Amicus Curiae Brief — Farrar v. Hobby

TION FILED

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No. 91-990

IN THE

Supreme Court of the Anited States

4 OCTOBER TERM, 1991

DALE FARRAR, et al.,

Petitioners,

v.

WILLIAM Hoppy,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

MOTION FOR LEAVE TO FILE A BRIEF

AS AMICUS CURIAE AND BRIEF OF

THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

TALBOT S. D’ALEMBERTE*

President

American Bar Association

Eric B. SCHNURER

CARTER G. PHILLIPS

JOSEPH R. GUERRA

750 North Lake Shore Drive

Chicago, IL 60611

(312) 988-5215

Counsel for Amicus Curiae

*Counsel of Record

April 9, 1992

a

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-990

DALE FARRAR, et al.,

Bar Association (“‘ABA’’) hereby re-

to Rule 37 of the Rules of this Court,

brief as amicus curiae

ABA obtained the con-

petitioners to the filing of this brief.’

than 365,000 members throughout the United States.

The ABA’s membership includes many lawyers who

regularly represent plaintiffs in civil rights, antitrust,

environmental, and other types of federal litigation

in which, by federal statute, courts are empowered

to award ‘reasonable attorney’s fees’’ to prevailing

parties.

As the national organization of the bar, the ABA

has long promulgated standards of professional re-

sponsibility, including standards governing the fees

that attorneys may charge for their services. The ABA

also has recognized the legal profession’s duty to help

enforce our nation’s civil rights laws. The ABA has

contributed to the development of federal fee-shifting

statutes, and, in light of its leadership role, has par-

ticipated as amicus curiae in previous cases before

this Court concerning the interpretation of these stat-

utes.*

The practical interest of the ABA’s members in the

proper application of fee-shifting statutes, the com-

mitment of the ABA and its members to the devel-

opment of proper ethical standards for attorney

service and compensation, and the commitment of the

ABA and its members to the protection of constitu-

tional norms give the ABA a strong and unique in-

terest in this case as amicus curiae. The ABA believes

that its perspective on the issues presented by

petitioners will assist the Court in evaluating the de-

cision of the court of appeals.

*See Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 483 U.S. 711 (1987). The ABA also is filing a brief

as amicus curiae in City of Burlington v. Dague, No. 91-810.

For the foregoing reasons, the ABA's Motion for

Leave to File a Brief as Amicus Curiae in Support

of Petitioners should be granted.

Respectfully submitted,

TALBOT S. D’ALEMBERTE*

President

American Bar Association

Eric B. SCHNURER

CARTER G. PHILLIPS

JOSEPH R. GUERRA

750 North Lake Shore Drive

Chicago, IL 60611

(312) 988-5215

Counsel for Amicus Curiae

*Counsel of Record

QUESTION PRESENTED

Whether 42 U.S.C. § 1988 authorizes the award of

reasonable attorney’s fees to civil rights plaintiffs who

recover nominal damages.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........:..:c:cscecssesesessseseseees iii

INTEREST OF AMICUS CURIAE ..0....:c:.ccsseseseseseeeeess 1

SUMMARY OF ARGUMENT. .........:c:ccccscsesesesssesesesees 1

[FRESE ia a OED 4

I. The

Even Those Who Recover y Nominal

, Are Entitled To Recover Reason-

ee ee GD eeeetrerntteiietesetnidetstiemmctcen 4

II. This Court’s Cases Make Clear That A

Plaintiff Who Recovers Nominal Damages Is

Entitled To An Award Of Attorney’s Fees

kb een 8

A. The ‘ Thresbold” Inquiry Requirement Is

Only A™ “Threshold lilaiaariaidmmmniers 8

B. The Court Blow Snved tn, hing Ths

Plaintiffs’ Status As “ Parties”

Contingent U The Size Of Dam-

age Award ee 10

C. The Limited awe Of A Prevailing Par-

y s Success Is Properly Reflected In The

t Of jan s i Awarded .. 17

GEUEEUEIEED cvandincnsusensncscniasmnmineiennnntentenasenonmsemeneten 20

iil

TABLE OF AUTHORITIES

CASES Page

Allen v. Higgins, 902 F.2d 682 (8th Cir. 1990) ..... 11

Alyeska Pipeline Serv. Co. v. Wilderness Society,

421 U. ‘S. CUED cxnnesevsenssnswnsreverecresesensersneee 4

Blanchard v. Bergeron, 489 U.S. 87 (1989) ........... 18,19

Carey v. Piphus, 435 U.S. 247 (1978) ....... 2,6,7,14,15,18

Estate of Farrar v. Cain, 941 F.2d 1311 (5th Cir.

