Amicus Curiae Brief — Farrar v. Hobby

3 D FIEED

5

No. 91-990

ae

*

; IN THE OFFICE OF THE

Supreme Court of the United States

OCTOBER TERM, 1991

DALE FARRAR, et al.,

Petitioners,

v.

WILLIAM P. Hossy, IR.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL INSTITUTE OF MUNICIPAL

LAW OFFICERS,

NATIONAL ASSOCIATION OF COUNTIES,

US. CONFERENCE OF MAYORS, AND

COUNCIL OF STATE GOVERNMENTS

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

GLEN D. NAGER RICHARD RUDA *

Davip SCHENCK Chief Counsel

JONES, DAY, REAVIS MICHAEL G. DZIALO

& Pocus STATE AND LOCAL LEGAL CENTER

1450 G Street, N.W. Suite 345

Washington, D.C. 20005 444 North Capitol Street, N.W.

(202) 879-3939 Washington, D.C. 20001

Of Counsel (202) 434-4850

* Counsel of Record for the

Amici Curiae

WILson - Brae Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether a plaintiff who recovers only a nominal dam-

age award in an action in which the sole relief sought is

$17 million in monetary damages is a “prevailing party”

entitled to attorney’s fees under the Civil Rights Attor-

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

(i)

TABLE OF CONTENTS

Te

TABLE OF AUTHORITIES E

INTEREST OF THE AMICI CURIAE t

EES . .

SUMMARY OF ARGUMENT ———

r ....

A PLAINTIFF WHO RECOVERS ONLY A

NOMINAL DAMAGE AWARD IN AN ACTION

IN WHICH THE SOLE RELIEF SOUGHT IS

$17 MILLION IN MONETARY RELIEF IS NOT

A “PREVAILING PARTY” ENTITLED TO AT-

TORNEY’S FEES UNDER 42 U.S.C. § 19888

A. A Plaintiff Must Recover Some Material Aspect

Of The Relief Sought In The Complaint To Be

A “Prevailing Party” Entitled To Attorney’s

Fees Under 42 U.S.C. § 198899999]ũ:

B. A Plaintiff Who Seeks Extensive Monetary Re-

lief But Receives Only A Nominal Damage

Award Has Not Recovered A Material Aspect

Of The Relief Sought In The Complaint 1

C. The Arguments Advanced In Favor Of Accord-

ing “Prevailing Party” Status To Plaintiffs Re-

ceiving Only Nominal Damages On Prayers For

Extensive Monetary Relief Are Unsound ..........

r

(iii)

Page

13

iv

TABLE OF AUTHORITIES

Cases Page

Alyeska Pipeline Serv. Co. v. Wilderness Society,

Pe DO FO ..... 5, 9, 24-25

Brown v. GSA, 425 U.S. 820 (1976) n 16

Carey v. Piphus, 435 U.S. 247 (1978) 6.7, 18-19

Carr v. City of Florence, 729 F. Supp. 783 (N. D.

Ala. 1990), aff'd without op., 934 F.2d 1264

(11th Cir. 1991) 18

Chemical Mfrs. Ass'n v. EPA, 885 F.2d 1276 (5th

Cir. 1989) 26

Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d

888 (D.C. Cir. 19527 16

Chicano Police Officers Ass'n v. Stover, 624 F. 2d

, 21

Christiansburg Garment Co. v. FEOC, 434 US.

412 (1978)... | 10, 11

Commissioners Court of Medina County, Ter. v.

United States, 683 F.2d 435 (D.C. Cir. 1982) 20

Continental Web Press, Inc. v. NLRB, 767 F.2d

e eee ae 17

Dresselhouse v. Chrysler Corp., „ 442 N. W. 2d 705

III 15

Esso Standard ». S. S. Wisconsin, 54 FR. b. 26

11113 cee ae ee 14

Evans v. Sheraton Park Hotel, 4 Fair Empl. Prac.

Cas. (BNA) 1265 (D.D.C. 197777 17

Evans v. United States, No. 90-6105 (U.S. May 26.

1992) 15-16

Fast v. School Dist. of City of Ladue, 728 F.2d 1030

(8th Cir. 1984) 2 15 17

Fewquay v. Page, 907 F.2d 1046 (11th Cir. 19900 26

Fleischmann Distilling Corp. v. Maier Brewing

oe 9 8, eee 13

Hanrahan v. Hampton, 446 US. 154 (1980) . 11

Heindel v. Southside Chrysler-Plymouth, Inc., 476

So. 2d 266 (Fla. Dist. Ct. App. 1985) 15

Hensley v. Eckerhart, 461 U.S. 424 (1983) 9, 11, 23

Hewitt v. Helms, 482 U.S. 755 (1987) 11,18

Howell Petroleum Corp. v. Samson Resources Co.,

903 F.2d 778 (10th Cir. 1990) ean 14

*

TABLE OF AUTHORITIES—Continued

Page

International Indus. v. United Mortgage Co., 606

P.2d 163 (Nev. 1980) 15

Jet Line Serv. v. American Employers Ins. Co.,

537 N.E.2d 107 (Mass. 1989999 15

Kelley v. Metropolitan County Bd. of Edue., 773

F.2d 677 (6th Cir. 1985), cert. denied, 474 U.S.

I / / 26

Lawrence v. Hinton, 20 Fed. R. Serv. 3d 934 (Ath

Cir. July 12, 19917 Es Se ee 17-18, 20

Lewis v. Kendrick, 944 F.2d 949 ‘(ist Cir. 1991).. 18, 24

Lewis v. Pennington, 400 F.2d 806 (6th Cir. 1968),

cert. denied sub nom. Pennington v. United

States Mine Workers, 393 U.S. 983 (196685 14

Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737

e ... ee 23

Maher v. Gagne, 448 U.S. 122 (1980) n 11

Moran v. Pima County, 700 P. 2d 881 (Ariz. Ct.

App.), cert. denied, 474 U.S. 989 (1983) 18

New York City Unemployed and Welfare Council

v. Brezenoff, 742 F.2d 718 (2d Cir. 1984 17, 21

Northbrook Excess & Surplus Ins. Co. v. Proctor

& Gamble, 924 F.2d 633 (7th Cir. 19917 15, 18

Ohland ». City of Montpelier, 467 F. Supp. 324

(D. Vt. 1979) | 17

Overland Dev. Co. v. Marston Slopes Dev. Co.,

773 P.2d 1112 (Colo. Ct. App. 1989) . 15

Owen v. City of Independence, 445 U.S. 622

I a ß ß 16

Rhodes v. Stewart, 488 U.S. 1 (1988) 11 12, 18

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) 16, 22,

26

Tatum v. Morton, 386 F. Supp. 1308 (D. D.C.

1 . ²— Ee aa: SE 17

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

Dist., 489 U.S. 782 (19899 passim

Werren v. Fanning, 950 F. 2d 1370 (8th Cir.

