Amicus Curiae Brief — Farrar v. Hobby

BEST AVAILABLE COPY

i

QUESTION PRESENTED

Whether a plaintiff who obtains a judgment for

nominal damages thereby is entitled to "prevailing party"

status under 42 U.S.C. § 1988, without regard to whether

he otherwise meets the Court’s definition of a "prevailing

party."

ili

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............... iv

INTERESTS OF THE AMICI CURIAE ....... l

STATEMENT OF THE CASE ............ 3

SUMMARY OF ARGUMENT ............ 5

CE Ssh be 6 sn 6¢eeceecesccee 7

I. PETITIONERS ARE NOT “PREVAILING

PARTIES" BECAUSE THEIR LAWSUIT

FAILED TO ALTER MATERIALLY THE

RELATIONSHIP BETWEEN THEM AND

RESPONDENT HOBBY ............. 7

A. Petitioners Are Focusing on the Wrong Issue

in Pointing to Their Recovery of Nominal

B. Petitioners Cannot Point to Any Benefit

They Derived from This Case or to Any

Changes in the Legal Relationship

Between Themselves and Hobby ...... 9

Il. CONGRESS DID NOT INTEND TO CONFER

"PREVAILING PARTY" STATUS ON EVERY

PLAINTIFF WHO ESTABLISHES A

CONSTITUTIONAL VIOLATION ....... 13

Il. A PLAINTIFF WHOSE PURPOSE IS TO

VINDICATE A CONSTITUTIONAL

PRINCIPLE SHOULD STATE THAT PURPOSE

PLAINLY BY EXPRESSLY SUING FOR

NOMINAL DAMAGES OR DECLARATORY

DT CCE EUG Sb sevesecceces 15

ES OEE eee 18

iv

TABLE OF AUTHORITIES

Cases: Page

Bosch v. Meeker Cooperative Light & Power Assn.,

257 Minn. 362, 101 N.W. 2d 423 (1960) ...... 12

Carey v. Piphus, 435 U.S. 247 (1978) ...... 13, 14

Hewitt v. Helms, 482 U.S. 755 (1987) ...... 11, 17

Mills v. Electric Auto-Lite Co.,

. | ie § ee ee 12

Nadeau v. Helgemoe, 581 F.2d 275 (Ist Cir. 1978) . 8

Nashville, C. & St. L. Ry. v. Wallace,

, |) & | aaa ree ee 16

Rhodes v. Stewart,

488 U.S. 1 (1988) ........... 6, 11, 12, 14, 15

Ruckelshaus v. Sierra Club,

/ | te |. ee 12

Texas State Teachers Assn. v. Garland

Independent School District,

489 U.S. 782 (1989) ........---206- passim

Statutes:

GOT DD coc ccc sr cesesescees passim

Federal 4“ 1 “peer Act,

Ss |. | BeAr ee 16

Miscellaneous:

Restatement of Torts § 907, comment b (1939) .. 9, 10

Restatement of Torts 2d § 907, comment b..... .. . 9

Wright, Miller, & Kane, Federal Practice and

Procedure: Civil 2d (1983) .........+45845. 16

a

' IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1991

No. 91-990

DALE FARRAR, ef ai.,

Petitioners,

Vv.

WILLIAM HOBBY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE WASHINGTON LEGAL

FOUNDATION, U.S. REPRESENTATIVES

HENRY HYDE AND JOE BARTON, AND

THE ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

INTERESTS OF THE AMICI CURIAE

The Washington Legal Foundation (WLF) is a non-profit

public interest law and policy center with more than

100,000 members and nationwide. While WLF

engages in litigation the administrative process in a

variety of areas, WLF devotes a substantial percentage of

its resources to advancing the interests of the free

enterprise system. To this end, WLF has appeared as

amicus curiae before this Court as well as other state and

federal courts in cases affecting business.

2

WLF believes that our nation’s free enterprise system

has suffered greatly in recent decades as a result of the

litigation explosion that has clogged both state and federal

courts and that the proliferation of federal statutes

providing for awards of attorney fees to “prevailing”

plaintiffs in certain classes of cases (particularly

environmental and civil rights cases) -- as well as court

decisions construing the term "prevailing" plaintiff too

liberally -- have contributed significantly to that trend.

