Amicus Curiae Brief — Farrar v. Hobby

-

LEO SO GLE LESS GIAO ee EAI S

‘DALE Farrar and Pat SMITH,

as Co-Administrators of the Estate of

Joseph D. Farrar, Deceased,

¥ Petitioners,

WILLIAM P. Hossy, JR.,

; Respondent.

On Writ of Certioraritothe —

United States Court of Appeals

for the Fifth Circuit

7.

-!

me.

Ps

ae

ES

MOTION TO FILE BRIEF AS AMICUS CURIAE AND

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF RESPONDENT

™ =%

<i

ROBERT E. WILLIAMS

DouGias S. MCDOWELL

ANN ELIZABETH REESMAN *

McGuINEss & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Couneil

2

+e

ee

“BEST AVAILABLE 0PY

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-990

DALE FARRAR and PAT SMITH,

as Co-Administrators of the Estate of

Joseph D. Farrar, Deceased,

Petitioners,

v.

WILLIAM P. Hossy, JR.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

MOTION OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

FOR LEAVE TO SUBMIT BRIEF AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

To the Honorable, the Chief Justice and the Asso-

ciate Justices of the United States Supreme Court:

Pursuant to Rule 37 of the Rules of this Court, the

Equal Employment Advisory Council (EEAC) re-

spectfully _moves this Court for leave to file the

accompanying brief amicus curiae in support of

William P. Hobby, Jr., Respondent, whose written

consent has been provided to the Clerk of the Court.

Counsel for EEAC repeatedly has attempted to secure

the consent of counsel for Petitioners but has received

no response. In support of this motion, EEAC by the

following shows that its brief brings relevant matter

to the attention of this Court that has not been (or

will not be) presented by the parties.

1. The Equal Employment Advisory Council

(EEAC) is a voluntary association of employers or-

ganized in 1976 to promote sound approaches to the

elimination of employment discrimination. Its mem-

bership includes over 250 major U.S. corporations, as

well as several associations which themselves have

hundreds of corporate members. EEAC’s directors

and officers include many of industry’s leading ex-

perts in the field of equal employment opportunity.

Their combined experience gives the Council a unique

depth of understanding of the practical, as well as

legal considerations relevant to the proper interpreta-

tion and application of equal employment policies and

requirements. EEAC’s members are firmly com-

mitted to the principles of nondiscrimination and

equal employment opportunity.

2. The issue before the Court in this case involves

the proper interpretation of the Civil Rights Attor-

ney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.

One of the statutes covered by Section 1988 is 42

U.S.C. § 1981, which often is used as a basis for

lawsuits challenging employment practices of private

employers. Moreover, the fee-shifting provisions of

Section 1988 and of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e-5(k), contain

virtually the same language and have been given sim-

ilar interpretations by the courts. The manner in

which the Court interprets Section 1988 in the in-

stant case, therefore, will have an important impact

on the availability of attorney’s fee awards in em-

ployment discrimination litigation. Because all of

EEAC’s members, and the constituents of its associa-

tion members, are employers subject to the attorney’s

fees provisions of both Section 1988 and Title VII,

those members have had much experience in matters

relating to attorney’s fee awards. Thus, EEAC’s

members have a direct interest in the outcome of this

case.

3. The issue presented in this appeal is extremely

important to the nationwide constituency that EEAC

represents. The Fifth Circuit Court of Appeals

ruled that a civil rights plaintiff who seeks only

money damages and receives merely one dollar in

nominal damages is not a “prevailing party” entitled

to an award of attorney’s fees under Section 1988.

This conclusion is consistent with this Court’s recent

decisions regarding the proper interpretation of the

term “prevailing party.”

4. Motivated by its concern for how Section 1988

and similar attorney’s fee provisions are interpreted,

EEAC has filed amicus curiae briefs in this Court in

West Virginia Univ. Hospitals, Inc. v. Casey, 111

S. Ct. 1138 (1991) (concerning the maximum amount

of expert witness fees that may be awarded) ; City of .

Riverside v. Rivera, 477 U.S. 561 (1986) (concern-

ing proportionality of fees to the amount of damages

recovered); Evans v. Jeff D., 475 U.S. 717 (1986)

(concerning the simultaneous negotiation of attorney’s

fees and the merits in civil rights class actions) ;

Marek v. Chesny, 473 U.S. 1 (1985) (concerning the

interplay between Section 1988 and Fed. R. Civ. P.

68); Webb v. Bd. of Educ. of Dyer County, Tenn.,

471 U.S. 234 (1985) (concerning whether Section

1988 authorizes the recovery of attorney’s fees in-

curred in optional state administrative proceedings) ;

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

ing whether a partially successful plaintiff may re-

cover attorney’s fees under Section 1988 for legal

services on unsuccessful claims); and Christiansburg

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

cerning the proper standard to be used in deciding

whether to award attorney’s fees to a successful de-

fendant in a Title VII action).

5. EEAC seeks to assist the Court in this case by

highlighting the impact its decision may have beyond

the instant case in the field of employment discrim-

ination litigation generally. Accordingly, this brief

brings relevant matter to the attention of this Court

that has not already been brought to its attention by

the parties. Because of its substantial experience,

EEAC is uniquely situated to brief the Court on the

relevant concerns of the business community and the

significance of this case to employers.