1991) e 17

vi

TABLE OF AUTHORITIES—Continued

Statutes Page

Zr 25

r x — eC ee 25

te p — TR 1415

r ⁊ↄ /f 2

. passim

Rules

Fed. R. Civ. P. 8 (a) (3 Ee ek ee AE ed 23

r See eo 24

,, ... 6, 14, 23

e . ae a nee eS 15

Legislative History

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1967). 10, 17

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976)......9-10, 16,

25

121 Cong. Rec. 26806 (19763) 9

122 Cong. Rec. 31474 (19769) 61 10

122 Cong. Rec. 31792 (1976) ree 10, 17

.. / — 9-10

121 Cong. Rec. 85117 (1976) 16

121 Cong. Rec. 35124 (1976) 10

. 10

121 Cong. Rec. 835128 (1976) 10-11

Miscellaneous

William Blackstone, Commentaries .......................... 14

Dan B. Dobbs, Handbook on the Law of Remedies

T — 19

Charles T. McCormick, Counsel Fees and Other Ex-

penses of Litigation As An Element of Damages,

15 Minn. L. Rev. 619 (19317 *.. 13-14

Charles T. McCormick, Handbook on the Law of

11 ͤ— 14, 15, 16, 17, 19

Fed. R. Civ. P. 54 advisory committee note 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-990

DALE FARRAR, et al.,

. Petitioners,

WILLIAM P. Hon, IR.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL INSTITUTE OF MUNICIPAL

LAW OFFICERS,

NATIONAL ASSOCIATION OF COUNTIES,

U.S. CONFERENCE OF MAYORS, AND

COUNCIL OF STATE GOVERNMENTS

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in

legal issues that affect state and local governments. The

decision in this case will have a significant impact on the

financial exposure of city and state governments and

officials resulting from litigation under the civil rights

2

laws. Amici submit that an award of attorney’s fees

under Section 1988 to a plaintiff who recovers none

of the relief that he sought—merely because of an ab-

stract finding that plaintiff was deprived of an unspeci-

fied civil right—is contrary to Congress’ intent and fun-

damentally unfair. Amici accordingly submit this brief

to assist the Court in its resolution of this case.’

STATEMENT

1. In the early 1970s, Joseph D. Farrar and his son,

Dale L. Farrar, owned and operated Artesia Hall, a

school in Liberty County, Texas for the care of delin-

quent, handicapped, and disturbed teenage chiidren. Pet.

App. A4. After the death of an Artesia Hall student in

1973, a Liberty County grand jury returned a murder

indictment against Joseph Farrar, charging him with

willfully failing to administer proper medical treatment

to the student and failing timely to provide for her hos-

pitalization. Id. at A381. Upon learning of the situation,

respondent William Hobby, then Lieutenant Governor of

Texas, publicly demanded an investigation of Artesia

Hall. Id. at A382. The State of Texas thereafter ob-

tained an injunction that required the closing of Artesia

Hall. Id.

In June 1975, after the murder indictment against

Joseph Farrar had been dismissed, the Farrars filed this

action under 42 U.S.C. § 1983 against Hobby, two elected

officials of Liberty County, a judge, and three state em-

ployees. Pet. App. A32. The Farrars claimed that Hobby

and the other defendants had violated their civil rights

by, among other things, malicious prosecution aimed at

closing the school, and had conspired to deprive them

of their civil rights, livelihoods, and professional reputa-

tions. Id.

Initially, the Farrars sought both monetary damages

and injunctive relief. Id.; Resp. Br. Opp. 1. They later

1 The parties’ letters of consent have been filed with the Clerk

pursuant to Rule 37.3 of the Court.

3

amended their complaint to omit the prayer for injunc-

tive relief. J. A. at 33. The amended complaint states

that their suit was brought

for money damages only. No injunctive relief is now

herein sought, nor would such now serve any useful

purpose.

Id. In this complaint, the Farrars increased their prayer

for monetary relief from $2.7 million to $17 million. Id.

at 33; Pet. App. A32.

In 1983, the case was tried to a jury. Pet. App. A15.

Although the Farrars sought $17,000,000 in damages,

“the jury found no damages” and did not award the

Farrars anything. Pet. App. A31. The jury did find

that respondent Hobby had “committed an act or acts un-

der color of state law that deprived Plaintiff Joseph

David Farrar of a civil right guaranteed by the Constitu-

tion and laws of the United States and the State of

Texas.” Resp. App. A3. It also found, however, that the

act or acts of respondent Hobby were not a proximate

cause of any damages to the Farrars. Id. at Al-A4.

Based upon these findings, the district court ordered

“that plaintiffs take nothing, that the action be dismissed

on the merits, and that the parties bear their own costs.“

Id. at A5-A6.*

The court of appeals affirmed in part, reversed in part,

and remanded. Pet. App. A2-All. It rejected the Far-

rars’ challenge to the various jury ‘nstructions made

by the district court. Id. at A4-A9. It also held, however,

that, “{bJecause the jury explicitly found that defend-

ant Hobby had violated Farrar’s civil rights, the jury

should have awarded Farrar nominal damages, not to ex-

ceed one dollar, and it was error for the trial court not

* The record does not identify the civil right found to have been

violated by Hobby. As the district court noted, “the jury instruc-

tions made it difficult to discern exactly what the jury found.”

Pet. App. Al5.

1

to do so when the Farrars so moved in their motion for

a new trial.” Id. at Al0. The court of appeals there-

fore remanded the case to the district court “for the en-

try of nominal damages against [Hobby].” Id. at A33.

2. On remand, the district court entered a judgment

for nominal damages. Pet. App. A831. Then, after re-

viewing this Court’s analysis of the “prevailing party”

standard in Texas State Teachers Ass’n v. Garland In-

dependent School District, 489 U.S. 782 (1989), the court

ruled that “[t]he award of nominal damages meets the

test announced in Garland.” Pet. App. Al9. The dis-

trict court thereupon ordered respondent Hobby to pay

the Farrars $280,000.00 in attorney’s fees, $27,932.00 in

costs, and $9,730.00 in prejudgment interest. Jd. at A12.

3. On appeal, the Fifth Circuit reversed. Pet. App.

A30-A45. The court reviewed the relevant authorities

from this Court and concluded that, “to qualify as a

prevailing party, a plaintiff must show that he won at

least some relief from the defendant, that the outcome

of the suit changed the legal relationship between the

parties, and that the plaintiff’s success was not a de

minimis or technical victory.” Jd. at A388. The court

of appeals held that “the Farrars were not prevailing

parties for the purposes of § 1988.” Jd. It based this

holding on the fact that the Farrars had been awarded

none of the relief they sought in their lawsuit; as the

court explained,

The Farrars sued for $17 million in money damages;

the jury gave them nothing. No money damages. No

declaratory relief. No injunctive relief. Nothing.