While WLF fully supports enforcement of our nation’s

environmental and civil rights laws, WLF believes that the

chief results of providing an overly-liberal definition of

“prevailing” plaintiffs in environmental and civil rights

cases have been to line the pockets of the nation’s lawyers

at the expense of taxpayers and to increase the quantity of

unmeritorious lawsuits clogging our courts.

Rep. Henry Hyde (R-Ill.) and Joe Barton (R-Tex.) are

members of the U.S. House of Representatives. Both are

concerned that the congressional statute at issue in this

case, 42 U.S.C. § 1988, not be interpreted to provide for

attorney fee awards to plaintiffs who have not “prevailed”

in any meaningful sense and whom Congress thus never

intended to subsidize. Both believe that taxpayers in Texas

and elsewhere should not be forced to pay the fees of

lawyers who have accomplished nothing in their suits

against the government.

The Allied Educational Foundation (AEF) is a non-profit

charitable and educational foundation based in Englewood,

New Jersey. Founded in 1964, AEF is dedicated to

promoting education in diverse areas of study, such as law

and public policy, and has appeared as amicus curiae in

the federal courts on a number of occasions. AEF

believes that the public interest is best served by a legal

system that does not a lawyers and does not

provide too many incentives for the filing of lawsuits.

Amici are particularly eager to file their brief in order

to dispel any notion -- that might arise due to the filing of

an amicus brief by the American Bar Association on behalf

3

of Petitioner -- that lawyers as a group support a liberal

definition of "prevailing" plaintiffs within oy meaning of

federal fee-shifting statutes. Many lawyers, including

those at WLF, share the public’s distaste for the large fees

often awarded under those statutes to attorneys who have

not accomplished much of anything. Indeed, WLF has

had a policy of never seeking an award of attorney fees as

the prevailing party in litigation.

Both WLF and AEF appeared as amici in King v.

Palmer, 950 F.2d 771 (D.C. Cir. 1991)(en banc), and

again in City of Burlington v. Dague, No. 91-810, cert.

granted, 112 S. Ct. 964 (1992), arguing that attorney fees

awarded under federal fee-shifting statutes should not be

enhanced to compensate the plaintiff's attorney for

assuming the risk of nonrecovery. Neither WLF, AEF,

nor either Rep. Hyde or ‘om has any financial

interest in the outcome of this case, and thus they can

assist the Court by providing a perspective that is distinct

from that of either party.

Amici submit this brief on behalf of Respondent with the

written consent of both ies. The written consents are

on file with the Clerk of the Court.

STATEMENT OF THE CASE

In the interests of judicial economy, amici hereby

by reference the Statement of the Case set forth in

Respondent’s brief.

In brief, in the 1970s Petitioner Dale L. Farrar and his

father, Joseph D. Farrar, owned and operated Artesia

Hall, a school in Liberty County, Texas for the care of

delinquent, nee or disturbed teenage boys and

girls. The death of an Artesia Hall student led to an

investigation of the school by state officials and to Joseph

Farrar’s criminal indictment in 1973 for willful failure to

provide proper medical treatment and timely hospitalization

for the Sataed. Although the criminal charges were later

4

dropped, Texas state officials were able to obtain a court

injunction requiring the closure of Artesia Hall.

In 1975, Joseph Farrar filed suit against a number a

Texas State officials, including Respondent William Hobby

(who was then the Lieutenant Governor of Texas), alleging

that the officials had participated in a conspiracy to deprive

him of his civil rights by pushing for Artesia Hall’s

closure.’ By the time the case went to trial in 1983,

Petitioners had dropped all claims for injunctive relief but

were seeking $17 million in damages.

The case went to the jury on special interrogatories.

The jury completely exonerated all respondents other than

Respondent Hobby. The jury then found, in answer to

interrogatories, that Lt. Governor Hobby “had committed

an act . . . that deprived Plaintiff Joseph Farrar of a civil

right" in connection with the closure of Artesia Hall’ but

that Hobby’s actions were not a “proximate cause" of any

suffered by Joseph Farrar. Accordingly, the jury

aw no damages to the Farrars. On 1, the

United States Court of Appeals for the Fifth Circuit

rejected most of Petitioners’ claims but did hold that in

light of the jury’s finding that Hobby had violated one of

Joseph Farrar’s civil rights, Petitioners were entitled to an

award of $1 in nominal damages.