Respectfully submitted,

ROBERT E. WILLIAMS

Douc.Las 8S. MCDOWELL

ANN ELIZABETH REESMAN *

McGUuINEsS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

June 15, 1992 * Counsel of Record

TABLE OF CONTENTS

Page

- te ee iii

INTEREST OF THE AMICUS CURIAB 2

STATEMENT OF THE CASDB .......-------- nen " 2

SUMMARY OF ARGUMENT ......W ee 3

EE ET SO 4

I. A PLAINTIFF WHO SEEKS ONLY MONEY

DAMAGES AND RECOVERS ONLY $1 IS

NOT A PREVAILING PARTY ENTITLED

TO AN ATTORNEY’S FEE AWARD UNDER

a a crsettestisectnrnertnatemnsctttieesimncnnsenemnnnccce 4

A. To Be A Prevailing Party Under This Court’s

Decisions in Hewitt, Rhodes and Garland, a

Plaintiff Must Receive Actual Relief on the

EL A ae 4

B. Technical Success, Such As an Award of

Nominal Damages, Does Not Constitute Re-

lief Sufficient to Support an Award of At-

SLA “ 8

II. BASED ON THE RESULTS OBTAINED, THE

MAXIMUM ATTORNEY’S FEE AWARD-

ABLE FOR A NOMINAL DAMAGES RECOV-

ERY IS LIKEWISE NOMINAL |. 11

A. Under Hensley, the Results Obtained are

“the Most Critical Factor” in Judging

Whether an Award Is Reasonable 11

B. The Legislative History of Section 1988

Clarifies that Limited Success Limits the

Amount of a Fee Award ........... 12

C. It Would Be Unreasonable to Award More

Than a Nominal Attorney’s Fee Where Only

Nominal Relief Was Obtained 14

ii

TABLE OF CONTENTS—Continued

Ill. PUBLIC POLICY CONSIDERATIONS FAVOR

AN INTERPRETATION OF SECTION 1988

THAT DOES NOT AWARD COUNSEL FEES

EXCEPT FOR LEGAL SERVICES REASON-

ABLY SUPPORTIVE OF PLAINTIFF'S SUC-

CESS AS A PRIVATE ATTORNEY GEN-

ERAL. TO MEET ITS GOALS, SECTION 1988

SHOULD AT MOST OFFER FEES COMMEN-

SURATE WITH SUCCESS .................................

ee

iii

TABLE OF AUTHORITIES

CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

EE 20

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

ey I incite deinnntintenrininintedtannieensemnes 12

Carey v. Piphus, 485 U.S. 247 (1978) —.......... 8

Carr v. City of Florence, Ala., 729 F. Supp. 783

(N.D. Ala. 1990), aff'd mem., 934 F.2d 1264

EE 9

Carson v. American Brands, Inc., 450 U.S. 79

(1981) ........... 1S SEALE ES LCE eS OLE 20

Christiansburg Garment Co. v. EEOC, 434 U.S.

a a I _..5, 12, 18

City of Riverside v. Rivera, 477 U.S. 561 ...... 10, 14, 16-18

Farrar v. Cain, 756 F.2d 1148 (5th Cir. 1985)... 7,10

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

RR a I LEE i passim

Hensley v. Eckerhart, 461 U.S. 424 (1983) 3,5, 11, 14, 17

Hewitt v. Helms, 482 U.S. 755 (1987) ............. 3, 5, 6, 8, 10

Lyte v. Sara Lee Corp., 950 F.2d 101 (2d Cir.

RRR SR SS RR I Fa 9

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

I a EL See 13

Rhodes v. Stewart, 488 U.S. 1 (1988) .......... Aaa 8, 6,8

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

I ticiiesdadaciaceerhatinaaeatemticahinmattciela eta nibenaniemnerienmearsaes 9

Huntley v. Community Sch. Bd. of Brooklyn, New

York Dist. No. 14, 579 F.2d 738 (2d Cir. 1978)... 9

Spencer v. General Electric Co., 894 F.2d 651 (4th

ESR ES PL Levee a 9

Texas State Teachers Assoc. v. Garland Indepen-

dent Sch. Dist., 489 U.S. 782 (1989) ........ 3, 5, 8,9, 10

Walker v. Anderson Elec. Connectors, 944 F.2d 841

eee vanes 8

Warner Brothers, Inc. v. Dae Rim Trading, Inc.,

S77 F.2d 1120 (2d Cir. 1989) ...............................-. 9

iv

IN THE

CRESS. Oe eee Supreme Court of the United States

STATUTES Page OcTOBER TERM, 1991

Civil Rights Act of 1991, Pub. L. No. 101-166

eS Se ae ae — 19

Civil Rights Attorney’s Fees Awards Act of 1976,

42 U.S.C. § 1988 ........ ...2-4, 11-18 No. 91-990

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq. .....................-.. 20

42 U.S.C. § 2000-5 (ke) 2c ccccececeeceeeeee 20

17 U.S.C. § 505 -........---eecneecveeseenessneesnesnesneesneenneenesnnes 9 DALE FARRAR and Pat SMITH,

, oe ; eo venesesececenonesssenscusonennssneoneonsonoqneosoosoeneeeee . as Co-Administrators of the Estate of

ee 9 Joseph D. Farrar, Deceased,

Petitioners,

LEGISLATIVE HISTORY Vv.