Id. |

*

5

SUMMARY OF ARGUMENT

Congress enacted Section 1988 in response to this

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

ness Society, 421 U.S. 240 (1975), which held that attor-

rey’s fees may not be shifted without express statutory

authorization. In enacting Section 1988, Congress in-

tended to provide such express authorization in civil rights

cases and to promote vigorous enforcement of modern

civil rights legislation. At the same time, however, Con-

gress was concerned that Section 1988 not be treated as a

“food-stamp” bill for lawyers, or be applied so as to en-

courage “trivial” suits or to create “windfalls” for attor-

neys. To accomplish these competing goals, Congress chose

the “prevailing party” standard.

The Court has long recognized that the “prevailing

party” standard is a “permissive and discretionary” one

that is not subject to a mechanical construction and that

must be interpreted in keeping with Section 1988’s com-

peting policies. Thus, the Court has held that a prevailing

defendant is not entitled to a fee award unless the plain-

tiff’s action is “frivolous, unreasonable, or without founda-

tion.” Out of respect for the statutory language and the

countervailing policy concerns of Congress, the Court has

also held, however, that a mere favorable finding of fact

or the entry of judgment in a plaintiff’s favor is not a

sufficient basis for attorney’s fee shifting for the plaintiff.

Rather, the Court has held that achievement of a material

aspect of the relief sought in the complaint is necessary

for an award of fees to a prevailing plaintiff; achieve-

ment of a “technical” or “de minimis” success is not

enough to establish “prevailing party” status.

The court below correctly concluded that a civil rights

plaintiff who claims entitlement to extensive monetary

relief but receives only a nominal damage award has not

crossed the statutory threshold for a fee award identified

in this Court’s decisions. That conclusion finds rich sup-

port in analogous cost and fee-shifting laws and practices.

6

Despite their willingness to allow fee-shifting in all civil

cases, the English developed a rule disallowing all costs

and fees to plaintiffs who recover only nominal or trivial

relief on claims for extensive monetary relief. This his-

toric practice has been followed in the United States with

respect to cost-shifting provisions such as Rule 54(d) of

the Federal Rules of Civil Procedure. The historic prac-

tice has also been followed in a variety of contemporary

attorney’s fees statutes.

There is nothing in the language or legislative history of

Section 1988 to suggest that Congress intended to depart

from this historic and widespread practice of denying

costs and attorney’s fees to nominal or pyrrhic victors. On

the contrary, at the time Section 1988 was enacted, it was

well established that a “trivial success on the merits” was

not sufficient to support the shifting of attorney’s fees.

Moreover, the legislative history of Section 1988 indicates

that Congress understood itself only to be authorizing

courts to recommence the discretionary fee-shifting prac-

tices in which they had engaged prior to the Alyeska

decision, and those practices included denying fees to

nominal or pyrrhic victors. Indeed, the legislative history

explicitly states that Congress did not want to encourage

“trivial” lawsuits or create “windfalls” for attorneys,

which is precisely the rationale for the historic practice

that denies shifting of costs and fees to nominal or pyrrhic

victors.

Contrary to the argument of petitioners and the Ameri-

can Bar Association (“ABA”), plaintiffs who obtain en-

forceable civil rights judgments are not necessarily “pre-

vailing parties” within the meaning of Section 1988. This

Court’s decisions require that, in addition, such a plain-

tiff recover some material aspect of the relief sought in

the complaint.

The decision in Carey v. Piphus, 435 U.S. 247 (1978),

does not hold that nominal damage awards are always

non-de minimis remedies. Carey holds only that, where

7

the violation of a constitutional right by its nature does

not cause a compensable injury, nominal damages must be

awarded in order that the right may be judicially estab-

lished and vindicated. Carey does not even begin to

address the question whether nominal damage awards

may constitute de minimis relief in cases where extensive

monetary damages were sought. Indeed, to have held that

nominal damage awards in such cases may not be treated

as de minimis relief would have contradicted centuries of

practice. Since Carey purports to embrace the common

law, it cannot reasonably be read to support such a

contradiction.

Petitioners and their amicus object that, under this

Court’s decisions, the relative success of the plaintiff is

relevant only to the amount of the fee awarded. But the

Court’s cases make it plain that the determination

whether a “material alteration” has oecurred in the rela-

tionship between a plaintiff and a defendant requires an

evaluation of the “significance” of the plaintiff’s success

“in the context of th[{e] litigation” as a whole.

Contrary to the argument of petitioners and the ABA,

the “de minimis success” test applied by the court below

does not focus on the mental state of the parties or prom-

ise to mire the district courts in unmanageable inquiries.

Rather, the test focuses on the relief requested in the

plaintiff’s complaint and simply requires the district court

to determine whether the plaintiff has obtained a ma-

terial aspect of it. As the ABA concedes, this is an

inquiry that this Court has long entrusted to the district

courts.

Finally, there is no basis for the suggestion that deny-

ing “prevailing party” status to plaintiffs who receive

only nominal damages in cases seeking extensive mone-

tary relief is inconsistent with congressional intent. Doing

so will not discourage lawyers from representing claim-

ants in cases in which little or no damages are perceived

8

as recoverable. Cases in which lawyers have satisfied

themselves that there is a reasonable basis for seeking

extensive monetary relief are by definition not cases in

which little or no damages are perceived as potentially

recoverable.

ARGUMENT

A PLAINTIFF WHO RECOVERS ONLY A NOMINAL

DAMAGE AWARD IN AN ACTION IN WHICH THE

SOLE RELIEF SOUGHT IS $17 MILLION IN MONE-

TARY RELIEF IS NOT A “PREVAILING PARTY”

ENTITLED TO ATTORNEY’S FEES UNDER 42 U.S.C.

§ 1988

Petitioners’ amended complaint makes it clear that they

sought “money damages only” and that injunctive relief

“would not serve any ... purpose” in this case. J.A. 25. The

jury found that petitioners were not entitled to any of the

monetary relief sought in the complaint. Resp. App. A3-A4.

The court of appeals ruled that petitioners were entitled

to a nominal damage award in recognition of the con-

stitutional infringement that the jury nonetheless found

to have occurred. Pet. App. Al0. But the court also

concluded that petitioners’ victory was sufficiently pyrrhic

to prevent them from being considered “prevailing par-

ties” entitled to attorney’s fees under 42 U.S.C. § 1988.

Id. at A38-A39. As demonstrated below, this conclusion is

supported by the decisions of this Court interpreting 42

U.S.C. § 1988, centuries of practice and case law under

analogous cost and fee-shifting rules, and important con-

siderations of policy that were of concern to Congress

when it enacted Section 1988.

A. A Plaintiff Must Recover Some Material Aspect Of

The Relief Sought In The Complaint To Be A “Pre-

vailing Party” Entitled To Attorney’s Fees Under 42

U.S.C. § 1988

Section 1988 on its face provides that “[i]n any action

or proceeding to enforce a provision of sections 1981,

1982, 1983, and 1986 of this title. . ., the court, in its

9

discretion, may allow the prevailing party ... a reason-

able attorney’s fee as part of the costs.” The pertinent

interpretive materials establish that a plaintiff is a “pre-

vailing party” within the meaning of Section 1988 only

if the plaintiff receives some material aspect of the relief

sought in the complaint.