Petitioners then sought an award of attorney fees under

42 U.S.C. § 1988, arguing that the award of $1 in

nominal damages was sufficient to make them "prevailing

' The complaint was later amended to add Petitioner Dale Farrar

as a plaintiff. After Joseph Farrar’s death in 1983, Dale Farrar and

Petitioner Patricia Smith (as Co-Administrators of Joseph Farrar's

estate) were substituted as plaintiffs for Joseph Farrar.

* The jury’s interrogatory answers merely stated "Yes" in response

to an inquiry regarding w one of Joseph Farrar’s civil rights had

been violated, and they provided no details of what the violation

(which the jury found did not injure Joseph Farrar) might have

consisted.

5

parties" within the meaning of that statute. The district

court , and awarded Petitioners $280,000 in fees,

$28,000 in expenses, and prejudgment interest. The Fifth

Circuit reversed, finding that Petitioners were not

“prevailing parties" within the meaning of 42 U.S.C. §

1988.’ Petitioners have sought review of that decision in

this Court.

SUMMARY OF ARGUMENT

Petitioners are asking the wrong question in this lawsuit.

They ask whether a plaintiff who has obtained a nominal

damages award is entitled to bey od status

within the meaning of 42 U.S.C. § 1988, answer

their question in the affirmative. Petitioners u btedly

are correct that some plaintiffs who obtain no relief other

than nominal damages will qualify as prevailing parties,

but whether they qualify bears little relation to the type of

judgment they received.

In order to qualify as a "prevailing party" under 42

U.S.C. § 1988, a plaintiff must meet the two standards set

forth in Texas State Teachers Assn. v. Garland

Independent School District, 489 U.S. 782, 109 S. Ct.

1486 (1989): (1) whether the plaintiff can point to a

resolution of the dispute which changes the legal

relationship between him and the defendant; and (2)

* Section 1988 provides, in pertinent part:

In any action or proceeding to enforce a provision of sections

1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public

Law 92-318, or title VI of the Civil Rights Act of 1964, the

court, in its discretion, may allow the prevailing party, other than

the United States, a reasonabie attorney's fee as part of the costs.

42 U.S.C. § 1988 (emphasis added). Because the Fifth Circuit held

that Petitioners were not prevailing parties within the meaning of §

1988, it had no occasion to consider whether an award of more than

$300,000 in fees and expenses to parties who had succeeded in

establishing entitlement to only $1 of the $17 million in damages they

had sought constituted a “reasonable attorney's fee."

6

whether the plaintiff can show that his success on a legal

claim is not "so insignificant" as to be characterized as

“purely technical" or "de minimis." Garland, 109 S. Ct.

at 1493.

Petitioners plainly fail to meet that standard in this case.

The nominal damages award in this suit afforded

Petitioners no relief whatsoever. They did not obtain an

order permitting the reopening of Artesia Hall or enjoining

state officials from interfering with operations of the

school in the future. They did not obtain a declaratory

judgment that state officials acted wrongly toward them.

Nothing in the judgment suggests that the jury can be said

to have cleared the Farrar family name from allegations

that led to Artesia Hall’s Pranenors No state officials will

be able to look to this case for guidance regarding how

they should deal with youth home operators accused of

serious wrongdoing, because nothing in the jury’s

interrogatory answers specifies how Mr. Hobby may have

wronged Petitioners. That failure to provide guidance,

when coupled with the jury’s determination that Mr.

Hobby did nothing that caused quantifiable damages to

Petitioners, makes clear that any success attained by

Petitioners in this case can fairly be described as "purely

technical" or "de minimis."

Congress did not intend to confer "prevailing party"

status on every plaintiff who establishes a constitutional

violation. Both Garland and Rhodes v. Stewart, 488 U.S.

1 (1988), make clear that regardless whether a proven

infraction reaches constitutional dimension, "prevailing

party" status will be conferred only on those plaintiffs that

can meet the standards set forth in Garland.