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) ........ 13

HLR. Rep. No. 1558, 94th Cong., 2d Sess. (1976)... 12 WILLIAM P. Hossy, JR.,

110 Cong. Rec. 12724 (June 4, 1964) (statement of Respondent.

ERE LEE ae aD 20, 21

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF RESPONDENT

The Equal Employment Advisory Council respect-

fully submits this brief amicus curiae, contingent on

the granting of the accompanying motion for leave.

The brief urges affirmance of the decision below and

thus supports the position of Respondent before this

Court.

J,

2

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set forth fully

in the preceding motion.

STATEMENT OF THE CASE

The question presented by this case is whether the

plaintiff can be considered a “prevailing party” when

the sole benefit sought in the suit is money damages

and the sole remedy awarded is one dollar. The issue

arises from an action filed by petitioner’s decedent

Joseph D. Farrar against William P. Hobby, Jr., then

Lieutenant Governor of the State of Texas, for civil

rights violations under 42 U.S.C. § 1983; Estate of

Farrar v. Cain, 941 F.2d 1311, 1312 (5th Cir. 1991).

When Farrar was charged with murder after a

death at the youth facility he operated, Hobby be-

came personally involved in the process leading to

closure of the facility. After the murder indictment

was (dismissed, Farrar filed suit against Hobby and

other officials for injunctive relief and monetary dam-

ages under 42 U.S.C. $§ 1983 and 1985. Farrar later

amended the complaint to drop the injunction claim

and increase the damages demand to $17 million. A

jury found liability without harm and awarded no

damages, and the district court entered judgment on

the award. 7d. at 1312-13.

On appeal, the Fifth Circuit reversed the judgment

in part and remanded for an award of one dollar in

nominal damages against Hobby alone. The district

court then awarded $280,000 in attorney’s fees

against Hobby pursuant to 42 U.S.C. § 1988, which

provides for an award of reasonable attorney’s fees

to a prevailing party. Jd. at 1313.

3

On appeal of the fees award, the Fifth Circuit re-

versed. Using the standard developed by this Court

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

Dist., 489 U.S. 782 (1989); Rhodes v. Stewart, 488

U.S. 1 (1988); Hewitt v. Helms, 482 U.S. 755

(1987); and Hensley v. Eckerhart, 461 U.S. 424

(1983), the Fifth Circuit ruled that plaintiffs did not

qualify as “prevailing parties” under 42 U.S.C.

§ 1988:

We are persuaded that the Farrars were not pre-

vailing 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 victories are made.”

Farrar, 941 F.2d at 1315 (quoting Hewitt, 482 U.S.

at 760). This appeal followed.

SUMMARY OF ARGUMENT

A plaintiff who seeks no relief other than $17 mil-

lion in damages, and receives no relief other than $1

in nominal damages, is not a “prevailing party” for

purposes of 42 U.S.C. $1988. This Court’s unani-

mous holding in Texras State Teachers Ass’n v. Gar-

land Indep. Sch. Dist., 489 U.S. 782 (1989), building

on principles established in Rhodes v. Stewart, 488

U.S. 1 (1988); and Hewitt v. Helms, 482 U.S. 755

(1987), makes it clear that to cross the statutory

threshold of “prevailing party,” a plaintiff must

achieve “‘seme relief on the merits.” 489 U.S. at

792. A $1 nominal damages award does not suffice.

Even if a plaintiff in this situation could be deemed

a prevailing party, he would not necessarily be en-

4d

titled to an attorney’s fee of the magnitude awarded

in this case by the district court. Congress did not

mandate full hourly atterney’s fee awards in every

case, but only “reasonable” fees. Reasonableness re-

quires that the fee award be somewhat proportionate

to the results obtained—in this case, nominal.

Indeed, the policies underlying Section 1988 sup-

port limitation of an attorney’s fee award in cases in

which a plaintiff seeks only money and receives only

nominal damages. This fee-shifting provision, de-

signed to enable citizens to act as private attorneys

general to vindicate important civil rights, does not

stretch to cover the costs of individuals who achieve

only technical or de minimis results, particularly

when those results do not engender any degree of

social change.

ARGUMENT

I. A PLAINTIFF WHO SEEKS ONLY MONEY DAM-

AGES AND RECOVERS ONLY $1 IS NOT A PRE-

VAILING PARTY ENTITLED TO AN ATTORNEY'S

FEE AWARD UNDER 42 U.S.C. § 1988

A. To Be A Prevailing Party Under This Court’s De-

cisions in Hewitt, Rhodes and Garland, a Plaintiff

Must Receive Actual Relief on the Merits

The Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. $1988, is a fee-shifting provision

which permits the court in a civil rights action to

award a reasonable attorney’s fee to the prevailing

party as part of the costs assessed against the other

party.’ Determining a fee award thus is a two-stage

1 Section 1988 of Title 42, United States Code, provides in

part:

In any action or proceeding to enforce a provision of sec-

tions 1981, 1981(a), 1982, 1983, 1985, and 1986 of this

5

process. First, the plaintiff must meet the statutory

threshold of “prevailing party.” Hensley v. Ecker-

hart, 461 U.S. 424, 433 (1983).* Then, and only

then, the court determines what fee is “reasonable.”

Id.

