, we are compelled to
disagree with the position taken by these circuits,
especially as that position is stated in Ruggiero. In
Hewitt the court of appeals determined that the
plaintiff's constitutional rights had been violated. But
on remand the trial court denied all relief, as the
defendants were protected because of official immunity.
The Supreme Court held that the plaintiff was not the
prevailing party, because “[t]he only ‘relief’ he
received was the moral satisfaction of knowing that a
federal court concluded that his rights had been
violated. The same moral satisfaction presumably
results from any favorable statement of law in an
otherwise unfavorable opinion."28 After Hewitt but
before Rhodes, one might have distinguished between a
mere “favorable statement of law" and an actual
judgment declaring a rights violation. In -Rhodes,
however, the Court extended the Hewitt principle to
situations in which the plaintiff has secured such a
judgment but has failed to win relief from the
27 Coleman>-838-F .2d at 1005 (citing Smith v. DeBartoli,
769 F.2d 451 (7th Cir.1985), cert. denied, 475 U.S. 1067, 106
S.Ct. 1380, 89 L.Ed.2d 606 (1986)); Scofield, 862 F.2d at 766
(citing, inter alia, Bilbrey v. Brown, 738 F.2d 1462, 1472 (9th
Cir. 1988)).
28 Hewitt, 107 S.Ct. at 2676.
A-45
defendant. The Court stated that "[a] declaratory
judgment ... is no different from any other judgment.
It will constitute relief, for the purpose of § 1988, if,
and only if, it affects the behavior of the defendant
towards the plaintiff."29
. That a court or jury finds a violation does_not,
by itself, create prevailing-party status. Rather, to be a
prevailing party, a plaintiff must secure a decision that
changes the legal relationship between the parties in a
way that alters the defendant's behavior toward the
plaintiff and that secures some of the relief sought by
the plaintiff in bringing the suit. The Farrars have won
no such victory.
We reverse the district court's attorney's-fee award
and hold that the parties shal) bear their own costs.
REVERSED.
REAVLEY, Circuit Judge, dissenting:
While I have difficulty understanding the
justification for the finding that Governor Hobby
violated plaintiffs' civil rights, that issue has been
foreclosed. The majority holds that where plaintiff
obtains only nominal damages for his constitutional
deprivation, he cannot be considered the prevailing
party. I disagree and do not read Hewitt, Rhodes and
Garland to go so far. The plaintiffs prevailed in their
claim although the amount of their benefit was only
nominal. I do not regard that result as insignificant. I
would, however, order reconsideration of the amount
of the fee under these circumstances.
29 Rhodes, 109 S.Ct. at 203.
A-46
(Filed September 17, 1991)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-2830
D.C. Docket No. CA H 75 0987
ESTATE OF JOSEPH D. FARRAR and
DALE LAWSON FARRAR,
Plaintiffs-Appellees,
versus
CLARENCE D. CAIN, ET AL.,
Defendants,
and
WILLIAM P. HOBBY, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
Before REAVLEY, HIGGINBOTHAM and DUHE, Circuit
Judges.
JUDGMENT
This cause came on to be heard on the record on appeal
and was argued by counsel.
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the District Court's
attorney 's-fee award in this cause is reversed.
A-47
IT IS FURTHER ORDERED that each party bear its
Own costs on appeal.
September 17, 1991
ISSUED AS MANDATE: October 25, 1991
Reavley, Circuit Judge, dissents.
STATUTORY PROVISIONS
42 U.S.C. § 1983. Civil action for deprivation of
rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . .
42 U.S.C. § 1988. Proceedings in vindication of civil
rights; attorney's fees
. . . In any action or proceeding to enforce a provision
of sections 1977, 1978, 1978, 1979, 1980, and 1981 of
the Revised Statutes [42 U.S.C. §§ 1981-83, 1985,
1986], title IX of Public Law 92-318 [20 U.S.C. §§
1681 et seq.J, 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 prevailing party, other than
~ United States, a reasonable attorney's fee as part of
costs.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.