# Amicus Curiae Brief — Farrar v. Hobby

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 103

## Text

-

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

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MOTION TO FILE BRIEF AS AMICUS CURIAE AND
BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF RESPONDENT

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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
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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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0227%3A08. Public record. Not legal advice.