Petitioners have only themselves to blame for obtaining

an essentially meaningless lore Had their purpose

been to achieve vindication of a constitutional principle

without regard to the number of dollars at stake, they

could have filed a complaint that explicitly sought nominal

damages and/or declaratory relief. In that event,

interrogatories could have been submitted to the jury that

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would have provided the jury with an opportunity to

express which of Petitioners’ civil rights, if any, it

believed were violated by Mr. Hobby. Instead, Petitioners

sought only monetary damages, and that claim was flat-out

pe pom by the jury; Petitioners were left with nothing but

pnt feet me | Fedmoor damages judgment that was essentially

point Petitioners should not be heard to complain

about the denial of their "prevailing party" — pone ow

reason for that denial -- failure to obtain an

relief -- may well have been a direct result o their ‘ir fai =

to seek either nominal damages or declaratory judgment.

ARGUMENT

I. PETITIONERS ARE NOT "PREVAILING

PARTIES" BECAUSE THEIR LAWSUIT FAILED

TO ALTER MATERIALLY THE RELATIONSHIP

BETWEEN THEM AND RESPONDENT HOBBY

A. Petitioners Are Focusing on the Wrong

Issue in Pointing to Their Recovery of

Nominal Damages

Petitioners have phrased the Question Presented in this

case as follows: “Does 42 U.S.C. § 1988 authorize the

award of reasonable attorney’s fees to civil rights plaintiffs

who recover nominal damages?" Petition for Writ of

Certiorari at i. The answer to that question quite clearly

is yes: there are circumstances under which a civil rights

plaintiff who recovers only nominal damages may

nonetheless be entitled to an award of attorney fees under

42 U.S.C. § 1988. But the answer to that question does

not begin to answer the question whether Petitioners are

entitled to an attorney fee award in this case. Whether a

plaintiff has recovered nominal damages is not a relevant

issue under the standards established by the Court in Texas

State Teachers Assn. v. Garland Independent School

District, 489 U.S. 782, 109 S. Ct. 1486 (1989), for

determining when a plaintiff can be said to be a

, party" within the meaning of 42 U.S.C. §

Under Garland, the relevant issue is whether “the

plaintiff has succeeded on ‘any significant issue in

litigation which achieve[d] some of the benefit the parties

a in bringing suit.’" Garland, 109 S. Ct. at 1493

(quoting oting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (lst

Cir. 1978)).— Garland held that a plaintiff must clear two

hurdles in order to make such a showing and thus establish

entitlement to a fee award. First, "at a minimum, to be

considered a prevailing party within the meaning of § 1988

the plaintiff must be able to point to a resolution of the

dispute which changes the legal relationship between itself

and the defendant." Garland, 109 S. Ct. at 1493.

Second, a plaintiff meeting the first standard must also

show that its success on a legal claim is not "so

insignificant" as to be characterized as “purely technical"

or “de minimis." Id.

Thus, Petitioners, by focusing solely on the fact of a $1

nominal damages award in this case, are focusing on the

wrong issue. An award of nominal damages may in some

cases "change the legal relationship" between the —- to

a lawsuit, but in other cases it may not. Similarly, an

award of nominal damages in some cases could be

characterized as a “purely technical" or "de minimis"

success and in other cases could be precisely the relief

being sought by the plaintiff. Observing that a plaintiff

has recovered nominal damages is not a shortcut for

performing the analysis prescribed by Garland.

The common law has long recognized that an award of

nominal damages at times may represent nothing more

than a technical victory for the plaintiff and at other times

may represent a total victory. For example, the

Restatement of Torts explained:

Nominal damages can be awarded in cases where a

person has sought to recover substantial damages and

has failed to prove substantial harm. Such damages

can be awarded also where the plaintiff has not

claimed compensatory damages but has sued only to

9

establish a right, to vindicate his reputation, or to

obtain a ruling by a court that the defendant’s conduct

was tortious. Thus actions are a brought for

non-harmful trespass to land to lish the plaintiff's

right in the land or to prevent the creation of a

presumptive right to cross the land. Similarly, actions

may be brought to establish a right to a patent or a

process, or to establish that the defendant’s acts

constitute tortious interference therewith.

Restatement of Torts § 907, comment b (1939). The

Restatement of Torts 2d carried forward comment b

virtually unchanged. Accordingly, that Petitioners

obtained a $1 nominal damages award in this case does not

by itself establish their status as "prevailing parties."