Accordingly, entitlement to any attorney’s fee

under § 1988 turns on whether or not the plaintiff

“prevailed” in the litigation. This Court’s unanimous

decision in Texas State Teachers Ass’n v. Garland

Indep. Sch. Dist., 489 U.S. 782 (1989), building on

the foundation established in Rhodes v. Stewart, 488

U.S. 1 (1988), and Hewitt v. Helms, 482 U.S. 755

(1987), established recovery or non-recovery of actual

relief on the merits as the standard used to ascertain

whether or not a plaintiff has in fact prevailed.

“If the plaintiff has succeeded on ‘any significant

issue in litigation which achieve[d] some of the bene-

fit the parties sought in bringing suit’ the plaintiff

has crossed the threshold to a fee award of some

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 rea-

sonable attorney’s fee as part of the costs.

The standards articulated by this Court for awarding fees

under 42 U.S.C. § 1988 are “generally applicable in all cases

in which Congress has authorized an award of fees to a ‘pre-

vailing party,’ ” including the attorney’s fees provision of Title

II and VII of the Civil Rights Act of 1964. Hensley v. Ecker- |

hart, 461 U.S. 424, 433 n.7 (1983).

2 A prevailing-defendant can recover attorney’s fees only if

the “claim was frivolous, unreasonable, or groundless, .. .

[if] the plaintiff continued to litigate after it clearly became

so,... [or] if the plaintiff is found to have brought or con-

tinued such a claim in-bad faith.” Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 422 (1978).

6

kind.” Garland, 489 U.S. at 791-92 (quoting Nadeau

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

(emphasis added). “Thus, at a minimum, to be con-

sidered a prevailing party within the meaning of

§ 1988 the plaintiff must be able to point to a resolu-

tion of the dispute which changes the legal relation-

ship between itself and the defendant.” Jd. at 792

(quoting Hewitt, 482 U.S. at 760-61 and Rhodes, 488

U.S. at 3-4). “Beyond this absolute limitation, a tech-

nical victory may be so insignificant, and may be so

near the situations addressed in Hewitt and Rhodes,

as to be insufficient to support prevailing party

status.” Jd.* “Where the plaintiff’s success on a legal

claim can be characterized as purely technical or de

minimis, a district court would be justified in con-

cluding that even the ‘generous formulation’ we adopt

today has not been satisfied.” /d.

Thus, this Court consistently looks to whether or

not the plaintiff received any genuine relief on the

merits in determining whether the plaintiff indeed

“prevailed” in the litigation. A judgment in the plain-

tiff’s favor does not suffice. Rhodes, 488 U.S. at 3.

As the Court explained in Hewitt, the court—and the

judgment—are merely the vehicle by which the plain-

tiff seeks to reach the intended destination, and only

’In Hewitt, although a prison inmate received a court de-

cree that he was denied due process in a misconduct proceed-

ing, he received no relief because of the defendants’ official

immunity. This Court concluded that he was not a prevailing

party. Hewitt v. Helms, 482 U.S. 755 (1987). In Rhodes,

two prison inmates won a declaratory judgment but no relief

because in the interim, one had died and the other had been

released. They thus were not prevailing parties. Rhodes v.

Stewart, 488 U.S. 1 (1988).

7

by reaching that destination does the plaintiff

“prevail.”

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 cessa-

tion of action) by the defendant that the judg-

ment 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

judicial resoiution of a “case or controversy”

rather than an advisory opinion—is in the set-

tling of some dispute which affects the behavior

of the defendant towards the plaintiff.

Hewitt, 482 U.S. at 761.

Applying this standard, the Fifth Circuit correctly

ruled that Farrar was not a “prevailing party” in

this litigation. Although the jury found that Lieu-

tenant Governor Hobby had “ ‘committed an act or

acts under color of state law that deprived Plaintiff

Joseph Farrar of a civil right,’ ”’ 941 F.2d at 1312-13,

it found no injury, and awarded no damages. Accord-

ingly, instead of the $17 million he claimed,‘ Farrar

received only $1 in nominal damages, a technical re-

quirement because a civil rights violation was shown.°

* Farrar’s claim for injunctive relief was dropped early in

the litigation. Farrar, 941 F.2d at 1312.

5 Although the jury awarded no damages, the Fifth Circuit

initially reversed in part and directed the district court to

enter an award of nominal damages, not to exceed one dollar,

because a civil rights violation was shown. Farrar v. Cain,

756 F.2d 1148, 1152 (5th Cir. 1985) (citing Carey v. Piphus,

435 LS. 247, 266-67 (1978)). In Carey, this Court ruled

that ‘‘the denial of procedural due process should be actionable

8

Accordingly, “[t]he only ‘relief’ he received was the

moral satisfaction of knowing that a federal court

concluded that his rights had been violated.” Hewitt,

482 U.S. at 762. Since Farrar achieved none of the

$17 million benefit sought by the litigation, and the

outcome “did not in any meaningful sense ‘change

the legal relationship’ between the Farrars and

Hobby,” the Fifth Circuit concluded that Farrar had

not prevailed. Farrar, 941 F.2d at 1315.°

B. Technical Success, Such As an Award of Nominal

Damages, Does Not Constitute Relief Sufficient to

Support an Award of Attorney’s Fees

The Fifth Circuit’s holding is consonant with this

Court’s clear direction in Garland, Rhodes, and

Hewitt that to prevail is to achieve “some of the

benefit” sought. Garland, 489 U.S. at 791-92. Farrar

received no benefit from this litigation—no money

damages, no injunctive relief, no change in the de-

fendants’ behavior—indeed, nothing that “changes

the legal relationship” in any way. Walker v. An-

derson Elec. Connectors, 944 F.2d 841, 847 (11th

Cir. 1991) (holding that jury finding of sexual har-

rassment “no more altered the legal relationship be-

tween the parties than the Third Circuit’s finding

of a due process violation in Hewitt.” ).

for nominal damages without proof of actual injury,” and

implied that the same rule applies to cases involving other

constitutional violations as well. Carey v. Piphus, 435 U.S.

at 266-67.

