# Amicus Curiae Brief — Farrar v. Hobby

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0227%3A09

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0227%3A09. Public record. Not legal advice.