TUUETED cuniendenunsiansnapesnsnmdiditutenesmnsenenpepnssnsumenneeveets 10,16

Ganey v. Edwards, 759 F.2d 337 (4th Cir. 1985) . 11

Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536

eee 11

Hensley v. Eckerhart, 461 U.S. 424

SEED scuinicscacinenaponnneeinmemtenmtetnseness 3,4,5,6,8,17,18,19

Hewitt v. Helms, 482 U.S. 755 (1987) .......... 3,9,10,11,14

Maher v. Gagne, 448 U.S. 122 (1980) .................... 6,8

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.

SEU ‘scnserenestniimencimneniadiiaidmanenineemmeneserstennenes 8

eee v. City of Aurora, 830 F.2d 1547 (10th Cir.

scunemianeennedianansndienininnaemimeimeenteennmemanennes 11

PB sot v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986) ................ 2,5,6

Rhodes v. Stewart, 488 U.S. 1 (1988) ................000- 3,9

City of Riverside v. Rivera, 477 U.S. 561 (1986).. 6,18

Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir.

ESET cettdenesnenenentinepentnntnendnecnmemnmenennesntatsnssenssenee 11

Scofield v. City of Hillsborough, 862 F.2d 759 (9th

BI BT siichiniidititeniacicianinantaeieataiitetiiinnimmeeteretenates 11

Skoda v. Fontani, 646 F.2d 1193 (7th Cir. 1981) . 11

Texas State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782

(1989) ccseeuscessosseses 2,3,6,8,9,10,11,12,13,14,15,17,18,19

United States v. Students cre}

Agency Procedures, 412 U.S (1973) ........ ll

iv

TABLE OF AUTHORITIES—Continued

Page

STATUTES AND RULES

42 U.S.C. § 1988 .......ccsesccssesssssessssrssssssssossssseossss.,.. 1,4

LEGISLATIVE HISTORY

Cong. Rec., 94th Cong., 33,314 (1976) ................. 5

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976). 25.6

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) . 6,7,18,19

OTHER AUTHORITIES

M. Derfner & A. Wolf. Court Ordered Attorney

Free (rev. @d. 1991) .......sssecssesssssesssseecssss...,..,7 1]

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-990

DALE FARRAR, et al.,

Petitioners,

Vv.

WILLIAM Hoppy,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The interest of the American Bar Association as

amicus curiae is fully set forth in the Motion for

Leave to File a Brief as Amicus Curiae in Support

of Petitioners.

SUMMARY OF ARGUMENT

Congress enacted 42 U.S.C. § 1988 to enable

plaintiffs to vindicate the fundamental national poli-

cies underlying the civil rights laws. ‘“{U)nless rea-

2

sonable attorney’s fees could be awarded for bringing

these actions, Congress found that many legitimate

claims would not be redressed.”’ Pennsylvania v. Del-

aware Valley Citizens’ Council for Clean Air, 478

U.S. 546, 560 (1986). This is because ‘‘a vast majority

of the victims of civil rights violations cannot afford

legal counsel” and because many civil rights claims

have a “severely limit[ed]’’ potential for damages.

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1, 9 (1976).

Indeed, consistent with this congressional policy, this

Court has recognized ‘“‘the importance to organized

society’’ of prosecuting civil rights actions even where

the victim of a constitutional violation has suffered

no “actual injury’ apart from the denial of a con-

stitutional right and where, as a consequence, the only

damages recoverable are nominal. See Carey v. Pi-

phus, 435 U.S. 247, 266 (1978). Thus, an explicit ra-

tionale of Section 1988 was the need to provide an

incentive for the prosecution of civil rights actions

that were likely to result in little or no damage re-

coveries for the plaintiff.

Given the recognition by Congress and by this Court

that lawsuits brought to vindicate constitutional rights

serve a vital public purpose even when they do not

yield significant damage recoveries, there is clearly

no basis upon which to hold that a plaintiff who suc-

ceeds in such an action is not a “prevailing party”

because his damages are only nominal. Time and

again, this Court has made clear that Section 1988’s

“prevailing party’’ requirement entails only a minima:

“threshold” inquiry, and that a party may be said to

have “prevail[ed]’’ where he “has succeeded on ‘any

significant issue’’’ presented in the litigation, Texas

State Teachers Ass’n v. Garland Indep. Sch. Dist.,

3

489 U.S. 782, 791 (1989), and where, as a result, he

“receive[s] at least some of the relief on the merits

of his claim.’’ Hewitt v. Helms, 482 U.S. 755, 760

(1987). Once this test is met, “the degree of the

plaintiff's overall success goes [only] to the reasona-

bleness of the award . . ., not to the availability of

a fee award vel non.” Texas State Teachers, 489 U.S.

at 793.