° Although the plaintiffs now argue that their success was

sufficiently significant to warrant an award of attorney's fees,

we seriously doubt that they would view an attorney’s fee

award of $1 as significant.

The award of $1 in nominal damages indeed is

the type of “technical” success which this Court has

suggested would not support an attorney’s fee award.

Garland, 489 U.S. at 792. See also Huntley v. Com-

munity Sch. Bd. of Brooklyn, New York Dist. No. 14,

579 F.2d 738 (2d Cir. 1978) (award of $100 in nom-

inal damages is a “ ‘moral victory’ of insufficient mag-

nitude to warrant an award under § 1988”)." Cf.

Carr y. City of Florence, Ala., 729 F. Supp. 783, 791

(N.D. Ala. 1990) (“This court cannot bring itself to

characterize the $100.00 judgment in favor of one of

twelve plaintiffs against one of eleven defendants as

anything but ‘purely technical’ or ‘de minimis.’”),

aff'd mem., 934 F.2d 1264 (11th Cir. 1991); Spencer

v. General Elec. Co., 894 F.2d 651, 662 (4th Cir.

1990) (dicta) (suggesting that if sexual harrassment

case had not led to revision of company’s anti-

harassment policy, nominal damages award might be

technical or de minimis victory unworthy of attorney’s

fees award under Garland). Farrar received nomi-

’ Although later Second Circuit panels have ruled that nom-

inal damages alone can support an award of attorneys fees,

see Lyte v. Sara Lee Corp., 950 F.2d 101 (2d Cir. 1991) (Title

VII) ; Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991)

(§ 1988), they did so without addressing Huntley. Inter-

estingly, Judge Miner of the Second Circuit, who wrote the

opinions in both Lyte and Ruggiero, served on a panel in

1989 which denied attorney’s fees under 17 U.S.C. § 505,

which provides for attorney's fees to a prevailing party in a

copyright infringement case. Warner Bros., Inc. v. Dae Rim

Trading, Inc., 877 F.2d 1120 (2d Cir. 1989). Although Warner

Bros. was awarded $100 in statutory damages, the panel,

applying Garland, concluded that the award was not “suffi-

ciently significant to mandate an award of attorney’s fees.”

Id. at 1126. Neither Lyte nor Ruggiero distinguished Warner

Bros.

10

nal damages only because of a technical requirement."

His success is thus “purely technical” and “de mini-

mis” so that the Fifth Circuit’s denial of fees is

justified under Garland.’

Indeed, any other result in this case would be “legal

nonsense.” ” It defies logic that a litigant who sought

as huge a sum of money as $17,000,000—and no other

relief—and was awarded only $1 would himself be-

lieve that he “prevailed.” It is highly unlikely that

when the jury’s verdict was announced, the plaintiff

was the party wearing the smile.

At the end of his rainbow, Farrar did not find any

gold in the pot he sought. Under Garland, Rhodes, and

Hewitt, “some relief on the merits” which “changes

the legal relationship” is the touchstone for an award

of attorney’s fees. Since Farrar received none of

these things, he has not met the statutory threshold

and is not entitled to attorney’s fees under Section

1988.

8 Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir. 1985).

® As the Fifth Circuit noted, several other circuits have held

to the contrary. Farrar, 941 F.2d at 1316 and n.22. As the

court correctly observed, however, these cases generally pre-

ceded or failed to address this Court’s decisions on point.

Id. at 1317.

1%” “Legal nonsense” is former Chief Justice Burger’s de-

scription of a $245,456.25 fee award in a case where $33,350

in damages were recovered. City of Riverside v. Rivera, 477

U.S. 561, 587 (Burger, C.J., dissenting). In Riverside, the

damages recovered were 13.6 percent of the fees sought. Here,

the damages were only .00035 percent of the fees sought.

Ee en

11

II. BASED ON THE RESULTS OBTAINED, THE MAXI-

MUM ATTORNEY’S FEE AWARDABLE FOR A

NOMINAL DAMAGES RECOVERY IS LIKEWISE

NOMINAL

Even if Farrar could be viewed as the “prevailing

party” in this litigation, at which point calculation

of a “reasonable” attorney’s fee would be appropriate,

any fee above a few dollars would be seriously dis-

proportionate to the nominal damages awarded. To

be commensurate with the results obtained, therefore,

any attorney’s fee awarded in this case should be as

nominal as the damages award.

A. Under Hensley, the Results Obtained are “the Most

Critical Factor” in Judging Whether an Award Is

Reasonable

The results obtained from the litigation are rele-

vant under Section 1988 not only when eligibility for

an attorney’s fee award is determined, but also in

determining what award would be “reasonable.” This

Court’s analysis in Hensley v. Eckerhart, 461 U.S.