B. Petitioners Cannot Point to Any

Benefit They Derived from This Case

or to Any Changes in the Legal

Relationship Between Themselves and

Hobby

Petitioners cannot be considered "prevailing parties"

within the meaning of 42 U.S.C. § 1988 unless they

obtain “some of the benefit" they sought in bringing suit.

Garland, 109 §S. Ct. at 1493. Yet, one searches

Petitioners’ brief in vain for any indication of what they

believe they gained from the judgment in this suit. They

did not obtain an order permitting the reopening of Artesia

Hall or enjoining state officials from interfering with

operations of the school in the future. They did not obtain

a meeps judgment that state officials had acted

wrongly toward them. There was no judgment stating that

state officials were wrong in believing that Artesia Hall

was being operated in a substandard manner and therefore

‘deserved to be shut down. Nothing in the judgment

_ Suggests that the jury can be said to have cleared the

Farrar family name from allegations that led to the

school’s closure. All Petitioners can point to is an opaque

jury finding that one of the state officials, Respondent

Hobby, acted toward Petitioners in a manner that deprived

10

Joseph Farrar of an unspecified civil right but that the

sentation did not cause any injury. As a result of that

finding, Petitioners were awarded $1 of the $17 million

in damages they sought in this case. It simply is not

plausible that the de minimis results actually achieved by

Petitioners could be said to constitute “some of the

benefits" they sought in bringing suit.

Nor can one seriously contend that the legal relationship

bonase. 0 garten has changed as a result of the $1

j in this case. The judgment will have no effect

The ambiguity of the jury’s interrogatory answers means

thet uo one will be able im look to this case for idance

regarding how state officials in the future should with

youth home operators accused of serious wrongdoing.

When the only relief sought by a plaintiff is monetary

relief and the jury decides that the plaintiff suffered zero

damages at the hands of the defendant, the legal

relationship between the parties cannot be said to have

been altered by the judgment.

is all that a plaintiff is ing in a lawsuit; for example,

a plaintiff may sue for to establish rights

is analytically distinct from the plaintiff seeking monetary

relief clone and who is awarded nominal damages after

failing to establish any real damages.

Petitioners’ contention that the $1 debt owed them by

Mr. Hobby constitutes a change in their legal relationship

11

is an exultation of form over substance. The substance of

the judgment in this case is a jury finding that Petitioners

were not injured by Mr. Hobby’s conduct; the $1 in

nominal damages was awarded solely in recognition of the

jury’s finding of a civil rights violation. Court has

made clear that where, as here, "[t}he only ‘relief’ [that

the plaintiff has] received [is] the moral satisfaction of

knowing that a federal court concluded that his rights had

been violated," a plaintiff is not a "prevailing" party

within the meaning of 42 U.S.C. § 1988. Hewitt v.

Helms, 482 U.S. 755, 762 (1987).

Although Hewitt is potentially distinguishable on the

grounds that the plaintiff in that case never received any

judgment whatsoever, not even nominal damages,‘ the

Court’s subsequent decision in Rhodes v. Stewart, 488

U.S. 1, 109 S. Ct. 202 (1988), cannot be distinguished

from this case in a similar fashion. The plaintiffs in

Rhodes had obtained a valid declaratory judgment that

prison officials had violated their rights by refusing them

permission to subscribe to a magazine. The Court

nonetheless found that the plaintiffs were not "prevailing

parties" entitled to an attorney fee award because the

declaratory judgment they obtained “afforded the plaintiffs

no relief whatsoever": the plaintiffs were not still in

prison at the time the judgment was entered and thus had

no need for prison-approved magazine subscriptions.

Rhodes, 109 S. Ct. at 203-204. In other words, Rhodes

put to rest any argument that the mere entry of a formal

judgment in one’s favor is sufficient to establish one’s

Status as a “prevailing” plaintiff under § 1988; prevailing

party status also requires the plaintiff to make some

showing that he has benefitted from the judgment.

* The plaintiff in Hewitt brought a suit for money damages, alleging

that prison officials had violated his due process rights by convicting

him on misconduct charges on the basis of hearsay. Although a

federal appeals court found that prison officials had acted improperly,

judgment was entered for the prison officials on the basis of their

qualified immunity from money damage claims. /d. at 758-759.