The court below contravened this teaching by mak-

ing the availability of a fee award in a civil rights

action turn, not on whether the plaintiff in fact has

succeeded in obtaining relief on the merits of his

claim, but rather on the degree of the plaintiff's suc-

cess as measured by the dollar value of the damages

awarded. In so doing, the court of appeals extended

dramatically this Court’s rulings in Rhodes v. Stewart,

488 U.S. 1 (1988), and Helms, 482 U.S. 755, which

had announced only the “‘common sense’’ proposition

that a plaintiff cannot be said to have prevailed where

he has obtained no relief whatsoever from the

defendant.

The fact that petitioners recovered only one dollar

out of the $17 million they requested should not pre-

vent them from crossing the statutory threshold to a

fee award of some kind. The magnitude of the re-

covery should be a factor solely in determining the

amount of fees that ultimately are awarded. Although

the degree of a plaintiff's success is not relevant to

whether he is a “prevailing party,’ it is clearly rel-

evant to determining what fee is ‘‘reasonable’’ under

all the circumstances. See Texas State Teachers, 489

U.S. at 790; Hensley v. Eckerhart, 461 U.S. 424, 436

(1983). For this reason, it does not follow inexorably

that simply because a plaintiff “prevails,” even though

4

the success is limited, he or she will receive a large

award of attorney’s fees.

ARGUMENT

I. THE LANGUAGE, PURPOSE, AND HISTORY OF 42

U.S.C. § 1988 DEMONSTRATE CLEARLY THAT CON-

GRESS INTENDED THAT PREVAILING PLAINTIFFS,

EVEN THOSE WHO RECOVER ONLY NOMINAL DAM-

AGES, ARE ENTITLED TO RECOVER REASONABLE

FEE AWARDS.

The Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. § 1988, provides in relevant part:

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.

Congress enacted Section 1988 in response to this

Court’s decision in Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240 (1975), which had

“reaffirmed the ‘American Rule’ that each party in

a lawsuit ordinarily shall bear its own attorney’s fees

unless there is express statutory authorization to the

contrary.”” Hensley, 461 U.S. at 429.

Congress’ swift response to Alyeska was grounded

in the determination that civil rights plaintiffs too

often were unable to secure legal representation in

the private legal services market and that, as a result,

violations of important federal rights went unre-

dressed. ‘“‘Because a vast majority of the victims of

civil rights violations cannot afford legal counsel,”

5

Congress observed, ‘“‘they are unable to present their

cases to the courts.”” H.R. Rep. No. 1558, 94th Cong.,

2d Sess. 1 (1976). Moreover, ‘‘while damages are the-

oretically available under the statutes covered by [Sec-

tion 1988], ... immunity doctrines and special

defenses, available only to public officials, [may] pre-

clude or severely limit the damage remedy.” Id. at

9. Consequently, as a general matter, “civil rights

cases—unlike tort or antitrust cases—do not provide

the prevailing plaintiff with a large recovery from

which he can pay his lawyer.’’ 122 Cong. Rec. 33,314

(1976) (remarks of Sen. Kennedy).

Fearful that these factors were causing many mer-

itorious civil rights claims to go unprosecuted, Con-

gress enacted Section 1988 “to ensure ‘effective

access to the judicial process’ for persons with civil

rights grievances.”’ Hensley, 461 U.S. at 429 (quoting

H.R. Rep. No. 1558, supra, at 1).° “[FJee awards,

the Senate report noted,

have proved an essential remedy if private citi-

zens are to have a meaningful opportunity to vin-

dicate the important Congressional policies which

these laws contain. ... If private citizens are to

be able to assert their civil rights, and if those

who violate the Nation’s fundamental laws are

not to proceed with impunity, then citizens must

have the opportunity to recover what it costs

them to vindicate these rights in court.

* See also Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546, 560 (1986) (“unless reasonable

attorney's fees could be awarded for bringing these actions,

Congress found that many legitimate claims would not be re-

dressed’’).