424 (1983), is equally applicable here. Hensley ad-

dressed the issue of whether a prevailing plaintiff who

succeeds on less than all of his claims can recover at-

torney’s fees on claims which were unsuccessful.

This Court held that “the extent of a plaintiff’s

success is a crucial factor in determining the proper

amount of an award of attorney’s fees under 42

U.S.C. § 1988.” 461 U.S. at 440. Indeed, the Court

called the level of success “the most critical factor.”

Id. at 436.

While noting that “[t]he most useful starting point

for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litiga-

tion multiplied by a reasonable hourly rate”, id. at

12

433, this Court went on to explain that “[w]here a

plaintiff has obtained excellent results, his attorney

should recover a fully compensatory fee.” Jd. at 435.

“If, on the other hand, a plaintiff has achieved only

partial or limited success, the product of hours rea-

sonably expended on the litigation as a whole times a

reasonably hourly rate may be an excessive amount.”

Id. This is true regardless of how pure the motive or

how virtuous the cause. “Congress has not authorized

an award of fees whenever it was reasonable for a

plaintiff to bring a lawsuit or whenever conscientious

counsel tried the case with devotion and skill.” /d.

at 436. The outcome is what matters.

B. The Legislative History of Section 1988 Clarifies

that Limited Success Limits the Amount of a Fee

Award

The general rule in American courts is that liti-

gants must pay their own counsel fees and that fee-

shifting can be ordered only pursuant to specific stat-

utory authority. See Christiansburg Garment Co. v.

EEOC, 434 U.S. 412 (1978); Alyeska Pipeline Serv.

Co. v. Wilderness Soc’y, 421 U.S. 240 (1975). Thus,

fee-shifting in the instant case, and in similar ac-

tions, is appropriate only where a fee award is au-

thorized specifically by 42 US.C. § 1988.

The language of Section 1988 and its legislative

history indicate that Congress intended it to have

three principal elements. These are: (1) that awards

may be made to the prevailing party; (2) that fee

awards are not mandatory but are to be allowed at

the discretion of the court; and (3) that awards are

to be reasonable. H.R. Rep. No. 1558, 94th Cong., 2d

Sess. 6-8 (1976). In this statutory scheme, where

Congress provided for fee awards only to successful

te ee et me

13

parties and specifically declined to make those awards

mandatory. there is no basis for automatic hourly

fee awards in cases that garner nominal damages and

nothing more.

Congress believed that reasonable fee awards to

successful prevailing parties would be sufficient en-

couragement to private attorneys general." The stat-

ute supports no additional inducements. Indeed, the

statutory scheme indicates that Congress was satisfied

with the idea that the less-than-successful plaintiff

would have to bear his own counsel fees. Congress

evidently believed that the mere bringing of an action

does not vindicate a public policy important enough to

justify fee-shifting.

The legislative history reflects congressional recog-

nition of the possibility that a private attorney gen-

eral could bring a suit in good faith and yet be un-

successful. The only protection Congress believed was

necessary for this unsuccessful plaintiff was the as-

surance that he would not have to pay his opponent’s

counsel fees, unless it could be shown that the suit

was clearly frivolous, vexatious, or brought for ha-

rassment purposes. See S. Rep. No. 1011, 94th Cong.,

2d Sess. 5 (1976). Nothing in the legislative history,

however, indicates a Congressional concern that the

prospect of having to pay all or part of their own

counsel fees if less than completely successful would

"As this Court explained in Newman v. Piggie Park

Enters., Inc., 390 U.S. 400, 402 (1968), a plaintiff bringing

suit for an injunction under Title II of the Civil Rights Act

of 1964 (prohibiting race discrimination in public accom-

modations) does so not only for himself but also as a “private

attorney general” acting in the public interest. Congress

adopted the same concept when enacting § 1988. S. Rep. No.

1011, 94th Cong., 2d Sess. 2-3 (1976).

14

deter plaintiffs from bringing meritorious civil rights

actions.

Thus, even if a plaintiff who has been awarded only

nominal damages could properly be deemed a prevail-

ing party, there is no rule requiring that he receive

an attorney’s fee computed using hours expended at

an hourly rate. As this Court ruled in Hensley, “[a]

reduced fee award is appropriate if the relief, how-

ever significant, is limited in comparison to the scope

of the litigation as a whole.” 461 U.S. at 440. In

other words, “where the plaintiff achieved only limited

success, the district court should award only that

amount of fees that is reasonable in relation to the

results obtained.” Id.

C. It Would Be Unreasonable to Award More Than a

Nominal Attorney’s Fee Where Only Nominal Relief

Was Obtained

Applying Hensley, the dissenting Justices in City

of Riverside v. Rivera, 477 U.S. 561 (1986),” ob-

jected to the plurality’s approval of an attorney’s fee

award of $245,456.25 in a case that netted $33,350

in compensatory and punitive damages. 477 U.S. at

588. Recalling Hensley’s mandate that counsel exer-

cise “billing judgment” in requesting an attorney’s

fee award, the dissenting Justices contended that

% Chief Justice Burger filed a dissenting opinion in River-

side, and Justice Rehnquist filed a separate dis#enting opinion

in which Chief Justice Burger and Justices White and O’Con-

nor joined. Justice Powell filed an opinion in which he noted

that the fee award in that case “seems unreasonable” on its

face, but ultimately concurred in the judgment on grounds

that, as discussed below at p. 16, suggest he would not have

voted to uphold the district court’s grossly disproportional

fee award in this case.