1. As this Court has repeatedly recognized, Section

1988 was enacted in 1976 in response to the Court’s deci-

sion in Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975). E.g., Hensley v. Eckerhart, 461

U.S. 424, 429 (1983). In Alyeska, the Court held that, in

the absence of specific statutory authorization, tradition

and historical practice in America require that each

party bear responsibility for its own attorney’s fees with-

out regard to success in the suit. 421 U.S. at 271. In

introducing Section 1988, Senator Tunney thus stated that

{t}he Supreme Court’s recent Alyeska decision has

required specific statutory authorization if Federal

courts are to continue previous policies of awarding

fees under all Federal civil rights statutes. This bill

simply applies the type of “fee-shifting” provision

already contained in title II and VII of the 1964

Civil Rights Act to the other civil rights statutes

which do not already specifically authorize fee awards.

121 Cong. Rec. 26806 (1975) ; see also S. Rep. No. 1011,

94th Cong., 2d Sess. 1 (1976).

In so authorizing fee-shifting in civil rights cases,

Congress determined that [alll of these civil rights laws

depend heavily upon private enforcement, and fee awards

have proven an essential remedy if private citizens are to

have a meaningful opportunity to vindicate the important

Congressional policies which these laws cohtain.” S. Rep.

No. 1011, supra at 2. Congress found that “[i]n many

cases arising under our civil rights laws, the citizen who

must sue to enforce the law has little or no money with

which to hire a lawyer.” Id. Congress further found that

such cases often “do not provide the prevailing plaintiff

10

with a large recovery from which he can pay his lawyer.”

122 Cong. Rec. 33314 (1976) (statement of Sen. Ken-

nedy). Congress thus viewed fee-shifting as necessary

for “vigorous enforcement of modern civil rights legisla-

tion... . S. Rep. 1011, supra at 4.

At the same time, however, Congress was concerned

that Section 1988 not be treated as “a food-stamp bill for

lawyers.” 122 Cong. Rec. 35127 (1976) (statement of

Rep. Jordan). The bill was “not intended to encourage

groundless or frivolous litigation.” Jd. at 35124 (state-

ment of Rep. Drinan). Nor was it intended to create

“windfalls” for attorneys. H.R. Rep. No. 1558, 94th

Cong., 2d Sess. 9 (1976); 122 Cong. Rec. 31474 (1976)

(statement of Sen. Allen). On the contrary, Congress

wanted only to compensate those parties who were success-

ful in civil rights litigation, H.R. Rep. No. 1558, supra

at 9, and at the same time to deter “trivial and specious

law suits.” See 122 Cong. Rec. 31792 (1976) (statement

of Sen. Helms).

2. To accomplish these competing goals, Congress chose

the “permissive and discretionary” prevailing party lan-

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

412, 418 (1978). As this Court has recognized, this lan-

guage “does not even invite, let alone require, a

mechanical construction.” Jd. at 418. Indeed, the Court

has stated that [t]) he terms of [the statute] provide no

indication whatever of the circumstances under which

either a plaintiff or a defendant should be entitled to

attorneys’ fees.” Id. (emphasis in original). Rather, as

the Court has recognized, the statutory language instructs

that “equitable considerations” and historical practice

should inform who shall receive awards of attorney’s fees.

Id. at 419; accord H.R. Rep. No. 1558, supra at 8

(statute leaves “the matter to the discretion of the judge,

guided of course by the case law interpreting similar

attorney’s fees provisions”); 122 Cong. Rec. 35128

11

(1976) (statement of Rep. Jordan} (“have faith in your

judges’).

Pursuant to this statutory instruction, the Court has

held that “a prevailing plaintiff ‘should ordinarily recover

an attorney’s fee unless special circumstances would ren-

der an award unjust.“ Hensley v. Eckerhart, 461 U.S.

at 429 (citations omitted). It has also held that a plain-

tiff may “prevail” through a settlement and need not ob-

tain formal judicial relief in order to receive an award

of attorney’s fees. Maher v. Gagne, 448 U.S. 122, 129-

30 (1980). And it has held that, in contrast to the

generous treatment of prevailing plaintiffs but in keep-

ing with the multifarious policies of Section 1988, a pre-

vailing defendant may recover an award of fees only

where a plaintiff's action is “frivolous, unreasonable, or

without foundation.” Christiansburg Garment Co. v.

EEOC, 434 U.S. at 420-22.

On the other hand, out of respect for the statutory

language and the countervailing policy concerns of Con-

gress, the Court has also held that success on a signifi-

cant issue in the litigation and achievement of a material

aspect of the relief sought in the complaint are necessary

for an award of fees to a plaintiff. Teras State Teachers

Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92

(1989). Thus, in Hanrahan v. Hampton, 446 U.S. 754,

756-59 (1980), the Court held a favorable interlocutory

ruling on appeal insufficient as a basis for awarding at-

torney’s fees because such a ruling itself affords no relief

to the plaintiff. Moreover, in Hewitt v. Helms, 482 U.S.

755, 759-60 (1987), the Court held that a plaintiff who

has proven unconstitutional conduct nevertheless does not

“prevail” within the meaning of Section 1988 when the

defendant’s qualified immunity precludes an award of

damages to the plaintiff, reasoning that “the moral satis-

faction of knowing that a federal court concluded that

| plaintiff's] rights ha|ve] been violated” is not enough

under the statute. Id. at 761-62. Similarly, in Rhodes

12

v. Stewart, 488 U.S. 1, 3-4 (1988), the Court held that,

where a case has become inoot before judgment, even the

entry of a declaratory judgment is not sufficient to es-

tablish “prevailing party” status, since a judgment “will

constitute relief, for purposes of § 1988 if, and only if,

it affects the behavior of the defendant toward the

plaintiff.”

3. The Court summarized this understanding of the

law in Garland. There, in deeid ing] the proper stand-

ard for determining whether a party has ‘prevailed’ for

Section 1988 purposes, the Court unanimously held that

a plaintiff establishes “prevailing party” status only “[i|f

the plaintiff has succeeded on ‘any significant issue in the

litigation which achieved some of the benefit the parties

sought in bringing suit.“ 489 U.S. at 791-92 (citation

omitted).

In explaining this standard, the Court noted two im-

portant points which the lower courts must consider. Id.

First, the Court ruled that, as a “floor” or “absolute

limitation,” the plaintiff must “at a minimum . be

able to point to a resolution of the dispute which

changes the legal relationship between itself and the de-

fendant.” Id. at 792. “Beyond this,” however, the Court

ruled that “a technical victory may be so insignificant

. . . as to be insufficient to support prevailing party

status.” /d. Hence, plaintiffs are deemed prevailing par-

ties only when they have “prevailed on a significant issue

in the litigation and have obtained some of the relief

they sought.” Id. at 793.