6

S. Rep. No. 1011, 94th Cong., 2d Sess. 2 (‘‘Senate

Report”’), reprinted in 1976 U.S. Code Cong. & Ad-

me News 5910 (indication of paragraph break omit-

).*

Thus, Congress not only recognized that successful

civil rights actions often would not end in sizable

damage awards, but also emphasized that ‘awarding

counsel fees to prevailing plaintiffs in such litigation

is particularly important and necessary if Federal

civil and constitutional rights are to be adequately

protected.’’ H.R. Rep. No. 1558, supra, at 9 (emphasis

added). Accordingly, ‘‘the amount of fees awarded

... [should] not be reduced because the rights in-

volved may be nonpecuniary in nature.” Senate Re-

port, supra, at 6, reprinted in 1976 U.S. Code Cong.

& Admin. News at 5913.

Two years after Congress enacted Section 1988,

this Court confirmed Congress’ understanding that

the rights at stake in litigation covered by the fee-

shifting statute often would “‘be nonpecuniary in na-

ture.” In Carey v. Piphus, 435 U.S. 247 (1978), the

_§ This Court regularly has relied upon these legislative reports

in discerning Congress’ intent with respect to the fee-shifting

provision contained in Section 1988, as well as those found in

other federal statutes. See, e.g., Texas State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989); Pennsyl-

vania v. Delaware Valley Citizens’ Council for Clean Air, 478

U.S. 546, 560; City of Riverside v. Rivera, 477 U.S. 561, 575-

78 (1986) (plurality opinion); Hensley v. Eckerhart, 461 U.S. 424,

429-30 (1983); Maher v. Gagne, 448 U.S. 122, 129 (1980).

. See also Rivera, 477 U.S. at 577 (“Congress enacted § 1988

specifically to enable plaintiffs to enforce the civil rights laws

even where the amount of damages at stake would not otherwise

make it feasible for them to do so’”’).

7

Court held that, absent proof of some “‘actual injury”’

resulting from the deprivation of a constitutional

right, a plaintiff who prevails in asserting a consti-

tutional violation is entitled only to nominal damages.

‘By making the deprivation of such rights actionable

for nominal damages without proof of actual injury,”

the Court explained, ‘‘the law recognizes the it.por-

tance to organized society that those rights be scru-

pulously observed ....”” Jd. at 266.

Thus, this Court in Carey, like Congress before it,

recognized that plaintiffs perform a service “‘impor-

tan(t] to organized society’’ when they vindicate their

civil rights in court, even though their lawsuits may

result in nothing more than an award of nominal

damages. As the legislative history of Section 1988

makes clear, it was the prosecution of precisely this

sort of lawsuit that Congress sought to encourage

through the fee-shifting mechanism—lawsuits that, al-

though not economically attractive from a lawyer's

point of view, nonetheless ‘‘vindicate the important

Congressional policies which these [civil rights] laws

contain.’”’ Senate Report, supra, at 2, reprinted in

1976 U.S. Code Cong. & Admin. News at 5910.

Plainly, a rule such as that applied by the court of

appeals in this case—holding that a civil rights plaintiff

who brings a damage action does not “‘prevail’’ unless

the damages awarded are substantial—directly con-

travenes Congress’ purpose in enacting Section 1988.

8

Il. THIS COURT'S CASES MAKE CLEAR THAT A

PLAINTIFF WHO RECOVERS NOMINAL DAMAGES IS

ENTITLED TO AN AWARD OF ATTORNEY'S FEES

UNDER § 1988.

A. The “Prevailing Party’? Requirement Is Only A

“Threshold” Inquiry. /

An essential predicate, of course, to any award of

attorney's fees under Section 1988 is that the plaintiff

must be a “prevailing party.” But, as this Court has

made clear, the burden a plaintiff must carry to cross

this “statutory threshold’ was never intended to be

a heavy one. A party need not prevail on all or even

most of the issues presented in a lawsuit. Hensley,

461 U.S. at 435 & n.11. Nor must a party prevail on

the “central issue’’ at stake in the litigation or achieve

the “primary relief sought.’ Texas State Teachers

Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790-

91 (1989). Rather, “[i]f the plaintiff has succeeded on

any 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.” Jd. at 791-92 (quoting Nadeau

v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).°

At bottom, the inquiry is a pragmatic one.

this Court has held that a plaintiff may be a —

vailing party’’ even where theré has been no ‘“‘judicial

determination that the plaintiff's rights have been vi-

olated,” so long as a settlement favorable to the

plaintiff has been struck. Maher v. Gagne, 448 U.S.