15

spending close to 2,000 hours on a case that recovered

only $33,000 was “simply not a ‘reasonable’ expendi-

ture of time.” 477 U.S. at 595. The dissent observed:

One may agree with all of the glowing rhetoric

contained in the plurality’s opinion about Con-

gress’ noble purpose in authorizing attorney’s fees

under § 1988 without concluding that Congress

intended to turn attorneys loose to spend as many

hours as possible to prepare and try a case that

could reasonably be expected to result only in a

relatively minor award of monetary damages.

Id.

The instant case presents a similar situation, In a

case in which a jury could find no injury whatsoever,

it is difficult to conclude that plaintiffs’ counsel’s ex-

penditure of the time necessary to accumulate

$280,000 in fees was reasonable. The logic of plain-

tiffs’ argument is that they achieved an important

victory. The absurdity of that proposition demon-

strates the weakness of their arguments. As the Fifth

Circuit noted, “This was no struggle over constitu-

tional principles. It was a damage suit and surely so

since plaintiffs sought nothing more.” Farrar, 941

F.2d at 1315.

Perhaps if plaintiffs had sought and obtained in-

junctive relief, or if the litigation had engendered a

change in policy, the plaintiffs could at least make

their argument here with a straight face. None of

these things occurred. As the Fifth Circuit pointed

out, “The Farrars sued for $17 million in money dam-

ages; the jury gave them nothing. No money dam-

ages. No declaratory relief. No injunctive relief.

Nothing. ‘That is not the stuff of which legal vic- ~

tories are made.’” 941 F.2d at 1315 (quoting Hewitt,

482 U.S. at 760).

16

Even Justice Powell, who concurred only in the

judgment in Riverside, noted that “[w]here recov-

ery of private damages is the purpose of a civil

rights litigation, a district court, in fixing fees, is

obligated to give primary consideration to the amount

of damages awarded as compared to the amount

sought.” 477 U.S. at 585 (Powell, J., concurring in

result). Justice Powell continued, “In some civil

rights cases, however, the court may consider the vin-

dication of constitutional rights in addition to the

amount of damages recovered.” Jd. (noting that the

Riverside verdict “may well have served a public in-

terest” based on allegations that the police misconduct

at issue reflected hostility to a particular ethnic com-

munity as a whole). Foreshadowing the instant case,

however, Justice Powell noted that “[i]t probably will

be the rare case in which an award of private dam-

ages can be said to benefit the public interest to an

extent that would justify the disproportionality be-

tween damages and fees reflected in this case.” /d. at

586 n.3.

Indeed, it is difficult to see what public interest, if

any, was served by this lawsuit. Petitioners can point

to no concrete benefit to themselves, let alone to the

public at large, as a result of this lawsuit. They

quote the district court as saying that “[a]warding

attorney’s fees when a plaintiff has shown the depriva-

tion of liberty and property without due process, as

the Farrars have done, encourages state actors to

examine the legality of their actions ... [T]he cumu-

lative effect of meritorious civil rights litigation even-

tually deters impermissible conduct by government

officers. ...” Brief for Petitioners at 19 (quoting un-

published district court order awarding attorney’s

fees). This is speculation at best. It is highly un-

a —

RE

17

likely that the $1 award in this case inspired much

self-analysis among Texas state officials or anyone

else. It is equally unlikely that this—rather than the

recovery of money damages—was Farrar’s motiva-

tion in bringing suit since Farrar did not even re-

quest relief designed to change any official behavior.

Finally, it is the relief awarded, not the attorney’s

fees, that must be the catalyst for change.

Accordingly, the attorney’s fees award of $280,000

has no proportionality whatsoever to the relief actu-

ally obtained in this case. Under the dictates of this

Court in Hensley, and the considerations expressed

by the dissenting Justices and Justice Powell in River-

side, even if Petitioners could be said to have prevailed

in the litigation, such a disparate award is unwar-

ranted. To reflect accurately the principles underly-

ing Section 1988, no more than a nominal attorney’s

fee, corresponding to the nominal damages, can be

justified.

Ill. PUBLIC POLICY CONSIDERATIONS FAVOR AN

INTERPRETATION OF SECTION 1988 THAT DOES

NOT AWARD COUNSEL FEES EXCEPT FOR

LEGAL SERVICES REASONABLY SUPPORTIVE

OF PLAINTIFF’S SUCCESS AS A PRIVATE AT-

TORNEY GENERAL. TO MEET ITS GOALS, SEC-

TION 1988 SHOULD AT MOST OFFER FEES COM-

MENSURATE WITH SUCCESS

The fee-shifting provision in Section 1988 em-

bodies a recognition that fee awards will act as an

inducement to the filing of lawsuits. In practical

terms, it is inevitable that such a fee-shifting statute

will serve to encourage whatever types of lawsuits

it rewards. If only private relief is sought and little

is obtained, with no real hope of a change in circum-

18

stances otherwise, and yet fees are shifted to the de-

fendant, the result “turns § 1988 into a relief Act

for lawyers.” Riverside, 477 U.S. at 588 (Rehnquist,

J., dissenting). There is a distinct danger in such

cases that awards of fees based on the full scope of

litigation that ultimately failed in its intended pur-

pose may result in windfalls to plaintiffs’ attorneys

and may encourage excessive litigation of question-

able or necessary claims. It was to avoid this result

that this Court held in Hensley that the fee award

for a partially successful plaintiff must be “reasonable

in relation to the results obtained,” 461 U.S. at 440,

and that “the most critical factor” in determining the

amount of the award “is the degree of success ob-

tained.” Jd. at 436. This emphasis on the degree of

the plaintiff’s success ensures that attorney’s fees will

be awarded only to the extent that the plaintiff has

vindicated some important public_policy and thus has

fulfilled the purpose of Section 1988.