12

The notion that technical victories cannot support a fee

award to the plaintiff is not a recent invention of the

Court; indeed, it predates the adoption of 42 U.S.C. §

1988. For example, the Court stated in Mills v. Electric

Auto-Lite Co., 396 U.S. 375 (1970), that when a

stockholder’s suit confers substantial benefit on the

corporation and other stockholders, the plaintiff is entitled

to recover his attorney fees from the corporation; but the

Court noted that a benefit cannot be said to be

"substantial" so as to merit a fee award if the judgment

obtained by the stockholder is merely "‘technical in its

consequence." Mills, 396 U.S. at 396 (quoting Bosch v.

Meeker Cooperative Light & Power Assn, 257 Minn. 362,

367, 101 N.W.2d 423, 427 (1960)). See also,

Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 n.9 (1983)

("we do not mean to suggest that trivial success on the

merits, or purely procedural victories, would justify an

award of fees under [fee-shifting] statutes" providing for

an award of fees “when appropriate").

Amicus American Bar Association (ABA) argues against

a rule that would permit fee awards based on some

nominal damages judgments but not on others, contending

that such a rule “would cali upon the courts to make

impossible judgment calls" and that "[t}here are no reliable

standards" by which to assess whether a judgment is

"merely technical." ABA Brief at 16-17. But the

judgment calls decried by the ABA are precisely the types

of decision-making mandated by this Court’s decisions

from Mills to Rhodes. It is no more difficult to determine

whether a plaintiff has had any meaningful success in his

lawsuit in the context of a nominal damages judgment than

it is in the context of any other type of judgment.

Petitioners concede that the degree of their success in

this litigation is relevant in determining a fee award; they

argue, however, that their receipt of nominal damages gets

them past the "prevailing party" hurdle and that the degree

of their success only goes to the “reasonableness” of a fee

award. Pet. Br. 11-12. Even if one were to accept

Petitioners’ analytical approach, they would still not be

13

as a fee award. A “reasonable” fee for a party

obtaining only $1 of $17 million in monetary damag

being sought, and that obtained at most a technical”

Hn sae ay —_ ae ne So pees & Peeienens’

——e be ——_— who obtain nominal judgments

issue and going straight to the reasonableness-of-the-fee

issue would not make § 1988 fee cases any less

analytically cumbersome for the courts, because courts --

when de; with the reasonableness-of-the-fee issue --

would still be required to address whether the plaintiff has

had any meaningful success in his lawsuit.

In sum, although there are instances in which a nominal

damages judgment can be sufficient to trigger an award of

attorney fees under § 1988, this is not such a case.

Petitioners failed to obtain any of the benefits they sought

in brin suit and thus cannot be considered "prevailing"

p $ within the meaning of 42 U.S.C. § 1988.

Il. CONGRESS DID NOT INTEND TO CONFER

"PREVAILING PARTY" STATUS ON EVERY

PLAINTIFF WHO ESTABLISHES A

CONSTITUTIONAL VIOLATION

Petitioners’ argument that they are “prevailin ies"

relies primarily on this Court's decision in — v.

ty Tangy U.S. 247 (1978). Petitioners read too much

n

Carey involved public school students who sued for

monetary, declaratory, and injunctive relief based on

claims that they had been suspended from school in

violation of their procedural due process rights. The

district court found a due process violation but denied all

14

relief in the absence of evidence that the students had been

injured. Carey, 435 U.S. at 252. The court of als

reversed, holding that the due process violation finding

entitled the students to declaratory and injunctive relief, as

well as recovery of substantial “nonpunitive” damages even

in the absence of evidence that the students had been

injured. Jd. at 253. The Supreme Court reversed the

court of appeals’ holding regarding damages. The Court

held that substantial itive damages could nor be

awarded in the absence of evidence of injury, but that "a

denial of procedural due process should be actionable for

nominal without proof of actual injury." /d. at

267.

We note initially that Carey never dealt with the issue

of when a plaintiff can be considered a “prevailing party"

within the ing of 42 U.S.C. § 1988. While it held

that a plaintiff who can demonstrate a violation of his

procedural due process rights is entitled to an award of

nominal damages, it never suggested that all such plaintiffs

are entitled to attorney fee awards.