* As the Court concluded in Hensley, 461 U.S. at 433:

This is a gerierous formulation that brings the plaintiff only

across the statutory threshold. It remains for the district court

to determine what fee is “reasonable.”

9

122, 129 (1980). On the other hand, a judicial deter-

mination that the plaintiff's rights have been violated,

standing alone and without any possibility that the

plaintiff will ever obtain any relief from the defendant,

is insufficient to make the plaintiff a “prevailing

party.”” See Rhodes v. Stewart, 488 U.S. 1 (1988);

Hewitt v. Helms, 482 U.S. 755 (1987). Accordingly,

a plaintiff does not “‘prevail’’ in litigation if he obtains

only a judicial finding of unconstitutional conduct for

which the defendants are immune from all liability,

see Helms, supra, or if he obtains only a declaratory

judgment that is unenforceable because the case was

moot when judgment was entered, see Stewart, su-

pra. The rationale for this result is that “[a]t the end

of the rainbow lies not a judgment, but some action

... by the defendant that the judgment produces—

the payment of damages, or some specific perform-

ance, or the termination of some conduct.”’ Helms,

482 U.S. at 761. In sum,

[t]he touchstone of the prevailing party inquiry

[is] . . . the material alteration of the legal re-

lationship of the parties in a manner which Con-

gress sought to promote in the fee statute. Where

such a change has occurred, the degree of the

plaintiff's overall success goes to the reasonable-

ness of the award under Hensley, not to the avail-

ability of a fee award vel non.

Texas State Teachers, 489 U.S. at 792-93.

As this Court’s cases make plain, what counts in

determining whether a plaintiff has ‘‘prevailed’’ is

whether the plaintiff has obtained a judgment that is

both favorable, in the sense that it finds that the

defendant has violated the plaintiff's civil rights, and

10

enforceable, in the sense that the defendant ji

: is not

free to ignore it. As should also be plain, however

especially given the value Congress assigned in en-

acting Section 1988 to the vindication of “nonpecu-

niary civil rights, a judgment need not result in any

particular “degree”’ of relief once a violation has been

found and remedied by some judicial action.

_ The petitioners in this case obtained

judgment holding the respondent liable a

ship” between the parties, see Texas State

’ Teachers

489 U.S. at 792, and produced “some action ... by

the defendant’’—namely, “the A

Helms, 482 U.S. at 761. — _

Nevertheless, the court of s in thi

that the petitioners did not aa as “penalion rm

ties” under Section 1988 because the amount of the

damages they received, compared to the amount of

damages they sought, rendered their victory “merely

..+ technical.” Estate of Farrar vy. Cain, 941 F.2d

1311, 1315-16 (5th Cir. 1991). That holding is squarel

at odds with this Court’s instruction that the 4

vailing-party requirement is satisfied where the

ee

11

plaintiff “has succeeded on ‘any significant issue’”’ in

the litigation, Texas State Teachers, 489 U.S. at 791,

and, as a result, has “receive{d] at least some relief

on the merits of his claim,”’ Helms, 482 U.S. at 760.’

The rule also is inconsistent with this Court’s holding

that the prevailing-party requirement should not im-

pose a heavy burden on a plaintiff.*

Indeed, the Fifth Circuit’s rule in the instant case

suffers from precisely the same defects that led this

Court to reject the “central issue’’ test that the Fifth

Circuit previously propounded to govern prevailing-

‘ Not surprisingly, the Fifth Circuit's decision is also at odds

with the established rule in other circuits, which have recognized

that the congressional purposes underlying Section 1988, as well

as this Court’s decisions interpreting the statute, compel the

conclusion that a plaintiff “prevails” when he obtains a damage

award—of any size—against the defendant. See, e.g., Ruggiero

v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991); Allen v. Hig-

gins, 902 F.2d 682, 684 (8th Cir. 1990); Scofield v. City of Hills-

borough, 862 F.2d 759, 766 (9th Cir. 1988), Nephew v. City of

Aurora, 830 F.2d 1547, 1553 n.2 (10th Cir. 1987) (en banc), cert.

denied, 485 U.S. 976 (1988); Garner v. Wal-Mart Stores, Inc.,

807 F.2d 1536, 1539 (11th Cir. 1987); Ganey v. Edwards, 759

F.2d 337, 339-40 (4th Cir. 1985); Skoda v. Fontani, 646 F.2d

1193, 1194 (7th Cir. 1981) (per curiam); see also 1 M. Derfner

& A. Wolf, Court Ordered Attorney Fees { 8.03(2][a], at pp. 8-

20 through 8-21 (rev. ed. 1991) (“{BJecause a plaintiff prevails

when he has obtained ‘some relief,’ a plaintiff prevails when he

obtains less—even far less—than he sought, such as when he

recovers only nominal damages’) (footnote collecting cases omit-

ted).