As discussed above, this Court observed in Hensley

that “[a] reduced fee award is appropriate if the

relief, however significant, is limited in comparison

to the scope of the litigation as a whole.” Id. at 440

(emphasis added). In cases such as this, where only

damages are involved, EEAC submits that the adop-

tion of a requirement that fees bear a reasonable re-

lationship to the amount of damages recovered would

better ensure the relationship between the fee award

and the plaintiff’s degree of success that Hensley

recognized as being necessary to fulfill the purposes

of Section 1988.

In Christiansburg Garment Co., this Court sug-

gested that awarding fees only to prevailing plain-

tiffs would not in itself be an incentive for plaintiffs

to bring claims that have little chance of success. 434

ea

19

U.S. at 422. For the plaintiff who is deemed “pre-

vailing” even though he or she has achieved limited

success, however, this will be true only if there is a

requirement of some reasonable degree of proportion-

ality between the amount of the fee award and the

relief obtained.

A plaintiff’s attorney knows that succeeding on any

significant civil rights claim and achieving some of

the benefit sought will qualify the plaintiff as a

“prevailing party” and in most cases will entitle the

plaintiff to some amount of attorney’s fees. Garland,

489 U.S. at 789. However, if there is a possibility

that the court may award fees even for cases whose

sole result is a $1 nominal damages award, there will

be a strong incentive for the attorney to bring such

cases despite the possibility that they will not result

in any material success for the client. The attorney

may be willing to gamble that a jury will bring in at

least a favorable liability finding, and that the trial

court will award fees based on all of the time spent

on the case. That is precisely what the district court

in the instant case did, awarding petitioner’s attor-

neys a substantial windfall for their nominal success.

A requirement that the amount of the fee award must

bear some reasonable relationship to the plaintiff’s

degree of success would remove any incentive to bring

lawsuits where no public interest is at stake and no

harm occurred.

In the area of employment discrimination litiga-

tion, it is standard practice for plaintiffs to file

actions claiming monetary damages under 42 U.S.C.

§ 1981." Believing that they have been discriminated

™% With the passage of the Civil Rights Act of 1991, Pub.

L. No. 101-166 (1991), Title VII claimants are now be able

- to sue for compensatory and punitive damages.

20

against in employment, they often bring suit to chal-

lenge what at best is an isolated incident rather than

an indication of a pattern or practice of widespread

- discrimination. Rather than trying to improve con-

ditions for othérs, they simply seek retribution for

what they perceive to be an individual wrong.

While such a suit is permitted under the law, it

does not necessarily make the plaintiff a “private at-

torney general” acting in the public interest. If in

such cases, plaintiffs’ attorneys know that the only

result necessary to cover their fee is a nominal dam-

ages award, it may be expected that they will “roll

the dice” and pursue these claims regardless of the

prospect for success, rather than making an initial

reasoned determination of the likelihood of success

on the merits. By threatening to litigate such claims,

the plaintiff can exert pressure on the employer either

to accept an inflated settlement demand or to liti-

gate the matter at significant expense.

Generally, public policy does not favor coerced set-

tlements or unnecessary litigation. The area of civil

rights is no exception. Indeed, under Title VII of the

Civil Rights Act of 1964, the public policy favoring

voluntary settlement of civil rights matters through

comprehensive negotiation and conciliation is reflected

in the statutory scheme.“ An interpretation of the

™ 42 U.S.C. § 2000e-5(k). See Carson v. American Brands,

Inc., 450 U.S. 79, 88 n.14 (1981) (“In enacting Title VII,

Congress expressed a strong preference for voluntary settle-

ment of employment discrimination claims.”), and Alexander

v. Gardner-Denver Co., 415 U.S. 86, 44 (1974). The counsel

fees provision in Title VII is virtually identical to the pro-

vision in Section 1988 at issue in this case. The legislative

history of the Title VII fees provision is quite brief, but it

does include an explanation by Senator Humphrey that the

21

counsel fees provision which awards fees only for

services reasonably reflective of plaintiffs’ success

fully satisfies the public policy of encouraging meri-

torious claims by victims of discrimination. And it

does so without offering an inducement for expanded

litigation that would interfere with the desirable proc-

ess of settlement negotiations.

CONCLUSION

For the foregoing reasons, EEAC respectfully

urges that the Fifth Circuit decision be affirmed.

Respectfully submitted,

ROBERT E. WILLIAMS

DoucG.as 8. MCDOWELL

ANN ELIZABETH REESMAN *

McGUuUINEss & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

June 15, 1992 * Counsel of Record

purpose of the provision was to “make it easier for a plaintiff

of limited means to bring a meritorious suit.” 110 Cong. Rec.

12724 (June 4, 1964) (statement of Sen. Humphrey).