In Garland, the Court agreed that the plaintiffs’ suc-

cess in “materially alter ing] the school district’s policy”

justified their being deemed to be prevailing parties. 489

U.S. at 793. However, the Court expressly noted that,

had the Garland plaintiffs sueceeded only on one of their

constitutional claims characterized by the district court

“as ‘of minor significance,“ they would not have been

“prevailing parties.“ Id. at 792. In the Court’s judg-

13

ment, such a minor success would be too “technical” or

“de minimis” to justify “prevailing party” status. Id.“

B. A Plaintiff Who Seeks Extensive Monetary Relief But

Receives Only A Nominal Damage Award Has Not

Recovered A Material Aspect Of The Relief Sought

In The Complaint

The court below concluded that a civil rights plaintiff

who seeks extensive monetary relief but receives only a

nominal damage award has not crossed the statutory

threshold for a fee award identified in Garland. Stated

differently, the court below concluded that a plaintiff who

seeks extensive monetary relief but receives only a nomi-

nal damage award has not, as required by this Court’s

cases, recovered a material aspect of the relief sought in

the complaint. This conclusion finds rich support in

analogous cost and attorney’s fee-shifting laws and tradi-

tions, and is necessary to effectuate the intentions of the

Congress that enacted Section 1988.

1. In contrast to the prevailing practice in America,

English courts have historically required the losing party

in litigation to pay the victor’s attorney’s fees and costs.

Fleischmann Distilling Corp. v. Maier Brewing Co., 386

U.S. 714, 717-18 (1967); Charles T. McCormick, Counsel

Fees and Other Expenses of Litigation As An Element

of Damages, 15 Minn. L. Rev. 619 (1931). However, in

1670, the English by statute developed a rule—sometimes

called the “forty shilling” rule—which provided that costs

and attorney’s fees would not be shifted to the losing

party where the plaintiff ered “only triviai dam-

The Garland plaintiffs prevailed in the district court on their

claim that “the requirement that non-school hour meetings be con-

ducted only with prior approval from the local school principal was

unconstitutionally vague.” 489 U.S. at 792. The Garland Court em-

phasized, however, that [if this had been [ plaintiffs’] only success

in the litigation, we think it clear that this alone would not have

rendered them ‘prevailing parties’ within the meaning of § 1988.”

Id.

14

ages.” /d. at 619. English courts applied this rule to sit-

uations where only “small judgments were] awarded

upon large claims,” such as in “many types of cases

where a plaintiff succeeds in recovering merely nominal

damages.” Charles T. McCormick, Handbook on the Law

of Damages at 94. The purpose of the rule was “to dis-

courage plaintiffs from cumbering the courts with insub-

stantial and trivial claims... .” Jd. See also 3 William

Blackstone, Commentaries *400 (recognizing that the

rule serves to “prevent. . . trifling and malicious ac-

tions

While courts and legislatures in America generally

declined to follow the English approach of shifting attor-

ney’s fees to the losing party, they embraced early on the

rule that the prevailing party should recover “costs” from

the losing adversary. McCormick, 15 Minn. L. Rev. at

620. However, as in England, the federal courts and at

least two-thirds of the States refused to authorize such

cost-shifting where a plaintiff had recovered only trivial

damages. McCormick, Handbook on the Law of Damages

at 94-95 (surveying the law of American jurisdictions).

Thus, Dean McCormick was able to write in 1935 that

“the plaintiff to-day can by no means invariably rely

upon a judgment for nominal damages as a ‘peg’ for

costs. Id. at 95.

In more modern times, courts applying Rule 540d) of

the Federal Rules of Civil Procedure have similarly de-

clined to award costs to the victor in litigation where the

judgment recovered was insignificant in comparison to the

amount actually sought.” Esso Standard v. S.S. Wisconsin,

54 F.R.D. 26, 27 (S.D. Tex. 1971) ; see also Howell Petro-

leum Corp. v. Samson Resources Co., 903 F.2d 778, 783

(10th Cir. 1990) ; Lewis v. Pennington, 400 F.2d 806, 819

(6th Cir.), cert. denied sub nom. Pennington v. United

Mine Workers, 393 U.S. 983 (1968). This is consistent

with the Rules’ intention to retain the practice of denying

costs to plaintiffs recovering less than $500. See 28

ä—œD—D U—U—ũuũ—ꝛ— ee ee

15

U.S.C. § 815 (repealed); see also Fed. R. Civ. P. 54 ad-

visory committee note. Indeed, courts have even cited

Garland as support for denying costs where a “recovery

was ‘nominal’ when compared to the claims asserted by

the plaintiff).” Northbrook Excess & Surplus Ins. Co. v.

Proctor & Gamble, 924 F.2d 683, 641-42 & n.11 (7th

Cir. 1991).

This historic practice of denying “prevailing party”

status to plaintiffs who obtain only nominal or pyrrhic

victories has also been applied in a variety of contempo-

rary attorney’s fee-shifting statutes that limit awards to

“prevailing parties.” See, e.g., Overland Dev. Co. „.

Marston Slopes Dev. Co., 773 P.2d 1112, 1115-16 (Colo.

Ct. App. 1989) (Colorado law); Heindel v. Southside

Chrysler-Plymouth, Inc., 476 So. 2d 266, 270 (Fla. Dist.

Ct. App. 1985) (Florida law) ; Jet Line Serv. v. American

Employers Ins. Co., 587 N.E.2d 107, 115 (Mass. 1989)

(Massachusetts law); Dresselhouse v. Chrysler Corp., 442

N.W.2d 705, 711 (Mich. Ct. App. 1989) (Michigan law) ;

International Indus. v. United Mortgage Co, 606 P.2d

163, 167 (Nev. 1980) (Nevada law); see generally Me—

Cormick, Handbook on Law of Damages at 94 n.51 (cata-

loguing laws in existence in 1935); cf. Tex. R. Civ. P.

137 (denying cost awards in tort cases where less than

$20 is recovered). As one court stated in denying attor-

ney’s fees to a litigant who had sought $175,000 but

recovered only a nominal damage award, “the mere judi-

cial declaration that one of the plaintiff’s legal assertions

is correct does not mean that he has prevailed in the liti-

gation, unless some benefit flows, or may be anticipated

to flow from that declaration.” Overland Dev. Co. v.

Marston Slopes Dev. Co., 773 P.2d at 1115-16.

2. There is nothing in the language or legislative his-

tory of Section 1988 that indicates that Congress intended

to depart from this historie practice of denying costs and

attorney’s fees to nominal or pyrrhic victors. The absence

of such evidence should itself be sufficient to sustain such

a historic and prevailing practice. See Evans v. United

16

States, No. 90-6105, slip op. at 4 (U.S. May 26, 1992) ;

Owen v. City of Independence, 445 U.S. 622, 637 (1980).

But there is also affirmative evidence that Congress in-

tended to continue this practice under Section 1988.