Moreover, Petitioners’ reading of Carey proves too

much. Petitioners’ argument -- that Carey held that “there

are no de minimis constitutional deprivations” (Pet. Br. at

14) and thus that anyone who establishes constitutional

Garland out of the case law. The Rhodes plaintiffs, two

inmates who obtained a declaratory judgment that prison

officials had violated their constitutional rights to subscribe

to magazines, were nonetheless held not to be “prevailing

parties" because they failed to obtain any meaningful

relief. Rhodes, 109 S. Ct. at 203-204. and stated

that an “insignificant” or "technical" victory is

where the vi includes proving a constitutional

violation. , 109 S. Ct. at 1493. As an example

of a constitutional violation that by itself would be too

“insignificant” to confer prevailing party status, the Court

cited a lower-court finding striking down as “overly

15

vague" a school district requirement that meetings between

teachers and union representatives could be conducted on

school premises during non-school hours only with the

permission of the school principal; the Court noted that

such permission had never been denied. Jd. In sum,

Rhodes and Garland make clear that Congress did not

intend to confer § 1988 prevailing party status on every

plaintiff who establishes that one of his constitutional

rights was violated; the standards established by Garland

for determining whether a plaintiff is a “prevailing party"

are the same regardless whether the plaintiff's claims are

constitutional or non-constitutional.

Il. A PLAINTIFF WHOSE PURPOSE IS TO

VINDICATE A CONSTITUTIONAL

PRINCIPLE SHOULD STATE THAT

PURPOSE PLAINLY BY EXPRESSLY SUING

FOR NOMINAL DAMAGES OR

DECLARATORY JUDGMENT

A principal reason that the judgment in this case cannot

be said to have altered materially the relationship between

the parties is that it is essentially meaningless; no lessons

can be learned from the judgment. The judgment fails to

provide Mr. Hobby Sh. 4 state officials with any

guidance regarding w y went w in their

treatment of Petitioners or how they can aker their future

conduct to avoid depriving others of their civil rights.

Petitioners have only themselves to blame for the

opaqueness of the judgment in this case. Had they sought

a declaratory judgment or nominal damages, then the

issues could have been framed to the jury in such a way as

to permit the jury to state clearly how it believed that

Petitioners’ rights had been violated.’ Petitioners should

* For example, the jury could have been asked whether Mr. Hobby

had violated any of Petitioners’ civil rights and, if so, to specify what

rights had been violated and the manner of the violation.

Alternatively, the jury could have been asked whether specifically

(continued...)

16

not be heard to complain about the denial of their

prevailing party claim when the reason for that denial --

failure to obtain any meaningful relief -- may well have

been a direct result of their failure to seek either nominal

damages or declaratory judgment.

Moreover, an award of nominal damages is not by itself

an indication of meaningful relief. Petitioners cite case

law and ises attesting to the importance accorded

nominal damages judgments in past centuries. Pet. Br. 25-

29. Petitioners fail to point out, however, that declaratory

judgments were unavailable in this country before 1919,°

and thus a suit for nominal was often the onl

way that an aggrieved party who suffered no out-ot-

poc in a j declaring his rights.

With the increased availability of declaratory judgments,

suits for nominal damages have become less common in

recent years. Today, nominal damages judgments are far

more likely than in centuries past to result from a failed

more than one of the scores of procedural due process protections

mandated by the Due Process Clause. Indeed, the failure of the jury

to any damages to Petitioners is a good indication that the jury

believed that the violations of Petitioners’ civil rights were trivial.

, Wright, Miller, & Kane, Federal Practice and

Procedure: Civil 2d § 2752 at 571 (1983). Declaratory jud ts

in the federal courts until 1934 with the j

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17

attempt to obtain a monetary award than from a genuine

desire to obtain a declaration vindicating one’s legal rights.

,

based on a nominal damages award that -- due to

Petitioners’ consciously chosen litigation strategy -- is

devoid of all meaning.

18

CONCLUSION

Amici curiae W Legal song n> U.S.

Respectfully submitted, |

DANIEL J. POPEO

RICHARD A. SAMP

(Counsel of Record)

WASHINGTON LEGAL

FOUNDATION

— N Street, N.W.

—y 4 DC 20036

(02) 8 7-0240

Counsel for amici

June 15, 1992