* In this regard, the prevailing-party requirement is similar to

the injury-in-fact requirement in standing analysis: it is the fact

of concrete injury, not any particular magnitude of injury, that

is required to get a plaintiff across the threshold. See, ¢.g.,

United States v. Students Challenging Regulatory Agency Pro-

cedures, 412 U.S. 669, 689 n.14 (1973).

12

party status. In Texas State Teachers, this

that the Fifth Circuit’s “central issue” pect

which @ party would be considered “prevailing” only

if it “prevailed on the central issue fin the case] by

acquiring the primary relief sought’”—was inconsis-

tent with Section 1988 because it made the plaintiff's

eligibility for a fee award turn on “the degree of the

plaintiff's success” rather than on the simple fact of

the plaintiff's success. Texas State Teachers, 489 U.S.

at 790 (emphasis in original).

Moreover, this Court found the “central issue” test

deficient because it rendered the award of fees con-

tingent on the timing of the fee request. Thus, a

plaintiff could receive an award of fees for the suc-

cessful portions of its case prior to final judgment

but would not be entitled to fees for the same work

~ no application were made until after an ultimately

verse judgment on the litigation’s “ “

See id. at 790-91. ee

Finally, the Court found that the “central issue”

test had little “to recommend it from the tonnabe

of judicial administration” because “‘it asks a question

which is almost impossible [for courts reliably] to an-

swer. Id. at 791. In requiring that courts identify

the ‘central issue” in any litigation or “the primary

relief’ sought in any given case, the Fifth Circuit's

test forced courts to undertake an “ ‘excruciat-

ingfly] difficult inquiry and made the ultimate avail-

ability of a fee award “depend largely on the mental

state of the parties” in bringing the action, a matter

wholly irrelevant to the purposes behind the fee

provisions.”” Jd.

The Fifth Circuit’s “nominal " excepti

suffers from each of these a ae ion és

13

court of appeals held that a plaintiff who has won a

judgment of liability against a defendant and an en-

forceable award of money damages nonetheless is not

a “prevailing party” if the court perceives that the

plaintiff's “singular objective’ in bringing the action

was financial and that the amount of recovery is suf-

ficiently small to be “‘disappointing.’”’ This demands

that courts perform precisely the type of inquiry the

Court condemned in Texas State Teachers.

First, the Fifth Circuit’s rule makes the availability

of any fee award contingent upon “‘the degree of the

plaintiff's success.’’ Here, plaintiffs clearly have sat-

isfied the requirement articulated in Helms and Stew-

art—i.e., they have obtained an enforceable judgment

that has produced action by the defendant’s paying

them damages. Yet, the Fifth Circuit now demands

something more, viz., that the degree or magnitude

of the money award be sufficiently large to qualify,

in the court’s subjective judgment, as a victory. This

Court, however, has made clear that this additional

requirement is\ inappropriate: ‘“[T]he degree of the

plaintiff's success in relation to the other goals of the

lawsuit is a factor critical to the determination of the

size of a reasonable fee, not to eligibility for a fee

award at all.”” Texas State Teachers, 489 U.S. at 790

(second emphasis added).

Second, the Fifth Circuit’s rule would render the

availability of a fee award potentially dependent ‘‘on

the timing of a request for fees.”’ Jd. at 791. In bi-

furcated cases, in which juries assess liability and

damages in separate proceedings, plaintiffs could re-

cover awards of attorney’s fees pendente lite before

damage juries decide that only nominal damages are

appropriate. Yet, these same plaintiffs could recover

14

no fee awards at all if their applications were delayed

until final judgment. As the Court made clear in Texas

tus to depend entirely on the timing of a request fer

fees ...”); ef. Helms, 482 U.S. at 762 (“There is no

the district court . .