First, the requirement in Section 1988 that the plaintiff

be a “prevailing party” is inconsistent with awarding

attorney’s fees to nominal or pyrrhie victors. As this

Court has noted in an analogous context, at the time Sec-

tion 1988 was enacted, the term “prevailing party” “was

thought not to extend to parties who prevailed only in

part” and was understood to be more exacting than stand-

ards—such as “partially prevailing party”—used in other

fee-shifting statutes. Ruckelshaus v. Sierra Club, 463

U.S. 680, 689 (1983). Indeed, at the time, it was clear

that a “trivial success on the merits” was not sufficient

to support the shifting of attorney’s fees. Id. at 689 n.9.

By definition, of course, a nominal damage award on a

prayer for extensive monetary relief is such a “trivial”

success on the merits. See Chesapeake & Potomac Tel. |

Co. v. Clay, 194 F.2d 888, 890 (D.C. Cir. 1952) (“The

term nominal damages means a trivial sum—usually one

cent or one dollar—awarded to a plaintiff whose legal

right has been technically violated but who has proved no

real damage.”); McCormick, Handbook on the Law of

Damages at 96. Congress’ understanding of the existing

state of the law controls “whether Congress correctly

perceived the then state of the law” or not. Brown v.

GSA, 425 U.S. 820, 828 (1976).

Second, as noted above, the legislative history of Section

1988 indicates that Congress understood itself only to

be authorizing the courts to recommence the fee-shifting

practices in which they had engaged in civil rights cases

prior to this Court’s Alyeska decision. See S. Rep. No.

1011, supra, at 4, 6; see also 122 Cong. Rec. 35117

(1976) (remarks of Rep. Railsback). Prior to Alyeska,

courts had been following the tradition of denying fee

requests where the amount recovered was insignificant or

— — A —ä6— — — —

—

17

de minimis in relation to the amount being sought. See,

e.g., Tatum v. Morton, 386 F. Supp. 1308, 1318 (D. D.C.

1974) ; Evans v. Sheraton Park Hotel, 4 Fair Empl. Prac.

Cas. (BNA) 1265, 1266 (D.D.C. 1972). Interpreting the

statute to override this tradition would thus be incon-

sistent with Congress’ stated intention of reauthorizing

pre-Alyeska judicial fee-shifting practices.

Finally, as also noted above, the legislative history

makes it plain that Congress intended for Section 1988

merely to compensate plaintiffs who had successfully vin-

dicated significant civil rights claims; Congress did not

intend to encourage “trivial” lawsuits or produce “wind-

falls” for attorneys. See 122 Cong. Rec. 31792 (1976)

(statement of Sen. Helms); H.R. Rep. No. 1558, supra

at 9. The traditional rule against cost and fee-suifting

to nominal or pyrrhie victors is grounded in similar con-

cerns. See McCormick, Handbook on the Law of Damages

at 94. Thus, interpreting Section 1988 to authorize fee-

shifting to nominal or pyrrhic victors would be at odds

with Congress’ stated intentions; “a windfall can be pro-

vided by awarding a fee where none is due as well as by

overpayment where a fee is due.” Fast v. School Dist. of

City of Ladue, 728 F.2d 1030, 1037 (8th Cir. 1984) (en

banc) (Henley, J., dissenting) .*

For such reasons, many courts have correctly joined in the

Fifth Circuit’s view that Section 1988 does not authorize shifting

of attorney’s fees where the plaintiff has obtained only de minimis

success in relation to the relief sought in the complaint. See, e.g.,

Warren v. Fanning, 950 F.2d 1370, 1375 (8th Cir. 1991); New

York City Unemployed and Welfare Council v. Brezenoff, 742 F.2d

718, 724 n.4 (2d Cir. 1984); Ohland v. City of Montpelier, 467

F. Supp. 324, 349-50 (D. Vt. 1979) ; see also Continental Web Press,

Inc. v. NLRB, 767 F.2d 321, 323 (7th Cir. 1985) (equating the

entitlement standard under the Equal Access to Justice Act to Sec-

tion 1988 and concluding that a plaintiff must recover “a substan-

tial part of what he sought“). Indeed, many courts have joined the

court below in holding that fee-shifting is not appropriate where a

plaintiff obtains only nominal damages on a prayer for extensive

monetary relief. See, e.g., Lawrence v. Hinton, 20 Fed. R. Serv. 3d

18

C. The Arguments Advanced In Favor Of According

“Prevailing Party” Status To Plaintiffs Receiving

Only Nominal Damages On Prayers For Extensive

Monetary Relief Are Unsound

Petitioners and the American Bar Association (“ABA”)

advance a series of arguments concerning why plaintiffs

who obtain nominal damage awards on prayers for exten-

sive monetary relief should be deemed “prevailing

parties.” But these arguments are unsound.

1. Petitioners and the ABA (Pet. Br. 9-10, ABA Br.

8-11) first suggest that a plaintiff becomes a “prevailing

party” simply by obtaining any enforceable civil rights

judgment against the defendant. But the Court’s deci-

sions in Hewitt and Rhodes make it plain that the deter-

mination that the plaintiff’s civil rights have been violated

is not enough to establish “prevailing party” status. See

Hewitt v. Helms, 482 U.S. at 761; Rhodes v. Stewart, 488

U.S. at 4. Moreover, the Court’s decision in Garland

makes it clear that an enforceable judgment is also not

by itself sufficient to establish “prevailing party” status;

Garland expressly -holds that, to achieve “prevailing

party” status, the plaintiff must achieve more than a de

minimis or technical success in relation to the total relief

sought in the lawsuit. See 489 U.S. at 792.

2. Petitioners and the ABA (Pet. Br. 8-10, 13-14;

ABA Br. 6-8) next argue that this Court’s decision in

Carey v. Piphus, 435 U.S. 247 (1978), holds that nominal

damage awards are always non-de minimis remedies in

constitutional cases. Carey, however, holds only that,

934 (4th Cir., July 12, 1991), aff’g 131 F. R. D. 659, 661-63 (M. D. N. C.

1990); Carr v. City of Florence, 729 F. Supp. 783, 791 (N.D. Ala.

1990), aff'd without op., 934 F.2d 1264 (11th Cir. 1991); see also

Lewis v. Kendrick, 944 F.2d 949, 955-56 (Ist Cir. 1991) (denying

fees where plaintiffs requested 140 times the amount recovered) ;

Moran v. Pima County, 700 P.2d 881, 882-83 (Ariz. Ct. App.), cert.

denied, 474 U.S. 989 (1985). Cf. Northbrook Excess and Surplus

Ins. v. Proctor & Gamble, 924 F.2d at 641-42 & n.11.

19

where the violation of a constitutional right by its nature

does not cause a compensable injury, nominal damages

must be awarded in order that the right may be judicially

established and vindicated. See id. at 266. Carey does not

even begin to address the question whether nominal dam-

age awards are de minimis remedies or not, much less

hold that they never are. Indeed, as noted above (at 13-

14, supra), to have so held would have been inconsistent

with centuries of practice of denying cost and attorney’s

fee-shifting in many types of nominal damage award

cases.

Carey cannot properly be read as petitioners urge. The

Court in Carey embraced common-law principles in hold-

ing that plaintiffs in civil rights actions may not recover

compensatory damages if they are unable to prove that

they have been harmed by the unconstitutional conduct in

issue. See 435 U.S. at 261-62. Likewise, the Court in

Carey embraced common-law principles in holding that

nominal damages should be awarded in cases where rights

—such as procedural due process—are actionable even in

the absence of actual injury. Jd. at 266-67. Such a deci-

sion embracing common-law principles cannot reasonably

be read simultaneously to reject other historic practices.

Contrary to the argument of petitioners and the ABA,

neither Carey nor the common law hold that nominal

damages are awarded as a means of compensating the

plaintiff. Carey holds only that nominal damages should

be awarded to recognize some constitutional rights. See

435 U.S. at 266. And the common law expressly holds

that nominal damages are awarded “merely as a recogni-

tion of some breach of duty owed by defendant to plaintiff

and not as a measure of recompense for loss or detriment

sustained. . [As such, they] are in no sense compensa-

tory, but merely symbolic.” McCormick, Handbook of the

Law of Damages at 85; see also Dan B. Dobbs, Handbook

on the Law of Remedies at 191 (1973) (Nominal dam-

ages “are not aimed at compensation for harm done by

the defendant’s actionable conduct. In this sense they do

20

not represent ‘damages’ at all... [and are] not com-

pensatory even in a limited sense.”).

That a nominal damage award is not a means of

compensating a plaintiff does not, of course, mean that

such awards are necessarily insufficient ever to support

“prevailing party” status. But where, as here, plaintiffs

sought extensive monetary relief as compensation and

failed to obtain any of it, they cannot properly be said to

have “obtained some of the relief sought.” Garland, 489

U.S. at 791. Indeed, to hold that a nominal damages

award in a Section 1988 case is never a de minimis vic-

tory would render “the concept of de minimis relief

meaningless. Every nominal damages award has as its

basis a finding of liability, but obviously many such

victories are Pyrrhic ones.” Lawrence v. Hinton, 20 Fed.

R. Serv. 3d at 937 (emphasis in original). As the Court

of Appeals for the District of Columbia Circuit has stated,

when “the net result achieved is so far from the position

originally propounded . . . it would be stretching the

imagination to consider the result a ‘victory’ in the sense

of vindicating the rights of the fee claimants.” Commis-

sioners Court of Medina County, Tex. v. United States,

683 F.2d 435, 442-43 (D.C. Cir. 1982).

3. Petitioners and the ABA object (Pet. Br. 10-14;

ABA Br. 2-4, 17-19) that, under this Court’s decision in

Garland, the relative success of the plaintiff is relevant

only to the reasonableness of the amount of the fee

awarded. But petitioners and the ABA misunderstand the

Court’s decision in Garland.

Garland expressly holds that, if success on a legal claim

can be characterized as purely technical or de minimis,”

it is “insufficient to support prevailing party status.”

489 U.S. at 792. Thus, while Garland does state that “the

degree of the plaintiff’s overall success goes to the reason-

ableness of the award... not to the availability of a fee

award vel non,” the decision qualifies that statement by

21

requiring that a “material alteration of the legal rela-

tionship of the parties” first be found to have occurred:

and Garland makes it plain that the determination

whether such a “material alteration” has occurred re-

quires an evaluation of the “significance” of the plain-

tiff’s success “in the context of th[e] litigation” as a

whole. Id. at 793, 792.

Petitioners argue (Pet. Br. 13) that Garland’s refer-

ence to “technical” or “de minimis” successes refers only

to situations where, as in Garland, an unconstitutional

practice or policy has not been applied to the victorious

plaintiff. But the discussion of “technical” or “de mini-

mis” victories in Garland cannot be so limited to the facts

of that case. The Court was discussing the general stand-

ard for identifying “prevailing parties.” See 489 U.S. at

792-33. Moreover, while the practice at issue in Garland

had not been applied to the victorious plaintiff, the charac-

terization of the victory in that case as a “technical” or

de minimis one turned on the insignificance of that vic-

tory in the context of the case as a whole. Id. Indeed,

the Court cited (id.) with approval, as further examples

of de minimis victories, cases that did not involve mere

challenges to policies or practices that had not been ap-

plied and that, in fact, demonstrate that “prevailing

party” status must be denied where the plaintiff fails to

obtain a material aspect of the relief sought in the com-

plaint (irrespective of whether a judgment is obtained).

See Chicano Police Officers Ass’n v. Stover, 624 F.2d 127

(10th Cir. 1980) (nuisance settlement not sufficient to

support “prevailing party” status); New York City Un-

employed and W lfare Council v. Brezenoff, 742 F.2d at

724 n.4 (success on minor issue is not sufficient to sup-

port “prevailing party” status).

4. Petitioners and the ABA further argue (Pet. Br.

14-16; ABA Br. 11-17) that evaluating the significance of

the plaintiff’s success in the context of the entire relief

sought in the litigation is inconsistent with Garland’s

rejection of the “central issue” test of “prevailing party”

status. This argument is unfounded.

Contrary to the argument of petitioners and the ABA,

the “central issue” test is not the same as the “de minimis

success” test applied by the court below. The “central

issue” test required an inquiry into the relative im-

portance to the plaintiff of the various legal claims and

prayers for relief in a case; under that test, in order to

be a “prevailing party,” the plaintiff had to prevail on

the issue motivating a piece of litigation and obtain the

“primary relief” sought. Garland, 489 U.S. at 787-88,

790-91. By contrast, the “de minimis success” test applied

by the court below does not inquire into the relative im-

portance to the plaintiff of the various legal claims and

prayers for relief in a case; it inquires only whether the

plaintiff has obtained some material aspect of the relief

sought in the complaint.

Petitioners and the ABA are equally wrong in suggest-

ing that the reasons given by the Court in Garland for

rejecting the “central issue” test apply to the “de minimis

success” test applied by the court below. As Garland it-

self concludes, congressional intent that a party need not

prevail on all issues in order to obtain an award of at-

torney’s fees has no application to a plaintiff who does

not obtain anything more than “trivial success” on any

issue in the case. 489 U.S. at 792-93; accord Ruckelshaus

v. Sierra Club, 463 U.S. at 688 n.9. Moreover, in con-

trast to the “central issue” test, the “de minimis suc-

cess” test does not render the availability of a fee award

potentially dependent on the timing of a request for fees,

since a fee award will be appropriate only after a plain-

tiff has obtained a non-technicai victory on a significant

issue in the litigation. Finally, in contrast to the “central

issue” test, the “de minimis success” test does not focus

on the mental state of the parties or promise to mire

district courts in unmanageable inquiries; rather, the

test focuses on the relief requested in the complaint and

23

simply requires the district court to determine whether

the plaintiff has obtained a material aspect of it. See Fed.