Teachers, 489 U.S. at 791, requiring co

whether a plaintiff's “singular object” aa tom

award of money damages and whether the particular

amount of damages awarded is sufficiently lucrative

to qualify as more than a “technical” victory. As an

Moreover, the initial inqui uired b i

Circuit's rule—whether the phew pat da ? 5 ws

plaintiff's lawsuit was to obtain substantial damages—

is fundamentally hopeless as a rule of decision. Sup-

pose, for example, that the petitioners here never had

claimed any “actual injury” apart from the denial of

their constitutional rights and, accordingly, had con-

* 68

<_< s- e

15

and, in doing so, will vindicate principles ““importan|t]

to organized society.’’ See 435 U.S. at 266.° Had the

petitioners so confined their allegations in this case,

they would have obtained precisely what they sought

and their victory could not be dismissed as ‘merely

... technical.”” The result should be no different sim-

ply because they added to their complaint an alle-

gation of “actual injury’ and a claim for

corresponding compensation that the jury ultimately

rejected.

The court of appeals in this case has drawn pre-

cisely this distinction, making the plaintiff's entitle-

ment to fees turn, in effect, upon its primary

motivation in bringing suit. As with the “central is-

sue’’ test, “[t]his question, the answer to which ap-

pears to depend largely on the mental state of the

parties, is wholly irrelevant to the purposes behind

the fee shifting provisions, and promises to mire dis-

trict courts ... in an inquiry which ... [ean rightly

be] described as ‘excruciating.””’ Texas State Teachers,

489 U.S. at 791."

* Indeed, in such actions, this Court has recognized that ‘‘the

potential liability of ... defendants for attorney's fees’’ under

Section 1988 itself serves as a valuable deterrent to constitu-

tional violations. See Carey, 435 U.S. at 257 n.11.

Any inquiry into motivation is inherently difficult, but the

problem seems unusually intractable when the cuestion is the

motivation for litigation. There is at least a serious question

about whose motivation the Court is reviewing—the attorney's

or the plaintiff's. It is far from clear that they will have a

common motivation. In one case, a plaintiff may wish to sue to

vindicate his rights, while the lawyer may bring the action in

the hope of winning a damage award from which he may obtain

his fee. In another case, the litigant may care nothing about

the constitutional issue, but the attorney may be far more con-

16

In sum, in holding that judges may deny “prevailing

party’ status to a plaintiff who has vindicated his

constitutional rights and obtained in court an enforce-

able judgment for monetary relief, based solely upon

the size of the damage award, the court of appeals

has extended the rationales of Helms and Stewart well

beyond their “common sense’”’ moorings. If upheld,

this ruling will thrust the courts into a sensitive area

of decisionmaking in which there are few guideposts

to channel judicial discretion. A hard-and-fast rule de-

nying attorney’s fees to civil rights plaintiffs who ob-

tain a judgment only for nominal damages would fly

in the face of Congress’ intent in enacting Section

1988—1.e., to enable the prosecution of lawsuits to

vindicate rights that, although vitally important, “‘may

be nonpecuniary in nature.” A more flexible rule—

for example, one that permits fee awards in nominal-

damage actions involving some “genuine” struggle

over constitutional principles but denies them in cases

where a plaintiff's primary motivation in bringing suit

is thought to be pecuniary"—would call upon the

courts to make impossible judgment calls. There are

no reliable standards by which to assess the ““essen-

cerned with that aspect of the case. It would be almost impos-

sible in a single set of pleadings for a court to discern what

the plaintiff's real motivation is in pursuing a particular case

because there is no way to know whose motive—litigant’s or

lawyer’s—is revealed in the submissions involved in the litigation.

'' This appears to be the rule applied by the court of appeals:

(W]e 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 noth-

ing more.

Estate of Farrar v. Cain, 941 F.2d 1311, 1315 (5th Cir. 1991).

ee te re

17

tial’’ purpose of a lawsuit or the minimum ——

judgment necessary to render a legal victory “re :

rather than ‘‘merely ... technical. Accordingly, the

ruling of the court of appeals in this case —

without justification from Congress intention in Sec-

tion 1988 to make legal counsel available even =

those civil rights plaintiffs whose claims, althoug

meritorious, ‘‘may be nonpecuniary in nature.

imi A Prevailing Party’s Success Is

. Sena tedeaun te te Amount Of Attorney’s Fees

Awarded.

fact that petitioners recovered only one dollar

Pe the $17 million they requested should not pre-

vent them from crossing the statutory threshold to :

fee award of some kind, but rather should be reflecte

in the amount of fees they ultimately recover. As this

Court has explained, in complex civil rights litigation,

he plaintiff often may succeed in iden-

ee ee bere practices or conditions, the

range of possible success is vast. That the plaintiff

is a “prevailing party’ therefore may say little

about whether the expenditure of counsel s time

was reasonable in relation to the success achieved.