R. Civ. P. 8(a) (3) (requiring plain statement of relief

requested); see also Liberty Mutual Ins. Co. v. Wetzel,

424 U.S. 737, 743 (1976).

Indeed, as the ABA inconsistently concedes (ABA Br.

19 n.12), “[{ujnlike determining the ‘central issue’ or

‘primary relief sought,“ . . assessing the degree of suc-

cess in light of the entire litigation is a straightforward

task that this Court has repeatedly entrusted to district

courts.“ The Court has instructed district courts to give

primary weight to the plaintiff’s “degree of success” in

setting the amount of a fee award. See, e.g., Hensley,

461 U.S. at 440; Garland, 489 U.S. at 789-90. There is

no reason to believe that the courts will be unable man-

ageably to conduct a similar, albeit less demanding,

inquiry to assess whether plaintiffs have crossed the

threshold for recovery of any attorney’s fee award at all.

In fact, as noted above (at 14-15, supra), the courts

are already conducting this inquiry under Rule 54(d) in

determining whether “costs” should be awarded to vic-

torious plaintiffs.

5. Petitioners and the ABA further argue (Pet. Br.

5-7, 21-23; ABA Br. 1-2, 4-6) that a “de minimis success”

test of this type is inconsistent with various indicators of

congressional intent under Section 1988. But they are

wrong in each respect.

Contrary to their argument, the “de minimis success”

test is not inconsistent with congressional intent to attract

counsel to civil rights cases where little or no damages

are perceived as potentially recoverable. The “de minimis

success” test applied by the court below does not require

that a plaintiff recover extensive monetary relief in order

to be treated as a “prevailing party”; indeed, it does not

on its face preclude a plaintiff in an appropriate case

from being a “prevailing party” upon recovery of a nomi-

24

nal damage award. It simply requires a plaintiff who

seeks only extensive monetary relief to recover some

material aspect of that relief in order to be treated as a

“prevailing party.” Such a rule should not in any way

discourage lawyers from representing civil rights claim-

ants in cases in which non-pecuniary rights are involved,

or in which little or no damages are perceived as poten-

tially recoverable. By definition, cases in which lawyers

have satisfied themselves, pursuant to Federal Rule of

Civil Procedure 11, that there is a reasonable basis for

seeking extensive monetary relief are not cases in which

only non-pecuniary rights are involved or in which little

or no damages are perceived as potentially recoverable.

See Lewis v. Kendrick, 944 F.2d at 956.

Likewise, contrary to the argument of petitioners, the

“de minimis success” test is not inconsistent with con-

gressional intent to restore civil rights attorney’s fees law

to its status prior to this Court’s decision in Alyeska.

While a number of courts prior to the Alyeska decision

awarded costs and attorney’s fees in cases in which

nominal damages were recovered, petitioners do not sug-

gest that those cases involved only requests for extensive

monetary relief; and, in any event, as explained above

(at 16-17, supra), other cases denied costs and attorney’s

fees where the relief awarded was de minimis in relation

to the relief requested. The decision below is simply

another in this part of the line of “restored” case law.

Finally, contrary to the argument of petitioners, Con-

gress neither intended that civil rights plaintiffs would be

treated the same as antitrust plaintiffs in all respects for

purposes of attorney’s fee awards nor understood that

antitrust plaintiffs would receive attorney’s fee awards

for de minimis victories. While the legislative history of

Section 1988 does indeed suggest that “the amount of

fees awarded under [Section 1988 shall] be governed by

the same standards which prevail in other types of equally

complex Federal litigation, such as anti-trust cases

S. Rep. 1011, supra at 6, the statute makes it plain

that the decision to award fees in civil rights cases is sub-

ject to equitable standards; in contrast, attorney’s fee

awards under the antitrust statutes are mandatory, are

awarded only to plaintiffs, and are not subject to equitable

constraints. See Alyeska, 421 U.S. at 261. Furthermore,

while civil rights plaintiffs are entitled to an award of

fees whenever they are “prevailing parties,” antitrust

plaintiffs are entitled to fee awards only when they

“substantially prevail[]” (15 U.S.C. § 26) or are in-

jured in [their] business or property... .” (15 U.S.C.

§ 15). Thus, while a nominal damage award may in some

circumstances entitle an antitrust plaintiff to an award of

fees, it appears that it would do so less frequently than it

would for a civil rights plaintiff (since the civil rights

plaintiff need not “substantially” prevail or show injury

to “business” or “property”). In all events, a nominal

damages award would not appear to entitle an antitrust

plaintiff to a fee award if it would only amount to a

de minimis victory.

6. Petitioners finally argue (Pet. Br. 7-8, 25-29) that,

since nominal damage awards have traditionally justified

the shifting — * costs, * since attorney’s fees are treated

as “costs” u on 1988, nominal damage awards

should justify the shifting of attorney’s fees under Section

1988. As explained above (at 13-14, supra), however,

while the common law in England treated nominal dam-

age awards as sufficient to support shifting of costs, since

1670 both English and American courts and legislatures

have developed contrary rules; indeed, as also explained

above (at 14-15, supra), courts interpreting Rule 54 of

the Federal Rules of Civil Procedure have consistently re-

fused to shift even routine costs where, as here, the relief

obtained is de minimis in relation to the relief sought.

Moreover, while attorney’s fees are treated as part of

“costs” under Section 1988, the authorization for the

shifting of attorney’s fees is found in the separate “pre-

vailing party” standard of Section 1988; and courts have

agreed that disposition of the issue of statutory costs does

not necessarily control the award of fees under Section

1988. See Fewquay v. Page, 907 F.2d 1046 (11th Cir.

1990) ; Chemical Mfrs. Ass’n v. EPA, 885 F.2d 1276,

1278 (5th Cir. 1989) ; Kelley v. Metropolitan County Bd.

of Educ., 773 F.2d 677, 681 (6th Cir. 1985) (en banc),

cert. denied, 474 U.S. 1083 (1986). In all events, when

one considers “the historic principles of fee-shifting in

this and other countries, . . the conclusion that some

success on the merits be obtained before a party becomes

eligible for a fee award” necessarily follows, and a

“trivial success” has never been sufficient. Ruckelshaus v.

Sierra Club, 463 U.S. at 682, 688 & n.9. A nominal

damage award in a case seeking $17 million in monetary

relief is just such a “trivial success.”

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

GLEN D. NAGER RICHARD RUDA *

DAviIp SCHENCK Chief Counsel

Jones, Day, REAVIS MICHAEL G. DZIALO

& POGUE STATE AND LOCAL LEGAL CENTER

1450 G Street, N.W. Suite 345

Washington, D.C. 20005 444 North Capitol Street, N.W.

(202) 879-3939 Washington, D.C. 20001

Of Counsel (202) 434-4850

* Counsel of Record for the

June 15, 1992 Amici Curiae