Hensley, 461 U.S. at 436. Accordingly, “the degree

of the plaintiff's success in relation to the ... goals

of the lawsuit is a factor critical to the determination

of the size of a reasonable fee, not to eligibility for

a fee award at all.’”’ Texas State Teachers, 489 U.S.

at 790 (second emphasis added).

This Court has emphasized that “the district court

has discretion in determining the amount of a fee

award’”’ and, with its “superior understanding of the

litigation,”’ is best able to assess whether the ‘‘relief

18

obtained justified th{e] expenditure of attorney time’’

for which fees are sought. Hensley, 461 U.S. at 436-

37 & n.11. In situations where the relief obtained is

limited, district courts may, in the exercise of their

equitable discretion, “identify specific hours that

should be eliminated [from the lodestar] or . . . simply

reduc{e] the award to account for the limited suc-

cess.’ Texas State Teachers, 489 U.S. at 789-90; see

also Blanchard v. Bergeron, 489 U.S. 87, 96 (1989).

This is not to say, of course, that the amount of

damages that plaintiffs recover under civil rights or

other federal fee-shifting statutes is the determina-

tive, or even necessarily a weighty, factor for pur-

poses of establishing a reasonable fee award. The

importance of some federal rights cannot be measured

in monetary terms, see, e.9., Carey, 435 U.S. at 266,

yet Congress made plain that fee awards should not

be reduced simply “because the rights involved may

be nonpecuniary in nature.” Senate Report, supra, at

6, reprinted in 1976 U.S. Code Cong. & Admin. News

at 5913. Accordingly, this Court correctly has rejected

a strict rule of proportionality in assessing the amount

of a fee award, see City of Riverside v. Rivera, 477

U.S. 561 (1986), and Congress has not seen fit to

change the statute to provide otherwise.

On the other hand, depending upon the nature of

the case and the relief sought, the amount of damages

recovered may well be the most significant indication

of the plaintiff's “degree” of success. As this Court

has explained, “[a] reduced fee award is appropriate

if the relief, however significant, is limited in com-

parison to the scope of the litigation as a whole.” .

Hensley, 461 U.S. at 440; see also Rivera, 477 U.S.

at 574 (“‘The amount of damages a plaintiff recovers

19

is certainly relevant to the amount of attorney's fees

to be awarded under § 1988’). In the exercise of their

sound discretion, and given their greater familiarity

with the litigation, district courts are fully capable of

undertaking such comparisons.”

Under this approach, there is no risk that courts’

recognition of plaintiffs’ status as ‘‘prevailing parties

necessarily will result in-unwarranted awards of fees.

By acknowledging that parties such as petitioners here

have crossed the bare “‘statutory threshold”’ of being

prevailing parties, courts still can account for any

limitation in the parties’ success in the calculation of

the ‘‘reasonable fee,”’ thereby carrying out Congress

intention that statutory fee awards be “adequate to

attract competent counsel, but ... not produce wind-

falls to attorneys.’’ Senate Report, supra, at 6, re-

printed in 1976 U.S. Code Cong. & Admin. News at

5913. Accordingly, concern about the magnitude of

fee awards is no basis for imposing a flat prohibition,

not found in the statute, on attorney’s fees in cases

involving only nominal damages. Instead, the courts

can deal with the magnitude of the award directly by

ensuring that the award is “reasonable’’ within the

meaning of Section 1988.

12 Unlike determining the “central issue’’ or “primary relief

sought,” which entails an “ ‘excruciatingjly] ” difficult inquiry

into the plaintiff's mental state, assessing the degree of success

in light of the entire litigation is a straightforward task that

this Court has repeatedly entrusted to district courts. See, e.g.,

Hensley, 461 U.S. at 440; Blanchard, 489 U.S. at 96; Tezas

State Teachers, 489 U.S. at 789-90.

20

CONCLUSION

For the reasons stated above, the ABA submits that

the Civil Rights Attorney’s Fees Awards Act of 1976

authorizes the award of reasonable attorney’s fees in

cases in which civil rights plaintiffs recover nominal

damages.

Respectfully submitted,

TALBOT S. D’ALEMBERTE *

President

American Bar Association

ERIC B. SCHNURER

CARTER G. PHILLIPS

JOSEPH R. GUERRA

750 North Lake Shore Drive

Chicago, IL 60611

(312) 988-5215

Counsel for Amicus Curiae

* Counsel of Record

April 9, 1992